2011 ONSC 5270, 2011 ONSC 5270

CITATION : Her Majesty the Queen v. Noakes, 2011 ONSC 5270 COURT FILE NO.: 09-5066 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) Julien Lalande, for the Respondent ) Respondent ) ) - and - ) ) ) STEVE J. NOAKES ) ) ) Ronald G. Guertin, for the Appellant ) Appellant ) ) ) ) HEARD: August 31, 2011 REASONS FOR DECISION ON APPEAL On Appeal from the Decision dated September 2, 2010 of Lajoie J. of the Ontario Court of Justice Maranger J. [ 1 ] On the 2 nd of September, 2010, Steve J.

Noakes was convicted and sentenced to a term of probation for the offence of sexual assault by Justice Richard J. Lajoie of the Ontario Court of Justice. He appeals both the conviction and sentence imposed. [ 2 ] The appellant was found not guilty of two separate counts of assault and assault causing bodily harm following the same trial.

[3] The essential evidence and factual background in this case can be summarized as follows: • The incident took place at an establishment known as the Rock N’ Bowl near Trim Rd., and Convent Glen in the city of Ottawa,on May 1, 2009. • Two separate groups of friends attended the establishment, one with the complainant C.M. and another with the appellant. • The boyfriend of the complainant, Y.P. testified that he saw the appellant approach his girlfriend and hug her and "slide his handon down the rear of her body and grab one of her buttocks and squeeze it" • Y.P. testified that he confronted the appellant for this behaviour and was punched in the side of his face by someone else.

It turnsout that it was Scott Ethier a friend of the appellant who landed the blow. • The punch caused fairly serious injury to Y.P.. Scott Ethier pled guilty to an assault and was granted a conditional discharge beforea different judge. • The complainant also testified at trial that the appellant “grabbed my ass and I never said he could.” • Several witnesses testified at the trial and there were a great many inconsistencies in the evidence.

The trial judge in his reasonsindicated “as I stated yesterday there are, as many versions of the incident as there are witnesses, because each of them had differentviews of the area in which this occurred.” • The defence called a witness, Stewart Impey. In fact it was compelled to call this witness because the Crown decided againstcalling him, and the trial judge denied a defence request to have Mr.

Impey called as the court’s witness. • Stewart Impey testified that he entered the establishment with the accused, saw the accused and the complainant hug, and thenwas asked the following question "and would you have been in a position to see whether or not Mr. Noakes would've grabbed her by thederrière?" To which the witness responded “I was 15 to 20 m away, but I could clearly see that there was none of that going on. She wasnot rejecting him. They were as I said, they were flirting and he had put his arms around her and like yes she had put her arms aroundhim.” • In cross examination Mr.

Impey was asked “okay when you say hug, he actually groped her behind right?” to which the witnessanswered “no he did not". Grounds of Appeal [4] While there were several grounds of appeal pleaded in this case, I would only give effect to one. Did the trial judge providesufficient reasons in his judgment to convict the appellant of sexual assault? I find in this case that he did not. [5] In the Supreme Court of Canada case of R v. Harper (SCC), [1982] S.C.J.

No.108 Estey J stated at p.12: “An appellate tribunal has neither the duty nor the right to reassess evidence at trial for the purposes of determining guiltor innocence. The duty of the appellate tribunal does, however, include a review of the record below in order to determine whether thetrial court has properly directed itself to all of the evidence bearing on the relevant issues. When the record, including the reasons forjudgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then itfalls upon the reviewing tribunal to intercede"

[ 6 ] The testimony of Stewart Impey was never addressed in any detail form in the reasons provided by the learned trial judge. The evidence was contrary to what the complainant says took place. It was key evidence. [ 7 ] It seems to me that the court would have had to reject his testimony out right, or at least provide reasons why it did not raise a reasonable doubt. This analysis of Stewart Impey’s testimony was a prerequisite for a finding that the factual basis to support a conviction for a sexual assault ever took place.

Failing to do so constitutes an error in law, and justifies remitting the matter for new trial. [ 8 ] Therefore, the conviction is quashed and a new trial is ordered. ___________________________ Mr. Justice Robert L. Maranger Released: September 22, 2011 CITATION : Her Majesty the Queen v. Noakes, 2011 ONSC 5270 COURT FILE NO.: 09-5066

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – STEVE J. NOAKES Appellant REASONS FOR DECISION ON APPEAL Maranger J. Released: September 22, 2011 CITATION : Her Majesty the Queen v. Noakes, 2011 ONSC 5270 COURT FILE NO.: 09-5066 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) Julien Lalande, for the Respondent ) Respondent ) ) - and - ) ) ) STEVE J. NOAKES ) ) ) Ronald G. Guertin, for the Appellant ) Appellant ) ) ) ) HEARD: August 31, 2011 SUPPLEMENTAL TO REASONS FOR DECISION ON APPEAL On Appeal from the Decision dated September 2, 2010 of Lajoie J. of the Ontario Court of Justice Maranger J. [1] In a decision released on September 22, 2011 a conviction for sexual assault was quashed and a new trial was ordered in this matter. [2] Following the release of that decision, counsel representing Mr.

Steve Noakes requested in writing that the DNA obtained as a result of the conviction be destroyed. Crown counsel would not consent and asked that a hearing take place on the issue. [3] In my view a hearing is unnecessary. The DNA order resulted from the conviction and the order is voided once the conviction is quashed. The DNA itself obtained as a result of that conviction should be destroyed: it exists only because of the conviction. [4] Therefore, an order is granted accordingly.