Court of Appeal for Ontario

Date: November 22, 2017 Docket: C62173

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

Between

Her Majesty the Queen Respondent

and

Vincent O'Connell Appellant

Counsel

Howard L. Krongold, for the appellant

Andrew Cappell, for the respondent

Heard and released orally: November 9, 2017

On appeal from: the conviction entered on March 21, 2016 by Justice Kimberly E.M. Moore of the Ontario Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant limits his submission to the argument that the trial judge made a palpable and overriding error in rejecting his evidence as lacking in credibility and defying logic. In particular, he challenges three of the trial judge's six reasons for rejecting his evidence.

[2] First, he contends the trial judge erred in her conclusion that the appellant was inconsistent about the status of his relationship with the complainant. We do not accept that submission. The appellant's evidence was, indeed, inconsistent. In any event, this was not a particularly significant factor in the trial judge's analysis as she acknowledged that the appellant may well have been in a state of denial.

[3] Second, he challenges the trial judge's finding that, having regard to the appellant's conduct the night before, it defied logic that he would arrive at the complainant's apartment at around 6:40 a.m., expecting that everything would be all right, and that he and the complainant would sit down and watch television together. We do not accept this submission. In our view, in all the circumstances, it was open to the trial judge to make this finding, and the appellant has demonstrated no palpable and overriding error.

[4] Third, he challenges the trial judge's conclusion that he "lost consciousness". We reject this submission. The appellant himself said he "came to" and suggested that he was not aware of his surroundings for a period of time, raising doubts about how he knew that the complainant was wearing pajamas and was in bare feet when she left the apartment.

[5] In summary, based on her assessment of all the evidence, including the three items of evidence which the appellant does not challenge, the trial judge was entitled to reject the appellant's evidence and his explanation of the events as illogical. The appellant has demonstrated no palpable and overriding error in her conclusions.

[6] We therefore dismiss the appeal.

[7] The appellant's conditional sentence will resume its operation, effective the evening of November 8, 2017.

G.R. Strathy C.J.O.

Doherty J.A.

J.D. McCombs J. (ad hoc)