Court File and Parties

CITATION: R. v. Hunter, 2008 ONCA 691

DATE: 20081009

DOCKET: C46605

COURT OF APPEAL FOR ONTARIO

Doherty, Laskin and MacPherson JJ.A.

BETWEEN

Her Majesty The Queen

Applicant (Respondent)

and

Trevor Hunter

Respondent (Appellant)

E. McCooeye, for the appellant

Andreea Baiasu, for the respondent

Heard: September 26, 2008

On appeal from the conviction entered on October 26, 2006 and the sentence imposed on January 9, 2007, by Justice Frank R. Caputo of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] We see no merit to the conviction appeal. Counsel argues that the trial judge should have found an implied consent to the assault. Neither the complainant nor the appellant were asked specifically about the consent issue. On the evidence the complainant was moving away from the appellant when the appellant pushed him to the ground. At the most it could be said that the complainant should have expected that the appellant would respond physically to the complainant’s conduct. That is not the same as consenting to a fight.

[2] There was ample basis for the inference that risk of bodily harm was reasonably foreseeable in all of the circumstances.

[3] We do not agree that a discharge should have been imposed. The prior discharge although for a later offence still has relevance to the suitability of a discharge. We think a suspended sentence should have been imposed rather than a conditional sentence. The conditional sentence has been served. There is no need for a further period of probation. Consequently we would vary the sentence to a suspended sentence with probation on the statutory terms for a period of 4 months and stay that sentence. Therefore the appellant’s record should reflect the imposition of a suspended sentence, but he is not required to undergo any further probationary period.

[4] The conviction appeal is dismissed. The sentence is varied in accordance with these reasons.