Court of Appeal for Ontario

Citation: R. v. Corbett, 2013 ONCA 431

Date: 20130621

Docket: C56069

Before: Rouleau, Watt and Epstein JJ.A.

Between

Her Majesty the Queen Respondent

and

Robert P. Corbett Appellant

Counsel: Vincenzo Rondinelli, for the appellant Michael Medeiros, for the respondent

Heard and released orally: June 13, 2013

On appeal from the conviction entered by Justice David G. Carr of the Ontario Court of Justice on April 5, 2011.

ENDORSEMENT

[1] The appellant appeals from his conviction for aggravated assault. He argues that the trial judge applied a different level of scrutiny to the Crown and defence evidence, and that the trial judge erred in drawing an adverse inference from the appellant’s exercise of his right to silence at the time of his arrest.

[2] With respect to the first ground of appeal, the appellant submits that the trial judge provided no analysis or reasons as to why he accepted the complainant’s evidence, apart from the latter’s seemingly forthright demeanour. Given the complainant’s criminal record, his high level of intoxication that evening, and his acrimonious relationship with the appellant, the trial judge ought to have scrutinized the complainant’s evidence and his credibility in more detail. According to the appellant, this failure to scrutinize the complainant’s credibility stands in sharp contrast to the trial judge’s treatment of the appellant’s testimony.

[3] We disagree. The alleged omissions relating to the complainant’s intoxication, acrimony towards the appellant, and criminal record had little or no importance in the circumstances of this case. First, the same alleged shortcomings applied equally to the appellant and the trial judge did not rely on them when assessing his credibility. Second, and more importantly, as the trial judge noted, the complainant’s evidence was straightforward, corresponded with the nature of the injuries the complainant suffered, and was supported by the testimony of the other witnesses whose evidence the trial judge accepted. By contrast, the appellant’s testimony defied common sense. For example, according to the appellant’s account of how he held his knife, one would have expected a puncture wound – but the complainant’s injury was a slash wound. This is clearly inconsistent with the accused’s testimony that he neither moved nor swung the knife.

[4] The trial judge’s rejection of the appellant’s evidence was detailed and well-reasoned. There was simply no different level of scrutiny applied to the Crown and defence evidence.

[5] The second ground of appeal is that the trial judge erred in drawing an adverse inference from the appellant’s exercise of his right to silence at the time of his arrest. We would not give effect to this submission.

[6] In our view, the trial judge did not fault the appellant for failing to disclose his claim of self-defence upon arrest, as alleged by the appellant. Rather, the trial judge noted that upon arrest, the appellant chose to make a statement to police. His statement “come on it’s a pocket knife” made his trial testimony less likely to be true. The appellant’s trial testimony was that the complainant attacked him without provocation and that he accidentally injured the complainant with a knife whilst falling. Our reading of the relevant passage in the trial judge’s reasons does not support the claim that the trial judge used the appellant’s right to silence as a piece of evidence supportive of his guilt. Rather, the trial judge considered the inconsistency between the appellant’s statement to the police and his trial testimony as a factor, along with others, relevant to the appellant’s credibility and the reliability of the evidence he gave at trial.

[7] This was a permissible use of the statement. Read in context, we do not therefore interpret the trial judge’s reference to what the appellant did not say upon arrest as indicating that the trial judge improperly drew an adverse inference from the appellant’s exercise of his right to silence.

[8] As a result, the appeal is dismissed.

“Paul Rouleau J.A.”

“David Watt J.A.”

“Gloria Epstein J.A.”