DATE: 20040219 DOCKET: C37694

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) - and - V. (Q.V.) (Appellant)

BEFORE:

ROSENBERG, MOLDAVER and SIMMONS JJ.A.

COUNSEL:

Graham T. Clark and Daniel A. Stein For the appellant

Alison Hurst For the respondent

HEARD:

February 10, 2004

RELEASED ORALLY:

February 10, 2004

On appeal from conviction by Justice Vibert Rosemay of the Ontario Court of Justice on October 5, 2001 and sentence imposed on January 28, 2002.

ENDORSEMENT

[1] The reasons of the trial judge in this case are most unsatisfactory. The trial judge made several errors with respect to self-defence. For example, he reversed the burden of proof and made statements suggesting that use of this weapon (a machete) could not be justified under any circumstances.

[2] That said, self-defence depended upon the simple factual issue of whether the appellant was the aggressor as testified to by the Crown witnesses, or whether the appellant was on the ground being attacked by the security guards before wielding the machete. The latter proposition depended on the possibility that despite being set upon by a number of large security guards, the appellant was able to grab the machete, stand up and confront the guards. The trial judge accepted the Crown version of the events and found the defence version did not make any sense. That finding was open to the trial judge and we see no basis for interfering with it. Accordingly, self-defence did not arise, and the errors by the trial judge did not affect the verdict. It follows that this is a proper case to apply the proviso in s. 686(1)(b)(iii) of the Criminal Code.

[3] As to disposition, we are not satisfied that the trial judge made any errors in principle. The disposition was appropriate given the seriousness of the offence and the appellant's background and his serious youth record. Accordingly, the appeal from conviction and disposition is dismissed.

Signed: "M. Rosenberg J.A." "M.J. Moldaver J.A." "Janet Simmons J.A."