Court of Appeal for Ontario

Date: 2017-06-14 Docket: C57660

Judges: Doherty, Rouleau and Hourigan JJ.A.

Between

Her Majesty the Queen Respondent

and

Harold Munro Appellant

Counsel

Diana Lumba, for the appellant

Andrew Cappell, for the respondent

Hearing and Appeal

Heard: June 13, 2017

On appeal from the conviction entered by Justice Quinlan of the Superior Court of Justice on September 23, 2011.

Appeal Book Endorsement

[1] The appellant argues that the trial judge shifted the burden of proof by assuming that the assault occurred as a basis for rejecting an argument advanced by defence: see R. v. V.Y., 2010 ONCA 544.

[2] We have examined the impugned passage (p. 917). As we read it, the trial judge was considering a defence argument that the complainant's post-act conduct was inconsistent with her allegations. The trial judge rejected that argument. She did not reverse the burden.

[3] The appellant argues that the trial judge erred in failing to explain how she could convict in light of her comment that the defence theory of how some of the injuries were caused was "equally plausible". First, that comment referred to some of the injuries and not to the facial injuries. Second, the reference is only an indication that the defence theory was consistent with some of the injuries. There was, however, no evidence capable of supporting that theory.

[4] The appeal is dismissed.