DATE: 2002-09-09 DOCKET: C34154

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) -and- A.C.W. (Appellant)

BEFORE: LABROSSE, WEILER and CHARRON JJ.A.

COUNSEL: Timothy E. Breen, for the appellant Sandra Kingston and Randy Schwartz, for the respondent

HEARD: September 3, 2002

On appeal from the conviction imposed by Justice Clair Marchand dated November 22, 1999.

E N D O R S E M E N T

[1] [1] The appellant was found guilty on two counts of sexual assault and two counts of sexual interference against his step-daughter arising from abuse of the child when she was between eight and eleven years old. The two counts of sexual interference were stayed pursuant to the rule in R. v. Kienapple (1974), 1974 14 (SCC), 15 C.C.C. (2d) 524 (S.C.C.).

[2] [2] The appellant submits that the trial judge misdirected the jury on reasonable doubt and that post-trial statements of the complainant and her mother constitute fresh evidence capable of affecting the verdict.

[3] [3] The trial judge did not err in his instructions to the jury regarding the burden of proof. The instructions comply with R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) and R. v. Lifchus (1997), 1997 319 (SCC), 118 C.C.C. (3d)1. We note that no objections were taken at trial on that issue.

[4] [4] The proposed evidence is not independent evidence. What was alleged to have been said is not unequivocal. Parts of the proposed evidence are internally inconsistent and parts are inconsistent with uncontested evidence led at trial. Furthermore, part of the proposed evidence was known and available at the time of trial and a tactical decision was made not to use it.

[5] [5] In our view the evidence is not credible, not reliable and could not reasonably be expected to affect the verdict.

[6] [6] The appeal is dismissed.

"Jean-Marc Labrosse J.A."

"Karen M. Weiler J.A."

"Louise Charron J.A."