COURT OF APPEAL FOR ONTARIO

DATE: 20000216

DOCKET: C31637

RE: HER MAJESTY THE QUEEN (Respondent) and ROYDON

McCALLA (Appellant)

BEFORE: DOHERTY, FELDMAN AND O’CONNOR JJ.A.

COUNSEL: Mr. Tim Breen, for the appellant

Ms. Erica MacCarthy, for the respondent

HEARD: January 28, 2000

On appeal from conviction and sentence before Humphrey J. dated

May 26, 1998 and July 27, 1998.

E N D O R S E M E N T

[1] This is an appeal from conviction and sentence. On the

conviction appeal the appellant raises two arguments. The first

is that the trial judge failed to consider the inconsistencies

between the evidence of the complainant and that of his brother-

in-law, Mr. Said.

[2] In our view, those inconsistencies were not significant and

in any event, the trial judge did address them in an appropriate

manner.

[3] The second ground was that the trial judge failed to

consider aspects of the physical evidence as corroborative of the

appellant’s version of events and contradictory to the

complainant’s version. Counsel referred to three pieces of

evidence: 1) the rocks shown beside the taxi on the police

diagram, 2) the blood on the taxi, and 3) the broken exacto knife

blade with blood on it embedded in the steering wheel of the

complainant’s car.

[4] In our view, the first two would have been of little or no

assistance. In the case of the location of the rocks, the

diagram standing alone is not sufficient to deal with the

possible existence of other rocks elsewhere in the alley. With

respect to the blood on the taxi, the accused gave an explanation

in re-examination which it was open to the trial judge to accept.

[5] On the third point, we agree that the presence of the bloody

blade of the knife in the steering wheel of the complainant’s car

is inconsistent with the complainant’s version of the sequence of

events and that the trial judge did not address that issue.

However, even if the complainant was wrong on the sequence of

events, in our view that evidence of the action of the appellant

after slashing the complainant would not have been of assistance

to the appellant’s claim that he acted in self defence.

[6] We are therefore dismissing the conviction appeal.

[7] The appellant received a sentence of fifteen months to be

followed by three years probation. Mr. Breen urges the court to

impose a conditional sentence. The appellant is a first time

offender and by all accounts a hardworking decent person.

Despite his positive background we are satisfied that the

sentence imposed was fit. The offence rose out of an incident

involving what the appellant regarded as the complainant’s

reckless driving. The appellant followed the complainant intent

upon exacting revenge. He introduced a dangerous weapon into the

confrontation and used that weapon to inflict a very serious

injury on the complainant. As the trial judge said, the facts

“called out for a deterrent sentence”.

[8] We are not satisfied that the trial judge erred in rejecting

the imposition of a conditional sentence in these circumstances.

[9] The appeal against sentence is therefore also dismissed.