DATE: 20040720

DOCKET: C40272

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – CARLOS MANUEL CALDAS FERREIRA (Appellant)

BEFORE: WEILER, SHARPE and LANG JJ.A.

COUNSEL: Lawrence Ben-Eliezer for the appellant

Karen Shai for the respondent

HEARD: July 14, 2004

RELEASED ORALLY: July 14, 2004

On appeal from the order of Justice Terrence P. O’Connor of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated June 20, 2003, dismissing an appeal from the conviction entered by Justice Elinore A. Ready of the Ontario Court of Justice dated December 13, 2002, and the sentence imposed by Justice Ready dated June 21, 2002.

E N D O R S E M E N T

[1] The appellant was convicted of one count each of sexual assault and forcible confinement by E.A. Ready J. of the Ontario Court of Justice in Brampton and sentenced to four months concurrent on each count. He appealed his conviction and sentence to T. P. O’Connor J. of the Ontario Superior Court of Justice who dismissed his appeal. The appellant further appeals his conviction to this court on questions of law.

[1] The appellant alleges that the trial judge made two material misapprehensions of the evidence in her reasons for conviction. Further, the appellant alleges the trial judge erred in refusing to allow rebuttal evidence concerning a matter that was brought out in cross-examination of the appellant.

Background and Evidence

[2] In order to appreciate the basis for the grounds of appeal, a brief review of the background giving rise to this appeal and the evidence is of assistance.

[3] Ms. S. was a sales representative. She knocked on the door of a house. A man opened the door wearing only boxer shorts. She entered the house. He asked for a kiss, which she refused. He then pushed her up against a wall, with his hand on the side of her throat to prevent her from leaving. He fondled her crotch area and her breast, while pressing his body against hers. He kissed her, after which she was permitted to leave. She told him repeatedly that she wanted to leave. She reported the incident to the police and gave the police the address of the house. Ms. S. also gave the police a description of the accused, including some particular scar-like marks on his chest. At trial she identified the appellant as the person who assaulted her.

[4] The appellant testified at trial and put forth a defence of alibi. He contended that he was working on the day in question and therefore could not have been the person who assaulted Ms. S. He testified that he had no driver’s licence for Canada. His wife drove him to work. The appellant further testified that he never drove on weekdays.

[5] The appellant’s wife also testified that she had driven the appellant to work. The appellant’s wife said that the reason she drove him to work was because it was wasteful for two cars to head into the Toronto area when they could use one car.

[6] On cross-examination, the appellant was confronted with his conviction that he had solicited a prostitute in his car on a weekday in Toronto and was therefore driving on a weekday. Evidence was also presented that the appellant was driving during the week on one other occasion.

The Issues on this Appeal and our response:

1. Misapprehension of the evidence

[7] In her reasons the trial judge stated:

You indicated that you believe you went to work that day, you have not missed any days at work and you were working for this Carlos at this Brazil Painting, and you believe, as was usual, that your wife drove you to work, and the reason that you gave was, you have no licence, which in this court’s mind is quite telling.

[8] The Crown concedes that the appellant never said that the reason he did not drive was because he did not have a driver’s licence. It would have been open to the trial judge to draw the inference that the reason the appellant said his wife drove him was because he did not have a licence but the trial judge went beyond inference drawing in saying that the appellant gave this as the reason for not driving. It remains however, that the appellant testified he did not drive on weekdays and that this was disproved by objective evidence. The crux of the trial judge’s reasons were:

You indicated that you had an international driver’s licence, you indicated that you virtually never drive, your wife drives you all of the time, and that is not so. That is something that you have indicated and you are misleading the court on.

[9] Moreover, this was only one of several reasons given by the trial judge for rejecting the appellant’s evidence.

[10] The second alleged misapprehension of the evidence arises from the trial judge’s comment that the appellant’s evidence as to his alleged employment was “totally preposterous” because he did not have any documentation relating to his employment. The appellant asserts that his lack of documentation stems from the fact he was working “under the table” and was being paid by cash or cheque without the usual deductions. As a result the appellant submits the trial judge ought not to have made any finding of credibility against him and misapprehended the evidence.

[11] The trial judge’s reasons must, however, be read as a whole. What the trial judge focussed on was that the appellant said he cashed his cheques with a friend whereas his wife claimed that he gave her the cheques and that she deposited them into a joint bank account. Accordingly, the trial judge was entitled to conclude that the appellant’s alleged alibi was simply not supported. Moreover, the appellant was unable to give any detail as to his employment including even the names of his employer or co-workers.

2. Did the trial judge err in law by refusing to allow the appellant’s trial counsel to re-examine on the issue of the appellant’s driving on June 5, 2000?

[12] This ground of appeal was not raised before the SCAJ. In any event in our view this ground would not be determinative given the entirety of this record. There was a compelling case against this appellant including the strong identification evidence of the complainant who was able to identify the home of the appellant as the place of the assault and the scarring on his body, which was revealed when he chose to raise his shirt in court.

[13] Accordingly the appeal is dismissed.

“Karen M. Weiler J.A.”

“Robert J. Sharpe J.A.”

“Susan Lang J.A.”