Court of Appeal for Ontario

Date: 2017-01-17 Docket: C61148 Judges: Weiler, Pepall and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Lennie Middleton Appellant

Counsel

Alexander Ostroff, for the appellant Andreea Baiasu, for the respondent

Heard: January 11, 2017

On appeal from: the conviction entered on May 15, 2012 by Justice Jane E. Kelly of the Superior Court of Justice, sitting without a jury.

Endorsement

[1] The appellant appeals his conviction for assault with a weapon, specifically, a lamp. An appeal from the sentence is proceeding separately as an inmate appeal. The appellant raises three grounds of appeal. They are: 1) misapprehension of the evidence by the trial judge; 2) error by the trial judge in reversing the burden of proof and failing to appreciate relevant evidence; and 3) whether the trial judge's reasons were sufficient and the conviction was unreasonable.

[2] In relation to this first ground of appeal, the appellant relied on his factum. He submits that the trial judge misapprehended Mr. Cuthbert's evidence regarding the appellant's use of the lamp. In our opinion, the reasons read as a whole do not reflect any misapprehension of the evidence. Earlier in her reasons in discussing the timing of the assault in relation to the charge of robbery of which the trial judge used a shorthand reference that could be taken as the appellant submits namely that Mr. Cuthbert saw the appellant hit the complainant with a lamp. However, in the portion of her reasons dealing with whether the appellant assaulted the complainant with the lamp, she clearly held that Mr. Cuthbert saw the appellant swing the lamp at the complainant but did not see him hit the complainant with the lamp.

[3] In relation to the second ground of appeal, the appellant alleges the trial judge reversed the burden of proof when she held that the photograph of the complainant's injury seemed to be consistent with the use of a lamp and corroborated the complainant's evidence and, "no evidence was before me to suggest that a lamp such as the one photographed would not have caused the injury to Mr. Kamara [the complainant]." In our opinion the trial judge's comment did not reverse the burden of proof. She was really saying that on the evidence no other inference was available. The appellant also submits that the trial judge failed to address whether Cuthbert's machete attack could have caused the injury. There is no evidence to support a finding that Cuthbert's machete caused the injury. The only evidence as to the use of the machete that night is that it was used to hit Mr. Duncan. There was no evidence about a different kind of assault on the complainant to address.

[4] In relation to the third ground of appeal, the reasons for judgment address virtually all the evidentiary concerns raised by the appellant at para. 41 of his factum. The trier of fact is entitled to accept some of the evidence of a witness, while rejecting other parts of that witness' evidence. Contrary to the appellant's submission, the evidence of Mr. Cuthbert that he saw the appellant pick up a lamp and swing it towards the complainant is actually confirmatory of the complainant's testimony that an assault occurred as opposed to being contradictory of it. The contradictory evidence of when the assault occurred was not relevant to whether the assault occurred. Its relevance lay in the robbery charge of which the appellant was acquitted. Nor was the trial judge required to address every item of evidence. It was open to the trial judge to come to the conclusion she did on the evidence. Taken cumulatively, the factors relied on by the appellant do not meet the test for an unreasonable verdict. The reasons met the functional requirements of permitting appellate review and elucidating why the appellant was convicted of the assault with the lamp, while being acquitted on the separate count of robbery with a firearm. Accordingly, the appeal is dismissed.

K.M. Weiler J.A. S.E. Pepall J.A. G.T. Trotter J.A.