Court of Appeal for Ontario

Citation: R. v. Manship, 2015 ONCA 837 Date: 2015-12-02 Docket: C60729

Before: Feldman, Gillese and Watt JJ.A.

Between:

Her Majesty the Queen (Respondent)

and

Shawn Manship (Appellant)

Counsel: Jeffrey Langevin, for the appellant Brock Jones, for the respondent

Heard: November 30, 2015

On appeal from the conviction entered on September 8, 2014 and the sentence imposed on November 18, 2014 by Justice Timothy D. Ray of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] On June 3, 2012, while on bail, Shawn Manship (the "appellant") was in an altercation with his domestic partner and two of her friends. All three were injured and one required hospitalization and surgery.

[2] The appellant drove off after the altercation. When the police located him on the highway, he refused to pull over and a high-speed chase ensued. Ultimately, he rammed the police vehicles while officers were in them, causing damage to those vehicles in excess of $20,000. Fortunately, the officers suffered no injuries.

[3] After the appellant was apprehended, he was charged with one count of assault causing bodily harm and two counts of assault. He was also charged with seven additional offences, arising from events that evening. Three of the additional offences related to violations of his bail conditions, which required him to not contact his domestic partner and not consume alcohol. The other four related to his driving that evening: dangerous operation of a motor vehicle, driving while "over 80", failure to stop while being pursued by a police officer, and assault on a police officer with a weapon.

[4] The appellant pleaded guilty to the seven additional offences. He was convicted of the three assault charges, following a judge-alone trial.

[5] The appellant's global sentence for all 10 offences was 30 months in custody less credit for 3 months of pre-trial custody. This was the sentence which defence counsel had requested.

[6] He appeals against the assault convictions alone and seeks leave to appeal sentence. If granted leave, the appellant seeks to have the balance of his custodial sentence converted to a period of probation.

THE CONVICTION APPEAL

[7] This was an overwhelming Crown case.

[8] The trial judge rejected the appellant's evidence of the altercation, noting that even his version of events showed him to be aggressive – angry, yelling, shouting and becoming angrier. Given its inherent implausibility, it was fully open to the trial judge to have found the appellant's evidence unworthy of belief.

[9] The trial judge accepted the evidence of all three victims. They all described the same events and any inconsistencies were on minor or collateral matters. The trial judge was aware of these minor differences, noting that the witnesses were credible and reliable about the assaults, even if the order of events varied slightly in each witness's narrative. There was no contradiction on the fundamental issue of whether the appellant had violently assaulted each of them.

[10] There is nothing to the submission that the trial judge applied a different scrutiny to the appellant's testimony, as compared to that of the victims. The trial judge recognized that all had been drinking on the night in question. The police officers testified that when they arrived on the scene of the assaults the three victims were intoxicated. The appellant testified that he had had only two beers. The trial judge rejected this, in part based on a toxicology report entered into evidence which noted his blood alcohol level was .09, approximately three hours after leaving the bar.

[11] The fact that the photographs of one of the victims did not show injuries in keeping with the type of violence that had been described does not mean that the trial judge failed to appreciate this evidence. In fact, at para. 47 of his reasons, the trial judge states that although he accepted the evidence of one of the victims that she had been punched, there was "no evidence of any injuries beyond minor bumps and bruising". In any event, there was police testimony that they had personally observed injuries on the victims and medical records which established the nature and extent of the injuries.

THE SENTENCE APPEAL

[12] We see no basis for interference with the sentence imposed.

[13] The trial judge took into consideration the mitigating considerations. He was aware that the appellant: had no prior criminal record; was 37 years old and had three children; apologized and accepted responsibility for his actions; and pleaded guilty to a number of the offences. He also noted that the pre-sentence report was positive and that the appellant had taken counselling for anger management and substance abuse and showed a serious willingness to change his behaviour.

[14] The trial judge acknowledged the appellant's rehabilitative prospects but, given the aggravating considerations, determined that deterrence and denunciation were the principal factors to consider with respect to the assault convictions. The aggravating features included that: the appellant was on bail at the time of the offences; the assault against one victim took place within the context of a domestic relationship; one victim had to have surgery and was left with permanent injuries; and the driving offences showed a wanton disregard for the safety of the community. Rather than surrendering to the police when they caught him, he started a high-speed chase with speeds of up to 120 km/hr in areas with speed limits of 50-60 km/hr and attacked the police by ramming their vehicles, causing extensive damage.

[15] We would add that converting the remainder of the custodial sentence to one of probation, as the appellant asks, would fail to give effect to the need for deterrence and denunciation of this type of violence, and assaults on domestic partners and the police.

DISPOSITION

[16] Accordingly, the conviction appeal is dismissed. Leave to appeal sentence is granted but that appeal is also dismissed.

"K. Feldman J.A."

"E.E. Gillese J.A."

"David Watt J.A."