DATE: 20010613 DOCKET: C33151

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and– DAVID GRAVIS (Applicant/Appellant)

BEFORE:

FINLAYSON, WEILER and GOUDGE JJ.A.

COUNSEL:

Christopher Hicks, for the appellant

Simon N.M. Young, for the respondent

HEARD:

June 11, 2001

RELEASED ORALLY:

June 11, 2001

On appeal from the conviction imposed by Justice Helen K. MacLeod, sitting without a jury, dated June 11, 1999 and from the sentence imposed by Justice MacLeod dated March 10, 2000.

E N D O R S E M E N T

[1] The appellant’s counsel was critical of the reasons of the trial judge in convicting the appellant. He appeared to think that there was an obligation on the trial judge to give herself the same detailed instruction that would be required of her in charging a jury. We are aware of no such obligation.

[2] The trial judge made a detailed summary of the witnesses’ evidence seriatim and then made definite findings of fact relating to the issues. In doing so, she made no errors of law of any consequence and we are not prepared to assume that she made errors in her thinking that are not recorded in her reasons.

[3] The appeal against conviction is dismissed.

[4] The trial judge sentenced the appellant to three years in the penitentiary for sexual assault followed by two years of probation. Despite the reference by the trial judge to the lack of remorse of the appellant, we are not persuaded that the sentence of three years for sexual assault was unfit. As to the probation order which she imposed for the common assault, the Crown concedes that a two-year probation order following the sentence of three years is an illegal sentence. We would impose a sentence of six months for that assault and make it concurrent with the three years to be served in the penitentiary.

[5] Accordingly, leave to appeal sentence is granted, the appeal is allowed and the reference to the probation order is deleted. In all other respects, the appeal against sentence is dismissed.

Signed: “G.D. Finlayson J.A.”

“K.M. Weiler J.A.”

“S.T. Goudge J.A.”