Court File and Parties

Citation: R. v. Underhill, 2007 ONCA 699 Date: 2007-10-15 Docket: C46692

Court of Appeal for Ontario Before: Weiler, Moldaver and Rouleau JJ.A.

Between: Her Majesty the Queen (Respondent) and Albert Underhill (Appellant)

Counsel: Alan J. Risen for the appellant Deborah Krick for the respondent

Heard: October 5, 2007

On appeal from the conviction entered on April 12, 2006 by Justice Norman H. Edmondson of the Superior Court of Justice, sitting without a jury.

Appeal Book Endorsement

[1] This is an appeal from conviction on one count of unlawful confinement and one count of assault causing bodily harm.

[2] The appellant submits that the trial judge erred in his assessment of the evidence in that he applied a higher standard of scrutiny to the appellant’s evidence than to the complainant’s evidence. He further submits that the trial judge failed to reconcile the discrepancies in the evidence of the complainant and between that of the complainant and respondent.

[3] In our opinion, the trial judge did not err. He was alive to the problems in the complainant’s evidence, looked for confirmatory evidence and determined that the complainant’s injuries, which were documented in the photographs, were supported by the medical evidence. He also considered the improbability of the appellant’s version of events. He took into account the unlikelihood of the complainant volunteering leaving Montreal to go to Toronto on the night in question given her job interview the following day, her upcoming bar tending examination, the fact she had stayed at home and that she was not allowed to drive in Ontario. It was open to the trial judge to come to the conclusion he did.

[4] The appellant also submits that the trial judge erroneously admitted the statement of the appellant. It appears that at the trial the only issue raised was voluntariness. The appellant did not testify on the Voir Dire. There is no suggestion that any threats, inducements or promises were made. The appellant submits that in order for the statement to be voluntary, the appellant had to be aware of the full extent of the jeopardy he was facing and the Crown has not proven beyond a reasonable doubt that he was. He was cautioned in relation to a breach of his undertaking but not told that he was facing charges of unlawful confinement and assault.

[5] Even assuming that the trial judge admitted the statement of the appellant, the appellant has not given us any indication how the statement, which was exculpatory, affected the trial judge’s decision. The trial judge did not refer to it in his reasons and there is no reason to think that his decision would have been any different had the statement been excluded.

[6] Accordingly, the appeal is dismissed.