COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Vushaj, 2015 ONCA 388

DATE: 20150529

DOCKET: C53898

Laskin, MacFarland and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Leke Vushaj

Appellant

Frank Miller, for the appellant

Mabel Lai, for the respondent

Heard: May 27, 2015

On appeal from the conviction entered on April 26, 2011 by Justice Steven Rogin of the Superior Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1] The trial judge gave three reasons for rejecting the appellant’s evidence. The appellant challenges the third of these reasons. In effect, the trial judge found that the appellant perjured himself before the PSA hearing. Yet that finding is not supported in the trial record. The PS complaint was not filed as an exhibit and the transcript of the PSA hearing was not even before the court. The trial judge also appears to have found that the appellant blamed his sister-in-law for any inconsistencies, when there was no evidence that he did blame her, and the inconsistencies themselves were minor.

[2] For these reasons the trial judge`s third reason for disbelieving the appellant’s evidence cannot stand. As the trial judge considered that his third reason “greatly” affected the appellant’s credibility, the Crown properly did not seek to apply the proviso.

[3] The appeal is allowed, the convictions are set aside and a new trial is ordered.