DATE: 20030821
DOCKET: C39183
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) v. ANDRE ALBERT GAGNE (Appellant)
BEFORE: DOHERTY, CHARRON and ARMSTRONG JJ.A.
COUNSEL: Constance Baran-Gerez for the appellant Susan Magotiaux for the respondent
HEARD: August 19, 2003
ORALLY
RELEASED: August 19, 2003
On appeal from the conviction entered by Justice P. Cosgrove, sitting with a jury, on September 18, 2002 and the sentence imposed on September 24, 2002.
E N D O R S E M E N T
[1] As presented by counsel at trial and the trial judge, this was a straightforward, essentially single issue case. The only real issue was whether the appellant intended to assault the complainant when he attempted to break into her home through the balcony.
[2] It was agreed at trial that the complainant’s evidence was unreliable and, standing alone, should not result in a conviction. There was ample evidence, however, apart from the complainant’s evidence, from which the jury could infer that the appellant intended to assault the complainant. This evidence included a neighbour’s observations of the complainant when she fled her home with the appellant in apparent pursuit, and the evidence that the appellant had been released from jail the day before having just completed a sentence for assaulting the complainant.
[3] There was evidence that the appellant had assaulted the complainant on prior occasions that had not resulted in criminal charges. This evidence was left with the jury as evidence of motive or animus. The trial judge did not tell the jury that the complainant’s evidence in relation to those events should be regarded as equally unreliable as was her evidence concerning the events which led to the charges. It may have been better had the trial judge made that specific comment, but we are satisfied that the jury would clearly have understood that all of the complainant’s evidence was regarded by everybody, including the Crown, as unreliable if unconfirmed. We are satisfied that the alleged non-direction did not result in any error in law or miscarriage of justice.
[4] There is no merit to the other grounds of appeal. There is no reason to interfere with the sentence imposed by the trial judge.
[5] The appeals are dismissed.
“Doherty J.A.”
“Louise Charron J.A.”
“Robert P. Armstrong J.A.”