





CITATION:
R. v.
Provost
, 2011 ONCA 425



DATE: 20110603



DOCKET: C49520



COURT OF APPEAL FOR ONTARIO



Laskin, Juriansz and MacFarland JJ.A.







Her Majesty The Queen



Respondent



and



Trevor Provost



Appellant



Giuseppe
Cipriano
,
          for the appellant



Stephane
Marinier and David Littlefield, for the respondent



Heard & released
          orally:
April 26, 2011



On appeal from the conviction and sentence imposed by Justice
          D. Nicholas of the Ontario Court of Justice dated May 14 and May 28, 2008.



ENDORSEMENT



[1]

Trevor Provost
appeals both his conviction and
    sentence.  He argues two points in his
    conviction appeal.

[2]

First, Mr. Provost submits that the trial judge erred
    in failing to treat the admission of the Blackberry text used by the Crown in
    re-examination of the police officer as an issue of late disclosure.  He says that although the trial judge was
    entitled to admit the BlackBerry text, she should have fashioned an appropriate
    remedy, in this case, an adjournment of the trial to permit the defence to
    canvass all of the Blackberry texts on the DVD.

[3]

We do not accept this submission.  The underlying issue was one of admissibility,
    not late disclosure.  The DVD containing
    the BlackBerry texts had been recently disclosed to the defence.  Defence counsel did not ask for an adjournment
    and made no objection to the continuation of the trial.

[4]

Second, Mr. Provost submits that in rejecting Mr. Parents
    evidence, the trial judge erroneously referred to him as an alibi witness.  Mr. Provost says he did not put forward an
    alibi defence.

[5]

We do not accept Mr. Provosts submission.  The trial judges reference to Mr. Parent as
    a form of alibi witness had nothing to do her total rejection of Mr. Parents
    evidence  a rejection well-founded in the record.

[6]

The sentence imposed on Mr. Provost was fit in the
    light of the seriousness of the offences and his lengthy criminal record, which
    consisted of 26 convictions, several of them weapons related.

[7]

Accordingly, both the conviction and sentence appeal
    are dismissed.

John Laskin J.A.

R.G. Juriansz J.A.

J. MacFarland J.A.


