DATE: 20050502

DOCKET: C37947

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – SHAWN RICHARD LESLIE SMITH (Appellant)

BEFORE:

GOUDGE, SIMMONS AND ARMSTRONG JJ.A.

COUNSEL:

Jeanine E. LeRoy

for the appellant

Erika Chozik

for the Crown respondent

HEARD & ENDORSED:

April 29, 2005

On appeal from the conviction by Justice K. McGowan of the Ontario Court of Justice dated October 22, 2001 and from the sentence imposed by Justice K. McGowan dated November 2, 2001.

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

[1] It was clearly open to the trial judge to reject the evidence of the appellant as she did. On the evidence that she accepted, the appellant’s knowledge of the complainant’s fear or at least his recklessness in that respect is self evident. There is no Shepherd error in the trial judge not reciting that finding in express terms.

[2] There was ample evidence to support her finding that the complainant was harassed, and on the evidence she accepted, no air of reality to the defence of honest but mistaken belief.

[3] The conviction appeal is dismissed.