COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jack, 2013 ONCA 82

DATE: 20130208

DOCKET: C55039

Doherty, Simmons and Tulloch JJ.A.

Her Majesty the Queen

Appellant

and

Jason Andrew Jack

Respondent

Christopher Webb, for the appellant

Jack McCulligh, for the respondent

Heard and released orally: February 1, 2013

On appeal from the order of Justice F. Dawson of the Superior Court of Justice, dated January 18, 2012.

ENDORSEMENT

[1] The respondent was convicted on two charges after a lengthy trial in May 2010. The Summary Conviction Appeal Court (“SCAC”) ordered a new trial in September 2011. The Crown seeks leave to appeal from that order and if leave is granted appeals from that order.

Should Leave be Granted?

[2] The grounds of appeal raised by the Crown do not raise jurisprudential issues. The Crown’s arguments rely on the application of well-established case law to the specifics of this case. A preliminary review of the arguments advanced by the Crown, however, satisfies us that the grounds have considerable merit.

[3] When, as in this case, the respondent was convicted at trial and a new trial was ordered by the SCAC judge on grounds that seem to this court to be suspect, the administration of justice may be served by granting leave and addressing the merits. By doing so, the court potentially avoids an unnecessary retrial years after the relevant events. That retrial would come at significant cost to limited judicial resources and at considerable inconvenience to the many witnesses involved in this matter.

[4] Taking into account our preliminary assessment of the merits and the potential advantage to the administration of justice by a consideration of the merits of the appeal, we are satisfied that this is an appropriate case in which to grant leave to appeal.

the merits of the appeal

[5] We agree with the Crown’s submission that the SCAC judge erred in law in concluding that a miscarriage of justice had occurred by virtue of the trial judge’s failure to take into account the evidence given by one of the police officers on what was referred to as the “zipper issue”. We will refer to that officer as the “second officer”.

[6] The SCAC judge concluded that the evidence of the second officer supported the respondent’s evidence that his zipper was broken at the time of his arrest, thus explaining why his zipper was down when he was confronted by the police (but not explaining why his penis was erect and visible under his underwear through the opened zipper). The SCAC judge further held that the trial judge, in rejecting the respondent’s evidence, particularly his alibi evidence, had relied on her finding that the zipper was not broken. The SCAC judge concluded that the trial judge had failed to consider the evidence of the second officer and that the evidence was material to the trial judge’s determination that the respondent’s alibi should be rejected. The SCAC judge concluded that as the trial judge had failed to consider material evidence, the convictions must be quashed as a miscarriage of justice.

[7] On our review of the record, we are satisfied that it was the SCAC judge and not the trial judge who misapprehended some of the evidence relating to the “zipper issue”. Contrary to the SCAC judge’s review of the evidence, the first police officer at the scene did not give evidence that was substantially different from the evidence given by the second officer. It was the evidence of the second officer that the SCAC judge concluded the trial judge had failed to consider.

[8] On the evidence of the first officer, the respondent’s shorts were unbuttoned and unzipped when the first officer confronted him. On the evidence of the second officer, the respondent’s shorts were unbuttoned and unzipped when sitting in that officer’s vehicle shortly after his arrest. There was no evidence that the respondent ever buttoned up his shorts. The evidence given by the officers about the zipper and the undone button was substantially the same. The second officer’s evidence, like that given by the first officer, suggested that the zipper had come down because the pants were not properly buttoned and not because the zipper was broken.

[9] Nor was there any basis upon which to find that the trial judge failed to consider the evidence of the second officer. The trial judge specifically identified that officer’s evidence by reference to its transcript location and indicated that, in her view, his evidence did not add anything to the narrative or the evidence relevant to the “zipper issue”. Those assessments were available to the trial judge on this record.

[10] Lastly, we agree with the Crown’s submission that whatever may be said about the evidence relating to the “zipper issue”, that issue was far from central to the trial judge’s analysis of the evidence in this case. This was quite simply an overwhelming circumstantial evidence case against the respondent and the trial judge saw it as such. There were several weaknesses in the alibi evidence which fully justified the trial judge’s conclusion that the alibi evidence did not leave her with a reasonable doubt.

[11] Leave to appeal is granted, the appeal is allowed, the order directing a new trial is set aside, and the convictions entered at trial are restored.

“Doherty J.A.”

“Janet Simmons J.A.”

“M. Tulloch J.A.”