COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mastromattei, 2015 ONCA 745

DATE: 20151104

DOCKET: C58561

Laskin, Pardu and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Mastromattei

Appellant

Howard Cohen, for the appellant

Jennifer Mannen, for the respondent

Heard and released orally: October 30, 2015

On appeal from the conviction entered on December 6, 2013 and the sentence imposed on March 6, 2014 by Justice Scott K. Campbell of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant appeals his conviction for assault and his sentence. His defence at trial was self-defence. He admitted punching the complainant but maintains that she was the aggressor and that he was required to defend himself. The trial judge rejected this defence and concluded that the appellant’s use of force was excessive.

[2] The appellant makes two submissions: (1) the trial judge erred in finding “unconvincing” the appellant’s evidence that the complainant grabbed his testicles; and (2) the trial judge ought not to have accepted the neighbours’ evidence because they did not see the entire confrontation.

[3] We do not accept these submissions. The trial judge was entitled to take a dim view of the appellant’s evidence that the complainant grabbed his testicles. More important, even if we were to accept the appellant’s evidence on this point, it does not assist him. The trial judge’s critical finding is at page 30 of his transcribed reasons, where he accepted the neighbours’ evidence and held:

All three witnesses described the female as crying out for help. Ms. Chevalier and Mr. Renaud described the complainant as being on the ground and in what I would characterize as a defensive position. Ms. Chevalier and Mr. Renaud described the accused as punching the complainant, Ms. Chevalier more times than Mr. Renaud. Ms. Chevalier and Mr. Charette described the one person as dragging the other.

That finding was open to the trial judge even though, as he recognized, none of the neighbours saw the beginning of the confrontation. And that finding shows that the force used by the appellant was excessive. Accordingly, the conviction appeal must fail.

[4] On sentence the appellant was given exactly what he asked for – a suspended sentence. We decline to interfere with this sentence.

[5] Accordingly, the conviction appeal is dismissed. Leave to appeal sentence is refused.

“John Laskin J.A.”

“G. Pardu J.A.”

“L.B. Roberts J.A.”