Court of Appeal for Ontario
BEFORE: MacPherson, Cronk and Karakatsanis JJ.A.
BETWEEN:
Her Majesty the Queen Respondent
and
Jamaine St. Louis Appellant
COUNSEL: Najma Jamaldin, for the appellant Robin Flumerfelt, for the respondent
Heard and released orally: July 7, 2010
On appeal from the conviction entered by Justice A. Bryant of the Superior Court of Justice, dated May 5, 2008 and the sentence imposed by Justice Bryant, dated November 4, 2008.
ENDORSEMENT
1The appellant submits that his convictions for assault causing bodily harm and fail to comply with probation were unreasonable, arguing that the Crown’s case rested on evidence from the complainant that was internally inconsistent, contradicted earlier statements and was embellished at trial.
2The trial judge was alive to the inconsistencies in the complainant’s evidence and he accepted her explanation for lying to her roommate about her injuries and the damage to the washroom door. A trial judge is not required to deal with each and every inconsistency in a witness’ evidence. We do not agree with the submission that the trial judge assessed credibility primarily based upon demeanour. He gave careful and thoughtful reasons assessing the complainant’s evidence as a whole and accepted it as both credible and reliable beyond a reasonable doubt on the material facts – the nature of the assault and the identity of the assailant. We reject this ground of appeal.
3Furthermore, we agree with the trial judge that this was a case of recognition rather than identity. The appellant had resided with the complainant for about two weeks before the assault. The trial judge noted that the complainant had not been cross-examined about her evidence that it was the appellant who had stayed with her in the apartment. In doing so, he did not effectively reverse the burden of proof on the issue of identity. He applied the correct legal principles and was satisfied that the appellant was the assailant beyond a reasonable doubt.
4Further, the trial judge found beyond a reasonable doubt “that the injuries suffered by [the complainant] were serious and interfered with her health and comfort” and that “she continued to suffer tenderness in the area that was struck by the blow”. He found the appellant guilty of assault causing bodily harm and, as a result, of failing to keep the peace and be of good behaviour.
5The trial judge made no error in principle and his findings of credibility are entitled to deference. There was no palpable or overriding error here. We are satisfied on the facts of this case that the verdict is one that a properly instructed jury acting judicially could reasonably have rendered. The appeal from convictions is dismissed.
6Nor do we see any error in the sentence imposed. A two year sentence, after credit for presentence custody, was a fit sentence and warranted by the applicable sentencing principles. It was not a dramatic increase from that previously imposed for a similar offence such that it violated the ‘jump principle’. Leave to appeal sentence is granted but the appeal is dismissed.
“J. C. MacPherson J.A.”
“E. A. Cronk J.A.”
“Karakatsanis J.A.”