



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Duffy, 2018
    ONCA 90

DATE: 20180131

DOCKET: C62950

Hoy A.C.J.O., MacPherson
    and Rouleau JJ.A.

BETWEEN

Her Majesty the
    Queen

Appellant

and

Patricia Duffy

Respondent

Melissa Adams, for the
    appellant

Leo Kinahan, for the respondent

Heard and
    released orally:  January 26, 2018

On appeal from the acquittal
    entered by Justice J.E. Ferguson of the Superior Court of Justice on October
    19, 2016.

REASONS FOR DECISION

[1]

The respondent was
    charged with aggravated assault and obstruction of justice. The Crown alleged
    that the respondent had pushed the complainant and caused him to fall down the
    exterior stairs to the bar where the respondent worked.

[2]

The Crown relied on
    circumstantial evidence, including video footage from the bar security cameras.
    One camera showed the respondent pushing the complainant backwards out the door
    to the bar. A second camera showed the respondent falling down the stairs. Neither
    camera captured what happened on the landing outside the door to the bar.

[3]

After the conclusion of
    the Crowns case, the trial judge granted the respondents motion for directed
    verdicts of acquittal. In her ruling, the trial judge wrote:

It is my role to analyze all of
    the evidence to determine all aspects of the charges have been met even
    inferentially. Ive done that.
I am not satisfied that as a result of this
    analysis, the Crown has met her burden of proof beyond a reasonable doubt as to
    the essential elements of these charges.
This is even allowing the most
    favourable inferences of the evidence heard and seen to the Crowns case.
    Inferences suggested by the Crown cannot be reasonably or logically drawn from
    the facts established by the evidence  The circumstantial evidence is in the
    unclear security video which does not record the
actus reus
of which
    the respondent is charged. I agree that the videos we saw are momentary and
    incomplete. [Emphasis added.]

[4]

The Crown appeals the
    trial judges ruling on the motion for directed verdicts, arguing that the
    trial judge erred in her application of the test for directed verdict by
    treating the issue as one of a determination of guilt or innocence based on the
    Crowns ultimate persuasive burden, rather than a determination of whether
    there was any evidence upon which a reasonable jury, properly instructed, could
    return a verdict of guilty. It further argues that the trial judge failed to
    resolve competing permissible inferences in favour of the Crown as she was
    required to do.

[5]

The respondent argues
    that, while the trial judge may have made an inadvertent misstatement in
    stating that the Crown had not met its burden of proof beyond a reasonable
    doubt, it is clear that she conducted the proper review and, after ruling out
    speculation and conjecture, found that there was no evidence upon which a
    reasonable jury, properly instructed, could return a verdict of guilty.

[6]

We agree with the Crown
    that the trial judge erred in her application of the test for directed verdict.
    As the Crown submits, the trial judge weighed the Crowns proposed inference
    that the respondent pushed the complainant and caused him to fall down the
    stairs against the opposing inference that the inebriated respondent tripped on
    the landing outside the door to the bar. We further agree with the Crown that
    the video footage it relied on at trial is some evidence to support the
    inference that the respondent pushed the complainant and caused him to fall down
    the stairs.

[7]

The appeal is accordingly
    allowed, the directed verdicts of acquittal are set aside, and a new trial is
    ordered before a different judge on both charges against the respondent.

Alexandra Hoy A.C.J.O.

J.C. MacPherson J.A.

Paul Rouleau J.A.


