


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. O'Connell, 2017 ONCA 896

DATE: 20171122

DOCKET: C62173

Strathy C.J.O., Doherty J.A. and McCombs J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Vincent OConnell

Appellant

Howard L. Krongold, for the appellant

Andrew Cappell, for the respondent

Heard and released orally: November 9, 2017

On appeal from the conviction entered on March 21, 2016
    by Justice Kimberly E.M. Moore of the Ontario Court of Justice, sitting without
    a jury.

REASONS FOR DECISION

[1]

The appellant limits his submission to the argument that the trial judge
    made a palpable and overriding error in rejecting his evidence as lacking in
    credibility and defying logic. In particular, he challenges three of the trial
    judges six reasons for rejecting his evidence.

[2]

First, he contends the trial judge erred in her conclusion that the
    appellant was inconsistent about the status of his relationship with the
    complainant. We do not accept that submission. The appellants evidence was,
    indeed, inconsistent. In any event, this was not a particularly significant
    factor in the trial judges analysis as she acknowledged that the appellant may
    well have been in a state of denial.

[3]

Second, he challenges the trial judges finding that, having regard to the
    appellants conduct the night before, it defied logic that he would arrive at
    the complainants apartment at around 6:40 a.m., expecting that everything
    would be all right, and that he and the complainant would sit down and watch
    television together. We do not accept this submission. In our view, in all the
    circumstances, it was open to the trial judge to make this finding, and the
    appellant has demonstrated no palpable and overriding error.

[4]

Third, he challenges the trial judges conclusion that he lost
    consciousness. We reject this submission. The appellant himself said he came
    to and suggested that he was not aware of his surroundings for a period of
    time, raising doubts about how he knew that the complainant was wearing pajamas
    and was in bare feet when she left the apartment.

[5]

In summary, based on her assessment of all the evidence, including the
    three items of evidence which the appellant does not challenge, the trial judge
    was entitled to reject the appellants evidence and his explanation of the
    events as illogical. The appellant has demonstrated no palpable and overriding
    error in her conclusions.

[6]

We therefore dismiss the appeal.

[7]

The appellants conditional sentence will resume its operation, effective
    the evening of November 8, 2017.

G.R. Strathy C.J.O.

Doherty J.A.

J.D. McCombs J. (
ad
    hoc
)


