DATE:20020521 DOCKET: C35614

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) -and- JAMES CARTMILL (Appellant)

BEFORE:

CHARRON, BORINS and FELDMAN JJ.A.

COUNSEL:

Robert J. Reynolds,

for the appellant

C. Jane Arnup,

for the respondent

HEARD:

May 14, 2002

RELEASED ORALLY:

May 14, 2002

On appeal from the conviction imposed by Justice Douglas M. Belch dated July 13, 2000 and from the sentence imposed by Justice Belch dated October 20, 2000.

E N D O R S E M E N T

[1] [1] The appellant submits that it was not logical for the trial judge to find him guilty of committing some of the sexual acts alleged by the complainant, yet to acquit him of committing other acts, in a case where all the acts were intertwined and dependant on the complainant’s credibility. We do not agree.

[2] [2] In our view, unlike the case that was cited to us, R v. R. (D.), 136 D.L.R. (4th) 525 S.C.C, this was not a case where the evidence was so wound up that the trial judge had to believe and convict on all of the counts, or entertain a reasonable doubt on the complainant’s truthfulness and reliability, and acquit on all counts. Rather, the allegations were logically severable, and it was open to the trial judge on this record to be satisfied beyond a reasonable doubt with respect to some of the allegations only. We do not read from his reasons that the acquittals were based on a finding that the complainant had been untruthful, as contended by the appellant.

[1] [3] With respect to the second ground of appeal, we see no merit to the allegation that the trial judge erred in failing to declare a mistrial on the basis that the disclosure from the Crown had been incomplete. We did not call upon Crown counsel to respond to this ground of appeal.

[2] [4] With respect to sentence, we are not satisfied on reading the totality of the trial judge’s reasons that he approached the sentencing on the basis that a conditional sentence could not be imposed at law for the offences of which the appellant was convicted. Hence, we are not satisfied that there was an error in principle as contended. We see no basis to interfere with the sentence imposed.

[3] [5] The appeal against conviction is dismissed, leave to appeal the sentence is allowed, but the appeal is dismissed.

“Charron J.A.”

“Borins J.A.”

“Feldman J.A”