DATE: 20000906

DOCKET: C31777

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. TYRONE PROVO (Appellant)

BEFORE: OSBORNE A.C.J.O., LASKIN and CHARRON JJ.A.

COUNSEL: Paul Slocombe

for the appellant

Erika Chozik

for the respondent

HEARD: August 30, 2000

On appeal from the conviction imposed by Mr. Justice Hugh R. Locke dated October 19, 1998 and the sentence imposed on January 21, 1999.

E N D O R S E M E N T

[1] In our view, the trial judge in his charge to jury made it clear to the jury that the Crown had to prove the appellant’s guilt beyond a reasonable doubt. The trial judge, after summarizing the general positions of the Crown and defence on the issue of accident, among other things, said:

The defence submits to you that the accused has not been proven beyond a reasonable doubt to have intended to cause physical harm to Ms. H., that he did not have the required criminal intention to assault her and to cause her bodily harm. An accident is something that is not intended. It is a mishap. It is an event that is not expected or designed or intended to occur.

[1] Later, in summarizing the defence and Crown positions, the trial judge said, in reference to the Crown’s position on the issue of accident:

The Crown takes the opposite position namely that the total evidence discloses proof beyond a reasonable doubt that this was no accident. The Crown says that this was an intentional assault causing bodily harm. [Emphasis added.]

[2] In our view, it would have been clear to the jury that the burden was on the Crown to prove all of the elements of the offence, including the appellant’s intent, beyond a reasonable doubt, and that the jury could not convict if they had a reasonable doubt on the issue of accident. We do not think the trial judge was required to do more in his charge. In our opinion, there is no merit in this ground of appeal.

[3] The appellant further submits that the trial judge erred in refusing to permit the appellant to call five defence witnesses. Much of the proposed evidence concerned a later incident involving the complainant and the appellant. This incident led to further charges which were outstanding at the time of this trial. The trial judge’s ruling on this issue was given after the trial judge received a summary of the proposed evidence of the witnesses in question. No objection was taken at trial to the procedure that was followed. The trial judge, after reviewing the summaries of the evidence of the proposed witnesses and hearing counsel’s submissions on the issue of the admissibility of the proposed evidence, concluded that the evidence was inadmissible.

[4] Having reviewed the synopsis of the evidence in question, we do not think that the appellant was prejudiced by the trial judge’s ruling. We see no reviewable error in the exercise of the trial judge’s discretion on this issue. We would, therefore, not give effect to this ground of appeal.

[5] In our view, the sentence imposed was fit in the sense that it was within the range of reasonable sentences open to the trial judge. There is no basis upon which to interfere with the sentence. Leave to appeal sentence is granted. The appeal against conviction and sentence is dismissed.

“C.A. Osborne A.C.J.O.”

“John Laskin J.A.”

“Louise Charron J.A.”