COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) v. PATRICE MKHONZA (Appellant)
BEFORE:
FINLAYSON, LASKIN and MacPHERSON JJ.A.
COUNSEL:
Timothy E. Breen
for the appellant
Kim Crosbie
for the respondent
HEARD:
March 14, 2002
On appeal from conviction by Justice Norman D. Dyson dated January 16, 2001 an sentence imposed January 19, 2001.
E N D O R S E M E N T
Released Orally: March 14, 2002
1The appellant committed a serious assault on the complainant. He was properly convicted and sentenced for that assault and does not appeal it. He does, however, appeal his conviction for sexual assault on Count 1 of the Information.
2The Crown fairly acknowledges that this conviction rests on an incident that occurred in May 2000 in which the appellant allegedly attempted to have anal intercourse with the complainant without her consent. The trial judge did not refer to this incident in his charge to the jury and counsel did not refer to it in their closing addresses. The only evidence supporting this conviction is that of the appellant. Reading his evidence fairly in the context of the relationship between the parties, we are not satisfied that the appellant’s conduct amounted to a sexual assault beyond a reasonable doubt. Specifically, we are not satisfied that there was any evidence of intent. We therefore are of the view that the conviction on Count 1 is unreasonable.
3Accordingly, that conviction and the sentence for it are set aside and an acquittal is entered.
“G.R. Finlayson J.A.”
“J.I. Laskin J.A.”
“J.C. MacPherson J.A.”