DATE: 20050616

DOCKET: C41597

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – BRUNO CARUSO (Appellant)

BEFORE:

MOLDAVER, ARMSTRONG and JURIANSZ JJ.A.

COUNSEL:

Ryan Breedon

for the appellant

Riun Shandler

for the respondent

HEARD:

June 14, 2005

On appeal from conviction by Justice Ian B. Cowan of the Ontario Court of Justice dated December 2, 2003.

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

[1] With respect, we are of the view that the trial judge erred in characterizing the proposed evidence concerning the complainant’s propensity to inflict injuries on herself as collateral. Given the position of the defence, the evidence was clearly relevant to a central fact in issue.

[2] Given the trial judge’s erroneous view of the nature of the proposed evidence, he failed to direct his mind to the real issue as to its admissibility, that is, whether its probative value outweighed its prejudicial effect.

[3] On the record as it stands, we think that the proposed evidence would almost certainly have met the probative value test on the charge of simple assault and we cannot say, with the degree of certainty required, that it would have failed that test on the charge of assault causing bodily harm. Had the evidence been received, we cannot say that the verdicts on the charges of assault and assault causing bodily harm would necessarily have been the same. Accordingly, on those counts, we would allow the appeal, quash the convictions and order a new trial.

[4] We take a different view of the breach of recognizance convictions. In our view, there was ample evidence to sustain the trial judge’s finding that the appellant knowingly breached the conditions in question. Indeed, on his own admission, we think that the verdicts were inevitable. The trial judge, in our view, quite properly rejected the appellant’s “lack of knowledge” defence as an artifice devised by him to escape liability.

[5] Accordingly the appeal from conviction on those counts is dismissed.