DATE: 20060919

DOCKET: C39053

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – MATTHEW LIHOU (Appellant)

BEFORE:

ROSENBERG, MACPHERSON and GILLESE JJ.A.

COUNSEL:

Geoff Chesney

for the appellant

Jennifer Woollcombe

for the respondent

HEARD & ENDORSED:

September 15, 2006

On appeal from conviction imposed by Justice Susan Himel of the Superior Court of Justice dated June 7, 2002.

A P P E A L B O O K E N D O R S E M E N T

[1] The trial judge gave lengthy and comprehensive reasons. She recognized the frailties in the complainant’s testimony and adverted to the most important problems with his version of events. She was not required to review every inconsistency. She explained why she accepted the complainant’s evidence despite those concerns.

[2] The trial judge also dealt properly with the evidence bearing on identification. Her reference to the appellant having “met” the complainant as opposed to having seen him previously was, in context, not a significant misapprehension of the evidence. We would not give effect to this ground of appeal.

[3] As to the admissibility of the statement, after a voir dire at which the appellant testified, defence counsel (not Mr. Chesney) conceded that the statement was voluntary. No issue concerning s. 7 of the Charter was raised. The appellant is precluded from attempting to raise this issue for the first time on appeal, because Crown counsel did not have the opportunity to explore matters that would have been relevant to the s. 7 issues.

[4] The appellant also attempts to cast this issue as impacting on voluntariness. Given the appellant’s own testimony on the voir dire and the concessions made at trial, we see no merit to this ground of appeal.

[5] Accordingly, the appeal is dismissed.