TRIAL JUDGE WRONGLY CONVICTS, APPELLANT COUNSEL CORRECTS IT

R. v. K.F.

 Wednesday, August 16th, 2011

Counsel: Mark C. Halfyard

The client was found guilty of dangerous driving after a summary trial in provincial court.  The allegation was that he rammed a police car after a high speed case.  He was given a six month jail sentence.  We immediately obtained bail pending appeal for the client. This ensured that he did not spend any time in jail while waiting for his appeal to be heard.  Appeals, particularly summary conviction appeals, often take upwards of a year or more to get a court date for the appeal to be heard.  Without obtaining bail pending appeal, the appellant will often serve the entire sentence before the appeal can be heard.    

The case was based solely on the identification of the police officer involved in the collision who indicated the client was the driver, as opposed to the passenger.  There was independent evidence that refuted the officer’s identification, including video surveillance for a grocery store.  The trial judge convicted the Appellant based solely on the officer’s evidence and discounted the other evidence. 

The appeal was heard before the Superior Court of Justice in Toronto.  Justice McWatt allowed the appeal and ordered an acquittal.  She found the officer’s evidence was not reliable given the nature of the accident, deficiencies in his notes and the independent evidence – two civilian witnesses who observed the accident and the video surveillance.   

Most successful appeals end in a new trial; however, this appeal challenged the reasonableness of the verdict.  Identification cases are particularly well suited to a challenge of unreasonable verdict.  The appellate court is not forced review the trial judge’s credibility findings, which they often will not do as appeals are about legal, not factual, issues.  In identification cases, the appellate court is in just as good a position to review the sufficiency of the evidence.

This case also stresses the importance of bail.  While the appeal also removed the conviction from the client’s criminal record, without bail, the client would have served the entire sentence before getting the opportunity to challenge the validity of the conviction.

 

**Please Note: Past Successes Do Not Ensure Future Success**