Court of Appeal for Ontario

CITATION: R. v. Allen, 2016 ONCA 387

DATE: 20160519

DOCKET: C59113

Laskin, Gillese and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Allen

Appellant

Counsel:

Julie Santarossa, for the appellant

A. Cappell, for the respondent

Heard and released orally: May 17, 2016

On appeal from the conviction entered on April 30, 2014 by Justice Steven Rogin of the Superior Court of Justice.

ENDORSEMENT

[1] The appellant was convicted of aggravated assault for stabbing the victim in the stomach with a knife. The only issue at trial was self-defence, which was rejected by the trial judge.

[2] The appellant appeals his conviction and makes two main submissions: (1) the trial judge misapprehended the evidence about the residue on the gate, and (2) the trial judge erred in finding as confirmatory of the victim’s testimony several items of evidence he relied on.

[3] On the appellant’s first submission it was reasonable for the trial judge to rely on the opinion of the police identification officer that the residue on the gate was blood. Although the officer acknowledged that the residue had not been tested and could have been red oil, in her opinion it was blood. She based her opinion on her years of experience and the freshness of the residue. Accordingly, we would not give effect to this ground of appeal.

[4] On the appellant’s second submission, the trial judge treated the victim as a Vetrovec witness and he looked for evidence that was confirmatory of the victim’s testimony. The trial judge listed ten items of evidence, each independent, which he said confirmed the victim’s testimony. The Crown fairly acknowledges that item six is not confirmatory, but relies on the other nine items. The appellant challenges several of the items, especially the trial judge’s reliance on the appellant’s utterances after the stabbing. In our view, looking at the list of nine items cumulatively, we think the trial judge was justified in concluding that these items served to confirm the victim’s evidence.

[5] Accordingly, the appeal is dismissed.

“John Laskin J.A.”

“E.E. Gillese J.A.”

“L.B. Roberts J.A.”