Court File and Parties

CITATION: R. v. Menard, 2012 ONCA 29

DATE: 20120113

DOCKET: C54137

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Doherty and Goudge JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Maurice J. Menard Appellant

Counsel: Robert B. Carew, for the appellant Hart Schwartz, for the respondent

Heard: January 10, 2012

On appeal from the convictions entered by Justice D.M. Nicholas of the Ontario Court of Justice on March 18, 2011 and the sentence imposed on June 3, 2011.

APPEAL BOOK ENDORSEMENT

[1] We do not agree that the trial judge misapprehended the evidence in any material way.

[2] The trial judge certainly took the appellant’s lengthy criminal record into consideration in assessing the appellant’s evidence. She was entitled to do so and made no error in law in the manner in which she viewed it.

[3] The reasons do not reveal any misapplication of the W.D. principle.

[4] We are primarily concerned about the reasonableness of this verdict. After anxious consideration, we are satisfied that the verdict does survive s. 686(1)(a)(i) scrutiny. In our view, the evidence that the appellant’s fingerprints were found on the window where the burglar gained entry could in these circumstances justify the inference that the appellant was the burglar. We emphasize the location on the window where the print was found, the direction of the handprint on the window and the evidence that print indicated that the hand was moving along the window. On the evidence, the window opened by sliding horizontally in the direction the hand was pointing. These facts support the inference that the person who put that print on the window, i.e. the appellant, was in the act of opening the window.

[5] A reasonable trier of fact could infer from the print that the appellant not only touched the window, but was opening the window. From that, a reasonable trier of fact could be satisfied beyond a reasonable doubt that the appellant was the burglar who gained entry through the window.

[6] It was within the trial judge’s discretion to impose a consecutive sentence on the breach of probation charge. The totality of the sentence was appropriate having regard to the appellant’s lengthy and related record.