DATE: 20061213

DOCKET: C42422

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – KEITH BRIAN WILLIAMS (Appellant)

BEFORE:

LABROSSE, WEILER and SHARPE JJ.A.

COUNSEL:

Christopher Biscoe

for the appellant

Anya Weiler

for the respondent

HEARD AND ENDORSED:

December 12, 2006

On appeal from the convictions entered by Justice B. Kelley of the Ontario Court of Justice dated October 3, 2003.

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

[1] The decision was made not to call evidence and after full submissions and reasons for judgment, when it became clear that the appellant would be convicted, the application to re-open was made. In these circumstances, we are of the view that the trial judge properly exercised his discretion in declining to re-open the case.

[2] We see no merit in the identification issue.

[3] With respect to Count 1, the Crown concedes that it is not an included offence. Given the circumstances, we decline to exercise our discretion to amend that Count. The conviction is quashed on Count 1.

[4] In all other respects, the appeal is dismissed.