Court of Appeal for Ontario

Date: 2019-06-18 Docket: C65223

Judges: Benotto, Paciocco and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Roy Preston Appellant

Counsel

Chris Sewrattan, for the appellant

Catherine Weiler, for the respondent

Heard and Released Orally

June 18, 2019

On Appeal

On appeal from the conviction entered on December 13, 2018 by Justice Alexander D. Kurke of the Superior Court.

Reasons for Decision

[1] The appellant submits that the trial judge erred by failing to advert to the absence of evidence relating to the fact that no one testified to having heard the alleged sexual assault. The appellant says that – given the complainant's evidence – it is implausible that no one would have heard anything if the assault had actually occurred.

[2] We do not agree that the trial judge failed to consider the absence of evidence.

[3] The trial judge understood and correctly articulated that an absence of evidence could give rise to a reasonable doubt, but nonetheless accepted the complainant's testimony.

[4] The trial judge found that even if no one had heard a sexual assault, it would not have raised a reasonable doubt. Based on the facts found by the trial judge and fully explained in his reasons, he could have arrived at the verdict whether or not the encounter was overheard.

[5] Read as a whole, the trial judge's reasons make it clear that he understood and correctly applied the burden of proof. The trial judge's reasons were thorough and make evident his path to conviction.

[6] Consequently, the appeal is dismissed.

"M.L. Benotto J.A."

"David M. Paciocco J.A."

"Fairburn J.A."