Court of Appeal for Ontario

Date: 2018-03-09 Docket: C62110

Judges: Pardu, Benotto and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Robert Shah Appellant

Counsel

Robert Shah, self-represented

Lorna Bolton, for the respondent

Hearing and Appeal

Heard and released orally: March 5, 2018

On appeal from: the conviction entered on March 3, 2016 by Justice Michael G. Quigley of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant pleaded guilty to robbery and aggravated assault but not guilty to sexual assault. He appeals the trial judge's finding of sexual assault.

[2] The appellant submits that the trial judge did not consider "inconsistencies" in the complainant's evidence. He points to the fact that there were no disclosed injuries to the back of the complainant's head although she said he had banged her head on the ground several times; she was not consistent in the number of times she said she was punched in the face; and she did not identify the appellant in a photo lineup.

[3] The trial judge addressed the weaknesses in the complainant's evidence, including her inability to identify the appellant in a photo lineup and the number of times she was punched in the face. The trial judge accepted the complainant's testimony that during the assault the appellant tugged on her pants attempting to pull them down and told her either: (i) to give him more money or get naked; or (ii) get naked or give me more money. On this basis he found the appellant guilty of sexual assault.

[4] The trial judge rejected the appellant's testimony in its entirety. It was open to the trial judge to do so. His findings of credibility are entitled to deference from this court.

[5] The appeal is dismissed.

G. Pardu J.A.

M.L. Benotto J.A.

I.V.B. Nordheimer J.A.