Her Majesty the Queen (R.) and Gordon MacIsaac (Apl.)
FACTS
The appellant (Apl.) and the complainant (Compl.) were both members of senior men’s “no-contact” hockey league, but belonged to different teams. On the day in question, these teams were facing off against each other with the Compl.’s team was up 2 points with less than a minute left in the game. The two players collided which resulted in the Compl. Being knocked to the ground and suffering several injuries. (para. 4)
PROCEDURAL HISTORY
The Apl. was charged with aggravated assault. (para. 5) It was the Crown’s positions that the Apl. deliberately blindsided the Compl. (para. 6) The Apl. held that the collision was accidental and unavoidable. (para. 12) The trial judge convicted the Apl. …show more content…
of aggravated assault, after having rejected much of the evidence given on grounds that it was contradictory, contrary to trial judge’s understanding of hockey tactics, or inconsistent with the trial judge’s assessment of the injuries received by the Compl.
On appeal the Apl. submitted that the trial judge had failed to consider that the defence might have honestly believed that consent had been given even if that was a mistake (para. 30). The R. submitted that the trial judge did not make a mistake in the assessment of the evidence and that the defense’s argument, that there was a mistaken belief in consent, was inconsistent with the Apl. admittance that such hits fall outside what is expected in a non-contact hockey league. (para. 31)
ISSUES
a) Did the trial judge speculate beyond what was reasonable?
b) Did the trial judge reverse the onus of proof?
c) Did the trial judge make a mistake in not considering that the defence might have honestly believed that consent had been given even if that was a mistake? (para. 32)
HOLDING
a) The trial judge engaged in speculative reasoning while rejecting evidence which led to a conviction and denied the Apl. a fair trial, which justifies a retrial.
b) Not answered.
c) Not answered.(para. 33) RATIONALE Trial judges are allowed to draw conclusions that follow the facts so long as these are reasonable and logical, but in this case the judge went beyond that. (para. 46) The Morrissey case sets out that where a trial judge goes beyond conclusions based on the evidence and facts, unless the Crown can show that the error did not substantially impact justice, the conviction much be re-examined. (para. 47) The examples of the trial judge’s speculative reasoning (para. 34-44) were all related to areas of substantial impact to the case, and were numerous enough to show establish that this speculative reasoning had a substantially impact justice. (para. 48) The judge used her own experience with hockey, and her own interpretation of the injuries, to interpret evidence. Judicial notice is a legal rule of evidence that allows a fact to be introduced into evidence if it is… “(1) so notorious or generally accepted that no reasonable person would disagree; or (2) capable of immediate demonstration by reference to sources of indisputable accuracy…” (para. 50) as set out in Find, Potts, and Spence. Hockey strategy does not qualify fo judicial notice since it would be impossible to get an indisputable source, and since people are widely different opinions about what the best strategy for