DATE: 20051208

DOCKET: C43780

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. SULTAN JALAL (Appellant)

BEFORE: DOHERTY, SHARPE and LANG JJ.A.

COUNSEL:

Timothy Breen for the appellant

Grace Choi for the respondent

HEARD: December 6, 2005

RELEASED ORALLY: December 6, 2005

On appeal from the conviction entered by Justice Mary Lou Benotto of the Superior Court of Justice dated June 23, 2005.

E N D O R S E M E N T

[1] We see no error in law in the reasons of the summary conviction appeal court judge.

[2] With respect to the defence of consent, the summary conviction appeal court judge reviewed the evidence on that issue:

Based on the facts found by the trial judge, there was no consent to a fight in the first place. The complainant was smaller than Mr. Jalal. Mr. Jalal is a very large man. He is 186 cm tall and weighs over 80 kilograms. Ms Gavanski is very small and diminutive. She is 161 cm tall and weighs 41 kilos. He was yelling at her, very close to her face. She was terrified. She was shaking. She pushed him away. A push away (even a slap) is not, under these circumstances, an implied consent to a fight. Consent under all the circumstances cannot be inferred from these circumstances. The evidence does not support the inference of a consensual fight.

[3] We are satisfied that there is no air of reality based on this evidence to the suggestion that the complainant consented to a fight with the appellant. Consequently, the apparent misstatement of the burden as it related to the degree of force used by the appellant was of no consequence to the ultimate result.

[4] With respect to the defence of self-defence, we see no basis upon which that defence could be advanced on this evidence. Indeed, trial counsel, an experienced criminal lawyer, expressly disavowed any reliance on the defence of self-defence.

[5] Leave to appeal is granted, but the appeal is dismissed.

“Doherty J.A.”

“Robert J. Sharpe J.A.”

“S.E. Lang J.A.”