Court of Appeal for Ontario

CITATION: R. v. Dinney, 2012 ONCA 497

DATE: 20120711

DOCKET: C53869

Rouleau, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Connor Dinney

Appellant

Counsel:

Crystal Tomusiak, for the appellant

Holly Loubert, for the respondent

Heard and released orally: June 28, 2012

On appeal from the conviction entered on October 29, 2010, and the sentence imposed on April 1, 2011, by Justice K. Carpenter-Gunn of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant alleges several errors in the reasons for judgment of the trial judge vitiate his conviction of assault causing bodily harm and require a new trial. He also submits that the sentence imposed, imprisonment for six months, reflects errors in principle thus is unfit.

The Appeal from Conviction

[2] On the appeal from conviction, the appellant says that the trial judge failed to properly apply the standard of proof, instead treated the case as a credibility contest between Crown and defence witnesses. She misapprehended some of the evidence, applied a stricter standard of proof to the evidence called by the defence than to that of the Crown, and drew speculative conclusions from other evidence, rather than logical common sense inferences. Her assessments of credibility were flawed by unwarranted assumptions and circular reasoning.

[3] The incident upon which the prosecution was based occurred after closing time in an entertainment district in the City of Hamilton. It is beyond dispute that the appellant and his friends had been drinking heavily. They became embroiled in a number of fights with others outside one of the licensed premises.

[4] Bouncers from a licensed establishment became concerned that the appellant, who according to some witnesses, was jumping up and stomping on the head of an apparently unconscious and bloodied man prone on the pavement, would cause the man serious injury or kill him. They interceded to break up the fight.

[5] The appellant and his friends resisted the efforts of the bouncers to quell the disturbance. In the end, the appellant, who had left the area where the complainant was standing, returned and sucker punched him in the head. The complainant dropped immediately to the ground, struck his head on the pavement and suffered serious head injuries.

[6] In a police interview that was admitted at trial, the appellant said that he hit the complainant with his hardest punch. He did not testify at trial, but contended on the basis of other evidence that his conduct was justified in defence of himself and others under his protection.

[7] The reasons of the trial judge are far from ideal. That said, in the end this case reduced to a determination of two issues, namely, whether the appellant struck the complainant as alleged by the Crown and admitted by the appellant in his police statements, and whether the blow was justified in lawful self-defence or in defence of another person under the appellant’s protection. The trial judge was alive to these issues and grounded her findings largely on the evidence of a sober, independent witness whose observations fully supported those findings. This she was entitled to do.

[8] In isolation, as is often the case, some passages in the reasons of the trial judge appear problematic. In the end, however, we are satisfied that her core findings do not reflect any of the errors assigned to them by the appellant.

[9] The appeal as to conviction is dismissed.

The Appeal from Sentence

[10] The appellant has also appealed sentence.

[11] In our view, as counsel for the appellant acknowledges, the sentence imposed falls within the appropriate range of sentence for this offender and this offence. The trial judge considered the appellant’s relative youth, his unblemished record at the time of the offence, his subsequent expression of remorse and the fact that the assault involved a single blow. She was equally mindful of the relevant sentencing objectives and principles, including the fundamental principle of proportionality.

[12] In the result, although we would grant leave to appeal sentence, the appeal from sentence is dismissed.

“Paul Rouleau J.A.”

“David Watt J.A.”

“S.E. Pepall J.A.”