DATE: 20051011

DOCKET: C42470

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – ALBERT BOYCE (Appellant)

BEFORE:

LASKIN, FELDMAN and ARMSTRONG

COUNSEL:

Maureen D. Forestell

for the appellant

Rium Shandler

for the respondent

HEARD & RELEASED ORALLY:

SEPTEMBER 16, 2005

On appeal from conviction by Justice Janet Wilson of the Superior Court of Justice, sitting with a jury, dated June 30, 2004.

E N D O R S E M E N T

[1] The appellant raises three grounds of appeal against conviction.

[2] The first is that the trial judge erred in the manner she used to reject the evidence of the appellant. In particular, the appellant says that the trial judge improperly relied on demeanour, used evidence of bad character improperly and misunderstood the appellant’s evidence from the way he answered certain questions in cross-examination.

[3] In our view, the trial judge made no error in her rejection of the appellant’s evidence. First, trial judges are not required to ignore demeanour in their assessment of a witness. They can use it in conjunction with their assessment of all of the evidence and in the full context of the trial. Second, in referring to the fact that the appellant was a drug dealer and his evidence that essentially he always got what he wanted, we are satisfied that the trial judge was assessing the accused’s credibility, as she was entitled to do, and was not engaging in propensity reasoning.

[4] Third, although there were only four examples where the appellant asked for questions to be repeated in cross-examination, the trial judge was entitled to view the appellant negatively, in part because of the way he answered questions in cross-examination.

[5] Finally, in our view, in the context of this case, the trial judge was entitled to reject the appellant’s evidence, as she did, on the basis that it defied common sense and did not have an air of reality.

[6] The second ground of appeal was in relation to the trial judge’s treatment of the evidence of the aunt. We agree with Crown counsel that in the end, any discrepancies in the aunt’s evidence did not go to the main issue before the trial judge, which was consent.

[7] The appellant’s third ground is that the reasons for judgment do not comply with the Supreme Court’s decision in Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869. He says there were inconsistencies in the complainant’s evidence that the trial judge did not resolve and therefore the reasons are not adequate to explain the basis for conviction. We also reject this ground of appeal. The trial judge is entitled to accept part or all of any witness’s evidence. Any discrepancies in the complainant’s evidence that were excused by the trial judge were also not material to her finding on the key issue, which was that the complainant did not consent to the sexual intercourse. In our view the reasons for judgment are sufficient to meet the Sheppard requirement.

[8] The appeal is therefore dismissed.

Signed: “J.I. Laskin J.A.”

“K. Feldman J.A.”

“Robert P. Armstrong J.A.”