DATE: 20031209

DOCKET: C40256

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – CHRISTOPHER MICHAEL WELLINGTON (Appellant)

BEFORE: McMURTRY C.J.O., LASKIN and ROSENBERG JJ.A.

COUNSEL: John Norris (Duty Counsel) for the appellant

Eric Siebenmorgen for the respondent

HEARD: November 25, 2003 - Kingston

RELEASED ORALLY: November 25, 2003

On appeal from the conviction entered by Justice Lynda C. Templeton of the Superior Court of Justice, sitting with a jury, dated June 13, 2003 and the sentence imposed by Justice Templeton dated June 25, 2003.

E N D O R S E M E N T

[1] Duty counsel for the appellant advanced two submissions on the conviction appeal:

(i) the trial judge gave an inadequate instruction on in‑dock identification; and

(ii) the trial judge gave an inadequate W.D. instruction.

[1] On the first submission, in the context of how this case went to the jury, the instruction on in-dock identification was sufficient. The appellant was known to two of the witnesses and acknowledged that he was at the scene. The only live issue at trial was whether he had a role in the beating. However, all witnesses said that two persons administered the beating: Lelbanc, and another, who could only have been the appellant. Moreover, one of the witnesses who knew the appellant heard him utter inculpatory words. Another witness who heard those same words said they were spoken by the same person who beat the victim, that is the appellant. We therefore decline to give effect to this ground of appeal.

[2] On the second submission the trial judge gave an impeccable W.D. instruction concerning Mr. Wellington’s evidence. The appellant contends however that in giving that instruction the trial judge did not include the evidence of Leblanc, who also testified for the defence. We acknowledge that it would have been preferable had the trial judge done so, but we think the overall instruction was adequate. The trial judge did expressly tell the jury that Leblanc’s evidence could give rise to a reasonable doubt. We therefore do not give effect to this ground of appeal. Accordingly, the conviction appeal is dismissed.

[3] On the sentence appeal, in our view the sentence was entirely fit given the seriousness of the crime and the appellant’s record. Although leave to appeal sentence is granted the appeal is dismissed.

“R. M. McMurtry C.J.O.”

“John Laskin J.A.”

“M. Rosenberg J.A.”