DATE: 20040525
DOCKET: C40955
COURT OF APPEAL FOR ONTARIO
MACPHERSON, CRONK and GILLESE JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Allan G. Letourneau
for the appellant
Respondent
- and -
STEPHEN LLOYD BUCKINGHAM
Lisa Joyal
for the respondent
Appellant
Heard: May 20, 2004
Released Orally: May 20, 2004
On appeal from the decision of Justice Heidi S. Levenson Polowin of the Superior Court of Justice sitting as a Summary Conviction Appeal Court judge, dated November 14, 2003 dismissing an appeal from the conviction entered by Justice Paul H. Megginson of the Ontario Court of Justice on September 12, 2003.
BY THE COURT:
[1] The appellant applies for leave pursuant to s. 839(1) of the Criminal Code to appeal the decision of Polowin J. of the Superior Court of Justice dismissing his appeal of his conviction for assault by Megginson J. of the Ontario Court of Justice on September 12, 2003.
[2] The appellant and complainant were married for eighteen years and had two teenaged children. The couple separated in October 2000 and the complainant moved into her brother’s apartment. The incident giving rise to the charge against the appellant took place in the lobby of the apartment building. Part of the altercation was witnessed by the complainant’s brother, who testified at trial.
[3] The appellant advances four grounds of appeal.
[4] The summary conviction appeal judge stated that the trial judge “turned his mind to the defence of self‑defence, rejected it and gave reasons why.” The appellant contends that this passage constitutes a misapprehension of the basis for the trial judge’s finding of guilt because the trial judge did not “reject” the appellant’s evidence of self‑defence; rather, he held that there was “no air of reality” to it. Accordingly, the appellant contends, the summary conviction appeal judge did not properly adjudicate on the trial judge’s ruling respecting the “air of reality” test for self‑defence.
[5] We disagree. It is clear from the trial judge’s reasons, read as a whole, that he did consider and reject the appellant’s evidence of self‑defence. The trial judge set out a number of specific reasons that support this conclusion – the appellant knew that his presence at the apartment was unwanted; his demeanour throughout the entire incident was consistent with his having been the aggressor from the outset; he started with verbal aggression, but advanced beyond this as the incident continued; and he refused to leave the building, despite being asked to do so on several occasions.
[6] The appellant next contends that the summary conviction appeal judge erred in concluding that the trial judge properly applied the test in R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), to the evidence to determine whether a reasonable doubt regarding the appellant’s guilt existed. In particular, the appellant submits that the trial judge did not deal properly with inconsistencies in the complainant’s testimony.
[7] We disagree. On this issue, the summary conviction appeal judge said:
While Justice Megginson did not specifically refer to the test in R. v. W.(D.) (and such specific reference is not required) it seems to me that he applied the test in W.(D.) when he limited his finding of guilt to the one incident. While he noted the discrepancies in her testimony, he found her to be an essentially credible witness. He found her evidence to be supported by her brother whom he found credible. While the Appellant contends that the Trial Judge was left in reasonable doubt as to the other alleged incidents, and thus should have been in doubt as to the appellant’s claim of self‑defence, Justice Megginson found that the evidence did not support this defence based on other factors that is, that it was the Appellant who was the aggressor from the beginning, who instigated contact, was asked to leave on several occasions etc. Justice Megginson appears to have weighed and assessed the evidence as a whole, in accordance with the principles of R. v. W.(D.).
We agree with this analysis and conclusion.
[8] The appellant contends that the summary conviction appeal judge erred by not concluding that the trial judge’s reasons for judgment, because of their brevity, insulated his decision from meaningful appellate review contrary to R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.) and R. v. Maharaj (12May2004) (Ont. C.A.).
[9] We disagree. Although the trial judge’s reasons were relatively brief (two pages), they fulfil the important role, enunciated in Sheppard, of informing the accused, and a reviewing court, of why the accused was convicted. The trial judge acknowledged discrepancies in the complainant’s testimony, but found her to be “essentially credible”. He also found the complainant’s brother to be a credible witness. On the incident that formed the basis for the finding of guilt, he accepted their testimony. He also rejected, with reasons, the appellant’s defence of self‑defence.
[10] The appellant contends that the summary conviction appeal judge erred by not finding that the trial judge’s finding of guilt was unreasonable. In our view, there is no basis for this submission.
[11] Leave to appeal is granted. The appeal is dismissed.
RELEASED: May 25, 2004 (“JCM”)
“J. C. MacPherson J.A.”
“E. A. Cronk J.A.”
“E. E. Gillese J.A.”