Court of Appeal for Ontario

Citation: R. v. Benjamin, 2008 ONCA 602

Date: 20080903

Docket: C47281

Before: WINKLER C.J.O., DOHERTY and ARMSTRONG JJ.A.

Between:

HER MAJESTY THE QUEEN Respondent

and

OSLO BENJAMIN Appellant

Counsel: Brad Pearson for the appellant Joanne Stuart for the respondent

Heard and released orally: August 22, 2008

On appeal from: the conviction entered and sentence imposed on May 28, 2007 by Justice David M. Stone of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant was charged with five offenses arising out of an altercation between the appellant and his "girlfriend" the complainant. He was ultimately acquitted on three of the charges but convicted of one count of assault with a weapon (a gold chain) and a count of break and enter and assault. He received a sentence of thirty days to be served on the weekends. He had also spent some time in custody prior to his conviction.

[2] Counsel on behalf of the appellant has raised four grounds of appeal. In the course of his argument counsel thoroughly analyzed the reasons of the trial judge. Aspects of the reasons are not without some difficulty. We are not satisfied that the reasons demonstrate reversible error. We will deal briefly with each ground of appeal.

[3] The trial judge did not misapply the principle set down in R. v. W.D. He began his judgment by eluding to that decision and concluded his judgment by acquitting the appellant on one count based on an application of the third step in R. v. W.D.

[4] The trial judge did conclude that the complainant had no motive to fabricate her evidence in so far as it implicated the appellant in the charges. It was open to the trial judge on the evidence to come to that conclusion. We cannot agree that he overemphasized the absence of motive. It was clearly one factor he considered in assessing the complainants credibility. With respect to counsel's argument, there is nothing in the reasons of the trial judge that supports the contention that the trial judge concluded that the appellant was credible exclusively because she had no motive to fabricate her evidence.

[5] We do not agree that the trial judge misapprehended the appellant's evidence as to the number of times the appellant struck the complainant with his gold chain. The appellant testifies that he struck the complainant with his chain while they were fighting in the car. It is unclear from the appellant's evidence whether he struck her once or more than once. What is clear from the appellant's evidence is that there were no other occasions, other than the incident in the car during which the appellant conceded striking the complainant with the chain. The complainant testified that the appellant struck her with the chain in the hotel room. The trial judge reviewed the physical evidence and concluded that it was impossible for the appellant to have struck the complainant with the chain while they were in the vehicle. This conclusion was open to him based on the nature and location of the bruises inflicted by the chain.

[6] The trial judge in his reasons indicated that there was no evidence that the appellant struck the complainant on more than one occasion with his chain. That is an accurate summary of the evidence. The appellant did not testify to striking the complainant on more than one occasion and the complainant did not suggest that the appellant struck her on more than one occasion. The dispute was over whether the appellant struck her in the car or in the hotel room. If he struck her in the hotel room, as the trial judge found, then the appellant's self defence claim could not succeed.

[7] There are aspects of the complainant's evidence that are troubling. The trial judge addressed these issues, particularly her evidence concerning the manner in which the appellant broke in to her hotel room. This evidence was central to the break and enter charge. The physical evidence did not support the complainant's evidence as to how the appellant gained entry. She offered an explanation for the absence of physical evidence to support her assertion that the appellant broke the lock as he entered. She claimed, for the first time in cross examination, that the appellant fixed the lock at some later time. While one may wonder about the credibility of this explanation it was for the trial judge to assess this explanation in the context of the entirety of the evidence and make his own determination of the complainant's credibility. The trial judge did exactly that. He referred to this evidence, acknowledged the concern with respect to the accuracy of this part of the complainant's evidence. He also referred to the absence of any confirmatory evidence on this part of the complainant's evidence. Ultimately however he accepted her evidence that the appellant forced his way into the hotel room. That finding was enough to warrant a conviction on the break and enter charge. It is not our function to retry the case or make our own assessment of the evidence. We cannot interfere with the trial judge's finding.

[8] The sentence imposed was in our view fit and we would not interfere with the sentence.

[9] The conviction appeal is dismissed, leave to appeal sentence is granted but the appeal is dismissed.

"W. Winkler C.J.O"

"Doherty J.A."

"Robert P. Armstrong J.A."