DATE: 20060623

DOCKET: C44105

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – DANE WILLIAMS (Appellant)

BEFORE:

SHARPE and JURIANSZ JJ.A. and LANE J. (ad hoc)

COUNSEL:

Paul Slocombe

for the appellant

Christine Bartlett-Hughes

for the respondent

HEARD & RELEASED ORALLY:

June 15, 2006

On appeal from the judgment of Justice Paul Megginson of the Ontario Court of Justice dated May 18, 2005.

E N D O R S E M E N T

[1] The trial judge’s reasons were sparse but we do not accept the submission that he erred by failing to explain why he accepted the evidence of Melissa Hart and rejected the evidence of the defence witnesses as to whether or not the complainant cocked his fist immediately before the assault. As we read his reasons, the trial judge found that on the basis of that evidence there was a reasonable doubt. He then went on to find that even if the complainant cocked his fist, the response of the appellant was disproportionate and could not be justified as self-defence.

[2] In our view, there was evidence of the appellant’s training and skill in martial arts that provided a basis for this finding. Another judge might have taken another view, but we are not entitled to retry the case. This was a finding of fact that is entitled to deference in this court. We see no legal error on the part of the trial judge that would justify appellate intervention. The sentence has been served and the appeal from sentence was abandoned at the outset of oral argument.

[3] Accordingly, the appeal is dismissed.

Robert J. Sharpe J.A.”

“R.G. Juriansz J.A.”

“D. Lane J. (ad hoc)”