Court of Appeal for Ontario

CITATION: R. v. Selvaratnam, 2013 ONCA 221

DATE: 20130408

DOCKET: C53610

BEFORE: Doherty, Rouleau and Epstein JJ.A.

Her Majesty the Queen Respondent

and

Nanthan Selvaratnam Appellant

Counsel: David W. Russell, for the appellant Michelle Campbell, for the respondent

Heard and released orally: April 3, 2013

On appeal from the conviction entered by Justice G.S. Gage of the Ontario Court of Justice, dated November 12, 2010.

ENDORSEMENT

[1] The trial judge was entitled to accept the testimony of the two independent witnesses that they saw no threatening behaviour by the complainant. In doing so, he did not misapprehend the evidence. The two independent witnesses may not have seen the entire altercation and parts of their evidence were inconsistent with each other and probably inaccurate. However, their evidence did support the Crown’s contention that the complainant was in no way the aggressor and did not threaten the appellant immediately before the appellant threw the hammer at the complainant causing the relevant injury. The trial judge correctly regarded the evidence of the independent witnesses as undermining the appellant’s self-defence claim.

[2] The verdict was not unreasonable. The trial judge’s treatment of the evidence that the complainant had a screwdriver in his hand at some point during the dispute, but before the assault, was not incompatible with the trial judge’s finding that the appellant had no basis to fear for his safety when he assaulted the complainant. The relevant events occurred in the workplace of the appellant and the complainant. The complainant routinely carried and used a screwdriver for work purposes. The trial judge was entitled to take the view of the evidence that he did.

[3] The appeal is dismissed.

“Doherty J.A.”

“Paul Rouleau J.A.”

“Gloria Epstein J.A.”