Court File and Parties
CITATION: R v. Machen, 2015 ONSC 3854
COURT FILE NO.: 12-0169
DATE: 20150618
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN and GORDON MACHEN
BEFORE: DURNO J.
COUNSEL: STEPHANIE TURNER, for the Respondent/Crown
GORDON MACHEN, on his own behalf
E N D O R S E M E N T
[1] While preparing the reasons for judgment on this Summary Conviction Appeal an issue arose upon which I require evidence to be called in order to afford trial counsel an opportunity to give evidence on an alleged omission in his conduct of the case.
[2] While it was never raised during the appellant’s cross-examination of his trial counsel or in his initial oral or written submissions on the appeal, in a subsequently filed written argument the appellant noted that while the complainant testified that the appellant touched her, in her police statement she did not mention that he had touched her. This apparent inconsistency was not raised in the cross-examination of the complainant. The trial judge found the sexual assault was the touching.
[3] This is an issue that has to be addressed in the reasons for judgment and one I find that trial counsel should have an opportunity to address. The examinations of trial counsel and the appellant in relation to the ineffective assistance of counsel ground of appeal were held out of court and the issue was never raised.
[4] While I had initially tried to have the Trial Coordinator arrange for the evidence to be heard when I was sitting in Guelph on June 11, that was not possible given trial counsel’s unavailability and her being unable to contact the appellant who she understands is now working daily.
[5] On June 11, trial counsel and Mr. de Vos appeared and July 23, 2015 at 9:00 a.m. was selected as the next date when this appeal will be spoken to. Trial counsel is aware of the issue and will be consulting counsel who may appear on that date.
[6] If the appellant is able to attend on that date it may be that the evidence could be heard at that time. He will have an opportunity to cross-examine trial counsel if he wishes. If Mr. Machen is not available he is to provide a series of available dates when he could attend court.
Durno J.
DATE: June 18, 2015
COURT FILE NO.: 12-0169
DATE: 20150618
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN and GORDON MACHEN
BEFORE: DURNO J.
COUNSEL: STEPHANIE TURNER, for the Respondent/Crown
GORDON MACHEN, on his own behalf
ENDORSEMENT
Durno J.
DATE: June 18, 2015