DATE: 20030326 DOCKET: C36286

COURT OF APPEAL FOR ONTARIO

RE:

Her Majesty the Queen (Respondent) - and - K. B. (Appellant)

BEFORE:

McMURTRY C.J.O., MORDEN and CRONK, JJ.A.

COUNSEL:

Riun Shandler, for the respondent

Anil K. Kapoor, for the appellant

HEARD:

March 14, 2003

On appeal from the conviction entered on October 20, 2000 and the sentence imposed on November 1, 2000 by Justice G. T. Valin of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

Released Orally: March 14, 2003

BY THE COURT:

[1] The appellant raises four grounds in support of his conviction appeal.

(1) The Impartiality of Juror Number 4

[2] We do not think that the record supports the claim of a lack of impartiality by juror number 4 in this case. Further, we note that defence counsel at trial was satisfied with the inquiries of the juror made by the trial judge, with the result that he did not seek her disqualification.

(2) Admissibility of the Discreditable Conduct Evidence

[3] The evidentiary record here, fairly read, does not demonstrate a reasonable possibility of collusion between the complainant and L.P. regarding their testimony. Further, we do not think that there is any substance in the argument that the discreditable conduct evidence was inadmissible because of the appellant's prior conviction concerning the incidents involving L.P.

(3) The Trial Judge's Instruction on the Discreditable Conduct Evidence

[4] In our view, the trial judge's use instruction relating to the discreditable conduct evidence, read in the context of the charge as a whole, reflected any error. The jury would have understood it as being applicable to its consideration of the case for the Crown, and not to the defence case. That was indicated to the jury in the trial judge's review of the case for the defence when he expressly drew the jury's attention to the discrepancy between the evidence of the complainant and L. P. relied upon by the defence.

(4) The Trial Judge's Reasonable Doubt Instruction

[5] The trial judge's instruction on reasonable doubt was not deficient in any material respect in this case.

[6] Accordingly the appeal is dismissed.

RELEASED: "RRM" "MAR 26 2003"

"Roy McMurtry C.J.O." "J. W. Morden J.A." "E. A. Cronk J.A."