COURT OF APPEAL FOR ONTARIO

DATE: 20000614

DOCKETS: C31393 and C31591

RE: HER MAJESTY THE QUEEN (Respondent) –and– ALAN
STEWART (Appellant)

BEFORE: CATZMAN, WEILER and FELDMAN JJ.A.

COUNSEL: Chris Buhr, for the appellant
Erika Chozik, for the respondent

HEARD: June 12, 2000

On appeal from the conviction imposed by O’Connor J. dated
November 24, 1998 and on appeal from the sentence imposed by
O’Connor J. dated January 25, 1999.

E N D O R S E M E N T

[1] The appellant, in essence, denied choking the complainant.
There was forensic evidence to support the contrary conclusion
reached by the trial judge. Notwithstanding the inconsistencies
in the complainant’s testimony, the trial judge was entitled on
all of the evidence to find, as he did, that the purpose for
which she was choked was to facilitate the commission of the
sexual assault.

[2] We note that, in his reasons convicting the appellant, the
trial judge said: “It is dangerous to convict a person accused of
sexual assault upon only the evidence of the complainant. The
trier of fact must look for evidence independent of hers that is
supportive or confirmatory of it”. This is not an accurate
statement of the law: see s.274 of the Criminal Code. In the
present case, however, this error could have enured only to the
benefit of the appellant, and counsel addressed no argument to
the point in their factums.

[3] The appeal against conviction is dismissed.

[4] The trial judge imposed a sentence of three and a half
years, to be served concurrently, on each of the two counts on
which the appellant was convicted. Both the appellant and the
Crown appeal against sentence. The appellant submits that the
sentence is harsh and excessive in the circumstances. The Crown
submits that the sentence does not adequately reflect the brutal
manner in which the offences were committed. In our view,
neither Mr. Buhr nor Ms. Chozik has established any error in
principle in the sentence imposed nor have they persuaded us that
it was demonstrably unfit, clearly unreasonable or outside the
acceptable range, although we do record that we consider the
sentence to have been at the low end of the range.

[5] Leave to appeal against sentence is granted both to the
appellant and the Crown, but both appeals are dismissed.

Signed: “M.A. Catzman J.A.”
“K.M. Weiler J.A.”
“K. Feldman J.A.”