



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Cornish, 2013 ONCA 583

DATE: 20131002

DOCKET: C54195

Laskin, Tulloch and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Cornish

Appellant

Delmar Doucette, for the appellant

Philippe G. Cowle, for the respondent

Heard: June 28, 2013

On appeal from the conviction entered on June 16, 2010 and
    the sentence imposed on July 22, 2010 by Justice L. Leitch of the Superior
    Court of Justice.

ENDORSEMENT

[1]

The appellant appeals his convictions for aggravated assault, forcible
    confinement and breaking and entering. He relies primarily on two pieces of
    fresh evidence. Alternatively, he asserts ineffective assistance by trial
    counsel.

[2]

The fresh expert evidence the appellant relies upon does persuade us
    that the blood pattern on the inside screen door, which was confirmed to be the
    appellants blood, could not have been caused by him being hit by a baseball
    bat, as asserted at trial. The fact remains, however, that his blood was found
    on the inside of the screen door and inside the house. His thumb and palm
    prints were found on the outside of the front wooden door, just below the
    broken glass window. His fingerprints were found on the inside of the door in a
    pattern and location indicating that his fingers had curled over the frame when
    there were broken shards of glass still protruding, thereby explaining why his
    blood was found on the screen door and in the house. In light of the evidence
    that there was no damage to the door before the attack on the victim, and that
    the appellant had never before been to the premises, the blood and prints
    provided ample evidence to conclude that he participated in the break-in at the
    victims house and was a party to the offences.

[3]

The second piece of fresh evidence, and the assertion of ineffective
    representation, relate to the alleged height disparity between the appellant
    and the description of the intruder who was hit by the baseball bat. This
    evidence was obviously available at trial, and the failure to adduce evidence
    or to conduct further cross-examination was the result of a deliberate and
    reasonable tactical decision by very experienced trial counsel. Nor was the
    evidence likely to have affected the result at trial, as the difference between
    the description of the intruder and the appellant was manifest.

[4]

We would therefore dismiss the application to adduce fresh
    evidence and dismiss the appeal.

J. Laskin J.A.

M. Tulloch J.A.

G.R. Strathy J.A.


