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APPEALS - Grounds - Bias - Miscarriage of justice - Powers of appellate court - New trial - Summary conviction appeals

Monday, May 15, 2017 @ 11:57 AM  

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Appeal by the accused, PG, from a summary conviction appeal court judgment affirming his conviction for three counts of sexual assault. The accused resided with his girlfriend and her daughter, the complainant, age 15 as of 2010. Following the end of the relationship, the complainant and her mother had an argument over an unrelated matter. The complainant disclosed the allegations in the course of the argument. The defence position was the allegations were fabricated to deflect the subject matter of the argument. The accused and the complainant's mother testified in his defence. The complainant recanted the allegations in a sworn affidavit. At trial, she testified and recanted the prior recantation. Despite the difficulties with the complainant's evidence, the trial judge entered a conviction. A summary conviction appeal court dismissed the accused's appeal, finding that any improper curtailing of the cross-examination of the complainant did not give rise to a substantial wrong or miscarriage of justice. The accused appealed to the Court of Appeal.

HELD: Appeal allowed. The summary conviction appeal judge erred when he resorted to the curative proviso on the court's own motion to, in effect, excuse the trial judge’s error in curtailing defence counsel’s cross-examination. At no time had the Crown relied on the proviso during the summary conviction appeal. Any such reliance could not be implied. Given the primary defence position that the allegations were fabricated, precluding proper cross-examination of the complainant was a serious error that impeded the accused's ability to make full answer and defence. Had the proviso been raised in argument, this was not an appropriate case for its application. In addition, the summary conviction appeal judge erred in failing to find the trial judge's reasons for judgment disclosed a reasonable apprehension of bias that rendered the trial unfair. The trial judge's highly critical characterization of the cross-examination of the complainant, and the intemperate and inappropriate language used in relation to the accused, and both defence witnesses' testimony, showed partiality, differential treatment, and a level of greater scrutiny in respect of their evidence than that of the complainant. The conviction was set aside and a new trial was ordered.

R. v. P.G., [2017] O.J. No. 2231, Ontario Court of Appeal, J.L. MacFarland, G.I. Pardu and G.T. Trotter JJ.A., May 3, 2017. Digest No. TLD-May152017002