Court of Appeal for Ontario
CITATION: R. v. Provost, 2011 ONCA 425
DATE: 20110603
DOCKET: C49520
Before: Laskin, Juriansz and MacFarland JJ.A.
Her Majesty The Queen Respondent
and
Trevor Provost Appellant
Counsel: Giuseppe Cipriano, for the appellant Stephane Marinier and David Littlefield, for the respondent
Heard & released orally: April 26, 2011
On appeal from the conviction and sentence imposed by Justice D. Nicholas of the Ontario Court of Justice dated May 14 and May 28, 2008.
ENDORSEMENT
[1] Trevor Provost appeals both his conviction and sentence. He argues two points in his conviction appeal.
[2] First, Mr. Provost submits that the trial judge erred in failing to treat the admission of the Blackberry text used by the Crown in re-examination of the police officer as an issue of late disclosure. He says that although the trial judge was entitled to admit the BlackBerry text, she should have fashioned an appropriate remedy, in this case, an adjournment of the trial to permit the defence to canvass all of the Blackberry texts on the DVD.
[3] We do not accept this submission. The underlying issue was one of admissibility, not late disclosure. The DVD containing the BlackBerry texts had been recently disclosed to the defence. Defence counsel did not ask for an adjournment and made no objection to the continuation of the trial.
[4] Second, Mr. Provost submits that in rejecting Mr. Parent’s evidence, the trial judge erroneously referred to him as an alibi witness. Mr. Provost says he did not put forward an alibi defence.
[5] We do not accept Mr. Provost’s submission. The trial judge’s reference to Mr. Parent as a “form of alibi” witness had nothing to do her total rejection of Mr. Parent’s evidence – a rejection well-founded in the record.
[6] The sentence imposed on Mr. Provost was fit in the light of the seriousness of the offences and his lengthy criminal record, which consisted of 26 convictions, several of them weapons related.
[7] Accordingly, both the conviction and sentence appeal are dismissed.
“John Laskin J.A.”
“R.G. Juriansz J.A.”
“J. MacFarland J.A.”