COURT OF APPEAL FOR ONTARIO

DATE: 2001-02-14

DOCKET: C34194

RE: HER MAJESTY THE QUEEN (Respondent) v. N.H.S. (a young person) (Appellant)

BEFORE: CHARRON, FELDMAN and MacPHERSON JJ.A.

COUNSEL: Irwin A. Koziebrocki, for the appellant Milan Rupic, for the respondent

HEARD: February 8, 2001

RELEASED ORALLY: February 8, 2001

On appeal from the conviction imposed by Justice Robert T. Weseloh dated May 3, 2000

ENDORSEMENT

[1] The appellant appeals from his conviction for manslaughter on three grounds.

[2] First, he submits that the trial judge erred in allowing the Crown to cross-examine one of the Crown witnesses on a prior statement, given the circumstances surrounding the taking of that statement.

[3] It is noteworthy that the trial judge expressly stated that he was not admitting the statement for the truth of its contents. It was admitted simply for the purpose of testing the witness’ credibility. The trial judge then heard the evidence, was aware of all the relevant circumstances and was able to assess its weight accordingly. We are not satisfied that the trial judge erred in the exercise of his discretion in permitting the cross-examination. In any event, the key part of that witness’ testimony related to an admission made to him by the appellant, a matter he had already testified to prior to the cross-examination. Hence, even if we were to conclude that the trial judge erred in the exercise of his discretion, no substantial wrong was occasioned thereby and we would not give effect to this ground of appeal.

[4] Second, it is submitted that the trial judge did not appreciate the test for the necessary mens rea to constitute the offence. In support of this argument, counsel relies mainly on the trial judge’s failure to expressly address this issue in his reasons. We see no merit to this argument. The question of mens rea was adverted to in the submissions of counsel, the trial judge stated in his reasons that he considered the relevant case law and, in the circumstances of this case, we see no error in the trial judge’s failure to address the issue further in his reasons. The thrust of the whole case was the determination of the identity of the person who set the fire. Having found that the appellant set the fire, the evidence amply supported the trial judge’s conclusion that he had the necessary mens rea given the fact that the fire was deliberately set in a store during business hours.

[5] Third, the appellant submits that the trial judge did not sufficiently outline how he was able to reconcile the numerous inconsistencies in the evidence. While the reasons could have been more complete, the trial judge nonetheless identified the main witnesses and the evidence upon which he relied and the evidence he rejected. In our view, the evidence supported the verdict and, hence, we would not give effect to this third ground of appeal.

[6] The appeal is dismissed.

(signed) “Louise Charron J.A.”

(signed) “K. Feldman J.A.”

(signed) “J. C. MacPherson J.A.”