DATE: 20001220

DOCKET: C28830

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. ANGELINA CODINA (Appellant)

BEFORE: OSBORNE A.C.J.O., CARTHY & LASKIN JJ.A.

COUNSEL: David M. Tanovich

for the appellant

Eric H. Siebenmorgen

for the respondent

HEARD: December 13, 2000

On appeal from the sentence imposed by Justice D.G. Humphrey dated January 7, 1998.

E N D O R S E M E N T

[1] The appellant submits that the trial judge shifted the burden of proof in convicting the appellant. She relies, in particular, on one sentence from the trial judge’s reasons:

If Angie Codina is telling the truth, both lawyers conspired to frame her by perjured evidence.

[2] This sentence must be read in context. Later in his reasons, the trial judge considered and properly applied W.(D.)

[3] The appellant also submits that the trial judge was overly critical of the appellant’s evidence and was not similarly critical of the evidence of the two key Crown witnesses. In our view, the approach taken by the trial judge to the evidence of the appellant and to Crown witnesses was both reasonable and understandable. We see no merit in this ground of appeal.

[4] The appellant contends that the trial judge erred in finding that she concocted exhibit 48 in the absence of independent evidence of concoction. In our view, the circumstances of this case are distinguishable from those in R. v. Coutts and Middleton (1998), 1998 4212 (ON CA), 126 C.C.C. (3d) 545 at 551 (Ont. C.A.) and similar cases. The appellant was the author of exhibit 48. The finding of concoction flows directly and without alternative from the trial judge’s rejection of the appellant’s evidence with respect to exhibit 48. The trial judge also found that the appellant’s explanation concerning exhibit 48 did not give rise to a reasonable doubt. We, therefore, think that the trial judge did not err in concluding that exhibit 48 was concocted. This ground of appeal fails. Therefore, the conviction appeal is dismissed.

Sentence

[5] This was a fraud on the public purse by an officer of the court. If anything, the sentence imposed was lenient. We do not think that the fact that the appellant was later sentenced to 9 years and 3 months to 28 years in jail in New York State provides justification for reducing the manifestly reasonable sentence imposed by the trial judge.

[6] Leave is granted but the appeal against sentence is dismissed.

“C.A. Osborne A.C.J.O.”

“J.J. Carthy J.A.”

“John Laskin J.A.”