Court File and Parties

Citation: R. v. Anderson, 2010 ONCA 179 Date: 2010-03-10 Docket: C51603 Court of Appeal for Ontario

Before: Doherty, Laskin and Goudge JJ.A.

Between:

Her Majesty the Queen Respondent

and

Hermina Anderson Appellant

Counsel: Matthew Tubie, for the appellant John Patton, for the respondent

Heard and orally released: March 5, 2010

On appeal from the decision entered by Justice Miller of the Superior Court of Justice dated January 22, 2010.

Endorsement

[1] This is an application for leave to appeal from the decision of the Summary Conviction Appeal Court Judge dismissing the applicant’s appeal from the conviction entered at trial.

[2] Counsel for the applicant has forcefully argued two grounds on which he contends leave to appeal should be granted. The first is based on the alleged failure of the Summary Conviction Appeal Court Judge to hold that the trial judge erred in accepting the Crown witness’s explanation for her delay in reporting to her supervisor the appellant’s alleged assault on their elderly patient. Counsel for the applicant argues that the trial judge went beyond the trial record and improperly took judicial notice of what the trial judge regarded as a matter of “common sense” when he found that workplace pressures discouraged the Crown witness from immediately reporting the activities of the applicant to her supervisor. Counsel for the applicant argues that the workplace condition that the witness referred to does not, as a matter of common sense, support the inference that the trial judge drew. Counsel argues that before that inference was available, the trial judge needed evidence of the actual working conditions and the culture within those working conditions.

[3] The Summary Conviction Appeal Court Judge addressed this argument carefully and in detail at paras. 21-26 of her reasons.

[4] We see nothing in the Summary Conviction Appeal Court Judge’s reasons that suggests that she made an error in law in her treatment of this issue. The Summary Conviction Appeal Court Judge identified the legal principles and applied those legal principles to the record before her. In our view, there is no chance of success on this issue and it is not a question of law on which leave to appeal should be granted.

[5] The second argument put forward by counsel effectively challenges the trial judge’s analysis of the evidence before him and the application of the reasonable doubt standard to that evidence. Specifically, counsel argues that the trial judge did not consider whether on the evidence called by the Crown there should be a reasonable doubt as to the applicant’s guilt.

[6] It is not clear that this argument was advanced before the Summary Conviction Appeal Court Judge. We are reluctant to address this argument if in fact it was not advanced. In any event, we see no merit to this argument. The trial judge was alive to the R. v. W.D. standard, clearly considered the totality of the evidence and concluded that the evidence of the main Crown witness was compelling in the context of the totality of the evidence. In our view, the applicant’s second argument does not raise an arguable error of law.

[7] There is no basis upon which leave to appeal should be granted. Leave to appeal is refused.

“Doherty J.A.”

“John Laskin J.A.”

“S.T. Goudge J.A.”