DATE: 20040210

DOCKET: C39462

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – WINSTON LAM (Appellant)

BEFORE:

ROSENBERG, MOLDAVER and SIMMONS JJ.A.

COUNSEL:

Laurence Cohen

for the appellant

Nadia Thomas

for the respondent

HEARD & ENDORSED:

February 9, 2004

On appeal from conviction by Justice Ted Mindon of the Superior Court of Justice on December 19, 2001 and sentence imposed on March 22, 2002.

A P P E A L B O O K E N D O R S E M E N T

[1] The principal ground of appeal advanced in the appeal is that the trial judge failed to consider whether the Crown had proved beyond a reasonable doubt that the complainant did not consent and that the appellant knew she did not consent.

[2] Consent and mistaken belief in consent were not raised at trial and there was no air of reality to those issues. The complainant was intoxicated and said “no” repeatedly. She was in no state to offer any physical resistance because of the alcohol supplied by the appellant. The appellant did not testify and in his statement did not allege consent.

[3] We see no merit to the other grounds of appeal. The trial judge fully and fairly analyzed the evidence and did not misapprehend any of the material evidence.

[4] As for sentence, on the findings of fact by the trial judge, the sentence of 40 months imprisonment in addition to credit for 16 months pre-sentence custody was within the range.

[5] Accordingly, the appeal from conviction is dismissed. While leave to appeal sentence is granted, the appeal is dismissed.

Signed: “M. Rosenberg J.A.”