DATE: 20041008 DOCKET: C40815

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – GERHARD MINTZ (Appellant)

BEFORE: Labrosse, Weiler and Blair JJ.A.

COUNSEL: Paul Calarco for the appellant David Lepofsky for the respondent

HEARD & ENDORSED: October 6, 2004

On appeal from the order of Justice Anne Marie Molloy of the Superior Court of Justice, sitting as a Summary Conviction Appeal Judge, dated October 17, 2003, dismissing an appeal from the conviction entered and the sentence imposed by Justice Bruno Cavion of the Ontario Court of Justice dated March 27, 2003.

APPEAL BOOK ENDORSEMENT

[1] The order under s. 486(3) is continued and remains in effect. This is an appeal from the SCAJ and must raise a question of law. Whether the trial judge misapprehended the evidence and gave adequate reasons are questions of law. In our opinion, however, the SCAJ did not err in upholding the findings of the trial judge. The trial judge assessed the complainant’s evidence and found her recollection of the offence was accurate and reliable. There is no basis on which the SCAJ could interfere with these findings. The trial judge also fulfilled his duty to give reasons and the SCAJ did not err in upholding him. The appeal from conviction is dismissed.

[2] With respect to sentence, the Crown concedes that the SCAJ erred in imposing the $2,000 fine and is therefore struck out. A fine should not be imposed where a sentence already includes custody and probation. The SCAJ also imposed a DNA order although the Crown had not appealed the trial judge’s refusal to make one. The DNA order is struck. The SCAJ substituted a community service order of 100 hours as part of the condition of the appellant’s probation. In the unique circumstances of this case, we would not interfere with this part of the order. The appeal as to sentence is allowed in part as indicated.