Endorsement

COURT FILE NO.: 108/11
DATE: 20120217

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Nicholas Augustine

BEFORE: M.A. Code J.

COUNSEL:
Edward Royle , for the Appellant

Brad Demone , for the Respondent

HEARD: February 17, 2012

[ 1 ] The Appellant Augustine was convicted of failing to appear, contrary to s. 145 of the C riminal Code . He was required to appear at 3:00 p.m. at the Old City Hall Court House and a bench warrant issued at 3:45 p.m. when he failed to appear. He is a schizophrenic and he testified that he attended at the Finch Court House at 3:00 p.m., realized it was the wrong court, and then travelled downtown to Old City Hall, arriving at about 4:30 p.m. He gave his name at a second floor office and was told to leave.

[ 2 ] The trial judge, Ritchie J., rejected the Appellant’s evidence as unreliable and held that it did not raise a reasonable doubt. The trial judge, of course, was entitled to make these findings. However, he was obliged to base them on a consideration of all the relevant evidence. It is an error in law to consider the evidence of any witness piecemeal, in isolation from the other relevant evidence. See: R. v. J.M.H. 2011 SCC 45 ; R. v. Morin (1992), 1992 40 (SCC) , 76 C.C.C. (3d) 193 at 200 (S.C.C.). It is also a misapprehension of evidence, and a miscarriage of justice, to fail “to consider evidence relevant to a material issue” if that failure plays “an essential part in the reasoning process resulting in a conviction”. See: R. v. Morrissey (1995), 1995 3498 (ON CA) , 97 C.C.C. (3d) 193 at 217-221 (Ont. C.A.).

[ 3 ] Unfortunately, the trial judge committed both of the above errors when he rejected the Apellant’s evidence. The defence had called the Appellant’s mother who gave important corroborating evidence on a number of points relating to the Appellant’s failed efforts to attend court on time. She is a registered practical nurse and, after hearing her evidence, Crown counsel submitted that “his mother definitely is credible” and asked the trial judge to dismiss the charges. In these circumstances, the trial judge was obliged to consider the Appellant’s evidence, together with the corroborating evidence from his mother, before deciding whether the Appellant’s account was reliable or not.

[ 4 ] At no point in the trial judge’s reasons did he make any reference to the mother’s apparently credible corroborating evidence. I cannot tell whether he considered it and it appears that he did not.

[ 5 ] The Crown concedes that the appeal ought to be allowed. I agree with the Crown’s concession. The Crown is not seeking to re-prosecute the Appellant in the particular circumstances of this case.

[ 6 ] Accordingly, the appeal is allowed, the conviction is set aside, and an acquittal is entered.

M.A. Code J.

Date: February 17, 2012