ONTARIO
SUPERIOR COURT OF JUSTICE
EAST REGION
COURT FILE NO.: CR-10-0030-AP
DATE: 2013/09/18
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Respondent
K.S.
Gerrard McGeachy, for the Crown
Robert J. Reynolds, for the Respondent
Appellant
HEARD: August 29, 2013 (Belleville)
On Appeal from the Decision of the Honourable Madam Justice Deluzio of the Ontario Court of Justice dated June 8, 2010.
SCOTT j.
Overview
[1] This is a Crown Appeal from an acquittal on the charge of Sexual Assault, S. 271 of the Criminal Code.
[2] The appellant, a young offender, was originally charged with shoplifting in a grocery store in Trenton, Ontario. During the course of the shoplifting, it was alleged that he sexually assaulted the complainant with his penis by prodding her in the buttocks with his exposed penis while she was searching for an item located on the top shelf in one of the store’s aisles. In addition to the sexual assault charge, the accused was also charged with an indecent act in relation to the alleged exposure of his penis. At the outset of the trial, the appellant entered a plea to the shoplifting charge but not guilty to the remaining two charges.
[3] Following the trial, the learned trial judge concluded that no sexual assault had occurred beyond a reasonable doubt. On the same reasoning, having found that no sexual assault had taken place, the trial judge also found the appellant not guilty of the indecent exposure. The parties agree that the judge’s conclusion on the sexual assault component was reached without allowing the Crown to make any submissions on this charge and that this constitutes an error in law.
[4] The parties also agree that notwithstanding that an error in law occurred, the Crown has a duty, in seeking a new trial, “to satisfy the court that the verdict would not necessarily have been the same if the trial judge had properly directed the jury.” [1]
[5] In other words, the Crown must demonstrate something beyond just an error in law where the Crown is the appellant as is the case before this court.
[6] In R v. Graveline 2006 SCC 16, [2006] S.C.J. No16 at paragraph 14, this particular rule is more particularly set out by Superior Court Justice Fish when he wrote:
“It has been long established, however, that an appeal by the Attorney General cannot succeed on an abstract or purely hypothesized possibility that the accused would have been connected but for the error of law. Something more must be shown. It is the duty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal. The Attorney General is not required, however, to persuade us that the verdict would necessarily have been different.” And, at paragraph 16, Justice Fish states, “The parties agree that acquittals are not lightly overturned.”
[7] Having reviewed the transcript in detail and in particular as it relates to the various witnesses, including the testimony of the appellant, I conclude that the evidence is capable of supporting a conviction. The evidence of the complainant and that of Alain Reginier is of such detail and clarity that it is apparent that the verdict could have been different.
Appeal Allowed
[8] My thanks to both counsel for their assistance. Counsel indicates that they wished to address me regarding the next step which is normally ordering a new trial. I would ask that counsel speak with our trial coordinator to arrange such a meeting, if required.
The Honourable Justice R. Scott
Released: September 18, 2013
COURT FILE NO.: CR-10-0030-AP
DATE: 2013/09/18
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
K.S. Appellant
REASONS FOR DECISION
Scott R.
Released: September 18, 2013
[^1]: R v. Vezeau 1976 7 (SCC), [1977] 2 S.C.R. 277, p. 10