Court of Appeal for Ontario

Date: 2017-02-24 Docket: C62376

Judges: Cronk, Rouleau and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Jessica Badour Appellant

Counsel

Robert J. McGowan, for the appellant

Katherine Beaudoin, for the respondent

Heard: February 21, 2017

Appeal from Conviction

On appeal from the convictions entered on September 8, 2015 by Justice Karen Lische of the Ontario Court of Justice.

Endorsement

[1] The appellant, Jessica Badour, was convicted of assault, possession of a weapon (a knife), aggravated assault and breach of probation. She was sentenced to two years' imprisonment on the aggravated assault conviction and 30 days in jail, concurrent, for breach of probation. The remaining convictions were stayed in accordance with R. v. Kienapple, [1975] 1 S.C.R. 729.

[2] The offences in question occurred after the appellant and her then boyfriend had been drinking at a local bar. After the couple left the bar, they walked together to the appellant's apartment. En route, the complainant pressed the appellant to explain why she had decided to break up with him. During the walk, the complainant ripped the appellant's purse and, shortly thereafter, caused her to fall to the ground. Once at the appellant's apartment, the couple entered the premises, where the complainant remained for a short time, without incident. The appellant told the complainant to leave and went to the washroom. When she came out of the washroom and discovered that the complainant was still in the apartment, the appellant fetched a steak knife from the kitchen and a physical altercation ensued, during which the appellant struck the complainant in the chest with the steak knife. The complainant sustained injuries and was treated at hospital.

[3] The appellant appeals from her conviction for aggravated assault. She advances several arguments in support of her central contention that the trial judge erred in her consideration and application of the appellant's defence of self-defence.

[4] First, the appellant submits that the trial judge erred by finding that the defence of self-defence was unavailable to the appellant when she struck her boyfriend with the steak knife.

[5] We disagree.

[6] The trial judge expressly held that, by reason of the events that occurred en route to the appellant's apartment, there was an air of reality to the defence of self-defence. Contrary to the appellant's contention, nothing in the trial judge's reasons, expressly or impliedly, suggests that the trial judge viewed this defence as being temporally limited to only those events that transpired before the appellant struck the complainant with the steak knife. Rather, for reasons she explained, the trial judge considered, and rejected, the defence of self-defence on the merits.

[7] We are satisfied that the trial judge was alert to the appellant's defence of self-defence throughout; that she did not err in her consideration of the evidence relevant to this defence; and that she dealt with the defence of self-defence head on and, based on the evidence she accepted, rejected it on the merits. She was entitled to do so.

[8] This ground of appeal fails.

[9] All the appellant's remaining grounds of appeal concern the trial judge's assessment of the evidence and her factual findings or the inferences she drew from the facts as she found them.

[10] The findings and inferences in question need not be detailed in these reasons. In essence, the appellant urges this court to view the entire encounter between the appellant and the complainant in a materially different way than that accepted by the trial judge. This urging flies in the face of the trial judge's findings and the evidence she accepted. In effect, it invites this court to retry this case. That is not the function of this court.

[11] Having considered the impugned findings and inferences, the trial judge's reasons and the record, we are satisfied that the findings and inferences in question are grounded in the complainant's uncontradicted evidence at trial, which the trial judge accepted. The appellant did not testify.

[12] Of course, the trial judge's appreciation of the evidence and her factual findings attract deference from this court. The appellant has failed to demonstrate any palpable and overriding error in respect of any of the challenged findings or inferences. Accordingly, there is no basis for appellate intervention with them.

[13] The appeal, therefore, is dismissed.

E.A. Cronk J.A.

Paul Rouleau J.A.

B.W. Miller J.A.