



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Allen, 2016 ONCA 387

DATE: 20160519

DOCKET: C59113

Laskin, Gillese and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Allen

Appellant

Julie Santarossa, for the appellant

A. Cappell, for the respondent

Heard and released orally: May 17, 2016

On appeal from the conviction entered on April 30, 2014
    by Justice Steven Rogin of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of aggravated assault for stabbing the
    victim in the stomach with a knife. The only issue at trial was self-defence,
    which was rejected by the trial judge.

[2]

The appellant appeals his conviction and makes two main submissions: (1)
    the trial judge misapprehended the evidence about the residue on the gate, and
    (2) the trial judge erred in finding as confirmatory of the victims testimony
    several items of evidence he relied on.

[3]

On the appellants first submission it was reasonable for the trial
    judge to rely on the opinion of the police identification officer that the
    residue on the gate was blood. Although the officer acknowledged that the
    residue had not been tested and could have been red oil, in her opinion it was
    blood. She based her opinion on her years of experience and the freshness of
    the residue. Accordingly, we would not give effect to this ground of appeal.

[4]

On the appellants second submission, the trial judge treated the victim
    as a
Vetrovec
witness and he looked for evidence that was confirmatory
    of the victims testimony. The trial judge listed ten items of evidence, each
    independent, which he said confirmed the victims testimony. The Crown fairly
    acknowledges that item six is not confirmatory, but relies on the other nine
    items. The appellant challenges several of the items, especially the trial
    judges reliance on the appellants utterances after the stabbing. In our view,
    looking at the list of nine items cumulatively, we think the trial judge was
    justified in concluding that these items served to confirm the victims
    evidence.

[5]

Accordingly, the appeal is dismissed.

John
    Laskin J.A.

E.E.
    Gillese J.A.

L.B.
    Roberts J.A.


