Court of Appeal for Ontario

CITATION: R. v. Suarez, 2008 ONCA 824

DATE: 20081209

DOCKET: C47899

Goudge, MacFarland and Watt JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Jorge Suarez

Appellant

Counsel:

Lawrence Greenspon for the appellant

Brad Greenshields for the respondent

Heard: November 28, 2008

On appeal from the conviction entered by Justice Paul F. Lalonde of the Superior Court of Justice dated May 28, 2007 and from the sentence imposed by Justice Lalonde dated October 19, 2007.

ENDORSEMENT

[1] The appellant raises a number of instances in which he says that the trial judge misapprehended the evidence of Corey Suarez in assessing his credibility and that this warrants, at the least, a new trial. In our view, with one exception conceded by the Crown, the findings of the trial judge do not reflect any misapprehension of the evidence, rather constitute findings he was entitled to make in light of the inconsistencies in Corey’s evidence or conclusions he was entitled to come to having heard Corey’s testimony. The one misapprehension, concerning Corey’ use of the word “affectionate” and its use by others, is innocuous since his ultimate conclusion, that Corey’s use of the word points to his having been rehearsed, is derived not from who else used the word but from the limits of Corey’s own vocabulary. This ground of appeal fails.

[2] The appellant’s complaint about the trial judge’s finding on the possible source of the burn, given its characteristics, must also fail. The appellant’s trial counsel invited the trial judge to draw a conclusion on this issue; and, given common experience, it was not inappropriate for the trial judge to do so.

[3] Finally, the W.D. argument must also fail. The trial judge was well aware of the steps it requires and there is no basis upon which to find that he reached his conclusion without taking them.

[4] The sentence appeal is abandoned.

[5] The appeal is dismissed.

“S.T. Goudge J.A.”

“J. MacFarland J.A.”

“David Watt J.A.”