Court File and Parties
Court of Appeal for Ontario
Laskin, Gillese and Juriansz JJ.A.
Between
Her Majesty the Queen Respondent
and
Josh Mfizi Appellant
Counsel: Ernest J. Guiste, for the appellant Dena Bonnet, for the respondent
Heard: November 3, 2009
On appeal from the conviction entered on May 23, 2008 by Justice Julie A. Thorburn of the Superior Court of Justice, sitting with a jury.
Appeal Book Endorsement
1The appellant makes two submissions on his conviction appeal. First, he contends that the Crown’s repeated reference in closing to the complainant’s uncontradicted evidence violates s. 4(6) of the Canada Evidence Act. We disagree.
2The judgments of Sopinka J. in Noble and Sharpe J.A. in Biladeau stand for the proposition that a statement that the Crown’s evidence is “uncontradicted” without more does not amount to a comment on the accused’s failure to testify. This ground of appeal fails.
3Second, the appellant contends that the trial judge’s answer to one of the jury’s question left the jurors with the understanding they had no right to disagree. We do not accept this contention. In her charge, the trial judge correctly told the jurors it was their right to disagree. Her answer to the jury’s question did not undermine her initial instruction and leave the impression that they could not disagree. Accordingly, this ground of appeal too must fail.
4The conviction appeal is dismissed.
