Court of Appeal for Ontario

CITATION: R. v. Cantle, 2012 ONCA 643

DATE: 20120926

DOCKET: C54660

BEFORE: Laskin, Blair and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Keith Cantle

Appellant

COUNSEL:

David Keith Cantle, acting in person

Heather Pringle, as duty counsel

Matthew Asma, for the respondent

Heard and released orally: June 11, 2012

On appeal from the conviction and the sentence imposed on November 11, 2011 by Justice Catherine Aitken of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] Mr. Cantle appeals both his conviction and sentence. On his conviction appeal, duty counsel advances two grounds of appeal.

[2] First, the trial judge erred by failing to correct an allegation of recent fabrication made by trial counsel in his closing. Second, trial counsel’s cross-examination of the appellant invited the jury improperly to draw an inference from the appellant’s failure to call Rick. We do not accept either submission.

[3] On the first ground, the trial judge carefully considered the Crown’s closing and concluded that he was simply comparing the appellant’s evidence in chief with the appellant’s evidence on cross-examination. That was a reasonable conclusion as is evident from the examples the Crown used to illustrate his point. Moreover, as Mr. Asma submits, the jury would not have been aware of the appellant’s statement taken on arrest thus buttressing the trial judge’s assessment of the Crown’s closing.

[4] On the second ground, the Crown’s cross-examination was proper. Further, the trial judge gave the standard instruction that the accused had no obligation to call evidence.

[5] Accordingly, the conviction appeal is dismissed.

[6] On the sentence appeal, we are satisfied that the sentence was within a reasonable range and was not tainted by legal error.

[7] Accordingly, although leave to appeal sentence is granted, the sentence appeal is also dismissed.

“John Laskin J.A.”

“R.A. Blair J.A.”

“Alexandra Hoy J.A.”