R. v. Hampel

R. v. Hampel Collection Decisions of the Court of Appeal Date 1999-08-03 Docket numbers C28028, C28084 Judges McMurtry, Roy; Finlayson, George Duncan; Krever, Horace Subject Criminal Decision Content DATE: 19990803 DOCKET: C28084 and C28028 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) –and– SCOTT HAMPEL (Appellant) BEFORE: McMURTRY C.J.O., FINLAYSON and KREVER JJ.A. COUNSEL: Harry G. Black, Q.C., for the appellant Miriam Bloomenfeld, for the respondent HEARD: June 29, 1999 On appeal from the conviction by Hachborn J. dated July 31, 1997. ENDORSEMENT [1] This is an appeal from a conviction for spousal assault. The complainant and the appellant are both police officers. They had a brief and acrimonious marriage during the year 1988 when the alleged assaults took place. The criminal charges were not laid until February of 1997. [2] The trial judge treated this as an uncomplicated matter whereas, clearly, it was not. The two parties could agree as to almost nothing with respect to any of the alleged offences and in this court counsel could agree as to very little of what the record at trial revealed. The trial judge’s reasons for convicting the appellant were very brief and of little assistance to the court in trying to determine what it was that occurred between the appellant and the complainant. [3] While, as the trial judge accurately stated, the testimony of the complainant and the appellant provided the essential and crucial evidence in the case, the trial judge made no attempt to reconcile the significant contradictions in their evidence nor did he give any analysis of the complainant’s evidence in order to reconcile its inherent contradictions. He simply said that he did not believe the evidence of the appellant and believed and accepted that of the complainant. He made no attempt to analyse the evidence as it applied to the three distinct charges and simply concluded that the appellant “was guilty as charged”. [4] However, he could not have believed all that the complainant swore to; otherwise he would not have put the Crown on notice after conviction of his concern about the nine year delay between the alleged assaults and the laying of criminal charges. If anything, he appeared in his reasons for sentence to have resolved this issue in favour of the appellant. He said: “These are old occurrences, too old.” [5] There was a good deal of evidence on this issue. The complainant testified that she had reported the assaults immediately to the internal affairs office of the police department and had done everything required of her to see that the matter was processed within the department. The appellant, on the other hand, alleged that she had only laid the complaint to internal affairs as a cover for rumours of her infidelity, that she had failed to give the force the necessary statement that would have permitted them to proceed with an investigation and that the late criminal charges followed suspiciously an extended meeting between the complainant and his second wife with whom he was having a contentious separation and custody dispute. There was other evidence by her superior to whom she had complained that indicated that she had been assaulted but was supportive of the appellant’s allegations that she did not in fact co-operate with internal affairs in pursuing the matter. Having regard to the critical impact of this evidence on the credibility of the complainant, it appears to us that it was necessary for the trial judge to have dealt directly with the relevant circumstances related to the issue of delay. [6] This is one of those cases contemplated by the Supreme Court of Canada where it is our duty to intercede. In Harper v. The Queen, [1982] 1 S.C.R. 2, Estey J. for the majority stated at p.14: An appellate tribunal has neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt or innocence. The duty of the appellate tribunal does, however, include a review of the record below in order to determine whether the trial court has properly directed itself to all the evidence bearing on the relevant issues. Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede. This problem was before this Court in MacDonald v. The Queen, [1977] 2 S.C.R. 665, when Laskin C.J. stated, at p. 673: It does not follow, however, that failure of a trial judge to give reasons, not challengeable per se as an error of law, will be equally unchallengeable if, having regard to the record, there is a rational basis for concluding that the trial judge erred in appreciation of a relevant issue or in appreciation of evidence that would affect the propriety of his verdict. Where some reasons are given and there is an omission to deal with a relevant issue or to indicate an awareness of evidence that could affect the verdict, it may be easier for an appellate Court or for this Court to conclude that reversible error was committed: see R. v. Bush, [1939] 1 W.W.R. 42, at p. 44; Ungaro v. R., [1950] S.C.R. 430; Horsburgh v. R., [1967] S.C.R. 746; Kolnberger v. R., [1969] S.C.R. 213. [7] In our view, this verdict cannot stand. The trial judge did not properly direct himself to all of the evidence bearing on relevant issues. On the other hand, there is evidence upon which a jury, properly instructed, could convict the appellant. There must be a new trial. In the circumstances, it is not necessary for us to deal with the Crown’s sentence appeal. [8] Accordingly, the appeal is allowed, the convictions are quashed and a new trial is ordered. Signed: “R.R. McMurtry C.J.O.” “G.D. Finlayson J.A.” “H. Krever J.A.”