COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jones, 2013 ONCA 245

DATE: 20130418

DOCKET: C54921

Doherty, MacPherson and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joshua Jones

Appellant

Louis P. Strezos, for the appellant

Matthew Asma, for the respondent

Heard: April 10, 2013

On appeal from the conviction entered on September 6, 2011 and the sentence imposed on January 12, 2012 by Justice Robert M. Thompson of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant Joshua Jones was convicted by Thompson J. of the Superior Court of Justice on September 6, 2011 of aggravated assault and two counts of assault with a weapon (a knife). On January 12, 2012, the trial judge imposed a sentence of two years less a day in custody – 23 months less one day for aggravated assault on one complainant and one month consecutive for assault with a weapon on a second complainant.

[2] The appellant appeals his convictions and sentence relating to the first complainant, Stephanie Ashkewe. He does not appeal his conviction and sentence relating to the second complainant.

[3] On the conviction appeal, the appellant alleges that the trial judge made three errors.

[4] First, the appellant contends that the trial judge did not consider Ms. Ashkewe’s prior inconsistent statement to police when he evaluated her credibility. He says that there were two important inconsistencies: first, whether Ms. Ashkewe sought out the appellant at Sweet Corner, instead of happening upon him accidentally; and second, Ms. Ashkewe’s account of Blyth Keeshig’s presence at Sweet Corner.

[5] We do not accept this submission. On the first point, the trial judge addressed this inconsistency when he found that Sergeant Stevens’ account of the details of the conversation with the appellant at Wiarton hospital was unreliable. The appellant does not challenge this finding. However, he argues that the trial judge erred by failing to consider that Ms. Ashkewe had given a prior oral statement, within the meaning of s. 11 of the Canada Evidence Act, R.S.C. 1985, c. C-5 and by failing to consider the inconsistencies disclosed by that statement. We reject this argument.

[6] At trial, Ms. Ashkewe consistently denied that she had sought out the appellant. There was no evidence to contradict this aspect of her testimony, save for Sergeant Stevens’ notes and his suggested independent recollection of her statement at the hospital. The trial judge’s reasons for rejecting the reliability of the officer’s notes were clear and detailed. It is implicit in those reasons that he also rejected as unreliable Sergeant Stevens’ suggested recollection of the details of Ms. Ashkewe’s statement. We note that Sergeant Thompson, who was present with Sergeant Stevens when Ms. Ashkewe gave her statement at the hospital, had no recollection of Ms. Ashkewe indicating that she had sought the appellant out. In these circumstances, the trial judge made no error in accepting Ms. Ashkewe’s evidence on this issue.

[7] The second point is, in our view, irrelevant. The substance of Ms. Ashkewe’s evidence about encountering Mr. Keeshig on the roadside, and picking him up before reaching Sweet Corner, was not challenged by the appellant at trial. Thus there is no factual dispute about this point. It represents only a possible minor inconsistency between Ms. Ashkewe’s police interview and her trial evidence, and on a collateral point.

[8] Second, the appellant submits that the trial judge erred by applying a stricter scrutiny to the appellant’s evidence than to the complainant’s evidence. The appellant concedes that the threshold for proving this claim is very high: see R. v. Cloutier, 2011 ONCA 484 at para. 86.

[9] The appellant does not meet the threshold in this case. In our view, the trial judge treated the evidence of the crucial witnesses in a fair and balanced manner. The appellant’s real problem is that the trial judge did not believe his account of the knife incident involving Ms. Ashkewe.

[10] The appellant’s submissions on the first two issues serve as the foundation for his third, and main, submission. He says that if the trial judge had properly considered Ms. Ashkewe’s prior inconsistent statement to the police and fairly scrutinized the evidence of the appellant and the complainants, he would have addressed a possible Criminal Code s. 37 self-defence; he erred by not doing this.

[11] Strictly speaking, we need not address this issue because the appellant has not succeeded in laying the foundation from the first two issues. However, we would make this observation. The appellant’s self-defence position at trial was that the complainant hit him over the head with a beer bottle; hence he responded. This is a quintessential s. 34(1) and (2) self-defence argument, which is precisely what the trial judge addressed in his reasons.

[12] On his sentence appeal, the appellant abandons his argument that the 23 months less one day sentence for aggravated assault on Ms. Ashkewe was manifestly unfit.

[13] The appellant contends that the trial judge failed to give meaningful consideration to his aboriginal heritage and to the Gladue principles: see R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688.

[14] We do not accept this submission. The trial judge ordered a Gladue report for the appellant. The report was discussed in some detail during counsels’ sentencing submissions and was accepted by the defence as very thorough. The trial judge explicitly addressed s. 718.2(e) of the Criminal Code in the context of the Gladue report. He carefully considered and applied a leading case cited by the appellant, R. v. Tourville, 2011 ONSC 1677. In Tourville, the sentence imposed on a 28 year old aboriginal first time offender for aggravated assault and assault with a weapon was 21 months incarceration and two years probation. This is very close to the sentence in this case. Moreover, in Tourville there was some element of a consent fight, which is not the case here.

[15] It needs to be emphasized how serious were the physical injuries suffered by the young Ms. Ashkewe (her face is terribly scarred by the knife cuts) and how devastating have been the lasting emotional effects of the attack (as evidenced by Ms. Ashkewe’s compelling victim impact statement).

[16] The trial judge did not have the benefit of the Supreme Court’s decision in R. v. Ipeelee, 2012 SCC 13 at the time of his sentencing decision. Nonetheless, he properly considered the offences and this offender, including the appellant’s aboriginal status and background. In doing so, he applied the Gladue factors and, indeed, ultimately concluded that a reformatory sentence should be imposed even though he thought that a penitentiary sentence would otherwise have been necessary for a non-aboriginal offender.

[17] The appeal is dismissed.

“Doherty J.A.”

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”