DATE: 20040611
DOCKET: C40393
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) – and – RICHARD McCUE (Appellant)
BEFORE: ABELLA, MOLDAVER and BORINS JJ.A.
COUNSEL: Timothy E. Breen For the appellant
David Finley For the respondent
HEARD: June 8, 2004
RELEASED ORALLY: June 8, 2004
On appeal from conviction by Justice L. T. Montgomery of the Ontario Court of Justice dated March 5, 2003 and sentence imposed by Justice Montgomery on April 16, 2003.
E N D O R S E M E N T
[1] Although we have serious concerns with the analysis that led the trial judge to conclude that Mr. Peltier’s evidence was both credible and reliable, taking into account those facts found by the trial judge that are not contested and applying s. 41 of the Criminal Code, we would not interfere with the conviction.
[2] As the appellant candidly concedes, at the very least he was trespassing. In refusing to leave when asked and putting up physical resistance, he was engaged in an unlawful assault. That being so, on any realistic view of the evidence, it is apparent to us that Mr. Peltier and the appellant went over the balcony in tandem. As such, the necessary element of causation for the offence of aggravated assault is made out.
[1] Accordingly, we would dismiss the appeal from conviction.
[2] With respect to sentence, based on the fresh evidence and the manner in which the injury to Mr. Peltier was caused, we think that the sentence should be varied. The appellant has now been in custody for eighteen months. According to the fresh evidence, he has made significant progress. In the circumstances, we are all of the view that the sentence should be varied to one of time served plus probation for two years on terms and conditions agreed to by the parties and approved by the court.