CITATION: R. v. Brooks, 2007 ONCA 190

DATE: 20070320

DOCKET: C44374

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – ANDREW BROOKS (Appellant)

BEFORE:

ROSENBERG, GOUDGE and LaFORME JJ.A.

COUNSEL:

Joseph Di Luca and Patrice F. Band

for the appellant

Susan Magotiaux

for the respondent

HEARD & RELEASED ORALLY:

March 13, 2007

On appeal from conviction by Justice Hugh R. McLean of the Superior Court of Justice dated March 14, 2005 and sentence imposed on March 30, 2005.

E N D O R S E M E N T

[1] In our view, it was open to the trial judge to reject the appellant’s evidence about the alleged assaults by the officer. The trial judge not only had the advantage of the videotape statement but the testimony of the officer and the appellant. We do not read his reasons as reversing the burden of proof or drawing an adverse inference from failure to call witnesses. Rather, the trial judge was of the view that as a matter of common sense the appellant’s version was improbable. It cannot be said that the inference was unreasonable.

[2] As to the alleged inducements, while the trial judge’s reasons could have been clearer, we are satisfied that he found the inducements were not made. Accordingly, there was no reason for him to analyze whether, if they were made, they would have been sufficient to render the statement involuntary.

[3] Accordingly, the appeal from conviction is dismissed. The appeal from sentence is dismissed as abandoned.

Signed: “M. Rosenberg J.A.”

“S.T. Goudge J.A.”

“LaForme J.A.”