DATE: 20060131

DOCKET: C42016

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – LAFIRN BRAZEL (Appellant)

BEFORE:

LABROSSE, MOLDAVER and MacFARLAND JJ.A.

COUNSEL:

Leslie Maunder

for the appellant

Moiz Rahman

for the respondent

HEARD & RELEASED ORALLY:

January 20, 2006

On appeal from conviction by Justice Michael Tulloch of the Superior Court of Justice, sitting without a jury, dated March 11, 2004 and sentence imposed dated June 10, 2004.

E N D O R S E M E N T

[1] We agree with the trial judge that Ms. LaPoint’s evidence was not collateral, albeit for reasons that differ from those given by him.

[2] In order to prove its case, the Crown relied on various items of circumstantial evidence including the fact that the appellant used cash on three occasions, closely connected to each other, to purchase her airline tickets to and from Jamaica. The appellant claimed that she used cash because she did not have a credit card. When asked why she did not have a credit card, she stated that this was due in part to her poor credit rating from failing to pay back student loans that she had accumulated while attending university.

[3] The evidence of Ms. LaPoint put the lie to the appellant’s explanation and left it open to the Crown to use her cash payments as circumstantial evidence from which guilty knowledge could be inferred. Given that the issue of knowledge was central to the case, the impugned evidence in our view was not collateral.

[4] Having discovered the irregularity in the diploma, the trial judge did not err in bringing the matter to the attention of the parties and giving them the opportunity to answer his concerns. We believe that the approach he took was fair in all of the circumstances. The fact that the ensuing information proved to be detrimental to the appellant may be unfortunate for her but it does not give rise to a recognized ground of appeal.

[5] Having concluded correctly that the impugned evidence was admissible, the fact that the trial judge did not refer to it in his reasons is of no consequence. He could have relied on it had he chosen to do so.

[6] Accordingly, the appeal from conviction is dismissed. The appeal from sentence is dismissed as abandoned.

Signed: “J.M. Labrosse J.A.”

“M.J. Moldaver J.A.”

“J. MacFarland J.A.”