DATE: 20030709

DOCKET: C38812

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – ROBERT LARABIE (Appellant)

BEFORE: FELDMAN, SIMMONS JJ.A. and LANGDON J. (ad hoc)

COUNSEL: Tanya Kranjc For the appellant

Mary-Ellen Hurman For the respondent

HEARD: June 4, 2003

On appeal from the order of Justice Thomas J. Lally of the Superior Court of Justice dated May 16, 2002, dismissing the appeal from the conviction imposed by Justice Masse of the Ontario Court of Justice on February 25, 2000.

E N D O R S E M E N T

[1] The preliminary issue raised on this appeal related to the retesting of the semen for a DNA match following the trial. The Crown sought to introduce the test result on the summary conviction appeal, but withdrew the application. In spite of this withdrawal, the summary conviction appeal judge referred to the unadmitted fresh evidence in his reasons. On this appeal the Crown sought to rely on the evidence as well. The appellant objects to the references to this evidence by the summary conviction appeal judge and by the Crown.

[2] We agree with appellant counsel’s submissions. The summary conviction appeal judge should not have considered or relied in any way on the fresh evidence which was not before him. Nor should the Crown have sought to rely on the evidence on this appeal without making a fresh evidence application and receiving a favourable ruling.

[3] In considering the merits of the appeal, we take no account of the fresh evidence.

[4] The substantive ground of appeal in this court (and below) was that the verdict of the trial judge was unreasonable and that the evidence cannot support a conviction. We do not accept this submission. The trial judge reviewed the evidence of the complainant with considerable caution in light of her state of intoxication. As a result, he looked for corroboration in other evidence. He found corroboration of two significant points in the DNA results, which first excluded the complainant’s husband as the person who had intercourse with her as she said, and second, did not exclude the appellant, the person she identified as her assailant. He was included as one of a maximum of 711 males in Ontario who were not excluded as a match. That number is artificially high because it assumes all males in Ontario are Caucasian, which of course they are not. In our view, the trial judge was entitled to accept the DNA evidence as corroborative of the fact that the appellant had intercourse with the complainant.

[5] Although the trial judge did not expressly make a finding in accordance with the principle in R. v. W.D., 1994 76 (SCC), [1994] 3 S.C.R. 521, a review of his reasons read as a whole, makes it clear that he rejected the evidence of the appellant as raising any reasonable doubt.

[6] In our view, the trial judge was entitled to come to the conclusion he did on the evidence. The verdict is not unreasonable. Leave to appeal is granted but the appeal is dismissed.

Signed: ____ “K. Feldman J.A.”

_____ “Janet Simmons J.A.”

_____ “K.A. Langdon J.”