SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 13-AP-4-107

DATE: 20140228

RE: HER MAJESTY THE QUEEN, Appellant v. NANCY LOWE, Respondent

BEFORE: TROTTER J.

COUNSEL:
Kim Walker, for the Crown/Respondent

Timothy E. Breen, for the Appellant

HEARD: FEBRUARY 27, 2014

ENDORSEMENT

[SUMMARY CONVICTION APPEAL]

[1] After a trial before the Honourable Justice L. Favret of the Ontario Court of Justice, the appellant was found guilty of assault with a weapon. She was given an absolute discharge. She appeals from the finding of guilt.

[2] This was a one-witness case. The complainant testified that, in the context of a deteriorating marriage, when he and the appellant were living separate and apart in the same home, a dispute occurred in the kitchen. The complainant wished to make popcorn on the stovetop. The appellant did not want him to use the kitchen. She got in between the complainant and the stove on three occasions, turning off the heating element each time. On the last occasion, the appellant shoved the expanding popcorn container into the complainant’s neck, causing a burn mark. He reported the matter to the police a few days later.

[3] The complainant was vigorously cross-examined on his account. He was pressed on some inconsistencies with his statement to the police, and with his failure to tell the police certain facts that came out for the first time during his testimony (e.g., that one of his sons came into the kitchen shortly after the incident and saw a mark on his neck).

[4] The learned trial judge provided extensive and carefully written reasons for judgment. She considered all of the alleged shortcomings in the complainant’s evidence. The trial judge characterized some aspects of his evidence as “unresponsive.” She recognized that his evidence was “inconsistent” in some respects, especially when examined in the context of his statement to the police. The trial judge said the complainant was “evasive” on another issue. Still, at the end of the day, she was prepared to accept his testimony as credible and reliable, especially in conjunction with the photograph of the mark on his neck.

[5] Counsel for the appellant challenges the trial judge’s findings on a number of different bases. He also seeks to introduce fresh evidence that he says impacts on the complainant’s credibility in a way that might have tipped the balance in favour of an acquittal.

[6] After hearing the arguments of counsel on the fresh evidence point, I have determined that it is admissible. Because there will be a new trial, I will say little about it.

[7] In short, counsel for the appellant obtained evidence of an exchange between the complainant and trial counsel (not Ms. Walker) during which the complainant produced a letter from his son that had just been given to him by counsel. He was cross-examined about the letter at trial. He said that he had not yet read the letter. The fresh evidence suggests that he had read the letter before giving it to the trial Crown. The defence was not aware of this at the time of trial. The learned trial judge accepted the complainant’s evidence that he had not yet read the letter, along with his explanation as to why he had not.

[8] This evidence was not available to the defence at trial. Given the other problems with the complainant’s evidence (as discussed in the trial judge’s reasons), I am satisfied that the new evidence “could have created reasonable doubt” or “could reasonably have been used to impeach the credibility of a prosecution witness”: R. v. Taillefer, 2003 SCC 70, [2003] S.C.J. No. 75, at para. 84.

[9] Accordingly, the fresh evidence is admitted. The finding of guilt is set aside and a new trial is ordered. It is not necessary to address the other grounds of appeal.

TROTTER J.

Date: February 28, 2014