DATE: 20010905 DOCKET: C34413
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) –and– CARL GARY SENIOR (Appellant)
BEFORE: LASKIN, GOUDGE and SIMMONS JJ.A.
COUNSEL: J. Paul Fletcher, for the appellant
Nadia E. Thomas, for the respondent
HEARD: August 24, 2001
RELEASED ORALLY: August 24, 2001
On appeal from the conviction imposed by Justice Lorne E. Chester dated April 11, 2000 and from the sentence imposed by Justice Chester dated June 6, 2000.
E N D O R S E M E N T
[1] The appellant’s main submission on his conviction appeal is that the verdict was unreasonable. He seeks to support this submission by applying to introduce fresh evidence. He argues that the trial judge misapprehended the complainant’s evidence and failed to deal reasonably with the complainant’s delay in reporting. He also argues that the proposed fresh evidence would have provided useful material for cross-examining the complainant.
[2] On the evidence at trial we do not agree that the verdict was unreasonable. The trial judge was alive to the defence contention that the complainant’s delay in reporting cast doubt on whether the assault occurred. He addressed this contention in his judgment and rejected it for reasons that are supportable on the evidence. Overall, the verdict is one that a trier of fact, properly instructed, could reasonably have reached.
[3] The fresh evidence does not meet the test in Palmer. Although the material might have permitted the defence to pursue other lines of cross-examination, it is not so cogent that it could have affected the result.
[4] Therefore, the motion to introduce fresh evidence is dismissed.
[5] On sentence, the appellant argues that the trial judge erred in not imposing a conditional sentence. In the light of the appellant’s history of abuse and his previous conviction for the same offence, we see no error in principle in the sentence of four months’ imprisonment.
[6] Accordingly, the appeal against conviction is dismissed, leave to appeal sentence is granted but the sentence appeal is also dismissed.
“J.I. Laskin J.A.”
“S. Goudge J.A.”
“J. Simmons J.A.”