DATE: 20050218

DOCKET: C42437

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – ARLENE ROSEMARIE CLARKE (Appellant)

BEFORE:

WEILER, GOUDGE and GILLESE JJ.A.

COUNSEL:

Geary S. Tomlinson

for the appellant

Robert Gattrell

for the respondent

HEARD & ENDORSED:

February 15, 2005

On appeal from the conviction entered by Justice Petra E. Newton of the Ontario Court of Justice on February 10, 2003.

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

[1] On February 10, 2003 the appellant was convicted of uttering a threat to cause death or bodily harm. Her appeal of her conviction to the Summary Conviction Appeal Court was dismissed and she brings this further appeal.

[2] Assuming the appellant’s first submission raises a question of law, we disagree that the Crown was required to adduce further evidence that the appellant was at the location in question. The essential element of the charge that had to be proven in this case was the identity of the person who made the threatening phone call. It was open to the trial judge to rely on the voice recognition evidence of the complainant as she did and to hold that the address evidence did not raise a reasonable doubt. Nor, as found by the Summary Conviction Appeal Judge, did the trial judge’s comment during counsel’s closing submissions result in a reversal of the burden of proof. She specifically stated that there was no onus on the appellant to prove that she did not live at 200 Jarvis. Finally, There is nothing in the record to suggest that the trial judge did not properly apply the reasonable doubt test. Accordingly the appeal is dismissed.