COURT OF APPEAL FOR ONTARIO

DATE: 20000915

DOCKET: C30555

RE: HER MAJESTY THE QUEEN (Respondent) and KHEMRAJH BALKISSOON (Appellant)

BEFORE: OSBORNE A.C.J.O., CHARRON AND FELDMAN JJ.A.

COUNSEL: Richard Litkowski

For the appellant

Graham Zoppi

For the respondent

HEARD: August 29, 2000

On appeal from conviction by The Honourable Mr. Justice David S. Crane on May 14, 1998 and from sentence imposed on August 19, 1998.

E N D O R S E M E N T

[1] The appellant appeals from his conviction for sexual assault and the sentence imposed of two years less a day.

[2] We called on the Crown only on the following two issues: one, misapprehension of the evidence regarding hand holding by the complainant and the appellant; two, the propriety of the reply evidence.

[3] On the first issue, while the reasons of the trial judge could have been more detailed on the point, we agree with the Crown that there was evidence to support the trial judge’s finding that Salena’s evidence was contradicted by the evidence of other witnesses, including the evidence of the accused. As a result, we are not satisfied that the trial judge misapprehended the evidence and, therefore, this ground of appeal does not succeed.

[4] On the second issue, in our view, the reply evidence was not strictly collateral but went to a possible theory regarding the complainant’s motive to fabricate. We note that there was no objection made to the reply evidence at trial and that in the result, the reply evidence appears to have been inconsequential.

[5] We did not call on the Crown on the issue of the sentence appeal. The sentence is within the appropriate range. The trial judge declined to impose a conditional sentence. We see no error in his decision.

[6] The appeal against conviction is therefore dismissed. Leave to appeal sentence is granted but the appeal is also dismissed.