Court of Appeal for Ontario

Date: 2017-04-13 Docket: C60666

Judges: Watt, van Rensburg and Pardu JJ.A.

Between

Her Majesty the Queen Respondent

and

Brian McConaghie Appellant

Counsel

Nicholas A. Xynnis, for the appellant Robin Flumerfelt, for the respondent

Heard: March 29, 2017

On appeal from: the conviction entered on April 8, 2015 and the sentence imposed on July 7, 2015 by Justice Thomas P. Cleary of the Ontario Court of Justice.

Endorsement

[1] The appellant was found guilty of several offences arising out of an incident in which his motor vehicle struck and severely injured a pedestrian who was walking across a parking lot outside a pub. After taking into account the principles set out in R. v. Kienapple, [1975] 1 S.C.R. 729, the trial judge entered a conviction on a single count of aggravated assault. For this offence, the trial judge sentenced the appellant to imprisonment for a term of 18 months and ordered that he comply with the terms of a probation order for a period of two years after completion of the term of imprisonment.

The Background Facts

[2] At the conclusion of oral argument by counsel for the appellant, we dismissed both the conviction and sentence appeals. We indicated that our reasons would be provided later. These are our reasons.

[3] The relevant events began with a game of pool between the appellant and Alex Chonevski. The game ended prematurely when Chonevski accused the appellant of cheating. A while later, the appellant initiated a conversation with Chonevski who reacted aggressively when the appellant came into physical contact with him as the conversation became more animated and developed into an argument. Chonevski, a much larger and physically imposing man, seems to have gotten the better of the appellant. Other patrons separated the pair.

[4] Shortly after the contretemps in the pub, the appellant left the premises and got into his car in the parking lot. He remained there, despite suggestions from others that he should simply leave and forget about the incident.

[5] The appellant was still in his car when Chonevski and his father walked out of the pub at closing time almost three-quarters of an hour after the altercation over the game of pool. Soon after remarks to the effect of "he can't get away with this" or "nobody treats me that way", the appellant accelerated his vehicle towards Chonevski and his father as they made their way across the parking lot. Chonevski was pushed out of the car's path by his father who was struck by the vehicle. The appellant drove away.

[6] The principal issue at trial was whether, as the Crown alleged, the appellant intentionally drove his vehicle at Chonevski, striking his father in the process, or, as the appellant claimed, he inadvertently struck the victim as he (the appellant) tried to leave the parking lot.

The Appeal from Conviction

[7] The appellant advances several grounds of appeal on his appeal from conviction.

[8] He submits that the trial judge erred in not permitting defence counsel to put a surveillance video depicting the interior of the bar to a Crown witness in cross-examination.

[9] We disagree.

[10] This decision of the trial judge was a reasonable exercise of his discretion to supervise the conduct of cross-examination, a necessary incident of his trial management power. The material events were those that took place in the parking area, not what happened in the pub. The trial judge had already seen the video and was unlikely to be further assisted in resolving crucial issues of fact by its replay during cross-examination of the witness.

[11] The final three grounds of appeal may be considered together since they are complaints about factual determinations made by the trial judge.

[12] The appellant says that the trial judge erred:

i. in accepting the testimony of one Poirier, whom the appellant described as a testimonially-unreliable witness;

ii. in conducting a flawed "reconstruction" of the accident, unsupported by the evidence adduced at trial; and

iii. in rejecting certain aspects of the appellant's evidence about his state of mind after the initial altercation with Chonevski and while sitting in his car outside the pub.

[13] It is a commonplace of appellate review that findings of fact, including determinations of the credibility of witnesses and the reliability of their evidence, as well as the inferences to be drawn from individual items of evidence and from the evidence as a whole, are subject to deference on appeal. To be certain, this rule is subject to exception. But nothing that the trial judge said, or for that matter, failed to say here, persuades us that the substantial deference that is his due should give way. The findings of credibility he made, as well the inferences he drew, were reasonable and firmly grounded in the evidence adduced at trial.

[14] The appeal from conviction is dismissed.

The Appeal from Sentence

[15] The appellant also contests the fitness of the sentence imposed upon him and tenders for reception evidence about his current circumstances. He invites us to reduce the carceral portion of the sentence to a term that may be served intermittently.

[16] The appellant contends that the trial judge imposed a sentence that was harsh and excessive, one that failed to respect the principle of restraint, and paid insufficient heed to the fundamental principle of proportionality and the related principle of parity. He also invites us to consider fresh evidence about his health and the impact that an extended term of incarceration, such as that imposed here, will have on his family.

[17] Mindful of the scope of appellate review of a sentence imposed at trial, we see no basis upon which we are entitled to interfere.

[18] The trial judge canvassed the governing principles of sentencing, took into account relevant aggravating and mitigating factors; and considered the precedents with which counsel provided him. He received and considered the extensive submissions of counsel and had the benefit of a pre-sentence report and victim impact statement. The sentence he imposed sits comfortably within the range of sentence appropriate in such cases. It reflects no error in law or in principle and is not demonstrably unfit.

[19] Leave to appeal sentence is granted, but the appeal from sentence is dismissed.

"David Watt J.A." "K. van Rensburg J.A." "G. Pardu J.A."