CITATION: R. v. Avendano, 2009 ONCA 660

DATE: 20090917

DOCKET: C42270

COURT OF APPEAL FOR ONTARIO

Goudge, Cronk and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hugo Avendano and Martha Ann Avendano

Applicants/Appellants

Nicholas A. Xynnis, for the appellants

Jennifer Woollcombe, for the respondent

Heard: September 9, 2009

On appeal from the convictions entered by Justice Harry LaForme of the Superior Court of Justice on December 5, 2003.

APPEAL BOOK ENDORSEMENT

[1] The appellants’ oral argument in support of their convictions appeal focused on four grounds of appeal. In our opinion, each of these grounds must be rejected for the following reasons.

[2] First, contrary to the appellants’ submission, the convictions at issue are not unreasonable. Nor is there anything inconsistent between the verdicts of acquittal and the convictions entered by the trial judge. On the trial judge’s assessment of the entirety of the evidence, an assessment that attracts considerable deference from this court, there was circumstantial evidence that supported the complainant’s version of events concerning the two counts in respect of which the appellants were convicted. Further, the trial judge found that the appellants’ accounts of the events relating to the two instances in issue were flawed in several material respects. These factors were sufficient to ground the convictions entered. As the Crown argued before this court, the evidence on each count was qualitatively different, leading to the possibility of different conclusions on the crimes charged.

[3] Second, we are not persuaded that the trial judge erred in his assessments of the credibility and reliability of the witnesses. On the contrary, his reasons indicate that he gave careful and thorough consideration to these assessments including, in particular, to the complainant’s credibility and reliability.

[4] Similarly, we do not accept the appellants’ assertion that the trial judge erred by shifting the burden of proof. The reasons confirm that he was alert to the principles in R. v. W.(D.), that he considered and applied these principles in his evaluation of the evidence, and that where he had a reasonable doubt concerning the appellants’ culpability, he acquitted them. This is precisely what he was obliged to do.

[5] Finally, we reject the appellants’ claim of a miscarriage of justice occasioned by the ineffective representation of trial counsel. In our view, the conduct of counsel impugned by the appellants falls far short of the high threshold applicable to a serious claim of this nature.

[6] Accordingly, the appeals are dismissed.