COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Weckwerth, 2013 ONCA 666
DATE: 20131101
DOCKET: C56534
Goudge, Cronk and Pepall JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Eric Weckwerth
Appellant
Michael A. Crystal, for the appellant
Chris De Sa, for the respondent
Heard and released orally: October 30, 2013
On appeal from the conviction entered on December 5, 2012 by Justice Gregory P. Rodgers of the Ontario Court of Justice, sitting without a jury.
ENDORSEMENT
[1] The appellant was convicted of trafficking in a controlled substance arising out of an alleged hand-to-hand transaction observed by a police officer. The transaction was with Cole McCarthy, who was arrested shortly afterward in possession of a controlled substance.
[2] The trial judge expressly rejected the appellant’s explanation of his encounter. However he failed to address McCarthy’s exculpatory evidence that he acquired the substance in his possession on arrest, from another source prior to his encounter with the appellant.
[3] In our view, this failure requires a new trial.
[4] This was not a case of a complainant telling one story, and an accused telling the opposite story where express acceptance of the complainant’s evidence coupled with the verdict may be enough that the trial judge does not need to directly address the accused’s evidence.
[5] This case was one where McCarthy’s exculpatory evidence, which was not addressed by the Crown’s evidence or the appellant, could have exonerated the appellant or raised a reasonable doubt about his guilt. We cannot tell from the trial judge’s reasons whether he rejected that evidence, or if not, how it could stand with the Crown’s evidence, or if he simply did not consider it. The trial judge’s acceptance of the officer’s evidence, his rejection of the appellant’s own evidence, and the verdict, do not permit us to fill that void. See R. v. Stewart, 2003 Carswell ON, p. 283.
[6] The conviction must be set aside and a new trial ordered.
“S.T. Goudge J.A.”
“E.A. Cronk J.A.”
“S.E. Pepall J.A.”