COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Akindolire, 2014 ONCA 545

DATE: 20140714

DOCKET: C56044

Strathy C.J.O., Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Claire Akindolire

Appellant

Howard L. Krongold, for the appellant

Christine Tier, for the respondent

Heard and released orally: June 27, 2014

On appeal from the conviction entered on June 12, 2012 and the sentence imposed on September 21, 2012 by Justice Dianne M. Nicholas of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant appeals her conviction on two counts of assault with a belt and two counts of assault causing bodily harm in relation to her son, who was ten years old at the time of trial. She also sought leave to appeal her sentence of nine months’ imprisonment.

[2] The trial in the Ontario Court of Justice lasted 14 days, spread over many months. The trial judge gave lengthy reasons in which she reviewed the evidence of all witnesses and made specific findings of fact. She disbelieved the evidence of the appellant and some of the other defence witnesses, and believed the evidence of the complainant.

[3] The appellant asserts that the trial judge’s credibility findings were based on several misapprehensions of the evidence and that her findings of fact were not supported by the record, and were contradictory or speculative. The appellant identifies five alleged errors.

[4] We agree with the respondent that the test is set out in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732 at para. 2, namely,

The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”.

[5] In our view, the errors asserted by the appellant do not meet the test, whether considered individually or cumulatively. Moreover, the trial judge’s reasons are capable of being read in a manner that does not reflect any misapprehension of the evidence.

[6] We would add that the trial judge made one uncontroverted finding based on the complainant’s evidence and the trial judge’s own observations of the complainant’s back and arm. His evidence that he had been beaten with a belt was corroborated by scars on his back and arm, for which the appellant provided no explanation.

[7] The appeal against sentence was not pursued either in the factum, or in oral argument. Leave to appeal sentence is denied.

[8] The appeal against conviction is dismissed.

“G.R. Strathy C.J.O.”

“K. Feldman J.A.”

“David Watt J.A.”