COURT OF APPEAL FOR ONTARIO

DATE: 20010214

DOCKET: C32914

RE: HER MAJESTY THE QUEEN (Respondent) v. W. R. (Appellant)

BEFORE: CHARRON, FELDMAN and MacPHERSON JJ.A.

COUNSEL: Paul Slansky, for the appellant Rosella Cornaviera, for the respondent

HEARD: February 9, 2001

RELEASED ORALLY: February 9, 2001

On appeal from his conviction by Justice J. David Watt, sitting without a jury, on January 17, 1991.

E N D O R S E M E N T

[1] The appellant was convicted of a sexual assault which occurred on September 21, 1989. The issue at trial was identification. The trial judge’s acceptance of the complainant’s identification evidence was based in part on her testimony that she had had several encounters with the appellant on different occasions prior to the date of the offence, including one on September 15, 1989.

[2] The appellant appeals his conviction on the basis of proposed fresh evidence showing that he was in custody from September 14 to September 20, 1989 and hence that he could not have been seen by the complainant on September 15 as she alleged. The appellant contends that because the complainant was certain about this date at trial, this evidence bears upon a potentially decisive issue in the trial and that, if believed, it could reasonably be expected to have affected the result.

[3] We do not agree. While the complainant expressed no uncertainty about the September 15 date at trial, it is clear in the context of the whole trial that this date was of no particular significance and hence the issue whether the reference to this date was correct or not was never canvassed.

[4] The trial judge carefully reviewed all of the evidence relevant to identification. He was alive to all the difficulties in the evidence and he properly instructed himself on the applicable principles of law. We are not satisfied that the proposed fresh evidence, when taken with the other evidence at trial, could reasonably be expected to have affected the result.

[5] The motion to introduce fresh evidence is dismissed and the appeal is dismissed.

(signed) “Louise Charron J.A.”

(signed) “K. Feldman J.A.”

(signed) “J. C. MacPherson J.A.”