DATE: 20020527 DOCKET: C34773

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. ANGUS VICTOR DAGENAIS (Applicant/Appellant)

BEFORE:

O’CONNOR A.C.J.O., CRONK and ARMSTRONG JJ.A.

COUNSEL:

Anthony Moustacalis

for the appellant

Randy Schwartz

for the respondent

HEARD:

May 23, 2002

RELEASED ORALLY:

May 23, 2002

On appeal from the conviction entered by Justice F.A. Sargeant dated May 16, 2000 and the sentence imposed dated July 25, 2000.

E N D O R S E M E N T

[1] [1] We are not satisfied that the trial judge applied the improper test for the admission of similar fact evidence. It is clear that the trial judge was mindful of the inherent prejudice of certain aspects of the proffered similar fact evidence. Indeed, he excluded the most prejudicial aspect of the evidence of R.D.

[2] [2] The similarity of the features of the evidence of C.B. to that of the complainant are compelling. While we have some concern about the strength of the probative value of the evidence of R.D., we are of the view that it was open to the trial judge to reach the conclusion that the unfair prejudice from this evidence did not outweigh its probative value. In reaching this conclusion, we are mindful that an appellate court must show a high degree of deference to a trial judge’s decision on the application of the similar fact rule.

[1] [3] We see no merit in the appellant’s other ground of appeal from the conviction and the appeal from the conviction is, therefore, dismissed.

[2] [4] As to sentence, this case involved a breach of a position of trust. The complainant was a young teenager. In our view, the trial judge made no error in principle in imposing a six month custodial sentence. Leave to appeal the sentence is granted but the appeal from sentence is dismissed.

“D.R. O’Connor A.C.J.O.”

“E.A. Cronk J.A.”

“Robert P. Armstrong J.A.”