Court File and Parties

Citation: R. v. Mfizi, 2009 ONCA 790

Date: 2009-11-09

Docket: C49109

Court of Appeal for Ontario

Laskin, Gillese and Juriansz JJ.A.

Between

Her Majesty the Queen Respondent

and

Josh Mfizi Appellant

Counsel: Ernest J. Guiste, for the appellant Dena Bonnet, for the respondent

Heard: November 3, 2009

On appeal from the conviction entered on May 23, 2008 by Justice Julie A. Thorburn of the Superior Court of Justice, sitting with a jury.

Appeal Book Endorsement

[1] The appellant makes two submissions on his conviction appeal. First, he contends that the Crown’s repeated reference in closing to the complainant’s uncontradicted evidence violates s. 4(6) of the Canada Evidence Act. We disagree.

[2] The judgments of Sopinka J. in Noble and Sharpe J.A. in Biladeau stand for the proposition that a statement that the Crown’s evidence is “uncontradicted” without more does not amount to a comment on the accused’s failure to testify. This ground of appeal fails.

[3] Second, the appellant contends that the trial judge’s answer to one of the jury’s question left the jurors with the understanding they had no right to disagree. We do not accept this contention. In her charge, the trial judge correctly told the jurors it was their right to disagree. Her answer to the jury’s question did not undermine her initial instruction and leave the impression that they could not disagree. Accordingly, this ground of appeal too must fail.

[4] The conviction appeal is dismissed.