DATE: 20051020

DOCKET: C42829

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – DAVID GILBERT (Applicant/Appellant)

BEFORE:

LABROSSE, SHARPE and GILLESE JJ.A.

COUNSEL:

Joseph Wilkinson

for the appellant

Melissa Ragsdale

for the respondent

HEARD & RELEASED ORALLY:

October 14, 2005

On appeal from the judgment of Justice Whetung of the Ontario Court of Justice dated December 8, 2004.

E N D O R S E M E N T

[1] The appellant appeals the dismissal of his summary conviction appeal from convictions for assault and breach of probation and from the sentence imposed.

[2] The Crown proceeded on a concession before the summary conviction appeal judge that the trial judge erred in law in permitting reply evidence as to the arrest of the appellant and the treatment he received from the police. Assuming that concession to have been proper, in our view, this appeal cannot succeed as on the appellant’s own evidence the elements of the offence were made out.

[3] The appellant testified that in a context of a heated ongoing argument with his common law spouse, he pushed her with the handle of a broom. He also testified that in anger and to demonstrate his frustration with her, he swatted a candle in her direction when she was four feet away. In these circumstances, we see no possibility that the verdict could have been other than conviction and the proviso is accordingly properly applied.

[4] Accordingly, the conviction appeal is dismissed.

[5] As to sentence, it is acknowledged that the trial judge failed to give account for three days pre-trial custody. Accordingly, we would grant leave to appeal the sentence and reduce the sentence by six days.

“J-M. Labrosse J.A.”

“Robert J. Sharpe J.A.”

“E.E. Gillese J.A.”