COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bonnington, 2015 ONCA 122

DATE: 20150223

DOCKET: C57764

Gillese, Watt and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dean Bonnington

Appellant

Jill R. Presser, for the appellant

Greg Skerkowski, for the respondent

Heard: February 19, 2015

On appeal from the conviction entered on April 16, 2013 by Justice Michael K. McKelvey of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant, Dean Bonnington, was charged with one count of aggravated assault arising out of an incident which occurred on July 2, 2011, off the shore of Big Chief Island in Lake Couchiching. As a result of the incident the complainant, David Gibbons, suffered an injury to his left eye that caused him to lose his sight in that eye.

[2] Following a two-day trial, the appellant was convicted of aggravated assault and received a sentence of nine months’ incarceration and two years’ probation.

[3] The appellant appeals his conviction on two grounds. First, the appellant submits that the trial judge erred by misapprehending material evidence in relation to (i) whether there was an intentional application of force to the complainant by the appellant, and (ii) whether the altercation was consensual. Second, the appellant submits that the trial judge erred in failing to consider the defence of accident.

Factual overview

[4] On the Canada Day weekend in 2011, both the complainant and the appellant had taken their boats to Big Chief Island. They were part of a large group who had anchored their boats on a nearby sandbar. The boats were anchored together in closely-packed rows. The complainant had tied his boat to a group of three others owned by his friends.

[5] In order to proceed from his anchorage to clear water, the appellant had to maneuver his boat between two rows of parked boats, turn left around the complainant’s boat, which was anchored at the end of one row, and then proceed through another row of boats before turning into the open waters of Lake Couchiching.

[6] The appellant owned a large power boat and he proceeded between the rows of parked boats under motor.

[7] As the appellant navigated his boat behind and around that of the complainant, the complainant yelled to the appellant that he should be walking, not motoring, his boat to open water in order to avoid fouling the anchor lines of the moored boats. The appellant’s boat fouled the rear anchor line of the complainant’s boat. Unpleasant words were exchanged between the two men. After clearing the lines, the appellant motored around the side and front of the complainant’s boat. The exchange of strong words continued. The appellant’s motor fouled the lines of other boats. When free of those lines and at the edge of open water, the appellant stopped his boat and waded back through the water to the rear of the boat to which the complainant’s was tied.

[8] The appellant twice tried to climb onto that boat from its rear swimming platform. An incident ensued. By the end of the incident, the complainant had suffered a serious injury to his left eye. He underwent surgery and lost the sight in his left eye.

[9] At trial, the appellant testified in his own defence. He stated that the complainant had encouraged him to come up onto the boat, which he had tried to do twice, but each time was pushed back into the water by the complainant and a male friend. The appellant testified that as he went backwards into the water for the second time, he raised his arms in an effort to grab onto something. The appellant said he was not able to grab anything or touch anyone, and fell back into the water. He then saw the complainant in the water, but testified he did not see any injury on the complainant at that point. The appellant returned to his boat and left the area.

[10] The trial judge did not accept the evidence of the appellant, or the other two witnesses called by the defence in respect of the incident. The trial judge found that: the appellant had intended to physically confront the complainant; he understood he was not welcome on the back of the boat, having been pushed off the first time; the appellant was angry with the insults the complainant had thrown at him; and, the second time the appellant had tried to climb onto the boat he had taken a swing towards the complainant’s face and either punched or slapped him intentionally in a forceful manner. The trial judge found beyond a reasonable doubt that the complainant did not consent to participate in a physical altercation or fight.

Analysis

[11] In our view the appeal should be dismissed.

[12] We do not agree that the trial judge misapprehended the evidence. Misapprehension of evidence involves a "stringent standard": R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2. This standard is met only "[w]here a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction": R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 541, cited with approval in Lohrer.

Misapprehension of evidence: intentional application of force

[13] In his reasons, the trial judge accurately summarized the evidence of Lora-Lee Fitzgerald, George Pond and Kenneth Griffiths about how the events unfolded at the rear of the boat when the appellant tried to board it. The trial judge also examined the consistencies in the evidence given by Ms. Fitzgerald and Mr. Pond at the trial with that they had given at the preliminary inquiry.

[14] The appellant submits the trial judge misapprehended the evidence of Ms. Fitzgerald on whether she had seen the appellant make contact with the complainant and whether the contact had been a punch or a grab. The trial judge’s reasons disclose no such misapprehension. Throughout her evidence Ms. Fitzgerald testified that she saw the appellant make contact with the complainant. While she described the appellant as making a “punch, grab motion”, she testified that the appellant came back on the boat the second time “fist ready”.

[15] The appellant submits the trial judge failed to deal with material evidence by failing to consider the assumption made by Mr. Pond in his evidence that the appellant had punched the complainant based upon the nature of the injuries suffered. We do not accept that submission. The trial judge accurately noted that while Mr. Pond had testified he did not actually see the blow which injured the complainant, he had seen the appellant punch or take a swing at the complainant. The trial judge accepted the evidence of Ms. Fitzgerald and Mr. Pond about how the injury occurred because it was consistent both with the physical actions of the appellant and with the complainant’s eye injury “identified immediately after the incident”.

[16] The appellant also submits that the trial judge failed to consider whether the appellant’s punch/grab motion was consistent with defence evidence that the appellant was trying to grab onto something as he was pushed off the boat’s swim platform for a second time. When the trial judge’s review of the evidence is read as a whole, it is clear that in concluding the appellant intentionally applied force to the complainant’s face, the trial judge necessarily rejected the defence’s theory of an accidental application of force.

[17] Finally, the appellant submits that the trial judge did not give full or proper consideration to the defence evidence and position on this issue. We do not accept this submission. In his reasons the trial judge reviewed the material parts of the evidence called by the defence, accurately described its substance and explained why he did not accept that evidence.

Misapprehension of evidence: consent

[18] The appellant submits that the trial judge erred in concluding that the altercation between the complainant and appellant was not consensual because he ignored the defence evidence that the complainant had continued to taunt the appellant after he was thrown off the boat for the first time, disregarded the approach taken by the Crown during part of its cross-examination of the appellant, and failed to characterize the initial act of throwing the appellant off the boat as one of fighting.

[19] This was a simple, factual case which turned on the credibility of the seven witnesses who observed the single incident. The trial judge’s reasons amply demonstrated that he understood the significance of the credibility issue going to the element of consent, fully addressed the relevant evidence, applied the correct burden of proof and made the necessary credibility findings. After considering the totality of the evidence, the trial judge found two of the Crown witnesses credible – Ms. Fitzgerald and Mr. Pond – and accepted their evidence. He was satisfied that the Crown evidence proved the appellant's guilt beyond a reasonable doubt. We see no fault in the trial judge's reasoning or in his ultimate findings.

Failure to consider the defence of accident

[20] The appellant submits that the trial judge failed to consider the defence of accident – i.e. that the appellant did not intentionally apply force to the complainant or, if he did apply force, he did so accidentally in the melee of a consensual incident. We accept the Crown’s submissions that although in his reasons the trial judge did not refer to the word “accident”, his analysis of the elements of the intentional infliction of force and consent, and his findings on those issues, clearly foreclosed the availability of the defence of accident in the circumstances.

[21] For those reasons, we dismiss the appeal.

“E.E. Gillese J.A.”

“David Watt J.A.”

“David Brown J.A.”