DATE: 20050609

DOCKET: C38559

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JAMES JOSEPH FLAMAN (Appellant)

BEFORE:

ARMSTRONG, LANG and ROULEAU JJ.A.

COUNSEL:

James Lockyer for the appellant

M. David Lepofsky for the respondent

HEARD:

June 3, 2005

On appeal from the conviction entered by Justice Michael R. Dambrot of the Superior Court of Justice, sitting without a jury, on May 7, 2002.

E N D O R S E M E N T

[1] The appellant was found guilty of counselling to commit aggravated assault. The central issue at trial was whether the Crown had established beyond a reasonable doubt that the appellant intended that Mr. Ezeugo carry out the assault on Mr. Menns. The principal issue on appeal is the sufficiency of the trial judge’s reasons.

[2] In our view, although not explicitly, the trial judge implicitly, but clearly, rejected the appellant’s evidence that he did not have the requisite intention. This is evident from the inference that the trial judge drew about the appellant’s intention. From the appellant’s own admissions given during his evidence, the trial judge found it impossible to resist the conclusion that the appellant intended that the offence be carried out. The trial judge clearly articulated the basis on which he drew that inference: the appellant’s persistent course of conduct; his offer to pay money to Mr. Ezeugo; his provision to Mr. Ezeugo of a photograph of Mr. Menns, and his urging that there be no evidence tracing the assault back to the appellant.

[3] As to the burden of proof, the trial judge articulated and then applied the appropriate standard of proof beyond a reasonable doubt when he rejected the allegation that the appellant counselled Mr. Ezeugo to kill, as opposed to assault, Mr. Menns and when he acquitted the appellant on the charge of breach of recognizance. In finding the appellant guilty of the counselling offence, the trial judge then specifically said that he was satisfied beyond a reasonable doubt that the appellant intended Mr. Ezeugo to carry out the assault on Mr. Menns. From this and from the totality of his reasons, it is clear that the trial judge understood the burden on the Crown.

[4] This very experienced trial judge is presumed to know the law. In our view, his reasons were sufficient in their totality for the purposes of R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.).

[5] As we see no error on the part of the trial judge, the appeal is dismissed.

“Robert P. Armstrong J.A.”

“S. E. Lang J.A.”

“Paul Rouleau J.A.”