Court of Appeal for Ontario

CITATION: R. v. Vattiata, 2007 ONCA 252

DATE: 20070405

DOCKET: C41523

MOLDAVER, GILLESE and LaFORME JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

And

GASPARE VATTIATA

Appellant

Counsel:

Howard Lastman, amicus curiae, for the appellant

Eliott Behar for the respondent

Heard & Endorsed: March 30, 2007

On appeal from the order of Justice Gloria Klowak of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated January 16, 2004, dismissing the appeal from conviction by Justice Cathy Mocha of the Ontario Court of Justice, dated September 25, 2000.

APPEAL BOOK ENDORSEMENT

[1] The fresh evidence is irrelevant and therefore inadmissible. The issues raised before us are virtually identical to the issues raised before the Summary Conviction Appeal Judge. We see no error in her determination of them.

[2] Like the Summary Conviction Appeal Judge, we are troubled with the manner in which Crown counsel used the police officer’s notes to refresh the complainant’s memory. Reading the notes verbatim to her was improper.

[3] That said, in the unique circumstances of this case, we are satisfied that verification occurred during the phone call between the complainant and the officer and the complainant had some independent recollection of the substance of the calls from the appellant. In the circumstances, we are satisfied that had the officer’s notes been placed before the complainant (instead of being read out by the Crown) the net result would have been the same. Accordingly, the appellant suffered no prejudice.

[4] As indicated, we see no merit in any of the other grounds of appeal raised. The appeal is therefore dismissed.