DATE: 20040319

DOCKET: C37037

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – VICTOR RUIZ (Appellant)

BEFORE: LASKIN, ROSENBERG JJ.A. and AITKEN J. (ad hoc)

COUNSEL: Richard Posner For the appellant

Christine Bartlett-Hughes For the respondent

HEARD: March 17, 2004

RELEASED ORALLY: March 17, 2004

On appeal from conviction by Justice Hughe R. Locke of the Superior Court of Justice on December 11, 2000.

E N D O R S E M E N T

[1] The appellant’s principal submission is that the trial judge misdirected himself with respect to defence of accident and, in effect, rejected that defence on the basis that on the appellant’s own evidence he was at least guilty of criminal negligence. The appellant also submits that the trial judge did not adequately deal with the expert evidence and did not provide reasons for rejecting the appellant’s evidence.

[2] We would not give effect to these submissions. Irrespective of the trial judge’s treatment of the accident defence, he made clear findings that this was an intentional assault. The trial judge also described how the blows were inflicted. It is implicit in those findings that he rejected the appellant’s evidence, which was inconsistent with the expert evidence, which he did accept.

[3] The trial judge’s treatment of the conflict in the expert evidence was proper and is consistent with this court’s decisions in R. v. Molnar (1990), 55 C.C.C. (3d) 446 and R. v. Smith (2001), 161 C.C.C. (3d) 1. In particular, the trial judge’s careful analysis of Dr. Shouldice’s evidence shows that he rejected the basis for the opinion of the defence expert.

[4] Accordingly, the appeal from conviction is dismissed and the appeal from sentence is dismissed as abandoned.

Signed: “John Laskin J.A.”

_____ “M. Rosenberg J.A.”

_____ “C. Aitken J. (ad hoc)”