COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Windibank, 2012 ONCA 237
DATE: 20120413
DOCKET: C53546
Winkler C.J.O., Laskin and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Matthew Windibank
Appellant
Robert Sheppard, for the appellant
Lisa Joyal, for the respondent
Heard and released orally: April 4, 2012
On appeal from the conviction entered on September 16, 2010 by Justice G. Pockele of the Ontario Court of Justice, sitting without a jury.
ENDORSEMENT
[1] The appellant was convicted of three offences arising out of threats to cause the death of a fellow inmate and his parents, if the inmate testified as a witness for the Crown in an unrelated prosecution of the appellant.
[2] The errors alleged by the appellant are three:
i. that the trial judge erred in finding the appellant’s guilt established by simply choosing the prosecution’s case over that of the defence, thus shifting the onus of proof to the accused;
ii. that the trial judge erred in finding that an absence of motive on the part of a central witness for the Crown enhanced the credibility of that witness’ evidence; and
iii. that the trial judge erred in interrupting defence counsel frequently and unnecessarily during counsel’s cross-examination of the prosecution’s witnesses.
[3] We would not give effect to any of these grounds of appeal.
The First Ground: The Application of W. (D.)
[4] The appellant acknowledges that the trial judge properly instructed himself on the principles elucidated by the Supreme Court of Canada in R. v. W. (D.), [1991] 1 S.C.R. 742, but contends that the trial judge erred in their application.
[5] We do not agree.
[6] Considered in their entirety, the reasons of the trial judge do not reveal any shift in the onus of proof, or betrayal of the principles in W. (D.). The trial judge considered the evidence as a whole. He rejected the appellant’s barren denial on the basis of his considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting evidence of the prosecution’s witnesses. This he was entitled to do: R. v. D. (J.J.R.) (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53; and R. v. M.(R.E.), [2008] 3 S.C.R. 3, at para. 66.
[7] This ground of appeal fails.
The Second Ground: Motive
[8] Second, the appellant contends that the trial judge erred in his consideration of motive as a factor in assessing the weight to assign to the evidence of the principal witness of the Crown, Gomez, and the appellant.
[9] Once again, we do not agree.
[10] One aspect of the defence position at trial was that the recipient of the alleged threat, Gomez, had made up the story. The reasons advanced in support of the claim of fabrication included Gomez’s mental illness and inconsistencies between his police statement and the evidence he gave at trial.
[11] In his reasons for judgment, the trial judge rejected, as devoid of evidentiary support, any suggestion that Gomez had any adverse or hostile interest that would constitute a motive to falsely accuse the appellant. The trial judge also made it clear that the defence had no onus to establish that Gomez had a motive to lie.
[12] The appellant concedes that the absence of a motive for a witness to lie is a relevant factor for a trial judge to consider in assessing the credibility of the witness and the reliability of his testimony. The complaint here is that the trial judge failed to take into account the appellant’s denial of the incident in his consideration of the absence of a motive to lie and further erred in taking into account the appellant’s motive as a piece of evidence that was relevant, material and admissible to establish that he made the threat alleged by Gomez.
[13] We do not read the reasons of the trial judge as reflecting error in the manner alleged by the appellant. The trial judge did not err in considering the absence of a motive to lie in assessing the credibility of Gomez or the reliability of his evidence. He took into account the appellant’s denial, and, as he was entitled to do, rejected it. That the appellant had a motive to utter the threat to attempt to dissuade another inmate from giving evidence against him in an unrelated trial was a piece of evidence fit for consideration on the issue of whether the threat was made, not only as the appellant seems to suggest, on the identity of the author.
The Third Ground: Judicial Interventions
[14] The final ground of appeal, not pressed in oral argument, alleges that the trial judge intervened so frequently during the cross-examination of prosecution witnesses by defence counsel at trial that the appearance of trial fairness was compromised.
[15] We disagree.
[16] The appellant acknowledges the undoubted authority of a trial judge to control the proceedings, including the authority to require that witnesses are fairly questioned, and not subject to unfocused, repetitive, ambiguous or irrelevant questions. In our view, the interventions in this case did not extend beyond the permissible, impede the appellant’s right to make full answer and defence, or give rise to a reasonable apprehension of bias.
[17] The appeal is dismissed.
“Winkler C.J.O.”
“John Laskin J.A.”
“David Watt J.A.”