



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Preston, 2019 ONCA 529

DATE: 20160621

DOCKET: C65223

Benotto, Paciocco and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roy Preston

Appellant

Chris Sewrattan, for the appellant

Catherine Weiler, for the respondent

Heard and released orally: June 18, 2019

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
    complainants 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
    complainants 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 judges reasons make it clear that he
    understood and correctly applied the burden of proof. The trial judges 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.


