Thursday, August 29, 2013

Once again a failure to apply W(D) leads to a retrial

R. v. Jeffrey Lea Hogg  2013 PECA 11 holds:

[6]               In failing to properly apply the burden of proof, the trial judge made two  errors in law: 


1.         After deciding that he did not believe the testimony of the accused, he did not go on to analyze and consider whether that evidence nevertheless raises a reasonable doubt (R. v. Ellis2006 PESCAD 25 (CanLII), 2006 PESCAD 25, at paras. 17, 18 and 20; R. v. J.M.H.2012 PECA 6 (CanLII), 2012 PECA 6, at paras. 37 and 30).


2.         He did not scrutinize the evidence adduced by the Crown to ensure it was sufficiently credible and reliable to prove the guilt of the appellant beyond a reasonable doubt (R. v. Ellis, supra, at para.20; R. v. F. (S.),2007 PESCAD 17 (CanLII), 2007 PESCAD 17, at paras. 7 and 46; R. v. J.M.H., supra, at para.30; R. v. Minuskin, [2003] O.J. No. 5253 (Ont.C.A.), at para.22:  "Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt.


[7]               It is well accepted that a failure to correctly apply the burden of proof in a way that makes it clear the trial judge has analyzed the evidence properly is an error of law (R. v. S.(D.D.)2006 NSCA 34 (CanLII), 2006 NSCA 34, at para.38, adopted by this court in R. v. Ellis, supra, at para.19).  


Ernest Julius Guiste said...

I like it. I have two of these at the Court of Appeal at the moment.

gabriel said...
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