



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Jack, 2013 ONCA 82

DATE: 20130208

DOCKET: C55039

Doherty, Simmons and Tulloch JJ.A.

Her Majesty the Queen

Appellant

and

Jason Andrew Jack

Respondent

Christopher Webb, for the appellant

Jack McCulligh, for the respondent

Heard and released orally:  February 1, 2013

On appeal from the order of Justice F. Dawson of the
    Superior Court of Justice, dated January 18, 2012.

ENDORSEMENT

[1]

The respondent was convicted on two charges after a lengthy trial in
    May 2010.  The Summary Conviction Appeal Court (SCAC) ordered a new trial in
    September 2011.  The Crown seeks leave to appeal from that order and if leave
    is granted appeals from that order.

Should Leave be Granted?

[2]

The grounds of appeal raised by the Crown do not raise jurisprudential
    issues.  The Crowns arguments rely on the application of well-established case
    law to the specifics of this case.  A preliminary review of the arguments
    advanced by the Crown, however, satisfies us that the grounds have considerable
    merit.

[3]

When, as in this case, the respondent was convicted at trial and a new
    trial was ordered by the SCAC judge on grounds that seem to this court to be
    suspect, the administration of justice may be served by granting leave and
    addressing the merits.  By doing so, the court potentially avoids an
    unnecessary retrial years after the relevant events.  That retrial would come
    at significant cost to limited judicial resources and at considerable inconvenience
    to the many witnesses involved in this matter.

[4]

Taking into account our preliminary assessment of the merits and the potential
    advantage to the administration of justice by a consideration of the merits of
    the appeal, we are satisfied that this is an appropriate case in which to grant
    leave to appeal.

the merits of the appeal

[5]

We agree with the Crowns submission that the SCAC judge erred in law in
    concluding that a miscarriage of justice had occurred by virtue of the trial
    judges failure to take into account the evidence given by one of the police officers
    on what was referred to as the zipper issue.  We will refer to that officer
    as the second officer.

[6]

The SCAC judge concluded that the evidence of the second officer
    supported the respondents evidence that his zipper was broken at the time of his
    arrest, thus explaining why his zipper was down when he was confronted by the
    police (but not explaining why his penis was erect and visible under his
    underwear through the opened zipper).  The SCAC judge further held that the
    trial judge, in rejecting the respondents evidence, particularly his alibi
    evidence, had relied on her finding that the zipper was not broken.  The SCAC
    judge concluded that the trial judge had failed to consider the evidence of the
    second officer and that the evidence was material to the trial judges
    determination that the respondents alibi should be rejected.  The SCAC judge
    concluded that as the trial judge had failed to consider material evidence, the
    convictions must be quashed as a miscarriage of justice.

[7]

On our review of the record, we are satisfied that it was the SCAC judge
    and not the trial judge who misapprehended some of the evidence relating to the
    zipper issue.  Contrary to the SCAC judges review of the evidence, the first
    police officer at the scene did not give evidence that was substantially different
    from the evidence given by the second officer.  It was the evidence of the
    second officer that the SCAC judge concluded the trial judge had failed to
    consider.

[8]

On the evidence of the first officer, the respondents shorts were unbuttoned
    and unzipped when the first officer confronted him.  On the evidence of the
    second officer, the respondents shorts were unbuttoned and unzipped when
    sitting in that officers vehicle shortly after his arrest.  There was no evidence
    that the respondent ever buttoned up his shorts.  The evidence given by the
    officers about the zipper and the undone button was substantially the same. 
    The second officers evidence, like that given by the first officer, suggested
    that the zipper had come down because the pants were not properly buttoned and
    not because the zipper was broken.

[9]

Nor was there any basis upon which to find that the trial judge failed
    to consider the evidence of the second officer.  The trial judge specifically
    identified that officers evidence by reference to its transcript location and indicated
    that, in her view, his evidence did not add anything to the narrative or the evidence
    relevant to the zipper issue.  Those assessments were available to the trial judge
    on this record.

[10]

Lastly,
    we agree with the Crowns submission that whatever may be said about the evidence
    relating to the zipper issue, that issue was far from central to the trial
    judges analysis of the evidence in this case.  This was quite simply an overwhelming
    circumstantial evidence case against the respondent and the trial judge saw it
    as such.  There were several weaknesses in the alibi evidence which fully
    justified the trial judges conclusion that the alibi evidence did not leave
    her with a reasonable doubt.

[11]

Leave
    to appeal is granted, the appeal is allowed, the order directing a new trial is
    set aside, and the convictions entered at trial are restored.

Doherty J.A.

Janet Simmons J.A.

M. Tulloch J.A.


