R. v. Bell, 2010 ONCA 387

CITATION: R. v. Bell, 2010 ONCA 387

DATE: 20100527

DOCKET: C48392

COURT OF APPEAL FOR ONTARIO

Moldaver, Cronk and Epstein JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Ian James Bell

Appellant

David M. Midanik, for the appellant

Andreea Baiasu, for the respondent

Heard and released orally: May 17, 2010

On appeal from the convictions entered by Justice Peter G. Jarvis of the Superior Court of Justice, sitting with a jury, on April 20, 2004 and the sentence imposed by Justice Jarvis on July 12, 2007.

ENDORSEMENT

[1] Following a trial on a 17-count indictment, the appellant was convicted of assault causing bodily harm in respect of an incident involving his wife, K.B. (Count Four) and further, of disobeying a lawful court order to have no contact directly or indirectly with K.B. (Count 17). He was acquitted of all remaining charges. On sentencing, he was declared a dangerous offender and an indeterminate sentence of imprisonment was imposed.

[2] The appellant appeals, arguing that his convictions are unreasonable. He also seeks leave to appeal sentence and, if leave be granted, appeals against sentence, maintaining that he should have been declared a long-term rather than a dangerous offender.

[3] For the reasons that follow, we would dismiss both the conviction and sentence appeals.

A. Conviction Appeal

[4] In support of his conviction appeal, the appellant contends that the evidence relating to Counts One and Four was so intertwined and interrelated that no separate assessment of the appellant’s culpability on Count Four (the assault causing bodily harm charge) could reasonably have been undertaken by the jury in isolation from the evidence relating to Count One. The appellant says that as he was acquitted of Count One, the conviction on Count Four is therefore unreasonable and cannot stand.

[5] We disagree. Unlike the evidence in respect of the other counts, there was corroborative evidence at trial of the complainant’s version of the incident forming the subject matter of Count Four, in the form of medical reports and photographs that confirmed the injuries sustained by her. Moreover, the appellant conceded that he had engaged in a scuffle with the complainant that could have accounted for the complainant’s injuries, but provided an innocent explanation for those injuries.

[6] Count Four was left with the jury on this basis (namely, that the evidence in relation to Count Four set it apart from the other counts against the appellant), without objection by the defence. The trial judge carefully instructed the jury on the governing principles in R. v. W.(D.) and cautioned the jury that the evidence in respect of each count was to be assessed separately from the evidence relating to the other counts. By its verdict on Count Four, the jury clearly rejected the appellant’s account of the cause of the complainant’s injuries, concluded that it did not raise a reasonable doubt, and accepted the complainant’s testimony on this issue.

[7] In our view, the features of Count Four set out in paragraph five above distinguish it from the circumstances surrounding Count One. Accordingly, the verdicts on these two counts can stand together.

[8] The appellant makes a similar argument of unreasonable verdict in respect of Count Six (unlawful confinement) and Count Four. We also reject this argument. As with Count One, and in contrast to Count Four, there was no confirmatory evidence regarding Count Six. Moreover, Counts Four and Six involve entirely different offences with different component elements. In this case, it was clearly open to the jury to find that the appellant assaulted K.B., without having to also find that she was unlawfully confined. There is therefore no inconsistency in the jury’s verdicts on these counts.

[9] We note that the appellant did not pursue his appeal against conviction in respect of Count 17.

[10] The appeal from conviction is therefore dismissed.

B. Sentence Appeal

[11] The appellant raised various grounds of appeal in his factum on his sentence appeal. However, the focus of his oral submissions before this court was whether, in finding that there was no reasonable possibility of eventual control of the risk posed by the appellant in the community, the trial judge erred by relying on the Crown’s expert evidence, which was premised in part on consideration of the circumstances surrounding counts on which the appellant was acquitted.

[12] We do not accept this ground of appeal. The trial judge made it clear in his reasons that, in fashioning an appropriate sentence, he disregarded those other counts and the evidence relating to them. Further, he recognized that it was incumbent on him not merely to rubber stamp the opinions expressed by the experts but, rather, to carefully review their evidence. This is precisely what he did.

[13] Finally, and importantly, the Crown’s leading expert expressly confirmed that his opinion of the uncontrollable high risk posed by the appellant would not have changed in any way if he had removed from consideration the information relating to the appellant’s other alleged abusive conduct in respect of which the appellant was acquitted.

[14] In the end, the trial judge concluded that the evidence did not establish more than an expression of hope or remote possibility that the appellant’s risk could be controlled in the community. In arriving at this conclusion, the trial judge carefully considered the whole of the evidence and correctly applied the controlling legal principles. On this record, his sentencing disposition was both eminently reasonable and fully justified.

[15] Leave to appeal sentence is granted and the sentence appeal is dismissed.

“M. J. Moldaver J.A.”

“E. A. Cronk J.A.”

“Gloria Epstein J.A.”