COURT OF APPEAL FOR ONTARIO

DATE: 20010924

DOCKET: C34383

RE: HER MAJESTY THE QUEEN (Respondent) v. MICHAEL ISKIERKO (Appellant)

BEFORE: DOHERTY, GOUDGE and CRONK JJ.A.

COUNSEL:

Steven Kovacs for the appellant

Joan Barrett for the respondent

HEARD: September 20, 2001

On appeal from the conviction imposed by Justice Hawkins on March 27, 2000 and the sentence imposed on May 10, 2000.

E N D O R S E M E N T

[1] Even if the evidence of the incident at the 1989 Christmas party, some seven years before the alleged assault, could be admitted as part of the narrative, it could not reasonably support the inference that the appellant had a “sexual inclination” toward the complainant in 1989, much less seven years later in 1996. The trial judge’s finding that this evidence supported a “sexual inclination” toward the complainant was central to his decision that the appellant committed the sexual assault. The verdict cannot stand.

[2] The appellant argued that the verdict was unreasonable. Our jurisdiction to review the reasonableness of a verdict is described in s. 686(1)(a)(i) of the Criminal Code. The jurisdiction does not permit a de novo assessment of the evidence and demands strong deference to the trial judge’s credibility assessment. Nor can that jurisdiction be exercised because the reasons are regarded as “inadequate”. Applying the principles applicable to that jurisdiction, we cannot say that this verdict is unreasonable. A trier of fact acting reasonably could have accepted the evidence of the complainant and convicted the appellant.

[1] In the result, the appeal is allowed, the verdict is quashed and a new trial is ordered.

“Doherty J.A.”

“S.T. Goudge J.A.”

“Cronk EA, J.A.”