SUPERIOR COURT OF JUSTICE – ONTARIO
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: SCA(P)1384/11
DATE: 20120323
RE: HER MAJESTY THE QUEEN
Appellant
v.
JEREMY DENNIS
Respondent
BEFORE: WEIN J.
COUNSEL:
S. Andersen, for the Crown
C. Wiseman, W. Gilmore, for the Respondent
E N D O R S E M E N T
[On summary conviction appeal from the decision of Khoorshed J. of the Ontario Court of Justice dated August 25, 2010.]
[ 1 ] The respondent was charged with assault with a weapon. This was a serious charge: a knife was involved in the assault, and injuries were suffered by the complainant.
[ 2 ] After two days of evidence, at the close of the Crown’s case, the defence brought a motion for a directed verdict. Submissions were made on the motion. The trial judge dismissed the charge, finding that the Crown had not proven the case beyond a reasonable doubt.
[ 3 ] It is clear on the record before me that the trial judge thought that the burden of proof he was applying was proof beyond a reasonable doubt. He stated during the course of his reasons:
“The second point to be determined is whether this is a guilty or not guilty situation. It is a trial. It is not a preliminary hearing. So we have to have total evidence beyond a reasonable doubt that this accused in fact stabbed the alleged victim.”
[ 4 ] In conclusion the trial judge indicated:
If this was a question of committal, there might be some reason to commit, but this is a case of guilt or innocence and there is reasonable doubt, so the charge is dismissed.
[ 5 ] When reminded that the application was not for final verdict but simply an application for a directed verdict, and that the defence had not elected whether or not to call evidence, the court stated “directed verdict you want? I’m giving you a directed verdict.” It appears that the trial judge either misunderstood the application, or forgot the nature of the application, or applied the wrong legal test.
[ 6 ] Trial judges in our extremely busy courts make mistakes. In this case, once the trial judge realized he had applied the test for making a final decision on an application for a directed verdict, it would have been preferable if he had simply acknowledged the error and sought counsel’s advice. If counsel had agreed, he could have proceeded to re-consider the application and apply the appropriate test, or absent counsel’s agreement, a mistrial could have been declared at that stage. Instead, an appeal was necessitated despite an obvious mistake.
Application for a Directed Verdict
[ 7 ] There is no dispute about the test to be applied on an application for a directed verdict. The test is as set out in U.S.A. v. Shephard 1976 8 (SCC) , [1977] 2 S.C.R. 1067. That test is whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. Easy to state, the test is not always easy to apply. Clearly, there must be some evidence for every essential element of the crime.
[ 8 ] In this case, it is not disputed that the essential element in issue was the identification of the respondent as the person who had assaulted one Mr. Salifu with a knife. Others saw the attack, and there is no dispute that the assault involved a knife and that Mr. Salifu was injured and treated at the hospital. There was no direct evidence that the respondent was the person who assaulted Mr. Salifu.
[ 9 ] There was, however, strong circumstantial evidence linking him to the offence, and to being the attacker. The neighbour who witnessed the fight said four men were present and two were fighting. She saw the victim walk away and the other three men go into the home of Mr. Lewis, the driver of the vehicle. She then saw two men exit the home and get into a car and provided a description of the car to the police. Shortly after the police located the vehicle with Mr. Lewis and the accused in it.
[ 10 ] The respondent’s injuries, including swelling to his face, were consistent with the defensive approach taken by Mr. Salifu. A knife with Mr. Salifu’s blood on it was taken from the home of the driver of the vehicle, Mr. Lewis, in which the respondent was sitting and arrested. Mr. Lewis indicated that the respondent had thrown the knife into the kitchen. Mr. Lewis also testified that the respondent had been injured in a fight with a male, that they were the only two persons fighting, and that the respondent went into his house to wash up after the fight.
[ 11 ] The sole evidentiary issue of significance at trial was whether or not Mr. Lewis adopted his previous videotaped statement in which he indicated he observed the respondent throw the knife into the living room where it was later found by the police.
[ 12 ] After having his memory refreshed, Mr. Lewis did not acknowledge that he had seen the respondent “dash” the knife in his kitchen as his videotaped statement apparently suggested. He did, however, agree that he saw the respondent with the knife in his house, in his kitchen, and the knife looked like the one which was subsequently shown to have the victim’s blood on it.
[ 13 ] Accordingly, there is clear evidence that the respondent was at the fight, that he was seen shortly afterwards with a knife that had the victim’s blood on it, and that he was injured in a manner consistent with the defensive actions taken by the victim. There is also evidence of his flight, immediately after. This is more than adequate evidence of identification to meet the Shephard test.
[ 14 ] The appeal of the Crown is allowed, and the matter is remitted to a different Ontario Court Justice for a re-trial.
Wein J.
DATE: March 23, 2012
COURT FILE NO.: SCA(P)1384/11
DATE: 20120323
SUPERIOR COURT OF JUSTICE – ONTARIO SUMMARY CONVICTION APPEAL COURT RE: HER MAJESTY THE QUEEN v. JEREMY DENNIS BEFORE: WEIN J. COUNSEL: S. Andersen, for the Crown W. Gilmore, for the Respondent [On summary conviction appeal from the decision of Khoorshed J. of the Ontario Court of Justice dated August 25, 2010.] Wein J.
DATE: March 23, 2012