ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: 12-0162
DATE: 20131219

B E T W E E N:

HER MAJESTY THE QUEEN

Pamela Borghesan, for the Crown

Respondent

• and -

WADE WILSON

Gregory Lafontaine, for the Appellant

Appellant

HEARD: November 14, 2013

REASONS FOR JUDGMENT

[On appeal from the judgment of Douglas J. dated September 19, 2012]

Fragomeni J.

STATEMENT OF THE CASE

1The appellant was tried before the Honourable Mr. Justice N. Douglas, at the Ontario Court of Justice at Guelph, Ontario, beginning on September 17th, 2012, on his plea of not guilty to an Information, upon which the Crown proceeded summarily, alleging that he:

On or about the 22nd day of April in the year 2011 at the City of Guelph in the said Region, did in committing an assault upon Corey Andrew Fischer cause bodily harm to him contrary to Section 267(b) of the Criminal Code;

And further that

On or about the 22nd day of April in the year 2011 at the City of Guelph in the said Region, did in committing an assault upon Michelle Elizabeth Neal use a weapon to wit, a beer bottle contrary to Section 267(a) of the Criminal Code.

2After a three-day trial, the trial judge delivered an oral judgment on September 19th, 2012, finding the appellant guilty on both counts. On October 30th, 2012, the appellant was sentenced to a suspended sentence and 12 months probation (including 50 hours of community service) with respect to Count #1 (“assault bodily harm”), and a suspended sentence and 12 months probation with respect to Count #2 (“assault with weapon”) to be served concurrently. A restitution order for $6,270, a DNA Data Bank order, and a s. 110 weapons prohibition for 5 years were also imposed.

3The appellant hereby appeals against the conviction.

SUMMARY OF THE FACTS

4The Crown accepts as substantially correct the summary of the facts as set out by the appellant in his factum at paragraphs 4 to 14 as follows:

4. On the evening of April 21st, 2011, the two complainants, Corey Fischer and Michelle Neal, attended the Stampede Ranch bar in the City of Guelph with a couple of other friends, Miranda Garner and Nick Goetz. At approximately 2:00 – 2:30 a.m., the friends found themselves outside on the bar patio enjoying drinks and conversation.

5. Mr. Fischer testified that while on the patio with his friends, three men passed them and began yelling obscene things towards the women. Mr. Fischer yelled back, “Get out of here, I don’t want any problems.” One of the men started whipping his coat at Mr. Fischer, so he grabbed it and threw it away from the man. Mr. Fischer then turned back to continue speaking with his friends. Someone yelled something at him, and as he turned around, a beer bottle came at him. Mr. Fischer felt his teeth get knocked out and Ms. Neal came over to look at him. As Ms. Neal hugged him, he saw her get hit on the head and fall to the ground. Mr. Fischer could not identify the individual who threw the bottle at him or at Ms. Neal. Mr. Fischer testified that as a result of his injury, he had to undergo reconstructive surgery and was required to wear a retainer plate with three teeth on it.

6. Michelle Neal testified that there was a bunch of commotion and yelling as three men approached them from outside the patio. One of the men outside of the patio began whipping his coat over the fence at Mr. Fischer and yelling at him. Mr. Fischer grabbed the coat and pulled it over the fence. Ms. Neal then saw Mr. Fischer get hit in the face with a bottle. She stepped in front of Mr. Fischer to see if he was okay and she was struck in the back of the head with what she believed was a bottle. She was knocked out cold and sustained bruises and bumps on the back of her head.

7. Miranda Garner testified that while she and her friends were talking on the patio, a man whipped his jacket at Mr. Fischer. Once Mr. Fischer grabbed the jacket, bottles began flying around. Ms. Garner did not see who was throwing the bottles. Ms. Garner then jumped the fence with some other people and began running after the men. She went after the men and asked them to come back and see what they had done to her friends. The men refused.

8. Ethan Ortlipp was working at the Stampede Ranch as a bouncer that evening. He had since returned to his native country, Australia, but returned for the trial. At approximately 2:00 – 2:30 a.m. on April 22, 2011, Mr. Ortlipp heard there was a fight happening outside. He went outside and noticed three men outside the bar on the grass near the patio. There was an argument in progress and as soon as Mr. Ortlipp got close to the action, he saw a man get hit in the face. One of the men outside of the bar then picked up a bottle and threw it at a woman standing on the patio. Mr. Ortlipp then assisted both injured parties before jumping the fence and chasing the men to the edge of the road. Although he was not certain if it was the Appellant who threw the bottles, Mr. Ortlipp was “100 percent certain” that it was the same individual that threw both bottles.

9. Constables Andrew McLachlan and Jason Geerts attended the scene that evening, after receiving a dispatch call at 2:14 a.m. Upon their arrival, they found the Appellant being attended to by paramedics. Constable Geerts spoke to the Appellant’s brother, Rory, who advised him that there were two individuals that were responsible for the injuries and that they were still at the Stampede Ranch. Constable Geerts attended the Stampede Ranch with the Appellant and his brother and was directed by them to two individuals they felt were responsible. The police spoke to the two individuals and determined that they were not part of the incident. When Constable Geerts returned to speak to the Appellant and his brother, Rory stated that he could not be sure that they were the individuals responsible and did not think it was them.

B. Evidence of the Appellant

10. At the time of trial, the Appellant was starting his third year of his Ph.D. at the University of Waterloo in the Recreation and Leisure Studies Department. The Appellant testified that he attended the Stampede Ranch on April 21st, 2011 with his brother, Rory, and his friend, Matthew Cassidy. He testified that he had 8 beers while at the bar but was not severely intoxicated when they were leaving the bar at 2:00 a.m. While the three men were walking outside the bar trying to find a taxi cab, the Appellant heard someone yell from the patio, “Hey fags, have fun going home and jerking each other off.” Mr. Cassidy then said something back to group on the patio, but the Appellant did not hear what was said.

11. A verbal confrontation ensued and when the Appellant was close enough to the patio, Mr. Fischer tried to punch him and hit him. The Appellant put up his hands and tried to grab Mr. Fischer’s hands, but was struck in the head with a beer bottle. The Appellant felt blotchy, blackness and was in shock and became disoriented. He stumbled back and noticed he was bleeding. The Appellant bent down and felt a beer bottle next to his foot. Other beer bottles and things were being thrown towards him from the patio, so he became scared and picked up the beer bottle and tossed it back towards the deck at nobody in particular. He was then chased by a group of people and surrounded in a nearby McDonald’s parking lot. Ms. Garner scratched at his face and neck and ripped his necklace off. The Appellant eventually received four stitches to his head.

C. Other Defence Witnesses

12. Matthew Cassidy testified that when he heard the verbal remarks from the patio, he initially thought it was someone that knew him. Once he determined that he did not know anybody on the patio, he replied, “Okay cool it guys, I don’t get it…Why did you have to say that…Are you trying to show off for these girls here…My girlfriend is hotter than these girls.” A verbal argument ensued, and bottles started coming from the patio. Mr. Cassidy was hit in the head and started bleeding. He then ran towards the McDonald’s parking lot as people chased him. He was again struck at the side of the head and fell to the ground.

13. The Appellant’s younger brother, Rory, testified that he was a few paces ahead of Mr. Cassidy and the Appellant when he turned around and noticed a commotion in front of the patio involving his brother, Mr. Cassidy and other individuals on the patio. Rory then noticed a man in a plaid shirt reach over the deck and hit the Appellant on the back of the head with a beer bottle. Rory went over and attempted to grab the man with the plaid shirt, but the man was pulled back by a group of people. He then assisted the Appellant to get up off the ground and they both ran off as more objects were coming in their direction from the patio.

14. Andrew Boyce was called by the defence as a character witness. He was an Ontario Provincial Police officer who testified that the appellant’s general reputation in the community was that he was a very honest and peaceful person.

5The Crown relies on the following additional facts:

1. The Respondent accepts as substantially correct paragraphs 1 to 14 of the Appellant’s Factum and relies upon the following additional facts:

2. There were no other people on the grass area other than those who were involved in the altercation.

3. Ethan Ortlipp had no connection to any involved party. He was working that night, and had not consumed any alcohol.

4. Mr. Ortlipp described the man who threw both bottles as wearing a gold styled hat, with blood on the back of his head. The Appellant testified he was wearing a similar styled hat, and had a head injury.

5. Mr. Ortlipp described the throwing of the beer bottle as very fast, not a lob. It was thrown as if it was a baseball.

6. He further testified that the person who threw the beer bottles then asked those on the patio to jump the fence and fight him.

7. The Appellant changed his direction of travel, and went over to the deck once there was some banter with the people on the patio.

8. The Appellant was involved in the banter; he probably said something like “fuck you”.

9. To extricate himself from the situation, the Appellant agreed that all he had to do was step back.

10. After being struck, the Appellant could have just walked away.

11. The Appellant did not see his brother or his friend throw any beer bottles.

GROUNDS OF APPEAL

6The appellant raises two grounds of appeal:

1. Judicial Notice of “bar fight” Cases

7The trial judge approached the case as a classic “bar fight” case, similar to “hundreds of other bar fight cases he had dealt with in the past. By proceeding in this manner, the trial judge fell into error in three ways:

(a) He failed to provide counsel with an opportunity to address the issue of judicial notice;

(b) He erred in taking judicial notice of how “bar fight” cases should be adjudicated;

(c) He failed to undertake a proper analysis set in R. v. W.(D.)., 1991 93 (SCC), [1991] 1 S.C.R. 742.

8The appellant argues that the trial judge improperly applied the decision of the Ontario Court of Appeal in R. v. Ashley, (2012 ONCA 576) released September 7, 2012.

9The appellant argues that the trial judge applied a template for “bar fight” cases and in doing so did not analyze this case on the particular facts of the case. In these circumstances the trial judge erred in law. By suggesting that all bar fight cases are the same leads to the presumption that the accused is less credible. This approach undermines the analysis set out in W.D. At paragraphs 23 and 24 of his factum the appellant sets out the following:

23. It is respectfully submitted that the trial Judge suggests a template for the assessment of evidence in “bar fight” cases that is in effect, contrary to the requisite W.(D.) standard.

24. In a case that turned on credibility, the trial Judge was required to direct his mind to the decisive question of whether the Appellant’s evidence, considered in the context of the evidence as a whole, raised a reasonable doubt as to his guilt. Instead, the trial Judge impermissibly sought out a “franchise” witness that would provide the trial Judge with an “objective” account of what occurred and then placed the determinative weight on such evidence.

25. The Trial Judge Erred in Drawing an Adverse Inference from the Appellant’s Exercise of His Right to Silence

10The appellant submits that the fact that the appellant did not provide a more detailed explanation to the police in his statement cannot be used by the trial judge to assess the credibility of the appellant at trial. The fact that the appellant chose to speak to the police with respect to some matters does not extinguish the right to silence.

POSITION OF THE CROWN

11The Crown sets out the following position in response to the issues raised by the appellant:

1. Standard of Review: The Crown submits that there was admissible evidence reasonably capable of supporting the conclusions reached by the trial judge. The case is not to be re-tried by the appellate court and deference should be paid to the trial judge’s findings of fact and conclusions regarding credibility. The Crown argues that the trial judge properly applied the W.(D.) analysis and a trial judge is not required to explicitly set out the W.(D.) steps in their reasons.

2. Judicial Notice re: Bar Fights v. Common Sense

The Crown submits that where a trial judge articulates propositions based on his or her common sense, that does not amount to the improper use of judicial notice. The Crown submits that while the trial judge did discuss the common elements of a “bar fight” case, no determinations or findings were based on those common elements. Instead the trial judge considered the evidence in the case at bar and made findings based on the evidence heard.

3. Right to Silence

The Crown argues that once the accused voluntarily provides a statement to the police directly on point, then his subsequent trial testimony, if inconsistent with the police statement, is relevant. The Crown points out that the statements supplied to the police were different than his trial testimony and the trial judge was entitled to rely on those differences in assessing the appellant’s credibility. The fact that the appellant omitted significant facts in his statements to the police is relevant.

REASONS OF THE TRIAL JUDGE

Issue: Judicial Notice vs. Common Sense

[12]

Those are the legal issues that I have identified in this case, and I begin with a case that neither counsel cited, and I wouldn’t have expected them to because it will take them by surprise that I start here, but it’s a case that was decided by the Court of Appeal within the last two weeks. It’s R. v. Ashley, it came out on September the 7th, it’s Ontario Judgment #4141, and it’s about judicial notice, and it says that it is not improper for an experienced trial judge that had presided over numerous drug related matters to take judicial notice of how drug couriers typically purchase airplane tickets. And I say, “what in the world does has got to do with this case?”

I begin with Ashley because although I’m not sure whether what I’m about to say falls under the “umbrella of judicial notice” or maybe it’s just common sense, but I have heard hundreds of cases similar to this and almost all of them have had common denominators. This is an allegation of assault in, or just outside the bar. Either I’m taking judicial notice or I’m using my common sense to conclude the following: usually this type of crime involves a lengthy trial; usually it involves one group supporting the victim and one group supporting the accused, and therefore there are usually two diametrically opposed versions of what happened. Always I can say there are inconsistencies among the witnesses. Even among the witnesses on the same side. Always there are agendas; there are motives to colour or exaggerate or minimize the evidence. In many of these cases there has been contact among the witnesses before they have testified and in some cases, like here, there has been actual collusion among some of the witnesses during the trial.

Inevitably alcohol is involved; inevitably there are high emotions and in most cases there is some sort of bravado, what has been referred to in this trial by the accused as “tough guy banter”.

Those things are common to all of these cases that I loosely think of as “bar fight” cases. Sometimes it is difficult, sometimes it is impossible to sort out what really happened – where the truth lies. Sometimes the accused doesn’t even know what really happened. Sometimes the victim doesn’t know what happened. Sometimes the witnesses have portions of what happened and they’re not sure about the other things and that’s human nature. That’s why we have different witnesses testify and a judge to determine, in piecing it all together, whether the Crown has proved its case. Because two witnesses differ in something it doesn’t mean one of them is lying. People see things differently. They don’t notice some things. Was the coat black or red? Who cares?

So here is what the experienced judge does in cases like this. He or she factors all of that and then I think the wise judge would look for objective witnesses, would look for witnesses who were not fueled by alcohol or clouded by anger. Are there any objective witnesses in this whole situation? Sometimes an objective witness will be a bystander who doesn’t know any of the parties. Sometimes it will be a staff member of the bar. Now sometimes staff members of the bar are not always objective, particularly when it is a bouncer who’s complaining about being assaulted by a patron, or if it’s a bouncer who has a beef against somebody or a fondness for another customer. So it is not always, but often it’s the staff member who really has not a whole lot to gain or lose in a trial like this. Sometimes, but not always, it’s a police officer, because those people are sober and they should not be influenced by what they want to see happen.

Many of the witnesses here today would honestly tell me “this is what I’d like to see happen, Your Honour”, and that’s human nature. Of course his brother wants to see him acquitted. Of course the mother of the victim wants to see him convicted. That’s human nature – they’re not to be faulted for that. But their evidence might be coloured because of that, even unintentionally.

And so, are there objective witnesses here in this case? And the Crown Attorney points to what he says is the cornerstone of his case, or what’s sometimes called the franchise witness, and that is the staff member – his name I never did get right, but I think it’s Ortlipp – and I’m going to go over his evidence very carefully. Mr. Ortlipp, who was brought here from Sydney, Australia to testify, the Crown recognized that he would be an important witness and I think he is. And so I look for a calm, sober witness who appears to be impartial.

Issue: Right to Silence

First of all you don’t find yourself in a verbal confrontation – you’re either in one or you’re not in one. And secondly, he used that term “verbal confrontation” eight times in the cross-examination where the Crown was trying to find out from him what his evidence was, and I find that that term is a way of sliding away from the details of what happened.

In his other statement it says “a verbal confrontation started”. What does that mean? Because in his evidence in-chief he says “the whole thing started when these guys on the patio started hurling insults at us”, and he was very specific in what the insults were, “Hey fags, have fun going home and jerking each other off”. Where is that in any of his statements to the police? The whole thing that started this that we were called “fags”. Where is that? It’s not there. I think that’s important. You can’t say, “I covered it by saying there was a verbal confrontation”. If you get into this mess because somebody is calling you a “fag” and insulting you that you’re going home to “jerk each other off”, you would think that that would be paramount in what he wanted to tell the police, and it’s not anywhere in either of those statements.

ANALYSIS AND CONCLUSION

Issue: Right to Silence

13I will deal with the two issues raised in reverse order.

14In R. v. Palmer, 2008 ONCA 797 the Court set out the following at paras. 8 and 9 in its decision to allow the appeal, set aside the convictions and order a new trial:

The appellant raised two issues on her conviction appeal, but in oral argument acknowledged that the second ground would not constitute a free-standing ground of appeal. The appellant's main ground of appeal is that trial judge's reasons for rejecting her innocent explanation for possession of the drugs infringed her right to silence.

We agree. Although the Crown argues, in effect, that defence counsel's (not Mr. Snell) examination-in-chief amounted to an implicit waiver of the appellant's right to silence, we cannot accept that submission. Defence counsel's examination did no more than invite an explanation from the appellant about why she did not advance an explanation to the police. It was open to the trial judge to reject the appellant's explanation given at trial because it was not believable and to use that finding in assessing the appellant's overall credibility. However, the trial judge went further and used the appellant's silence as a basis for finding her incredible. That he was not entitled to do.

15In R. v. G.L., 2009 ONCA 501 R.A. Blair J.A. deals with the right to silence issue at paras. 37 to 39 as follows:

Finally, the trial judge erred, in my view, by drawing an adverse inference against the credibility of the appellant from his silence with respect to two matters during his police interview. In her reasons, she stated:

Even if I were to accept [the appellant's] evidence that in response to the question "and it was of a sexual nature?", he was simply nodding to acknowledge that he heard or understood what the officer was saying, [the appellant] then went on to identify [the complainant] without demurring as to the sexual characterization of what he was describing. He had no difficulty interrupting the officer and correcting him when he did not agree, as when the officer explained Invitation to Sexual Touching and [the appellant] responded "that's she, she never did."

[The appellant's] testimony that he was simply referring to [the complainant] getting on his lap, and trying to put his arm around her when he told the officer "I did something very bad", "it got to serious touching", "it's totally destroyed my private life because of my guilt" flies in the face of logic, particularly when assessed in light of [the appellant's] testimony that although his is uncomfortable with it, he is aware that children often sit on the laps of adult males. [The appellant's] discomfort with children on his lap more logically flows from the fact that he did do "something very bad" to [the complainant], and thereafter was uncomfortable with her or any other child getting onto his lap. I note that [the appellant] did not at any point in his statement to police make mention of [the complainant] sitting on his lap. [Emphasis added.]

It is apparent that the trial judge used the appellant's failure to deny that what happened between him and the complainant was of a sexual nature as proof that, in fact, it was. She used his failure to volunteer that the complainant at some point sat on his lap as supportive of her conclusion that the "something very bad" he acknowledged happened was something very bad of a sexual nature. In both respects she drew an adverse inference about the appellant's credibility from his silence. This, she was not permitted to do. As this Court has recently observed in R. v. Palmer, 2008 ONCA 797, at para. 9:

It was open to the trial judge to reject the appellant's explanation given at trial because it was not believable and to use that finding in assessing the appellant's overall credibility. However, the trial judge went further and used the appellant's silence as a basis for finding her incredible. That he was not entitled to do.

The appellant had a constitutional right to remain silent during any part of the police interview. That right was not extinguished simply because he chose to speak to the officer with respect to some matters and did not exercise his right to silence completely: see R. v. Chambers, 1990 47 (SCC), [1990] 2 S.C.R. 1293, at pp. 1315-1317; R. v. Marshall (2006), 2005 30051 (ON CA), 77 O.R. (3d) 81 (C.A.), at para. 82. The negative inferences the trial judge drew against the appellant were significant and it cannot be said the verdict would have been the same had she not made this error. This error alone would be sufficient to warrant appellate intervention.

16I am satisfied that in accordance with the legal principles set out in Palmer, G.L., and R. v. Rivera, 2011 ONCA 225, the trial judge erred in finding that the appellant was not a credible witness due to the fact that he chose to provide the police with some but not all of the details relating to the confrontation at the bar. In his statement to the police he used the term “verbal confrontation”. At trial he was very specific about what that verbal confrontation was. It is an error to find and conclude that by not providing those details in his police interview the appellant is not credible. As G.L. clearly states, the right to silence was not extinguished simply because he chose to speak to the officer with respect to some matters and did not exercise his right to silence completely. To conclude otherwise would lead to an unreasonable result. Where is the line drawn about how much detail an accused must give about a matter to the police when providing a statement? Does it mean that an accused who testifies at his trial can only provide as much detail as he told the police and if he provides further details during that trial testimony an adverse inference relating to his credibility would be drawn? It would be an error to proceed in that manner.

17I agree with the Crown that a trial judge is entitled to consider a prior inconsistency made by an accused in his statement to the police. For example had the accused stated at trial that the confrontation started because the complainant drove into him with his car while he was standing close to the car or if the accused had testified that the confrontation started because the complainant tripped him and he fell, then those explanations are inconsistent with the police statement stating the confrontation was a “verbal confrontation”.

18However in the case at bar the trial judge uses the lack of detail as to what the verbal confrontation was to draw an adverse inference against the accused.

19The appellant’s right to silence cannot be rendered meaningless in such circumstances. The Crown readily acknowledges that it is not her position that an accused has to say everything when he or she chooses to speak to the police. The Crown argues, however, that in not providing sufficient detail about a portion of his statement as it relates to the events in question, that omission can be considered by the trial judge as an inconsistency affecting an accused’s credibility. I cannot agree with that submission and it is contrary to the legal principles set out in Palmer, G.L., and Rivera.

20I am satisfied, therefore, that this error, on its own, is sufficient to set aside the conviction and order a new trial.

Issue: Judicial Notice of Bar Fights vs. Common Sense

21I agree with the appellant that the factual matrix in the decision in Ashley is distinguishable to the case at bar. In Ashley the defence position at trial was the following:

• As a matter of common sense it was unlikely that a drug importer would knowingly make a declaration that would send her to secondary inspection;

• The accused’s story was that she had been planning to take this trip for some time and to take her daughter.

22The trial judge drew on his experience and applied that experience to the specific issues raised by the defence during the course of the trial. The trial judge held that the position of the accused was not a common sense inference. The trial judge found that the last minute cash purchase in the circumstances was out of the ordinary.

23In the case at bar, the trial judge noted at the outset that all bar fight cases are similar. It is true that after he reviews all the common features of a bar fight he states:

Here’s what we know in this case, having said all of those things in a general way, here’s what we know in this case, …

24The difficulty in proceeding as he did however, is that he started his analysis from a perspective that all “bar fight” cases are similar. This approach, in my view, offends the principles enunciated in W.D. By saying he relies heavily on the “franchise witness” he has signalled at the outset a presumption adverse to the credibility of the appellant before he even took the stand.

25The trial judge states this as part of his reasons:

Usually this type of crime involves a lengthy trial; usually it involves one group supporting the victim and one group supporting the accused, and therefore there are two diametrically opposed versions of what happened ,,,

[emphasis added]

26The trial judge fell into error in that he decided whether something happened by comparing one version of events with another without considering all the evidence and deciding whether he was satisfied beyond a reasonable doubt that the events that form the basis of the crimes charged took place.

27In Watts Manual of Criminal Jury Instructions, the following instructions are given to juries with respect to their approach in analysing and assessing the evidence.

DENIAL OF CONDUCT ALLEGED

The real issue in this case is whether the events alleged to form the basis of the crimes charged ever took place.

It is for Crown counsel to prove beyond a reasonable doubt that the events alleged in fact occurred and that the accused was the person involved in them. It is not for the accused to prove that these events never happened. If you have a reasonable doubt whether the events alleged ever took place, you must find the accused not guilty.

You do not decide whether something happened simply by comparing one version of events with another, and choosing one of them. You have to consider all the evidence and decide whether you have been satisfied beyond a reasonable doubt that the events that form the basis of the crimes charged in fact took place.

[emphasis added]

28The comments made by the trial judge with respect to all bar fight cases having two diametrically opposed versions, signals an approach to the evidence that is inconsistent with this principle and the principles set out in W.D. By proceeding in this fashion the trial judge did not assess this case in accordance with those legal principles and in doing so displaced the Crown burden of proof beyond a reasonable doubt.

29Further, the trial judge states:

And so are there objective witnesses here in this case? … And so I look for a calm, sober witness who appears to be impartial.

Again in proceeding in this fashion the trial judge has signalled his views at the outset that the accused’s testimony will be rejected and it cannot leave him with a reasonable doubt. This approach, in my view, is not in accordance with the principles set out in W.D.

30At paragraph 24 of his factum the appellant submits the following:

In a case that turned on credibility, the trial Judge was required to direct his mind to the decisive question of whether the Appellant’s evidence, considered in the context of the evidence as a whole, raised a reasonable doubt as to his guilt. Instead, the trial Judge impermissibly sought out a “franchise” witness that would provide the trial Judge with an “objective” account of what occurred and then placed the determinative weight on such evidence.

31I agree with that submission.

32I am satisfied that the trial judge erred in proceeding as he did and on that basis the appeal is allowed.

DISPOSITION

33The appeal is allowed. The conviction is set aside. The matter is remitted back to the Ontario Court for a new trial before a differently constituted Court.

Fragomeni J.