



COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Mackenzie, 2015 ONCA 93

DATE: 20150209

DOCKET: C55529

Watt, Pepall and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Luke Mackenzie

Appellant

Michael Davies, for the appellant

Michelle Campbell, for the respondent

Heard and released orally: January 29, 2015

On appeal from the conviction entered on November 18,
    2011 by Justice Paul F. Lalonde of the Superior Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

Luke Mackenzie appeals several convictions arising out of an incident
    that occurred early on August 31, 2010. The complainant was a neighbour with
    whom the appellant was apparently intimate from time to time. The true nature
    of their relationship is not entirely clear, but it is of no moment to the
    issues raised on appeal.

[2]

The appellant says that the convictions recorded by the trial judge are
    flawed because the judge relied on inadmissible evidence in reaching his conclusion
    that the complainants account of relevant events was credible and reliable and
    sufficient to sustain the standard of proof required of the Crown.

[3]

In general terms, the evidence with which the appellant takes issue
    consists of:


(i)

the testimony of a police officer, experienced in the investigation of
    domestic assaults, that the complainants demeanour was consistent with that of
    a person who had been assaulted, confined and threatened, her injuries
    inconsistent with her claim of falling on a doorknob, and her lack of
    cooperation with investigators attributable to a fear of reprisal; and


(ii)

the testimony of various witnesses about what the complainant said to
    them about the cause of her injuries shortly after her return home from the
    appellants apartment.

[4]

The evidence about the events that occurred in the appellants apartment
    and preceded the complainants hastened return to her nearby home came from the
    principals  the complainant and the appellant. Their versions differed
    significantly especially in connection with how the complainants injuries had
    occurred.

[5]

The trial record, viewed as a whole, reveals ample reasons for close
    scrutiny of the credibility of the evidence of each of the protagonists and
    careful consideration of the reliability of their evidence.

[6]

It appears clear to us that the trial judge was not prepared to rest a
    conclusion of guilt entirely on the testimony of the complainant. As he said:

I had to look for some corroboration of what she said happened.

Apart from his use of the term corroboration, which
    is best relegated to the dustbin of legal history, we agree with his conclusion
    that confirmation was desirable.

[7]

The problem in this case is the evidence on which the trial judge relied
    for confirmation. The confirmation consisted of a combination of the opinions
    proffered by an investigating officer and of evidence of the complainants
    statements to her daughter and to police officers who responded to a 911 call.

[8]

To take first the evidence of the lead investigator, the trial judge
    said this:

The evidence of Sergeant Pulfer is to be given a lot of weight.
    He is an officer who has during the last of 15 years has seen all kinds of
    domestic assault cases. He was not there when the assault took place but he
    could tell with a degree of certainty if Ms. Ethiers demeanour was consistent
    with someone who was physically assaulted, confined and threatened with death.
    He saw Ms. Ethier within an hour of her coming home naked and described her as
    upset, crying, not saying much, both eyes swollen and having one eye closed
    shut. He saw the hand marks on her thighs and told the Court that they could
    not have been made by Ms. Ethier. The marks on Ms. Ethiers neck were
    consistent with someone who had been strangled. He said that he did not believe
    the doorknob theory.

More importantly Sergeant Pulfer testified that he was certain
    that it was fear that caused Ms. Ethiers lack of cooperation at the initial
    interview with the police. In other words he was telling the Court that Ms.
    Ethier seriously believed that harm would come to her and to her daughters if
    she told him what had happened.

[9]

We do not dispute that the officer was entitled to testify about his
    observations of the physical conditions and emotional state of the complainant.
    But his evidence extended much further. It ventured into opinions expressed by
    a witness who was not qualified to express an expert opinion and beyond the
    compendious statement of facts exception for lay opinion evidence. While at
    least some aspects of the evidence were properly admissible as narrative, as
    for example, to explain why certain investigative steps were later taken, this
    was not the purpose for which the trial judge used the evidence. He assigned
    the evidence a lot of weight in reaching his conclusion of guilt. The
    irresistible conclusion is that the proffered opinions were used to shore up
    the credibility of the complainant and enhance the reliability of her evidence.
    This use was not permissible.

[10]

In
    a similar way, the trial judge relied upon certain statements admitted, in some
    cases at least, as part of the
res gestae,
as confirmation of the
    complainants account.

[11]

The
    relevant evidence was provided by the complainants daughter and several police
    witnesses who, as I have said, responded to the 911 call. The daughters
    evidence was proffered by the Crown under the common law
res gestae
exception and admitted on that basis. To the extent that the statements
    coincided with the complainants trial evidence, they were prior consistent
    statements not admissible for their truth, and thus not capable of providing
    substantive support for the complainants testimony. Their use however, was not
    so limited.

[12]

After
    anxious consideration, we have reached the conclusion that these convictions
    cannot stand. The trial judge rightly sought confirmation of the complainants
    testimony in deciding whether Crown counsel had proven the appellants guilt
    beyond a reasonable doubt. The evidence upon which he relied as confirmation
    consisted of an amalgam of inadmissible opinion and of evidence of the
    complainants statements that was properly admissible for one purpose, but not
    for that purpose used by the trial judge. The absence of objection from trial
    counsel is a factor we have considered, but not one that is dispositive of the
    result, in the circumstances of this case.

[13]

For
    these reasons, the appeal from conviction is allowed, the convictions set aside
    and a new trial ordered. The appeal from sentence is dismissed as abandoned.

David
    Watt J.A.

S.E.
    Pepall J.A.

Huscroft
    J.A.


