Court File and Parties

COURT FILE NO.: CR17-0010-00AP DATE: 20171117 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Ryan Corbiere

BEFORE: The Honourable Mr. Justice R. Del Frate

COUNSEL: K. Athanas, counsel for the Crown M. Venturi, counsel for the accused

HEARD: November 16, 2017

Endorsement

[1] The Appellant Corbiere appeals his conviction of mischief under $5000.00 by Justice Guay in Gore Bay on June 1, 2017. Originally he had been charged with 2 counts of assault as well. He was found not guilty of those counts. He was sentenced to a conditional discharge for 3 months provided he reimbursed the complainant for the cost of a new cellular phone.

[2] The Crown did not appeal the acquittals on the assault charges.

[3] These charges arose from a marital dispute between the appellant and his spouse. On the count of mischief, the evidence led by the Crown, was that on August 11, 2016, a dispute between the parties arose at their home. At one point, both parties allege that they were assaulted. During this altercation, the complainant testified that the Appellant was on couch and he grabbed the cellular phone and smashed it on the ground. She heard it hit the ground.

[4] On cross-examination, she stated that the phone was bent and not smashed and that she could not get it to work after it hit the ground. The Appellant denied all of these allegations.

[5] On this evidence, Guay J. found as follows: p. 124 Transcript:

I do however, accept the complainant’s evidence regarding the mischief charge, because I listened to that evidence closely. I think the evidence was that the accused had thrown the phone and had struck the floor or the wall and if it was done with any degree of upset or anger, which I take it existed on both sides, it’s not hard to cause one of these devices to either be smashed totally, depending on how it strikes something, or how it falls, or at what angle it falls.

[6] In the prior paragraph of his reasons at page 123 (transcript), Guay J. stated the following in regards to the W. (D.) analysis:

So odd situation where you have a he said/she said, and you are finding both parties are not lying or not deliberately trying to mislead the court, and nothing that was said by either of them frankly suggested to me that they were not trying to recall evidence as they remember it happening.

On the whole, when applying the principles in W.(D.), I find that the accused has, and that’s the preferred one, raised – raised a reasonable doubt with respect to the two assault episode.

[7] The Appellant submits that the conviction on the mischief charge is incongruous, since the trial judge found earlier that he accepted the evidence of the appellant. As such, applying W.(D.) properly an acquittal would result.

[8] The Crown fairly concedes that the reasoning of Guay J. is lacking specifics as to why he preferred the evidence the complainant over that of the Appellant on this particular issue.

[9] I agree with the Appellant’s submission that the analysis or lack of analysis by the trial judge, is deficient in applying the W.(D.) principles. In my view, since the appellant testified and denied touching the phone it would be incumbent on the trial judge to explain why he rejected that testimony. The analysis is also deficient since it contradicts his previous finding that all witnesses were not lying nor attempting to mislead the court. In fact, he finds that all were “honest”. Had he explained his reasoning on why he did not accept the Appellant’s testimony then perhaps, his W.(D.) analysis might have survived the test. As such, and respectfully, he erred in not applying the W.(D.) test properly.

[10] The appellant submits that an acquittal ought to be entered under the circumstances. The Crown submits that a new trial should be ordered.

[11] Ordinarily, a new trial would be ordered. However, considering the circumstances and the trial judge’s findings, it would be inappropriate to make such an order. It would be in the best interest of justice to quash the conviction and enter an acquittal.

[12] Order to issue as per reasons.

The Honourable Mr. Justice R. Del Frate Date: November 17, 2017