COURT OF APPEAL FOR ONTARIO

DATE: 20050208

DOCKET: C38221

RE:

HER MAJESTY THE QUEEN (Respondent) -and- OREST WILLIAM KOZAK (Appellant)

BEFORE:

LASKIN, ROSENBERG and LaFORME JJ.A.

COUNSEL:

Yaroslav Mikitchook

for the appellant

Shelley Maria Hallett

for the respondent

HEARD AND ENDORSED:

February 4, 2005

On appeal from the judgment of Justice Lynda C. Templeton of the Superior Court of Justice, sitting as a summary conviction judge, affirming the conviction entered by Justice John B. Allen of the Ontario Court of Justice on May 23, 2000.

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

[1] The appellant submits that his conviction was unreasonable and that the summary conviction appeal court erred in law in failing to so find.

[2] This submission principally depends on attacking the trial judge’s rejection of the appellant’s explanation for moving the bed. In the trial judge’s opinion, the videotape belied the appellant’s explanation.

[3] To succeed on the appeal, the appellant must at least show that no trier of fact could reasonably conclude that to cover the broken glass in the window, it was unnecessary to move the bed.

[4] We have viewed a photographic copy of the videotape, which shows the location of the bed and the window, and their proximity to each other. We are not persuaded that no reasonable trier of fact could come to the conclusion Allen J. did.

[5] We therefore are of the view that the conviction for assault causing bodily harm is not unreasonable. The appeal is dismissed.