Court of Appeal for Ontario

CITATION: R. v. Hagedorn, 2014 ONCA 681

DATE: 20141003

DOCKET: C55457

BEFORE: Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jonathan Hagedorn

Appellant

COUNSEL:

Timothy E. Breen, for the appellant

Alexander Hrybinsky, for the respondent

Heard and released orally: September 26, 2014

On appeal from the conviction entered on February 8, 2012 by Justice W.G. Beatty of the Ontario Court of Justice.

ENDORSEMENT

[1] This was a simple straightforward case. The trial judge was satisfied that the appellant assaulted the victim causing injuries to his face and ultimately to his spleen and liver. In doing so, the trial judge clearly relied on the evidence of Ms. Orvis whom he described as “an excellent observer and historian”. The trial judge concluded, largely on that evidence, that “the force and violence used by the defendant was in no way reasonable or responsive to the actions of Mr. Gadsby” (the victim).

[2] That finding was clearly open to the trial judge on the evidence he accepted. While it is true, as counsel for the appellant forcefully submitted, that the trial judge ultimately based his finding in part on the nature of the injuries suffered by the victim as a result of the kick, which as it turns out may not have been indicative of significant force, the trial judge based that finding, in our view, on his acceptance of the evidence of Ms. Orvis. On that evidence, the appellant was not justified in striking the victim or in kicking the victim, much less in knocking the victim to the ground and kicking him while he was on the ground.

[3] We also reject the submission that the trial judge’s rejection of the appellant’s evidence to the effect that he was attacked by a gang of men outside of the bar, after the altercation with Mr. Gadsby, was inconsistent with the evidence of another witness (Grenier) who was said by the trial judge to be generally credible. That witness described the appellant being struck by a single person outside of the bar. We do not regard the appellant’s evidence as consistent in that regard with the evidence of Grenier.

[4] The appeal on the record fails.

[5] The appellant has also raised an allegation of ineffective assistance of counsel. In our view, that submission fails. Counsel’s overall approach to the appellant’s defence at trial and his conduct of that defence was entirely reasonable. The fact that appellate counsel, with the benefit of hindsight and the benefit of the trial judge’s analysis of the case, may have pursued other avenues of cross-examination or adduced other evidence is in no way determinative of the adequacy of the representation at trial.

[6] In this court, the appellant has the onus of showing that he was prejudiced by his counsel’s conduct of the case or, as the case law puts it, that there is a reasonable possibility that the result may have been different had counsel pursued the steps put forward on appeal. The appellant must also show, not just that another lawyer might have done things differently or even better, but that the conduct of counsel at trial fell below that expected of a reasonably competent counsel.

[7] In our view, the material placed before us does neither. For example the submissions directed at the failure to cross-examine the victim on what may or may not have been prior inconsistent statements by the victim, does not rise to the level of professional incompetence. Trial counsel explained in his cross-examination on his affidavit why he chose to approach the victim as he did. That choice cannot be stigmatised as ineffective representation.

[8] In so far as the proposed medical expert evidence is concerned, we view that as an example of evidence that could not reasonably be expected to have affected the result. It really provides little insight into the nature of the force that was used to cause the injuries to the victim’s spleen and liver.

[9] The appeal is dismissed.

“Doherty J.A.”

“S.E. Pepall J.A.”

“M. Tulloch J.A.”