Court of Appeal for Ontario

Citation: R. v. Smith, 2014 ONCA 511 Date: 2014-07-02 Docket: C56597

Before: Laskin, MacFarland and Lauwers JJ.A.

Between: Her Majesty the Queen (Respondent) and Darren Smith (Appellant)

Counsel: Richard Litkowski, for the appellant M. David Lepofsky, for the respondent

Heard: June 25, 2014

On appeal from the conviction entered on April 25, 2012 and the sentence imposed on July 10, 2012 by Justice Peter H. Howden of the Superior Court of Justice, sitting with a jury.

Endorsement

[1] The appellant appeals his convictions for aggravated assault and assault with a weapon on two grounds. First, the trial judge commented unfairly on the evidence of the appellant. Second, the trial judge erred by failing to relate the evidence to the elements of the two offences the appellant was convicted of.

[2] On the first ground, the appellant contends that the trial judge gave what amounts to a Vetrovec warning on the appellant's evidence. He refers to the trial judge's comments at pp. 50-51 of the charge to the jury, and emphasizes the sentence: "This was his opinion and should be treated with caution for that reason".

[3] We do not accept the appellant's contention. The trial judge cautioned the jury on a very narrow point – when the knife caused the injury. In his evidence, the appellant never said he could see when his knife made contact with the complainant. Instead, the appellant offered an after-the-fact theory about what likely happened. In this context, the trial judge's comment was fair.

[4] On the second ground of appeal, the appellant acknowledges that the trial judge accurately set out the evidence in relation to the charge of attempted murder. He argues, however, that the trial judge should have repeated the evidence in relation to the assault charges so that the jury would appreciate the appellant's defence of accident.

[5] We do not accept this argument. The trial judge's review of the evidence came shortly before he dealt with the two assault charges. The trial judge told the jury that he had reviewed the evidence and that the jury should consider this evidence when deliberating on the aggravated assault and assault with a weapon charges. The trial judge then outlined the elements of the offences and the appellant's claim of accident. In our view no more was required.

[6] We add two final comments. First, the trial judge's instructions now challenged on appeal were not objected to by defence counsel at trial. To the contrary, at the pre-charge conference defence counsel approved the trial judge's instructions.

[7] Second, on the evidence at trial, a good deal of which was not disputed, the Crown's case against the appellant was overwhelming.

[8] The appeal is dismissed.

"John Laskin J.A." "J. MacFarland J.A." "P. Lauwers J.A."