R. v. Cantle, 2012 ONCA 643

ENDORSEMENT

1Mr. Cantle appeals both his conviction and sentence. On his conviction appeal, duty counsel advances two grounds of appeal.

2First, the trial judge erred by failing to correct an allegation of recent fabrication made by trial counsel in his closing. Second, trial counsel’s cross-examination of the appellant invited the jury improperly to draw an inference from the appellant’s failure to call Rick. We do not accept either submission.

3On the first ground, the trial judge carefully considered the Crown’s closing and concluded that he was simply comparing the appellant’s evidence in chief with the appellant’s evidence on cross-examination. That was a reasonable conclusion as is evident from the examples the Crown used to illustrate his point. Moreover, as Mr. Asma submits, the jury would not have been aware of the appellant’s statement taken on arrest thus buttressing the trial judge’s assessment of the Crown’s closing.

4On the second ground, the Crown’s cross-examination was proper. Further, the trial judge gave the standard instruction that the accused had no obligation to call evidence.

5Accordingly, the conviction appeal is dismissed.

6On the sentence appeal, we are satisfied that the sentence was within a reasonable range and was not tainted by legal error.

7Accordingly, although leave to appeal sentence is granted, the sentence appeal is also dismissed.