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Criminal Law - Appeals - Grounds - Misapprehension of or failure to consider evidence - Unreasonable verdict

Thursday, November 10, 2016 @ 7:00 PM  


Appeal by Lemaigre from his conviction for assault causing bodily harm. At the time of the alleged offence, Lemaigre was serving the community portion of his sentence as a long-term offender. The long-term supervision order prohibited Lemaigre from having any contact with his former spouse. She was the complainant. She testified that she found Lemaigre at her home, where he punched her once in the face, knocking her unconscious. She had a small scar as a result. Under cross-examination, the complainant admitted she had a history of alcohol problems and that she had been drinking the day before the incident with Lemaigre. No one witnessed the assault. The daughter of Lemaigre and the complainant, and the daughter’s boyfriend, testified for the defence. The daughter stated that the complainant had come to her home drunk, looking for a place to stay. When the daughter refused her entry, the complainant fell outside the home. The daughter and her boyfriend noted that the complainant had the eye injury that the complainant attributed to Lemaigre after the fall. The daughter also started to testify about the complainant punching Lemaigre at the daughter’s home some days later, but the Crown objected to the daughter testifying in chief about the events of any day other than the day in question, April 3, 2012. She rejected the suggestion that Lemaigre may have hit the complainant the next day after the complainant got up and left. The daughter was adamant that Lemaigre was out of town on April 3, 2012. Both she and her boyfriend stated that Lemaigre always called them when he was in town. The judge noted that neither the daughter nor her boyfriend were sure what the complainant may have encountered after she left their home. He found that the daughter angry with the complainant because of her drinking, protective of Lemaigre, and generally unbelievable. He found the complainant straightforward and credible in her account of being punched by Lemaigre and suffering a black eye that constituted bodily harm.

HELD: Appeal allowed and new trial ordered. While the evidence adduced at trial and accepted by the judge was capable of supporting Lemaigre’s conviction, the verdict was a miscarriage of justice. The transcript of the complainant’s evidence contained an admission that she lied, which the judge noted, but which was ignored by Crown and defence counsel. The complainant’s evidence was thin and imprecise. The Crown’s suggestion and the judge’s recognition that the complainant could have sustained her injury after being at the daughter’s home was contrary to the finding that the assault took place on April 3, 2012. It was inappropriate to stop the daughter from testifying about the complainant punching Lemaigre when this conduct was relevant to her credibility and animus toward Lemaigre. Insufficient consideration was given to the daughter and her boyfriend’s evidence of an alibi for Lemaigre, as well as the Crown’s suggestion that a mistrial might be necessary to permit the investigation of the possible existence of an alibi. Combined, these errors undercut the reliability of the conviction.