DATE: 20051031

DOCKET: C41441

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JAMES MIGLIORE (Appellant)

BEFORE:

McMURTRY C.J.O., LASKIN and LANG JJ.A.

COUNSEL:

Leslie Maunder

for the appellant

Ian Bulmer

for the respondent

HEARD & ENDORSED:

October 18, 2005

On appeal from the conviction entered by Justice Gerald S. Lapkin of the Ontario Court of Justice dated August 7, 2003.

E N D O R S E M E N T

[1] The appellant was convicted of criminal harassment and uttering death threats after a trial before Lapkin J. The principal evidence of the harassing phone calls came from the complainant. The appellant did not testify. Through his counsel, he acknowledged that he made the phone calls but he denies that they were harassing. In her able argument before us, Ms. Maunder submitted that in relying on the evidence of the appellant’s mother and Paul Durkacz to confirm the complainant’s account, the trial judge misapprehended their evidence. We do not accept this submission.

[2] First, in our view, the trial judge’s reference to the appellant’s mother having paid for the collect calls was simply to corroborate the complainant’s account that the appellant had telephoned her repeatedly from the fall of 2002 onwards. In this sense, the mother’s evidence was confirmatory.

[3] Second, as he was entitled to do, the trial judge rejected all of Paul Durkacz’s evidence save the part where he admitted giving the complainant’s telephone number to the appellant. That part of Mr. Durkacz’s evidence did confirm the complainant’s account.

[4] Finally, for two reasons, we do not think that the fresh evidence would have affected the trial judge’s assessment of the complainant’s credibility. The first reason is that the complainant’s trial testimony about the cheques already contained incon-sistencies. But the trial judge expressly found that these inconsistencies did not under-mine her credibility. At its highest for the appellant, the fresh evidence merely adds to these inconsistencies. The second reason we do not think that the fresh evidence would have affected the result is that in the trial itself, the appellant’s mother gave evidence that paralleled the complainant’s testimony in the fresh evidence application.

[5] For these brief reasons, the application to introduce fresh evidence and the appeal are dismissed.

“Roy McMurtry C.J.O.”

“John Laskin J.A.”

“S.E. Lang J.A.”