


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Windibank, 2012
    ONCA 237

DATE: 20120413

DOCKET: C53546

Winkler C.J.O., Laskin and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Windibank

Appellant

Robert Sheppard, for the appellant

Lisa Joyal, for the respondent

Heard and released orally: April 4, 2012

On appeal from the conviction entered on September 16,
    2010 by Justice G. Pockele of the Ontario Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant was convicted of three offences arising out of threats to
    cause the death of a fellow inmate and his parents, if the inmate testified as
    a witness for the Crown in an unrelated prosecution of the appellant.

[2]

The errors alleged by the appellant are three:


i.

that the trial judge erred in finding the appellants guilt established
    by simply choosing the prosecutions case over that of the defence, thus
    shifting the onus of proof to the accused;


ii.

that the trial judge erred in finding that an absence of motive on the
    part of a central witness for the Crown enhanced the credibility of that
    witness evidence; and


iii.

that the trial judge erred in interrupting defence counsel frequently
    and unnecessarily during counsels cross-examination of the prosecutions
    witnesses.

[3]

We would not give effect to any of these grounds of appeal.

The First Ground: The Application of W. (D.)

[4]

The appellant acknowledges that the trial judge properly instructed
    himself on the principles elucidated by the Supreme Court of Canada in
R.
    v. W. (D.)
, [1991] 1 S.C.R. 742, but contends that the trial judge erred
    in their application.

[5]

We do not agree.

[6]

Considered in their entirety, the reasons of the trial judge do not
    reveal any shift in the onus of proof, or betrayal of the principles in
W. (D.)
. 
    The trial judge considered the evidence as a whole.  He rejected the
    appellants barren denial on the basis of his considered and reasoned
    acceptance beyond a reasonable doubt of the truth of the conflicting evidence
    of the prosecutions witnesses.  This he was entitled to do:
R. v. D. (J.J.R.)
(2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53; and
R. v. M.(R.E.)
,
    [2008] 3 S.C.R. 3, at para. 66.

[7]

This ground of appeal fails.

The Second Ground: Motive

[8]

Second, the appellant contends that the trial judge erred in his
    consideration of motive as a factor in assessing the weight to assign to the
    evidence of the principal witness of the Crown, Gomez, and the appellant.

[9]

Once again, we do not agree.

[10]

One
    aspect of the defence position at trial was that the recipient of the alleged
    threat, Gomez, had made up the story. The reasons advanced in support of the
    claim of fabrication included Gomezs mental illness and inconsistencies
    between his police statement and the evidence he gave at trial.

[11]

In
    his reasons for judgment, the trial judge rejected, as devoid of evidentiary
    support, any suggestion that Gomez had any adverse or hostile interest that
    would constitute a motive to falsely accuse the appellant.  The trial judge
    also made it clear that the defence had no onus to establish that Gomez had a
    motive to lie.

[12]

The
    appellant concedes that the absence of a motive for a witness to lie is a
    relevant factor for a trial judge to consider in assessing the credibility of
    the witness and the reliability of his testimony.  The complaint here is that
    the trial judge failed to take into account the appellants denial of the incident
    in his consideration of the absence of a motive to lie and further erred in
    taking into account the appellants motive as a piece of evidence that was
    relevant, material and admissible to establish that he made the threat alleged
    by Gomez.

[13]

We
    do not read the reasons of the trial judge as reflecting error in the manner
    alleged by the appellant.  The trial judge did not err in considering the
    absence of a motive to lie in assessing the credibility of Gomez or the
    reliability of his evidence.  He took into account the appellants denial, and,
    as he was entitled to do, rejected it.  That the appellant had a motive to
    utter the threat to attempt to dissuade another inmate from giving evidence against
    him in an unrelated trial was a piece of evidence fit for consideration on the
    issue of whether the threat was made, not only as the appellant seems to
    suggest, on the identity of the author.

The Third Ground: Judicial Interventions

[14]

The
    final ground of appeal, not pressed in oral argument, alleges that the trial
    judge intervened so frequently during the cross-examination of prosecution
    witnesses by defence counsel at trial that the appearance of trial fairness was
    compromised.

[15]

We
    disagree.

[16]

The
    appellant acknowledges the undoubted authority of a trial judge to control the
    proceedings, including the authority to require that witnesses are fairly
    questioned, and not subject to unfocused, repetitive, ambiguous or irrelevant
    questions.  In our view, the interventions in this case did not extend beyond
    the permissible, impede the appellants right to make full answer and defence,
    or give rise to a reasonable apprehension of bias.

[17]

The
    appeal is dismissed.

Winkler C.J.O.

John Laskin J.A.

David Watt J.A.


