



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Weckwerth, 2013 ONCA 666

DATE: 20131101

DOCKET: C56534

Goudge, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Eric Weckwerth

Appellant

Michael A. Crystal, for the appellant

Chris De Sa, for the respondent

Heard and released orally: October 30, 2013

On appeal from the conviction entered on December 5, 2012
    by Justice Gregory P. Rodgers of the Ontario Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

The appellant was convicted of trafficking in a controlled substance
    arising out of an alleged hand-to-hand transaction observed by a police
    officer.  The transaction was with Cole McCarthy, who was arrested shortly
    afterward in possession of a controlled substance.

[2]

The trial judge expressly rejected the appellants explanation of his
    encounter.  However he failed to address McCarthys exculpatory evidence that
    he acquired the substance in his possession on arrest, from another source
    prior to his encounter with the appellant.

[3]

In our view, this failure requires a new trial.

[4]

This was not a case of a complainant telling one story, and an accused
    telling the opposite story where express acceptance of the complainants
    evidence coupled with the verdict may be enough that the trial judge does not
    need to directly address the accuseds evidence.

[5]

This case was one where McCarthys exculpatory evidence, which was not
    addressed by the Crowns evidence or the appellant, could have exonerated the
    appellant or raised a reasonable doubt about his guilt.  We cannot tell from
    the trial judges reasons whether he rejected that evidence, or if not, how it
    could stand with the Crowns evidence, or if he simply did not consider it. 
    The trial judges acceptance of the officers evidence, his rejection of the
    appellants own evidence, and the verdict, do not permit us to fill that void. 
    See
R. v. Stewart
, 2003 Carswell ON, p. 283.

[6]

The conviction must be set aside and a new trial ordered.

S.T.
    Goudge J.A.

E.A.
    Cronk J.A.

S.E.
    Pepall J.A.


