COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hockey, 2015 ONCA 421

DATE: 20150610

DOCKET: C58248

Laskin, MacFarland and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Devin Hockey

Appellant

Richard Litkowski, for the appellant

John McInnes, for the respondent

Heard and released orally: May 26, 2015

On appeal from the conviction entered on November 21, 2013 and the sentence imposed on January 14, 2014 by Justice Robert F. Scott of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant appeals his convictions for aggravated assault and assault with a weapon arising from an incident outside a bar in Trenton. He appeals his convictions on three grounds:

(1) the trial judge erred in his assessment of the appellant’s evidence and in particular, misapplied W.D. in his treatment of the appellant’s two police statements;

(2) the trial judge erred in his assessment of the evidence of the witness Howell; and

(3) the trial judge erred in his assessment of the evidence of the witness Todd.

[2] The context for the appellant’s submissions is important. The eye injury to the victim Schubert could have been inflicted only by the appellant or by Todd. Not a single witness said Todd was the assailant. Schubert, whom the trial judge found credible and whose evidence he accepted, said that though, he, Schubert, had had a confrontation with Todd both in and out of the taxi, he was certain that Todd was not the assailant. Todd denied that he was the assailant and Howell identified the appellant as the assailant. Thus, the evidence of the three key witnesses in this case all pointed to the appellant as being the assailant. With that context we now turn to the appellant’s submissions.

[3] First, the principles in W.D. apply to the appellant’s two police statements and we accept that the trial judge used loose language in describing their application. Nonetheless from reading his reasons we are satisfied that he applied the reasonable doubt standard to the appellant’s two statements. Indeed at the end of his reasons he expressly said: “I have considered what evidence I have of the defendant as favourably as I could”.

[4] The trial judge rejected the appellant’s evidence in his police statements because of various inconsistencies he identified. A few of these inconsistencies seem minor. But we agree with the Crown that on critical points, for example, when the appellant first saw blood and how the fight unfolded, the appellant’s evidence changed significantly during the course of his statements. Thus, we see no basis to interfere with the trial judge’s rejection of the appellant’s evidence.

[5] Second, the trial judge could perhaps have said more about Howell’s evidence but these were oral reasons given after a relatively short trial. The trial judge recognized that Howell was drunk but accepted that he could identify the perpetrator of this horrific incident. He did not err in his acceptance of Howell’s evidence.

[6] Third, similarly the trial judge was entitled to accept Todd’s evidence. It was consistent with Schubert’s evidence which, as we have said the trial judge believed.

[7] Accordingly the appeal is dismissed.

“John Laskin J.A.”

“J. MacFarland J.A.”

“Paul Rouleau J.A.”