R. v. Lo Verde
The court accepted Crown's concession that the trial judge erred by failing to address intoxication for the specific intent offence of break and enter and therefore substituted the conviction with forcible entry under s.72(1); the sexual assault conviction was upheld because the trial judge's credibility findings...
Source-derived case information.
- Citation
- 2019 ONCA 467
- Parties
- Respondent: Her Majesty the Queen; Appellant: Raymond Lo Verde
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 6 June 2019
- Procedural Posture
- Criminal / Appeal From Conviction and Sentence
- Outcome
- Conviction for break and enter set aside and substituted with conviction for forcible entry under s.72(1) of the Criminal Code; sexual assault conviction upheld; appeal against sentence dismissed; victim fine surcharge set aside on consent.
- Legal Topics
- Break and Enter, Forcible Entry, Sexual Assault, Sentencing, Intoxication, Conditional Discharge, Victim Fine Surcharge, Appellate Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen
Respondent
Raymond Lo Verde
Appellant
Procedural Posture
Criminal / Appeal From Conviction and Sentence
Legal Issues
- 1 Whether the trial judge erred by failing to address apparent intoxication in relation to a specific intent offence (break and enter)
- 2 Whether the conviction for break and enter should be substituted with a conviction for forcible entry under s.72(1) of the Criminal Code
- 3 Whether the sexual assault conviction should be overturned on appeal (credibility of officer)
Ratio Decidendi
The court accepted Crown's concession that the trial judge erred by failing to address intoxication for the specific intent offence of break and enter and therefore substituted the conviction with forcible entry under s.72(1); the sexual assault conviction was upheld because the trial judge's credibility findings were reasonable and entitled to deference; the sentencing appeal was dismissed despite recognizing post‑sentencing rehabilitation, and the victim fine surcharge was set aside by consent.
Court Disposition
Conviction for break and enter set aside and substituted with conviction for forcible entry under s.72(1) of the Criminal Code; sexual assault conviction upheld; appeal against sentence dismissed; victim fine surcharge set aside on consent.
Orders
- Substitute conviction: forcible entry contrary to s.72(1) of the Criminal Code
- Dismiss appeal against sexual assault conviction
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Lo Verde Collection Decisions of the Court of Appeal Date 2019-06-06 Neutral citation 2019 ONCA 467 Docket numbers C64307 Judges Feldman, Kathryn N.; van Rensburg, Katherine; Huscroft, Grant Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Lo Verde, 2019 ONCA 467 DATE: 20190605 DOCKET: C64307 Feldman, van Rensburg and Huscroft JJ.A. BETWEEN Her Majesty the Queen Respondent and Raymond Lo Verde Appellant Raymond Lo Verde, in person Amy Ohler, duty counsel Michael Fawcett, for the respondent Heard: June 3, 2019 On appeal from the conviction entered on July 2017 and the sentence imposed on August 16, 2017 by Justice Joseph Bovard of the Ontario Court of Justice. APPEAL BOOK ENDORSEMENT [1] Duty Counsel raised two grounds of appeals. The first is with respect to the conviction for break and enter. Crown counsel agrees that the trial judge erred by failing to address the issue of the appellant’s apparent intoxication in the context of a specific intent offence, although defence counsel did not raise any objection at trial. [2] Both counsel ask the court to substitute a conviction for forcible entry contrary to s. 72 (1) of the Code. So ordered. [3] The appellant on his own appeals his conviction for sexual assault of the police officer. There is no basis to interfere. The trial judge considered all of the evidence and believed the officer, which he was entitled to do. This ground of appeal is dismissed. [4] Duty counsel also sought to appeal the sentence of time served on the sexual assault and to substitute a conditional discharge. The appellant brought forward some very positive letters regarding his program at Emmanuel College and other positive steps that he has taken since the sentencing. [5] While we commend the appellant highly for the positive steps he has taken in his life, we are not in a position to substitute a conditional discharge when that was not requested at sentencing, and when there were other factors at play including substance abuse. [6] While leave to appeal sentence is granted, the appeal against sentence is dismissed. The victim fine surcharge is set aside on consent.