DATE: 20031105

DOCKET: C34053

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. WAYNE LORNE ENGLISH (Applicant/Appellant)

BEFORE: DOHERTY, GOUDGE and CRONK JJ.A.

COUNSEL: J. Scott McLeod for the appellant

Ian W. Bulmer for the respondent

HEARD: October 24, 2003

ORALLY

RELEASED: October 24, 2003

On appeal from the conviction entered by Justice B. MacDougall of the Superior Court of Justice dated February 23, 2000.

E N D O R S E M E N T

[1] There are several grounds of appeal.

[2] We do not agree that the trial judge accepted the complainant’s evidence because the appellant did not testify and contradict the complainant’s version of the relevant events. The trial judge did take into consideration the absence of any evidence contradicting the complainant’s version of the crucial events, particularly the conversation with the appellant. He was entitled to take the absence of any evidence to the contrary into consideration in assessing the complainant’s evidence.

[3] The appellant next alleges that the trial judge misapprehended the complainant’s evidence as to the nature of the representation made by the appellant to induce the complainant to lend the appellant the money. Counsel very carefully took us through several passages of the complainant’s evidence. To the extent that those passages address the representation allegedly made to the complainant by the appellant, they confirm the accuracy of the trial judge’s recollection of the evidence.

[4] The appellant also alleges a misapprehension of the evidence concerning the repayment of capital on other loans made to the appellant. Even if the trial judge misapprehended this evidence, it could not have affected the verdict. The alleged misstatement by the trial judge was made in the course of his consideration of whether the appellant appreciated that the complainant’s economic interest was put at risk by the misrepresentation made by the appellant. As counsel frankly and quite accurately acknowledged on the appeal, if the finding of the misrepresentation stood, it followed inevitably that the complainant suffered economic deprivation as a result. This realization could not have escaped the appellant.

[5] Since we would affirm the conviction on the basis that the trial judge’s finding of fraud by misrepresentation cannot be disturbed, we need not deal with the grounds of appeal that relate to the alternative finding by the trial judge of fraud based on omission.

[6] The appellant has abandoned part of his application to adduce fresh evidence. With respect to the one remaining witness whose evidence is tendered by way of fresh evidence, we are satisfied that the appellant has not met the criteria governing the admissibility of fresh evidence on appeal.

[7] The appeal is dismissed.

“Doherty J.A.”

“S.T. Goudge J.A.”

“E.A. Cronk J.A.”