COURT OF APPEAL FOR ONTARIO

DATE: 20040130

DOCKET: C38867

RE: HER MAJESTY THE QUEEN (Respondent) – and – JOHN BERTELSEN (Appellant)

BEFORE: ABELLA, GOUDGE and GILLESE JJ.A.

COUNSEL: Howard Cohen, for the appellant Shawn Porter, for the respondent

HEARD: January 27, 2004

RELEASED ORALLY: January 27, 2004

On appeal from the sentence imposed by Justice H. Keenan of the Superior Court of Justice dated September 30, 2002.

E N D O R S E M E N T

[1] In our view, the proposed fresh evidence does not satisfy the Palmer test – it was discoverable and, in any event, would have had no impact on the outcome.

[2] The appellant argues that the trial judge erred in drawing an inference of consciousness of guilt from the appellant’s suicide attempt. It was open to the trial judge to reject the appellant’s submission that his attempt was to relieve his family of “stress and embarrassment”. We see no basis for disturbing his finding that it was unreasonable for a “perfectly innocent man” to decide “that it would be better to kill himself and leave his family behind than go through the court process to establish his innocence.”

[3] The second submission from the appellant is that the trial judge erred in the way he assessed the complainant’s cross-examination. His reasons reflect no misapprehension of the relevance of the cross-examination. Moreover, he was entitled to conclude both that the effect of the cross-examination was to enhance the complainant’s credibility and that the appellant’s attempts to show deficiencies in the complainant’s memory by cross-examining her on insignificant matters, simply gave the complainant further opportunities to demonstrate her credibility.

[4] Finally, we see no error in the trial judge’s use of the agreed Statement of Fact, and her previous complaints. Her prior statements were properly admitted as part of the narrative and the trial judge was entitled to refer to these prior consistent statements in general terms. There is no basis for concluding that his reasons disclose any misuse of the evidence of prior complaints.

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

[6] In our view, however, in imposing sentence the trial judge appeared to focus almost exclusively on the offence itself. That being so, it is our role to determine a fit sentence. In light particularly of the fresh evidence about the appellant’s medical condition, in all the circumstances we would vary the sentence to three years.

[7] Leave to appeal sentence is granted, the sentence appeal is allowed and the sentence varied accordingly.

Signed: “R.S. Abella J.A.” “S.T. Goudge J.A.” “E.E. Gillese J.A.”