Court of Appeal for Ontario

CITATION: R. v. Lewis, 2016 ONCA 690

DATE: 20160920

DOCKET: C61702

Gillese, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Derek Lewis

Appellant

Catriona Verner, for the appellant

Luke Schwalm, for the respondent

Heard: September 14, 2016

On appeal from the conviction entered on April 1, 2016 and the sentence imposed on April 24, 2016 by Justice Ronald J. Richards of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant was convicted on several counts relating to an alleged assault and robbery of the complainant during a drug transaction: assault causing bodily harm; robbery; uttering a death threat; and breach of a probation order.

[2] The appellant appeals only his conviction for robbery. His argument is a narrow one – the insufficiency of the trial judge’s reasons.

[3] The appellant contends the trial judge must not have accepted certain parts of the complainant’s evidence because he did not convict the appellant on the charge of aggravated assault, but only on the lesser included offence of assault causing bodily harm. In light of that, the appellant argues the trial judge was obligated to explain in his reasons how he dealt with the complainant’s conflicting evidence relating to the robbery count, specifically the complainant’s confusing evidence about what sum of money was taken from him during the assault.

[4] The appellant submits the trial judge failed to do so, stating only in his reasons:

In respect to the count of robbery, while the court accepts that some money was handed over to Mr. Lewis voluntarily as part of the attempt to obtain his pill, the court also accepts that other monies, while not specifically stated, were obtained through the violent attack and threats by Mr. Lewis, and thus the count of robbery has been proven beyond a reasonable doubt.

[5] The appellant submits those reasons are insufficient to support the conviction for robbery, and that conviction should be set aside.

[6] We do not agree. The trial judge’s reasons provided a sufficient explanation of the basis for convicting the appellant on the robbery count and responded to the theory of the defence that the complainant was an unreliable witness who was confused about matters concerning the “essence of the robbery” – where he kept the money on his person and the denominations taken from him.

[7] The complainant testified that on the day in question he had pawned his X-box for $150 before embarking on his search to purchase drugs. The Crown filed a receipt from the pawnshop for that transaction. The complainant testified he received from the pawnshop a $50 bill and five $20 bills.

[8] The complainant’s testimony was inconsistent about the amount of money he voluntarily handed over to the appellant to purchase drugs, the precise denominations he used, and where he had kept the money on his person. The trial judge was alive to the inconsistencies. As he noted in his reasons: “[t]here is confusion over the amounts of money and where they were kept on his person.”

[9] However, the complainant was consistent in his evidence that during the assault the appellant forced him to hand over more money. This led the trial judge to conclude: “[o]ne thing certain from his testimony is that he had $150 from the X-Box sale and some of that money was handed over voluntarily for drugs and some was not voluntarily handed over. The amount really does not matter.” Although the trial judge acknowledged imperfections in the complainant’s evidence, he held that “these areas of imperfection would not affect his reliability or his credibility.” Having accepted the complainant’s evidence that the appellant forced him to hand over money, the trial judge concluded that “other monies, while not specifically stated, were obtained through the violent attack and threats by Mr. Lewis.”

[10] These reasons on the robbery count were sufficient in the circumstances. They clearly explained why the trial judge found the complainant reliable and accepted the complainant’s consistent evidence that he did not voluntarily hand over all his cash to purchase drugs, but had retained some, only to be forced to part with some of it as a result of the appellant’s assault. Read in their entirety and in the context of the evidence, the reasons show why the judge decided as he did: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 15.

[11] Finally, the trial judge’s decision to dismiss the charge of aggravated assault and convict of the lesser and included offence of assault causing bodily harm did not, as the appellant suggests, show that the trial judge disbelieved parts of the complainant’s testimony. The trial judge explained that some of the complainant’s injuries were caused by a fall he suffered subsequent to the assault and it was not possible to conclude, with the requisite degree of certainty, which injuries were caused by the assault and which were caused by the subsequent fall.

[12] The appeal is dismissed.

“E.E. Gillese J.A.”

“Paul Rouleau J.A.”

“David Brown J.A.”