Court of Appeal for Ontario

Date: 2018-01-26 Docket: C62950

Judges: Hoy A.C.J.O., MacPherson and Rouleau JJ.A.

Between

Her Majesty the Queen Appellant

and

Patricia Duffy Respondent

Counsel

Melissa Adams, for the appellant Leo Kinahan, for the respondent

Heard and released orally: January 26, 2018

On appeal from: The acquittal entered by Justice J.E. Ferguson of the Superior Court of Justice on October 19, 2016.

Reasons for Decision

[1] The respondent was charged with aggravated assault and obstruction of justice. The Crown alleged that the respondent had pushed the complainant and caused him to fall down the exterior stairs to the bar where the respondent worked.

[2] The Crown relied on circumstantial evidence, including video footage from the bar security cameras. One camera showed the respondent pushing the complainant backwards out the door to the bar. A second camera showed the respondent falling down the stairs. Neither camera captured what happened on the landing outside the door to the bar.

[3] After the conclusion of the Crown's case, the trial judge granted the respondent's motion for directed verdicts of acquittal. In her ruling, the trial judge wrote:

It is my role to analyze all of the evidence to determine all aspects of the charges have been met even inferentially. I've done that. I am not satisfied that as a result of this analysis, the Crown has met her burden of proof beyond a reasonable doubt as to the essential elements of these charges. This is even allowing the most favourable inferences of the evidence heard and seen to the Crown's case. Inferences suggested by the Crown cannot be reasonably or logically drawn from the facts established by the evidence … The circumstantial evidence is in the unclear security video which does not record the actus reus of which the respondent is charged. I agree that the videos we saw are momentary and incomplete. [Emphasis added.]

[4] The Crown appeals the trial judge's ruling on the motion for directed verdicts, arguing that the trial judge erred in her application of the test for directed verdict by treating the issue as one of a determination of guilt or innocence based on the Crown's ultimate persuasive burden, rather than a determination of whether there was any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty. It further argues that the trial judge failed to resolve competing permissible inferences in favour of the Crown as she was required to do.

[5] The respondent argues that, while the trial judge may have made an inadvertent misstatement in stating that the Crown had not met its burden of proof beyond a reasonable doubt, it is clear that she conducted the proper review and, after ruling out speculation and conjecture, found that there was no evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty.

[6] We agree with the Crown that the trial judge erred in her application of the test for directed verdict. As the Crown submits, the trial judge weighed the Crown's proposed inference that the respondent pushed the complainant and caused him to fall down the stairs against the opposing inference that the inebriated respondent tripped on the landing outside the door to the bar. We further agree with the Crown that the video footage it relied on at trial is some evidence to support the inference that the respondent pushed the complainant and caused him to fall down the stairs.

[7] The appeal is accordingly allowed, the directed verdicts of acquittal are set aside, and a new trial is ordered before a different judge on both charges against the respondent.

"Alexandra Hoy A.C.J.O."

"J.C. MacPherson J.A."

"Paul Rouleau J.A."