





CITATION: R. v. Gowan, 2011 ONCA 600



DATE: 20110920



DOCKET: C52646



COURT OF APPEAL FOR ONTARIO



Rosenberg, MacPherson and Epstein JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Michael J. Gowan



Appellant



Mark Ertel, for the appellant



Kim Crosbie, for the respondent



Heard: September 9, 2011



On appeal from the conviction
          entered on July 19, 2010 by Justice Dianne M. Nicholas of the Ontario Court
          of Justice.



ENDORSEMENT



[1]

Michael Gowan appeals his conviction for the offence of mischief
    over $5,000.  The circumstances involved damage to property in which a company
    he owned had performed plumbing services.
He raises
    two main issues:

1. 
        Concerning Mr. Gowans alibi defence, the trial judges reasons are
    insufficient.

2.
         The trial judge erred in her application of the test set out in
R. v.
    W.(D
.
)
, [1991] 1 S.C.R. 742.

[2]

With respect to the first point, Mr. Gowan submits that the trial
    judge erred in failing to explain how she dealt with the evidence upon which he
    relied to establish that he was not at the property when the crime was
    committed.  This evidence falls into two categories  first, evidence that
    relates to whether it was physically possible for Mr. Gowan to be at the
    property at the time it was damaged, and second, testimony of two witnesses
    that he was not, in fact, at the property at that time.

[3]

We do not accept this submission. 
    The trial judges reasons demonstrate how she concluded that it was possible
    for Mr. Gowan to have made the calls he apparently made from his cottage at the
    time they were made, and be at the property when the crime was committed.  The
    reasons also set out the basis for her conclusion that the testimony of the two
    witnesses who stated that Mr. Gowan was not at the property at the relevant
    time, was not credible. These conclusions, together with the trial judges
    acceptance of the evidence of the two witnesses who placed Mr. Gowan at the
    scene of the crime witnesses whose testimony the trial judge accepted demonstrate
    how she arrived at her verdict.

[4]

With respect to the second point,
    Mr. Gowan submits that the trial judges comment that Pat Gowans evidence did
    not alter her view of the appellants credibility, shows that she failed to
    consider whether Pat Gowans evidence that his father was not at the property
    when the damage took place, raised a reasonable doubt.   The foundation of this
    submission is that the trial judge did not apply the second of the three
    essential steps set out in
R. v. W.(D.)
.

[5]

Again, we do not agree.  The
    critical question is whether the trial judge directed her mind to the issue of
    whether the defence evidence, considered in the context of the record as a
    whole, raised a reasonable doubt. This, she did.  She acknowledged the
R. v.

W.(D.)
principles, as clarified by the Crown. She then considered the
    defence evidence and concluded that it raised no reasonable doubt.

[6]

While counsel for Mr. Gowan on
    appeal did not press this point in oral argument, in his factum he argues that the
    trial judge erred in relying on inadmissible evidence, namely, the photo
    line-up.

[7]

In our view, the trial judge did
    not err in her approach to this evidence.  Given the wording she used in
    referring to this evidence, it is clear that she placed little, if any, weight
    on it.  Even if she attached some significance to the photo line-up evidence,
    we agree with the Crown that any minor amount of unwarranted weight would not
    have affected the result.

[8]

There was ample evidence found to
    be credible by the trial judge that is not in dispute in this appeal.  That
    evidence sufficiently supports the trial judges conclusion that the Crown had
    proven the case against Mr. Gowan beyond a reasonable doubt.

[9]

Accordingly, the appeal is
    dismissed.

M. Rosenberg J.A.

J.C. MacPherson J.A.

Gloria Epstein J.A.


