W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. Subsections 486(3) and 486(5) of the Criminal Code provide:

486.(3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i), (ii) and (iii).

(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20.

DATE: 20041028

DOCKET: C41948

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) - and – THOMAS GARCIA (Appellant)

BEFORE:

MACPHERSON, SIMMONS AND JURIANSZ JJ.A.

COUNSEL:

Thomas Garcia

In person

Lou Strezos

Appearing as duty counsel for Mr. Garcia

Gillian Roberts

For the Crown

HEARD:

October 25, 2004

RELEASED ORALLY:

October 25, 2004

On appeal from the conviction by Justice Robert Weekes of the Superior Court of Justice dated March 4, 2004 and on appeal from the sentence by Justice Robert Weekes dated May 13, 2004.

E N D O R S E M E N T

[1] On behalf of the appellant duty counsel contends that the finding of guilt against the appellant for unlawful confinement was inconsistent with the finding of not guilty against a co-accused; that the verdict was unreasonable; and that the trial judge failed to adequately review the defence evidence relating to this charge.

[2] We disagree. The allegations vis-à-vis the two accused were different and were capable of giving rise to different findings. As for the assertion that the verdict was unreasonable, in our view, the context of the events alleged against the appellant was sufficient to support a conviction. There was evidence indicating that the appellant knew the complainant had been sexually assaulted by one of the co-accused, that he himself had sexually assaulted her, and that following these events, the appellant prevented the complainant from using the telephone. In our view, this evidence was sufficient to support an inference that the appellant’s actions were intended to prevent the complainant from leaving the apartment. While it may have been preferable for the trial judge to have reviewed the evidence in relation to this charge separately, the trial judge did so adequately when answering the jury’s questions.

[3] The appellant maintains his innocence relating to the sexual assault conviction. We would not give effect to this submission. The trial judge instructed the jury properly and there was evidence capable of supporting a conviction.

[4] As for the sentence appeal, in our view, the sentence imposed was within the range and we see no error in principle in the trial judge’s reasons.

[5] The appeal is therefore dismissed.

“J.C. MacPherson J.A.”

“Janet Simmons J.A.”

“R. G. Juriansz J.A.”