DATE: 20011227 DOCKET: C31929

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. VINCENT GEORGE SINCLAIR (Appellant)

BEFORE:

McMURTRY C.J.O., ROSENBERG and MacPHERSON JJ.A.

COUNSEL:

Vincent George Sinclair,

the appellant, in person

David P. Finley,

for the respondent

HEARD:

December 18, 2001

RELEASED ORALLY:

December 18, 2001

On appeal from the order of Justice W. A. Jenkins dated March 24, 1999 dismissing his appeal from his conviction by Justice Alexander M. Graham on May 14, 1998.

E N D O R S E M E N T

[1] Pursuant to s. 839 of the Criminal Code, the appellant is restricted in his appeal to questions of law alone. This seriously restricts the grounds upon which this court can review the decision of Jenkins J.

[2] The appellant submits that Jenkins J. erred in failing to find that the trial judge erred in failing to draw adverse inferences against the complainant and the investigating officer. In our view, this does not amount to a question of law alone. In the context of this case, the assessment of the complainant’s credibility was a question of fact. We have also not been persuaded that Jenkins J. erred in failing to find that the appellant’s equality rights were infringed by the Crown, the police or the trial judge.

[3] The proposed fresh evidence is inadmissible since it could have been produced at trial with reasonable diligence and, in any event, could not have been expected to have affected the verdict.

[4] We agree that the one question by Crown counsel in cross-examination of the appellant about his being an enforcer was probably inappropriate, however, we have not been persuaded that this resulted in a miscarriage of justice. We note that no objection to the question was taken at trial by the appellant’s counsel and that the appellant dealt with the cross-examination very well.

[5] Accordingly, the appeal is dismissed.

(signed) "R. Roy McMurtry C.J.O."

(signed) "M. Rosenberg J.A."

(signed) "J. C. MacPherson J.A."