DATE: 20040303

DOCKET: C39282

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – JOSEPH WATSON (Appellant)

BEFORE: FELDMAN, SHARPE JJ.A. and MCCOMBS J. (Ad-hoc)

COUNSEL: Constance Baran-Gerez for the appellant

Kenneth L. Campbell for the respondent

HEARD: March 1, 2004

RELEASED ORALLY: March 1, 2004

On appeal from the conviction and sentence imposed by Justice Patrick D. White of the Ontario Court of Justice dated August 28 and November 15, 2000.

E N D O R S E M E N T

[1] While there was a lack of precision in the approach taken by Crown counsel at trial with respect to the similar fact evidence and a similar lack of precision in the trial judge’s ruling on the voir dire, we are not persuaded that there was any reversible error. The evidence was, in our view, clearly relevant and admissible to the issues at the trial and, in any event, the similar fact evidence does not appear to have figured in the trial judge’s reasons for a conviction.

[2] We see no significant or deliberate departure from the required standard on the part of Crown counsel in cross-examining the appellant at trial, nor do we accept the submission that the conduct of Crown counsel prejudiced the appellant’s right to a fair trial.

[1] Accordingly, the appeal from conviction is dismissed.

[2] With respect to the sentence appeal, the appellant has already served the custodial portion of the sentence, but he does seek leave to appeal the term of probation. In our view, in light of his serious record, and in light of the nature of this offence, a probationary period was entirely appropriate.

[3] Accordingly, we would grant leave to appeal sentence, but dismiss the appeal.

“K. Feldman J.A.”

“Robert J. Sharpe J.A.”

“J.D. McCombs J.”