Court File and Parties
Court File No.: 13/2016 Date: 2019-10-18 (Goderich) Ontario Superior Court of Justice
Between:
Her Majesty the Queen Respondent
– and –
Christopher Bailey Appellant
Counsel: Laura Grant, for the Crown J. Scott Cowan, for the appellant
Heard: October 17, 2019 - Goderich
Summary Conviction Appeal of Decision of Justice R. Hunter on June 28-29, 2016 in Goderich
Aston J.
[1] It is readily apparent from the reasons that the trial judge treated the evidence as a credibility contest between the complainant and the accused.
[2] The trial judge states “I listened to the accused carefully, as I said, and I do not believe him nor do I accept the proposition he was being set up”. Though the trial judge explained why he rejected the defence theory that the complainant orchestrated the incident in the hotel room, there is no explanation for disbelieving the accused other than his acceptance of the testimony of the complainant.
[3] Nor does the trial judge explain why he preferred the evidence of the complainant. To say her evidence “had the ring of truth” is not a reason. It is a bald assertion. It was open to the trial judge to reject the accused’s evidence based on a considered and reasoned acceptance beyond reasonable doubt of the truth of conflicting credible evidence. However, it is not enough that a trial judge merely says the evidence of the complainant is more credible.
[4] The trial judge never alludes to whether the testimony of the accused raised any reasonable doubt.
[5] The essential issue in this case is whether the accused or the complainant was the assailant. If the accused was wrong in his opinion that he had been set up by his wife, that does not point to him being the assailant. It is not a reason to reject his evidence on the essential issue.
[6] There is no requirement that a trial judge recite the principles from R. v. W.(D.), [1991] 1 S.C.R. 742. Nor is there any prohibition on starting an analysis of the evidence with a consideration of the testimony of the complainant before considering the testimony of the accused. However, a departure from the W.(D.) template must be closely examined to ensure there has not been an inadvertent shifting of the burden of proof when the outcome turns on the credibility of the complainant and the accused.
[7] In this case the trial judge began his reasons by finding the complainant’s evidence credible. He then used that finding to reject the testimony of the accused without ever addressing the question of whether his evidence raised any reasonable doubt. The trial judge erred in failing to apply the principles from W.(D.). His reasons are inadequate and insufficient in explaining the outright rejection of the appellant’s exculpatory evidence. Nor do the reasons reflect “a considered and reasoned acceptance beyond reasonable doubt” of the truth of the complainant’s evidence.
[8] The appeal is allowed. The conviction and sentence are set aside and the case is remitted to the Ontario Court of Justice for a new trial.
“Justice D. R. Aston”
Aston J.
Released: October 18, 2019
Court File No.: 13/2016 Date: 2019-10-18 (Goderich)
Ontario Superior Court of Justice
Her Majesty the Queen Respondent
– and –
Christopher Bailey Appellant
Summary Conviction Appeal
Aston J.
Released: October 18, 2019