COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) –and– ALAN STEWART (Appellant)
BEFORE: CATZMAN, WEILER and FELDMAN JJ.A.
COUNSEL: Chris Buhr, for the appellant Erika Chozik, for the respondent
HEARD: June 12, 2000
On appeal from the conviction imposed by O’Connor J. dated November 24, 1998 and on appeal from the sentence imposed by O’Connor J. dated January 25, 1999.
E N D O R S E M E N T
[1] The appellant, in essence, denied choking the complainant. There was forensic evidence to support the contrary conclusion reached by the trial judge. Notwithstanding the inconsistencies in the complainant’s testimony, the trial judge was entitled on all of the evidence to find, as he did, that the purpose for which she was choked was to facilitate the commission of the sexual assault.
[2] We note that, in his reasons convicting the appellant, the trial judge said: “It is dangerous to convict a person accused of sexual assault upon only the evidence of the complainant. The trier of fact must look for evidence independent of hers that is supportive or confirmatory of it”. This is not an accurate statement of the law: see s.274 of the Criminal Code. In the present case, however, this error could have enured only to the benefit of the appellant, and counsel addressed no argument to the point in their factums.
3The appeal against conviction is dismissed.
[4] The trial judge imposed a sentence of three and a half years, to be served concurrently, on each of the two counts on which the appellant was convicted. Both the appellant and the Crown appeal against sentence. The appellant submits that the sentence is harsh and excessive in the circumstances. The Crown submits that the sentence does not adequately reflect the brutal manner in which the offences were committed. In our view, neither Mr. Buhr nor Ms. Chozik has established any error in principle in the sentence imposed nor have they persuaded us that it was demonstrably unfit, clearly unreasonable or outside the acceptable range, although we do record that we consider the sentence to have been at the low end of the range.
[5] Leave to appeal against sentence is granted both to the appellant and the Crown, but both appeals are dismissed.
Signed: “M.A. Catzman J.A.”
“K.M. Weiler J.A.” “K. Feldman J.A.”