DATE: 20020208 DOCKET:C36143

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) and YOUSHAA AKL (Applicant/Appellant)

BEFORE:

FINLAYSON, CARTHY AND WEILER JJ.A.

COUNSEL:

Paul Burstein

For the appellant

James K. Stewart

For the respondent

HEARD:

January 18, 2002

RELEASED ORALLY: January 18, 2002

On appeal from the conviction on December 15, 2000, imposed by Justice Lynn D. Ratushny, sitting with a jury and from the sentence imposed by Justice Lynn D. Ratushny on January 22, 2001.

E N D O R S E M E N T

[1] This was a very brief trial and a factual scenario that would be very easy for the jury to understand. In these circumstances a brief charge was appropriate and the failure of defence counsel to make any objections is of very real significance on appeal. We are satisfied that the sundry bits of evidence of post event conduct would simply be applied by the jury as parts of the entire body of evidence. Defence counsel was also apparently satisfied. It was perhaps a benefit to the defence to avoid a recitation by the trial judge of the alternative misdeeds the accused may have been pursuing if, as contended for, he had explained to the jury the appropriate use of evidence of post-event conduct. Similarly, the evidence of the expert was straightforward in describing the drug associated with amnesia. Linking the drug to sexual assault experiences, while technically inappropriate, is really saying no more than a jury would naturally infer from the facts of this case; that is, the association between the use of a drug known to cause unconsciousness and amnesia and the alleged assault.

[2] We see no merit in the other matters raised by counsel and the appeal is dismissed. The appeal against sentence was essentially based on the dismissal of one or more of the charges on the appeal. In the event, leave to appeal sentence is denied.

"G.D. Finlayson J.A."

"J.J. Carthy J.A."

"K.M. Weiler J.A."