Court of Appeal for Ontario

Date: 2017-03-23 Docket: C62138

Judges: Doherty, Huscroft and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Dani St. Pierre Appellant

Counsel

Peter Copeland, for the appellant

Bari Crackower, for the respondent

Heard: March 21, 2017

Appeal Information

On appeal from the conviction entered by Justice G. Valin of the Superior Court of Justice, dated October 21, 2015, and the sentence imposed on November 13, 2015.

Appeal Book Endorsement

[1] In our view, there is merit to two of the appellant's arguments.

[2] First, the trial judge used the fact that the appellant was identified as "Daniel" (among other names) in his CPIC as evidence to "refute" the appellant's evidence that he used the name Dani and not Daniel. With respect, the controls of the CPIC had no logical relevance to how the appellant described himself. The trial judge's use of the name description in the CPIC to find that the appellant was not telling the truth about his use of the name "Daniel" was an error.

[3] Standing alone, the error may well have not required the quashing of the conviction. There were many reasons to reject the appellant's implausible testimony.

[4] However, there is a second, and in our view, fatal error. The trial judge (at pp. 22, lines 25-31 of the reasons) used his rejection of the appellant's evidence as "confirmatory" of the officer's identification evidence. Having rejected the appellant's evidence, the trial judge could not, on this record, turn the rejection of the evidence into positive circumstantial evidence capable of "confirming" the Crown's case.

[5] We agree with the Crown that there were features of the appellant's evidence which were consistent with the officer's evidence and therefore capable of providing some confirmation. We do not, however, accept that the trial judge's reference to the "failed attempt" by the appellant to disassociate himself from the transaction as a reference to those parts of his evidence that was consistent with the officer's identification evidence. The trial judge had earlier described the appellant's evidence as "reeking of fabrication". In our view, his reference to the appellant's "failed attempt" to disassociate himself from the transaction is a reference to the appellant having fabricated his evidence.

[6] On this record, the trial judge could certainly reject the appellant's evidence as fabricated. There was, however, no basis upon which to take the additional step and use that false evidence as circumstantial evidence of guilt: see R. v. MacIsaac, 2017 ONCA 172, at paras. 47-48.

[7] This error is fatal. The trial judge erroneously identified the appellant's fabricated evidence as one of two features of the evidence that confirmed the identification evidence. We cannot say that the verdict would necessarily have been the same had the trial judge not misused his rejection of the appellant's evidence.

[8] The appeal is allowed, the convictions on counts one and two are quashed and a new trial ordered. We agree with the Crown that the findings of guilt on count three (breach of probation) can stand. We would set aside the "Kienapple" stay entered on that count, enter a conviction and impose a sentence of 120 days concurrent.

[9] The appellant has been in custody since his conviction. As we have ordered a new trial on counts one and two, the time served is credited to count three. It would appear that the sentence has been served.

[10] The firearm prohibition is set aside. The DNA order stands.