DATE:  20041005
DOCKET:  C40855

COURT OF APPEAL FOR ONTARIO

RE:                                          HER MAJESTY THE QUEEN (Respondent) -and- BILE WARSAME DORE (Appellant)

BEFORE:                               LABROSSE, LASKIN and LANG JJ.A.

COUNSEL:                            Patrick Leckey for the appellant

                                                Jennifer Woollcombe for the respondent

HEARD:                                 October 1, 2004

RELEASED ORALLY:         October 1, 2004

On appeal from the conviction entered by Justice S.W. Long of the Ontario Court of Justice on April 22, 2002.

ENDORSEMENT

[1]               The appellant was convicted in the Ontario Court of Justice of sexual assault and his summary conviction appeal was dismissed.

[2]               The complainant was confined to a wheelchair as she has cerebral palsy spastic quadriplegia.  On November 24, 1999, the complainant was a passenger in a taxi contracted by Wheel-Trans and operated by the appellant.  She alleged that the appellant engaged in sexual talk with her and then sexually assaulted her in the taxi.  The appellant testified and denied the allegations.  The complainant and the appellant were the only witnesses in the trial.

[3]               The sole ground of appeal is that the reasons for disbelieving the appellant are inadequate in light of the decision in R. v. Sheppard (2002), 162 C.C.C. (3d) 298 (S.C.C.).  We agree and would allow the appeal.

[4]               In his reasons, the trial judge reviewed the evidence of the two witnesses and cited the three-prong test in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.).  The trial judge then said that he found “the evidence of the accused incredible”.  In other words, the trial judge found the accused to be “incredible” based on the complainant’s believability.  This approach ignores the burden of proof.

[5]               The case for the Crown was not overwhelming.  There were no independent witnesses and no confirmatory evidence of the complainant’s allegations.  There was nothing “incredible” about the appellant’s evidence.  He simply denied the allegations.

[6]               The conclusion of the trial judge that “[I]f there is any conflict between her evidence and that of the accused as to what happened, I accept without hesitation her evidence” is not a reasoned explanation for rejecting the appellant’s evidence.  This conclusion is simply conclusory and generic.  The accused was entitled to know why he was disbelieved and why his evidence did not raise a reasonable doubt.

[7]               In dismissing the appeal, the summary conviction appeal court judge stated that it would have been “preferable to have a more detailed set of reasons from the trial judge articulating (a) why he rejected the evidence of the accused; and (b) that the evidence of the accused did not give rise to a reasonable doubt.”  We go farther.  In this case, the trial judge had a duty to give reasoned reasons for rejecting the appellant’s evidence.  The failure to give such reasons is an error of law which warrants a new trial.  See R. v. Maharaj (2004), 186 C.C.C. (3d) 247.

[8]               Accordingly, the appeal is allowed and a new trial is ordered.

Signed: “J.-M. Labrosse J.A.”

              “John Laskin J.A.”

              “S.E. Lang J.A.”