DATE: 20050118

DOCKET: C39501

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. JODO IBRAHIM (Appellant)

BEFORE:

DOHERTY, LASKIN and FELDMAN JJ.A.

COUNSEL:

Nathan Gorham

for the appellant

G. Choi

for the respondent

HEARD & ENDORSED:

January 11, 2005

On appeal from the conviction entered by Justice Peter A. Grossi of the Superior Court of Justice dated November 9, 2001.

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

[1] There was some confusion as to whether the accused should be tried by a judge alone or a judge and jury. We are satisfied that s. 598(1) precluded the appellant’s right to be tried by a judge and jury absent the appellant “establishing … a legitimate excuse” for his failure to appear at trial. The appellant at no time sought to establish a legitimate excuse for his non-appearance. He was not entitled to a jury trial and was properly tried by a judge alone.

[2] The trial judge’s reasons reveal no error in his assessment of credibility or the application of the burden of proof.

[3] The appeal is dismissed.