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Appeal allowed and a new trial ordered after the Court found the trial judge misapplied W.(D.) and used disbelief of the accused as a makeweight for guilt.
The British Columbia Court of Appeal dismissed an appeal from a conviction for possession for the purpose of trafficking, finding the trial judge applied W.(D.) correctly.
The court found the accused's account credible and could not reject it; the complainant's evidence, while credible, produced a level of confidence comparable to the accused's, creating a reasonable doubt under the W.(D.) framework; accordingly the Crown failed to prove guilt beyond a reasonable doubt and the accused was acquitted.
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The court allowed a speeding-ticket appeal, set aside the finding of offence, and ordered a new hearing after finding the trial process unsafe and unfair.
Appeal from historic sexual assault convictions. The Court of Appeal held the age-of-capacity arguments failed, but found problems with similar fact reasoning for some counts.
The Court admitted the fresh evidence but concluded the conviction was safe: the trial judge’s factual findings on method of entry and credibility obviated necessity to articulate the third limb of the W.(D.) test; the judge’s questioning, while containing an unfortunate final question, did not create an appearance of unfairness when viewed objectively in context; and defence counsel’s omissions did not produce prejudice or a miscarriage of justice given the totality of evidence (complainant’s testimony, footwear impression evidence, and the judge’s assessment). Accordingly the appeal was dis…
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Appeal from a conviction for failing to provide a breath sample was allowed because the trial judge’s reasons did not adequately explain the credibility analysis.
The appeal was allowed in part: the Court concluded the trial judge's verdicts were not unreasonable and the aggregate sentence was not demonstrably unfit, but the conviction on count 10 could not stand because the probation order admitted in evidence did not contain the prohibition alleged; conviction on count 10 was overturned and an acquittal entered, leave to appeal sentence was granted, and all other appeals against conviction and sentence were dismissed.
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Although the trial judge referenced R. v. W.(D.), his reasons do not show he applied the W.(D.) three-step test or that he considered the accused's evidence when accepting the complainant; that deficiency alone undermines the verdict and requires quashing the conviction. Separately, late disclosure of relevant Crown/auxiliary file material required consideration of potential prejudice; combined, these grounds justify a new trial before a different judge.
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