ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-11-0135-AP
DATE: 2012-02-22
B E T W E E N:
HER MAJESTY THE QUEEN
Mr. Alex Hardiejowski , for the Respondent
Respondent
- and -
MICHAEL BIDGOOD
self-represented
Appellant
HEARD: February 20 , 2012, at Thunder Bay, Ontario
Mr. Justice J.F McCartney
Decision on Appeal
[ 1 ] The Appellant, Michael Bidgood (Bidgood) appeals the decision of his Honour Justice D. DiGiuseppe in which he was found guilty of committing an indecent act under s. 173(1) (b) of the Criminal Code , given a suspended sentence and was put on probation for 18 months.
[ 2 ] A summary of the facts leading up to the conviction are as follows:
Bidgood and his friend Tracy MacKinnon (MacKinnon) were on their way to a friend’s house for dinner during the afternoon of May 3, 2011.
As they approached their destination, Richard Gaston (Tracy’s ex-husband) and his new wife, Kiersten Gascon drove by.
As the car passed by the Gascons, according to Bidgood, gave them “the finger”.
After dinner, as Bidgood and MacKinnon left their friend’s home, the Gascon’s drove by in their car and as they approached the Gascons testified that Bidgood turned around, dropped his pants and underwear to his knees, and “mooned” them. Bidgood’s explanation for this event was that the button on his pants had snapped, causing his pants to slip down a little, but not to the extent of “mooning”.
The Gascons, who apparently do not get along well with Bidgood and MacKinnon reported the incident to the police and the charge was laid.
The Law
[ 3 ] The test to be applied on this review is one of reasonableness i.e. was the verdict unreasonable or incapable of being supported by the evidence. Another way of putting this is whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered (see R v Burke 1996 229 (SCC) , 1996 S.C.J. No. 27).
[ 4 ] Since Bidgood chose to testify at trial, the issue of credibility arose and the trial judge was required to assess credibility in coming to his decision on reasonableness. This he did by employing the test as set out in D.W. v Queen (63 Canadian Criminal Cases 3 rd at p. 397). This is a three tiered test set out as follows:
If the accused is believed, he must be acquitted
If the accused is not believed but if his evidence leaves reasonable doubt he must be acquitted.
Even if there is no reasonable doubt left after the accused testifies, on the basis of the evidence accepted, does it constitute proof beyond a reasonable doubt such that the accused should be found guilty.
[ 5 ] In his decision, Justice DiGiuseppe set out the above noted test to be applied, and proceeded to explain why he did not believe Bidgood’s testimony (due to inconsistancies and lack of common sense in his explanations). He also explained why his evidence does not otherwise raise a reasonable doubt, and then proceeded to find, on the balance of the evidence which he did accept as credible (the evidence of the Gascons) that he was convinced, beyond a reasonable doubt of the guilt of the accused.
[ 6 ] My conclusion regarding the conviction is that the learned trial judge properly stated the law that applies to situations of this nature and came to a reasonable conclusion when he applied the law to the evidence presented to him at the trial. Consequently I find no fault with his decision, and the appeal regarding the conviction is dismissed.
[ 7 ] Regarding sentence, as was pointed out by the Crown, the sentence is, as it properly should have been at the very low end of the sentencing range for offences of this nature, and thus the appeal against sentence is similarly dismissed.
“original signed by”
The Hon. Mr. Justice J.F. McCartney
Released: February 22, 2012
COURT FILE NO.: CR-11-0135-AP
DATE: 2012-02-22
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – MICHAEL BIDGOOD Appellant
DECISION ON APPEAL McCartney, J
Released: February 22, 2012
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