COURT OF APPEAL FOR ONTARIO
DATE: 20000207
DOCKET: C28508
RE: HER MAJESTY THE QUEEN (Respondent) – and – KEITH
DENOMME (Applicant/Appellant)
BEFORE: McMURTRY C.J.O., MOLDAVER AND GOUDGE JJ.A.
COUNSEL: Shaun Nakatsuru
For the appellant
Rick Visca
For the respondent
HEARD: February 2, 2000
On appeal from the conviction by MacPherson J., dated February
21, 1997, and on appeal from the sentence imposed by MacPherson
J. dated March 11, 1997.
E N D O R S E M E N T
[1] The appellant raises two issues: the first relating to the
acceptance of the expert evidence of Detective Briggs and the
second relating to the alleged misapprehension of the evidence of
Constable Giedroyc.
[2] Although invited to do so, we decline to enunciate a general
principle as to the admissibility of the type of expert evidence
presented by Detective Briggs. It will be for the trial judge in
each case to make this determination on the basis of the
principles set out in R. v. K.(A.) (2000), 1999 3793 (ON CA), 45 O.R. (3d) 641 (Ont.
C.A.).
[3] In this case, defence counsel raised no objection to the
admissibility of the expert evidence. Hence, neither its
relevance nor its necessity were debated prior to admission.
There is thus no record to permit an assessment of whether that
evidence should have been admitted. In any event, it does not
appear to have unduly influenced the ultimate decision of the
trial judge.
[4] In these circumstances, the admission of the expert evidence
provides no basis to interfere with the conviction. This ground
of appeal must fail.
[5] As to the second issue, in our view, the trial judge was
alert to the apparent conflict between Constable Giedroyc and the
other two police witnesses concerning the relaying of
information. With regard to the vital component of Constable
Giedroyc’s evidence, namely the 2:58 p.m. conversation, the trial
judge accepted his evidence as he was entitled to do. His
offering of a possible explanation for the officer not reporting
this critical conversation by radio phone was not the
underpinning of his acceptance of that testimony. Nor does it
represent a misapprehension of it. Therefore, this ground of
appeal must also fail.
[6] Hence the appeal is dismissed.
“R.R. McMurtry C.J.O.”
“M. Moldaver J.A.”
“S.T. Goudge J.A.”