DATE: 20031020

DOCKET: C39028

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – GARY LEWIS (Accused/Appellant)

BEFORE:

McMURTRY C.J.O., GOUDGE AND SIMMONS JJ.A.

COUNSEL:

Paul Calarco

for the appellant

Leslie Paine

for the respondent

HEARD:

October 6, 2003

On appeal from the conviction on December 31, 2001, imposed by Justice E. Allen of the Ontario Court.

E N D O R S E M E N T

[1] The appellant argues that the reasons for judgment contain a number of errors in principle and in any event the verdict is unreasonable.

[2] We do not agree.

[3] First the trial judge did not err in placing no reliance on Jordan L.’s evidence as to his description of the teeth of the assailant. As with any witness, it was entirely open to the trial judge to reject this portion of Jordan’s evidence.

[4] Second, in saying that he had never seen anything quite like the dolphin pendant, the trial judge was not concluding that the pendant was completely unique but rather that it was not so common that it was without probative value. This was a reasonable inference open to him from examining the exhibit.

[5] Third, neither the photo line up evidence nor the dolphin can be said to have no probative value. Both are some evidence linking the appellant to the crimes. The trial judge did not err in considering this evidence.

[6] Finally, we cannot find the trial judge’s verdict to be unreasonable. A reasonable trier, properly instructed, could convict based on the evidence that the appellant frequented the building, the photo line up evidence (that although with some equivocation not just one, but three witnesses independently found the accused to resemble the assailant) and finally the evidence of the dolphin and its location, which provides some linkage between the accused and the crimes. While the Crown’s case was certainly not overwhelming, when these pieces of evidence are taken together, we cannot say that the finding of guilt was unreasonable.

[7] The appeal must be dismissed.

“R.R. McMurtry C.J.O.”

“S.T. Goudge J.A.”

_ “Janet Simmons J.A.”