Court of Appeal for Ontario

Citation: R. v. French, 2009 ONCA 787

Date: 2009-11-10

Docket: C49333

Before: Doherty, Simmons and Lang JJ.A.

Between:

Her Majesty the Queen Respondent

and

Daryl French Appellant

Counsel: Brian A. Callender, for the appellant Chikeziri Igwe, for the respondent

Heard and released orally: November 6, 2009

On appeal from the conviction entered by Justice J.C. Beaman of the Ontario Court of Justice dated May 30, 2008 and from the sentence imposed dated June 13, 2008.

ENDORSEMENT

[1] The appellant was convicted of two counts of assault and sentenced to a global sentence of 12 months’ imprisonment consecutive to the penitentiary sentence he was already serving. He appeals against conviction and applies for leave to appeal sentence.

I. The Conviction Appeal

[2] The appellant raises numerous issues on his conviction appeal. However, his grounds fall into two main categories: first, grounds relating to the trial judge’s credibility assessment; and second, grounds relating to the fairness of the trial.

[3] We do not accept the appellant’s submissions that the trial judge erred in her credibility assessment.

[4] The trial judge found that the complainant’s evidence that the appellant assaulted her by biting her on two occasions was supported by the evidence of the investigating officer. The officer testified that he observed a clear bite mark on the complainant's wrist that was larger than the bite mark of a child and a reddish mark on the top of the complainant's shoulder. He also observed bite marks on a table and a telephone at the complainant's residence.

[5] Taking account of the police officer’s evidence, as well as the complainant's demeanour, the detail in her evidence and her lack of apparent animus towards the appellant, the trial judge found the complainant’s evidence credible. Further, after considering the appellant’s evidence in the context of the totality of the evidence at the trial, the trial judge rejected the appellant’s evidence and found that it did not raise a reasonable doubt.

[6] We see no error in the trial judge’s approach to the evidence or in her application of the burden of proof. The police officer’s observations of bite marks provided significant support for the complainant’s version of the events. Viewed in this context, it was open to the trial judge to find, as she did, that the appellant’s bare assertion that he had cracked teeth and could not have committed the offence did not raise a reasonable doubt.

[7] Turning to the trial fairness issues, we reject the appellant’s complaint that the Crown’s cross-examination was abusive. The appellant became angry while being cross-examined about a letter the Crown suggested he wrote. However, the cross-examination persisted in large part because the appellant did not respond clearly when asked whether he had written the letter. Moreover, the cross-examination about the letter was not irrelevant. It was relevant to the appellant’s claim that this was the first offence to which he had pleaded not guilty; it was also relevant because the letter may have constituted an admission.

[8] At trial counsel argued that the trial judge should have drawn an inference against the Crown because of its failure to call certain potential witnesses. None of these people had actually witnessed the alleged assaults. The trial judge rejected that submission.

[9] On appeal, counsel argues that the trial judge erroneously inferred that the potential Crown witnesses were not called because they feared the appellant. Counsel submits there was no evidence to support that inference.

[10] We do not accept this submission. It is not clear to us that the trial judge in fact drew the challenged inference. The impugned passage from the reasons may be no more than a reference to the appellant's acknowledgement in his own evidence that there were people who were afraid of him and wanted him to remain in jail. However, even if the trial judge made this error, it was not material to her ultimate determination.

[11] The conviction appeal is therefore dismissed

II. The Sentence Appeal

[12] Turning to the sentence appeal, the trial judge relied on the complainant’s injuries, the fact that the assaults were committed in a domestic context and the appellant's lengthy criminal record to impose a sentence of 12 months’ imprisonment. Having regard to these factors the sentence was not unfit; nor has the appellant identified any error in principle.

[13] The sentence appeal is therefore dismissed.

"Doherty J.A."

"Janet Simmons J.A."

"S. E. Lang J.A."