This is the second Ontario Superior Court decision by O’Bonsawin appeals judges have overturned since she was appointed to the top court
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OTTAWA – The Ontario Court of Appeal has overturned another decision of Supreme Court Justice Michelle O’Bonsawin from when she served in a lower court, finding that she improperly relied on inadmissible text messages to convict a man for domestic abuse.
In a unanimous ruling released Wednesday, justices Mary Lou Benotto, Steve A. Coroza and Jonathan Dawe of Ontario’s top court ordered a new trial for a man O’Bonsawin sentenced to three years in prison in 2021 after finding him guilty on 14 counts linked to domestic abuse.
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Their ruling appeared to question if O’Bonsawin fully understood the law when reaching her verdict three years ago.
“Although trial judges are presumed to know the law, this presumption does not entitle appellate courts to ignore what trial judges actually say in their reasons,” the judges wrote of O’Bonsawin’s ruling.
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“While appellate courts should not be too quick to speculate that a trial judge has misused evidence that has both permissible and impermissible uses, they equally cannot ignore clear statements by trial judges indicating that they may have used evidence improperly.”
In the original 2021 ruling, O’Bonsawin sentenced Gordon Morin to three years of prison after being “convinced beyond a reasonable doubt” that he was guilty on all counts of domestic abuse against his partner.
The trial featured only two witnesses, Morin, who was self-represented, and the complainant.
The complainant testified of multiple alleged violent incidents between 2013 and 2015, including that Morin had allegedly pushed her down the stairs, threatened to kill her and even ground her legs into broken glass on the floor.
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Morin denied that most of the events happened as described by the complainant and said that he was “not violent” towards her. O’Bonsawin wrote in her ruling that he believed the accusations were the complainant’s “revenge for what she perceives as a huge slight by Mr. Morin.”
Ultimately, O’Bonsawin deemed the complainant “entirely credible” and Morin as “wholly unbelievable.”
However, to do so, the appeal judges ruled, O’Bonsawin occasionally relied on text messages that she said supported the complainant’s testimony. That was a major problem, they wrote, because “it is well-settled that a witness’s prior consistent statements are presumptively inadmissible.”
“At several different points in her reasons, the trial judge made comments that suggest on their face that she was improperly using the complainant’s prior statements as corroborating the complainant’s own in-court testimony, and as contradicting the appellant’s trial evidence,” the judges wrote.
The Ontario Court of Appeal highlighted three reasons why O’Bonsawin misused some text messages as evidence when they mostly should have been inadmissible.
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“Most critically, at no point in her reasons did the trial judge instruct herself about the permissible and impermissible uses of the complainant’s prior consistent statements in the text messages,” they wrote.
Criminal lawyer and Criminal Lawyers’ Association executive committee member Chris Sewrattan wrote Wednesday that O’Bonsawin made “sloppy errors” in her decision.
“Trial judges have a tough job. Errors are expected of them. But these are sloppy errors. They are misapplications of a bread and butter rule of criminal evidence,” he wrote on X.
This is the second Ontario Superior Court decision by O’Bonsawin that appeals judges have overturned since she was appointed to the country’s top court in 2022.
Last year, the appeal court published a stinging critique of her decision in a 2021 case involving an alleged sexual assault in a washroom at a restaurant’s staff party. O’Bonsawin threw out the decision of another lower-court judge and ordered a new trial, accusing the other judge of “myth-based reasoning” for believing that sexual assault only happens in private, not public. However, the appeals court found that the original judge had never used that reasoning.
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“What (O’Bonsawin) did was to revisit the conclusions that the trial judge drew from his factual findings and substitute her own view of them. It was an error for (O’Bonsawin) to do so,” the appeal court wrote.
“Central to this error was (O’Bonsawin’s) finding that the trial judge engaged in myth-based reasoning. With respect, that is not what the trial judge did. What the trial judge did was draw reasonable inferences from the particular facts that were before him.”
O’Bonsawin was appointed by Prime Minister Justin Trudeau as the first Indigenous person to sit on the Supreme Court of Canada. The court had been criticized for lacking Indigenous representation. As a lawyer, she previously worked in the legal departments at RCMP, Canada Post and at the Royal Ottawa Health Care Group, before being appointed as a judge to Ontario Superior Court five years before being appointed to the Supreme Court.
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