COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent)
v. HAGOP KUYUMCUOGLU (Appellant)
BEFORE: McMURTRY C.J.O., ROSENBERG and MOLDAVER JJ.A.
COUNSEL: Hagop Kuyumcuoglu,
the appellant, in person
Jennifer Woollcombe,
for the respondent
HEARD: November 22, 1999
On appeal from the decision of Mr. Justice Michael Dambrot dated
April 3, 1998
E N D O R S E M E N T
1This is an appeal from the decision of Dambrot J. dismissing
the appellant’s appeal from conviction. Dambrot J. did allow the
sentence appeal in part by striking out the term of probation
requiring the appellant to complete two hundred hours of
community service. However, the appellant also seeks to appeal
the sentence.
2As this is an appeal from the summary conviction appeal
court, the appellant is restricted to questions of law alone.
The appellant raises two issues. He argues that Kerr Prov. Ct.
J. unduly intervened and that when the record is read as a whole
it appears that the trial judge was not satisfied of the
appellant’s guilt beyond a reasonable doubt.
3Dambrot J. considered the question of undue intervention and
was satisfied that the interventions did not show bias nor
prevent the appellant from presenting his case. The test for
whether there has been undue intervention was described by Martin
J.A. in R. v. Valley (1986), 1986 4609 (ON CA), 26 C.C.C. (3d) 207, at 230:
A criminal trial is, in the main, an
adversarial process, not an investigation by
the judge of the charge against the accused,
and, accordingly, the examination and cross-
examination of witnesses are primarily the
responsibility of counsel. The judge, however,
is not required to remain silent. He may
question witnesses to clear up ambiguities,
explore some matter which the answers of a
witness have left vague or, indeed, he may put
questions which should have been put to bring
out some relevant matter, but which have been
omitted. Generally speaking, the authorities
recommend that questions by the judge should
be put after counsel has completed his
examination, and the witnesses should not be
cross-examined by the judge during their
examination-in-chief.
4In our view, most of the interventions by the trial judge,
prior to the finding of guilt, were innocuous and intended by the
judge to clear up ambiguities and assist him in understanding the
appellant’s unusual explanation. While it would have been better
if the trial judge had followed the advice of Martin J.A., we are
not satisfied that Dambrot J. erred in law in refusing to give
effect to this ground of appeal.
5As to the second ground of appeal, having considered the
entire record, we are of the view that the trial judge was
satisfied of the appellant’s guilt to the requisite degree. The
trial judge clearly rejected the primary defence, that the
appellant did not steal the goods but rather brought them with
him to the store. This left only the question of mens rea. The
appellant never asserted that he took the goods to test the
social assistance people who he claimed were following him. His
position was that he did not take them. We see no error in the
trial judge’s conclusion that the appellant had the requisite
mens rea. His subsequent comments and directions were directed
to ensuring that an appropriate sentence was imposed and do not
detract from the finding of guilt.
6Accordingly, the appeal from conviction is dismissed. Leave
to appeal sentence is refused.
(signed) "R. McMurtry C.J.O."
(signed) "M. Rosenberg J.A."
(signed) "M. J. Moldaver J.A."