COURT OF APPEAL FOR ONTARIO

DATE: 20050418

DOCKET: C40238

RE: HER MAJESTY THE QUEEN (Respondent) – and – ASHOK KUMAR (Appellant)

BEFORE: MACPHERSON, JURIANSZ and MACFARLAND JJ.A.

COUNSEL: Robert B. McGee for the appellant Christine Tier for the respondent

HEARD & RELEASED ORALLY: April 7, 2005

On appeal from the judgment of Justice Bruce C. Hawkins of the Superior Court of Justice dated October 22, 2002.

E N D O R S E M E N T

[1] The pattern of deposits, withdrawals and purchases from the appellant’s accounts provided a basis for the trial judge to disbelieve his testimony. While there were problems with the credibility of Mr. Gilray, his evidence and that of the handwriting expert provided sufficient support for the trial judge’s verdict.

[2] The practice that a judge who hears a pretrial does not preside at trial should be assiduously followed. In this case, it was not discovered that the trial judge had presided at the pretrial until after the trial. The judge and counsel could not recall the pretrial. The pretrial conference report indicates that the appellant intended to plead not guilty. The mischief prohibited by rule 27.04, the disclosure of communications or discussion of a guilty plea to the trial judge, did not occur in this case. The trial judge committed no error in dismissing the appellant’s motion for a mistrial.

[3] This is an appropriate case for a restitution order as a component of the sentence. The amount ordered by the trial judge reflects the complainant’s loss as established in the evidence. The sentence was fit.

[4] The conviction appeal is dismissed. Leave to appeal sentence is granted, and the sentence appeal is dismissed.

“J.C. MacPherson J.A.”

“R.G. Juriansz J.A.”

“J. MacFarland J.A.”