COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sheeller, 2014 ONCA 867

DATE: 20141203

DOCKET: C57373

Doherty, Feldman and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mandy Sheeller

Appellant

Robert C. Sheppard, for the appellant

Lucy A. Cecchetto, for the respondent

Heard and released orally: November 25, 2014

On appeal from the conviction entered on October 4, 2012 and the sentence imposed on April 8, 2013 by Justice Lynne Leitch of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

The Conviction Appeal

[1] A trial judge’s failure in her reasons to refer to specific evidence capable of offering some support for the position of the defence is not in and of itself indicative of a failure to consider that evidence or a failure to give adequate reasons. The impact on the trial judge’s reasons of the failure to mention a specific piece of evidence will depend on a number of factors, including the nature of the evidence itself, the entirety of the evidence, the issues raised and the arguments made at trial. The reasons must also, of course, be considered as a whole.

[2] The evidence not mentioned by the trial judge (the sticky kitchen floor) was capable of offering some support for the position taken by the defence that the assault had occurred in the kitchen. That evidence was not however particularly cogent. Nor, in our view, did it figure prominently in the closing argument of counsel at trial. It was not the kind of evidence that had to be mentioned in the reasons to demonstrate a proper appreciation of the position of the defence or the evidence relied on by the defence. We cannot say that the trial judge’s failure to mention the “sticky kitchen floor” evidence demonstrates a failure to consider it or a failure to give reasons that adequately explain the verdicts.

[3] The defence applied to reopen the trial in the course of sentencing. The defence contended that certain fresh evidence demonstrated that the complainant had lied in the course of providing his victim impact statement. The lies related to the extent of the harm caused to the victim by the appellant’s assault.

[4] The trial judge applied the correct test in determining whether to permit the defence to reopen the trial after a verdict. She acknowledged that she had a discretion to reopen the trial and also correctly indicated that the discretion should be exercised in limited circumstances. The trial judge noted that the effect of the injuries on the complainant was not an issue in the trial itself and it played no part in her assessment of the evidence or her ultimate determination. She concluded her reasons on the application to reopen with the following:

Considering the evidentiary record which was assessed at the conclusion of the trial, I am not satisfied that this additional evidence could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. As I outlined, my findings and conclusions were not solely dependent on the evidence of David Gdanski. As I indicated, I made no findings in relation to the extent of his injuries.

[5] We see no error in the manner in which the trial judge exercised her discretion.

[6] With respect to sentence, counsel submits that a sentence totalling 12 months rather than 18 months should have been imposed. We see no error in principle in the sentence imposed by the trial judge, nor can we say that it is manifestly excessive. The aggravated assault was a serious offence.

[7] It seems clear from the material that we have that the appellant has taken very positive steps to turn her life around and has hopefully left forever the life that led to the criminal activity before this court. We trust that the Correctional authorities will give careful consideration to these very positive steps taken by the appellant toward her rehabilitation and will also give careful consideration to the family circumstances of the appellant when considering whether she qualifies for some form of early release.

[8] Leave to appeal sentence is granted but the appeal from sentence is dismissed. The conviction appeal is dismissed.

“Doherty J.A.”

“K. Feldman J.A.”

“Gloria Epstein J.A.”