DATE: 20021015 DOCKET: C35029

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) - and - RICHARD GELESZ (Appellant)

BEFORE: FINLAYSON, MOLDAVER and FELDMAN JJ.A.

COUNSEL: Cindy Wasser For the appellant

Howard Leibovich For the respondent

HEARD: October 8, 2002

RELEASED ORALLY: October 8, 2002

On appeal from conviction by Justice Kenneth Langdon of the Superior Court of Justice on June 15, 2000.

E N D O R S E M E N T

[1] [1] The appellant does not put in issue the fact that he did not have counsel. Rather, he contends that the trial judge failed to adequately assist him in his defence. In our view, the record does not substantiate that submission. While the trial may not have been perfect, the trial judge, in our view, went to considerable lengths and did his best to ensure that the appellant was aware of all relevant legal, evidentiary and procedural issues.

[2] [2] With respect to the similar fact evidence, the appellant complains that the trial judge failed to hold a complete voir dire and that he failed to alert the appellant about the significance of collusion in the context of an application to admit similar fact evidence. (See R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 (S.C.C.)). We would not give effect to this submission. This was not a jury trial and we are satisfied that the trial judge was aware of all of the relevant facts upon which to base his ultimate conclusion that there was no evidence of collusion between the male complainant and his sister. We also see no merit in the suggestion that the similar fact evidence in issue was not admissible because it was not sufficiently similar to the conduct described by the male complainant. In our view, having regard to the circumstances, the incident involving the sister bore sufficient similarities to the conduct described by the male complainant to warrant its reception for the limited use referred to by the trial judge, namely, its tendency to confirm the veracity of the male complainant’s testimony.

[1] [3] With respect to the other matters raised by the appellant, we are not persuaded that the trial judge failed in his duty to assist the appellant. In this regard, it must be remembered that in fulfilling his duty to the appellant, the trial judge was not required to take on the role of counsel. Indeed, it would have been wrong for him to do so.

[2] [4] Having reviewed the record, we are satisfied that the appellant received a fair trial. Accordingly, the appeal against conviction is dismissed.

Signed: “G.D. Finlayson J.A.”

“M.J. Moldaver J.A.”

“K. Feldman J.A.”