Court of Appeal for Ontario

Date: 2017-11-09 Docket: C57386

Panel: Strathy C.J.O., Doherty J.A. and McCombs J. (ad hoc)

Between

Her Majesty the Queen Respondent

and

Justin Stewart Gough Appellant

Counsel

Howard L. Krongold, for the appellant

Jennifer McKee, for the respondent

Hearing

Heard: November 8, 2017

Appeal Information

On appeal from the conviction entered on October 3, 2012 and the sentence imposed on March 5, 2013 by Justice Wolfram Tausendfreund of the Superior Court of Justice, sitting without a jury.

Appeal Book Endorsement

[1] The trial judge clearly and correctly summarized the evidence and considered the applicable legal principles. We do not accept the appellant's argument that the trial judge reversed the burden of proof requiring him to prove the identity of an alternative suspect.

[2] The trial judge's question "if it was not the accused who fired the gun, who did?" was simply rhetorical, asking himself whether the evidence was reasonably capable of supporting an inference other than the guilt of the appellant.

[3] He found that there was no evidence before him to support such an inference. He concluded that the circumstantial evidence that he identified was sufficient to establish, beyond a reasonable doubt, that the appellant had possession of a firearm which he used to fire a shot into the complainant's car.

[4] In our view, there was ample evidence, identified by the trial judge, to support this conclusion.

[5] The appeal is dismissed.