



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kaziuk, 2013 ONCA 217

DATE: 20130404

DOCKET: C55782

Doherty, Rouleau and Epstein JJ.A.

Her Majesty the Queen

Respondent

and

Roman Kaziuk

Appellant

Lindsay E. Trevelyan, for the appellant

Michael Perlin, for the respondent

Heard:  April 2, 2013

On appeal from the conviction entered by Justice Lesley
    M. Baldwin of the Ontario Court of Justice, dated June 23, 2011, and the
    sentence imposed on January 24, 2012.

APPEAL BOOK ENDORSEMENT

[1]

We are satisfied that the conviction appeal must be dismissed. 
    Although the procedure followed by the parties was in some ways unclear, the
    parties were in agreement that the victim, an 88 year old lady, would only
    testify once.  When on a later date, the trial judge ruled the victims
    out-of-court statement admissible, defence counsel sought permission to
    further cross-examine the victim on why her prior statement is different from
    her current statement [testimony].

[2]

Assuming the trial judge should have allowed the further
    cross-examination, we see no prejudice in her failure to do so.  The only topic
    on which the defence sought further cross-examination had been explored, to the
    appellants considerable advantage, with the victim in the earlier
    cross-examination.  Especially in light of the victims advanced age and her
    assorted medical problems, there is no likelihood that the cross-examination
    would have advanced the defence position.

[3]

With respect to the sentence, we are satisfied that the appeal must
    succeed.  There was no basis upon which the trial judge could find that the
    appellant had attempted to obstruct justice by convincing his mother to change
    her evidence.  The trial judge erred in taking that offence into account on sentence.

[4]

We also think the total sentence imposed was excessive having regard to
    sentences imposed in similar cases, and the fact that the appellant had some 39
    months left to serve on a prior offence.  This was a case, however, that
    clearly called for an exemplary sentence.  We agree with the trial judges
    observations about the offender.

[5]

We would reduce the sentence to 8 years to be served consecutively to
    the sentence being served at the time of sentence.


