DATE: 20040210

DOCKET: C36650

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – MAX DOUGLAS PROVERBS (Appellant)

BEFORE:

ROSENBERG, MOLDAVER and SIMMONS JJ.A.

COUNSEL:

Brian R. Kelly

for the appellant

Nadia Thomas

for the respondent

HEARD & ENDORSED:

February 9, 2004

On appeal from conviction by Justice D.C. Downie of the Ontario Court of Justice on June 1, 2001.

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

[1] We are not persuaded that the trial judge misapprehended the evidence of the appellant and, in our view, it was open to him to find that the appellant gave contradictory evidence.

[2] With respect to the WD issue, while we accept that the trial judge could have been somewhat more careful in the language he used, we do not believe that he approached the case on an “either/or basis”. At p. 15 of his reasons, the trial judge stated that he had weighed all of the evidence and having done so, he was satisfied that the Crown had proved its case beyond a reasonable doubt. It is apparent to us, when the reasons are read fairly as a whole, that at the end of the day, the trial judge rejected the appellant’s evidence and he accepted the evidence of the two complainants. In doing so, he applied the proper principles in assessing both the credibility and reliability of their testimony.

[3] In concluding that the complainants were telling the truth, the trial judge was on solid ground. The two young complainants described similar incidents involving the appellant and collusion was not a live factor in assessing their evidence. Accordingly, the appeal is dismissed.

Signed: “M.J. Moldaver J.A.”