Court of Appeal for Ontario

Citation: R. v. Green, 2013 ONCA 591

Date: 2013-09-26

Docket: C54651

Before: Rosenberg, Tulloch and Lauwers JJ.A.

Between:

Her Majesty the Queen

Respondent

and

Shawn Green

Applicant/Appellant

Counsel:

Peter Lindsay, for the appellant

Gavin MacDonald, for the respondent

Heard: September 18, 2013

On appeal from the decision of the Summary Convictions Appeal Court dated November 8, 2011 by Justice M. Code of the Superior Court of Justice, dismissing the appeal from the conviction entered on October 7, 2010 by Justice J. Sutherland of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] We agree with the appellant that Code J. did misapprehend the appellant’s evidence at trial as to the nature of the conduct. We do not see that the appellant admitted an assault at trial. For that reason, we grant leave to appeal.

[2] However, we are of the view that despite this error by the summary conviction appeal court judge, the appeal should be dismissed. The reasons of the trial judge are sufficient and disclose no error. The reference to the appellant’s silence was, as the summary conviction appeal court judge said, merely use of a prior inconsistent statement. The trial judge could find that the evidence of the appellant was inconsistent with the 911 call and the statement to the officer. Assessment of the value of the evidence was a matter for the trial judge.

[3] Given the nature of the trial and the issues, the assessment of the evidence of the complainant was also sufficient.

[4] Accordingly, while leave to appeal is granted, the appeal is dismissed.