Court of Appeal for Ontario

CITATION: R. v. Neekan, 2013 ONCA 756

DATE: 20131212

DOCKET: C56270

Before: Doherty, Feldman and MacPherson JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Isaiah Reuben Lee Neekan

Appellant

Counsel:

Graeme A. Hamilton, for the appellant

Gavin MacDonald, for the respondent

Heard and released orally: December 10, 2013

On appeal from the convictions entered on June 7, 2012 by Justice A.Thomas McKay of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant Isaiah Neekan appeals his convictions by Justice A. Thomas McKay of the Ontario Court of Justice at Sioux Lookout on June 7, 2012, for possession of a weapon for a dangerous purpose and aggravated assault.

[2] The events that gave rise to the charges took place at Robin Basketwang’s home. The only people present were the accused, his brother, Wayne Neekan, and his cousin, Mr. Basketwang. The Crown alleged that, after a long evening party involving a great deal of drinking, there was an altercation in which the appellant slashed Mr. Basketwang near an eyelid with a knife.

[3] The main Crown witness was the appellant’s brother, Wayne. The appellant testified and another defence witness was Albert Neekan, Isaiah’s and Wayne’s uncle, who was not present in the Basketwang home that evening.

[4] The appellant appeals his convictions on four grounds, three relating to the trial judge’s reasons and one relating to fresh evidence.

[5] First, based on the fresh evidence, the appellant asserts that there were deficiencies in the interpretation of Albert’s evidence by a qualified Ojibway interpreter that resulted in a miscarriage of justice.

[6] We disagree. Albert was a very peripheral witness, his testimony was not even mentioned in the trial judge’s reasons, and, in our view, although there may have been one or two material differences between the in-the-moment interpretation at the trial and the more comprehensive translation tendered as fresh evidence, they did not affect the result, given the trial judge’s reasons. The fresh evidence could not have made a difference and is, therefore, not admitted.

[7] Second, the appellant asserts that the trial judge misapprehended the evidence in finding that the appellant’s account of his altercation with the victim was inconsistent with the victim’s injuries.

[8] We disagree. The trial judge reasonably compared the victim’s injury with the appellant’s explanation and reached an entirely reasonable conclusion.

[9] Third, the appellant submits that the trial judge erred by permitting the Crown to adduce evidence of the appellant’s bad character to establish a general disposition for violence and by subsequently relying on this evidence in his reasons for judgment.

[10] We disagree. The evidence that was labelled “bad character evidence” was led by the appellant and was a necessary part of his theory of the case, namely, that he gave his knife to the victim because he did violent things when intoxicated. The trial judge treated this evidence within this context, merely mentioning it in his summary of the appellant’s own testimony.

[11] Fourth, the appellant submits that the trial judge erred by inferring from Wayne’s post-event conduct – taking the victim to a medical clinic for treatment – that he was a credible witness.

[12] The trial judge did not draw a negative inference against the appellant from Wayne’s conduct supporting the injured victim. He simply used this evidence as supportive of Wayne’s description of the events of the evening, including whether the appellant attacked the victim.

[13] The appeal is dismissed.

“Doherty J.A.”

“K. Feldman J.A.”

“J.C. MacPherson J.A.”