) ) HER MAJESTY THE QUEEN Respondent – v. –, 2013 ONSC 1852

CITATION: R. v. Philippeaux, 2013 ONSC 1852 COURT FILE NO.: 10-6663 DATE: 20130327 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN Respondent – and – PATRICK PHILIPPEAUX Appellant ) ) ) ) ) ) ) ) )) ) ) )) Riad Tallim, for the Crown Diane Condo, for the Appellant ) ) HEARD: February 27, 2013

Summary Conviction Appeal Decision JUSTICE L. RATUSHNY [1] The appellant appeals his conviction of one count of assault against his spouse. He was granted a conditional discharge thatwas served without incident and ordered to provide a sample of his DNA. [2] The Crown agrees the DNA Order should be quashed in the circumstances of the case including the relatively minor natureof the assault, the absence of a prior criminal record or contact with the police, assault simpliciter being a secondary designated offenceand the absence of reasons from the trial judge for the DNA Order.

I also agree and for these reasons quash the DNA Order made onOctober 13, 2011. [3] The remaining grounds of appeal are that the trial judge, 1. misapprehended the appellant’s evidence and failed in his assessment of the essential elements of the offence; 2. failed to apply the principle of reasonable doubt to issues of credibility; 3. improperly shifted the burden of proof onto the appellant. [4] These three grounds of appeal all hinge on the issue of whether the trial judge correctly applied the principles in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742 in assessing the credibility of the evidence from the complainant and the appellantwho were the only trial witnesses. [5] The appellant submits the trial judge fell into error when he assessed and accepted the evidence from the complainant andthen assessed the appellant’s evidence by comparing it to the complainant’s evidence that he believed. In doing this, the appellantalleges, the trial judge turned the two-witness case into a contest between them that required the appellant to explain away thecomplainant’s evidence.

This resulted, the appellant argues, in the improper application of W. (D.), the improper shifting of the burdenof proof to the appellant and the unwarranted rejection of the appellant’s evidence that his actions had amounted to an unintentionalapplication of force against the complainant or, at the very least, an intentional application of minimum force against her in the context oftheir relationship. [6] I have reviewed the trial evidence as well as the trial judge’s decision.

While his decision is thoughtful and careful, it doesprovide grounds for the appellant’s contention that he was required to explain away the complainant’s testimony.

[7] The trial judge first reviewed the complainant’s evidence and then turned to a consideration of the appellant’s evidence. Hecommented that the appellant had agreed with large portions of the complainant’s evidence and, importantly, that the appellant agreed hehad applied physical force to the complainant without her consent. The trial judge then instructed himself on the definition of assault ins. 265 (1) of the Criminal Code and the proper assessment of credibility as set out in W. (D.) and said, As I already stated, I found the evidence of [the complainant] to be clear and convincing.

I accept her evidence; she was a crediblewitness. I must, then, consider the evidence of [the appellant]. He, essentially, acknowledged the assault in his evidence although he didnot term it or see it that way. His evidence does not, therefore, raise a reasonable doubt in the Court’s mind. While, as already indicated,I also have concerns with respect to his credibility regarding portions of his evidence, particularly in cross-examination, I do not need tofurther analyze and apply R. v. W. (D.) in the circumstances of this case.

He acknowledged the assault in his evidence. (October 13,2011 Decision of the Trial Judge, at p. 9) [8] As I understand the trial judge’s process of analysis it was the following. First, he reviewed, assessed and stated he believedthe complainant’s evidence. Second, he reviewed, assessed and accepted that portion of the appellant’s evidence that confirmed thepresence of the essential elements of the offence of assault.

Third, because the appellant had effectively acknowledged an assault, thisled him to conclude that the appellant’s evidence did not raise a reasonable doubt as to whether the Crown had proved the assault beyonda reasonable doubt and that he did not need to further apply W. (D.) and consider whether the appellant’s evidence as a whole did raise areasonable doubt.

Fourth, he went on to express concerns as to the credibility of some of the appellant’s evidence, especially regardingthe issues of the removal of the complainant’s bathrobe and underwear. [9] I find the trial judge did fall into legal error in his analysis of the witnesses’ credibility. The error occurred subtly and seemsto have been propelled at least in part by what the trial judge found to be the appellant’s acknowledgement that an assault had occurred.

This caused the trial judge to pull up short of a full W. (D.) analysis so that it is not clear whether he allowed for the possibilities that theappellant’s evidence could be believed in part or whole or not at all without having to compete with the complainant’s evidence and,whether the whole of the appellant’s evidence raised a reasonable doubt as to his guilt.

This, in turn, does not seem to have allowed forthe consideration of the scenario advanced by the appellant that the three-minute incident with the complainant was a loving attempt byhim to try to “fix” their marriage rather than an intentional application of force. [10] I fully recognize that W. (D.) is not and should not be applied as a “ritual incantation” or “sacrosanct formula”: R. v. Boucher,2005 SCC 72 , [2005] 3 S.C.R. 499 (SCC), at paras. 29 and 59; R. v. Dinardo, 2008 SCC 24 , [2008] 1 S.C.R. 788(SCC), at para. 23.

The trial judge, however, did not indicate why he believed the part of the appellant’s evidence that supported thecomplainant’s testimony and why he rejected the part that did not support her testimony.

He did seem to have turned the trial into acontest of credibility between the two witnesses with the result that the burden of proof was shifted onto the appellant and there was noindication whether the appellant’s evidence, considered in the context of the evidence as a whole, raised a reasonable doubt as to hisguilt. [11] It is for these reasons that I allow the appeal, quash the conviction and the DNA Order, and order a new trial. Justice. L. Ratushny Released: March 27, 2013 CITATION: R. v. Philippeaux, 2013 ONSC 1852 COURT FILE NO.: 10-6663 DATE: 20130327

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Riad Tallim, for the Crown – and – PATRICK PHILIPPEAUX Diane Condo, for the Appellant

Summary Conviction appeal decision Ratushny J. Released: March 27, 2013