Court of Appeal for Ontario

Date: 2017-06-30 Docket: C59052

Judges: Watt, Benotto and Roberts J.A.

Between

Her Majesty the Queen Respondent

and

Reginald Patrick Heffern Appellant

Counsel

Carol Anne Matthews, for the appellant Rebecca DeFilippis, for the respondent

Heard and released orally: June 27, 2017

On appeal from: the conviction entered on February 19, 2013, and the sentence imposed on June 27, 2013, by Justice W. Guy G. Mahaffy of the Ontario Court of Justice.

Reasons for Decision

Facts

[1] The appellant appeals convictions of assault causing bodily harm, kidnapping and two counts of breach of probation entered at the conclusion of a trial before a judge at the Ontario Court of Justice. He also seeks leave to appeal the sentence imposed upon him.

[2] The offences arise out of an incident in which four men, among them the appellant, arrived at the complainant's apartment. Their arrival was not apparently unexpected. The complainant was caring for his two-year-old daughter when the men arrived. A friend was with him.

[3] The appellant inquired about a bike that the complainant apparently had for sale. The bike was at a friend's place a couple of blocks away. The complainant offered to take the appellant there as soon as his girlfriend arrived home to care for their daughter. Another man in the group complained about the theft of some of his property. He demanded its return. The others, including the appellant, reiterated this demand. The complainant denied any involvement in the theft and disavowed possession of the items alleged to have been taken. An argument ensued. The men searched the complainant's apartment for the property but found nothing.

[4] The man who alleged that his property had been stolen said that he wanted to take the complainant to see one of his neighbours whom, he claimed, had witnessed the theft and could identify the thief. The complainant resisted because he was caring for his daughter. The men told him that if he did not accompany them, he would be beaten in front of his daughter. The complainant left with the men.

[5] When the group arrived at their destination, the complainant asked to see the witness/neighbour. He was directed to the house of one of the men and told to forget about the neighbour. He attempted to escape but was grabbed, dragged into the house, and the door locked behind him.

[6] Inside the house, the men beat, kicked and punched the complainant. Someone struck him on the head with a weapon. He ended up severely cut as a result of going through a window. His abductors denied his request for an ambulance. He left the house in which he had been confined and walked back towards his home. A neighbour called 911.

[7] The complainant suffered extensive lacerations to both forearms, his left wrist and to his head. He arrived at the hospital in critical condition and required blood transfusions.

[8] The appellant was apprehended shortly after police responded to the 911 call. The appellant's right hand was red and extremely swollen in the area of his knuckles.

The Appeal from Conviction

[9] On the appeal from conviction, the appellant contends that the trial judge erred in his assessment of the evidence adduced at trial, ignored relevant evidence and thus reached a verdict that is unreasonable. To be more specific, the appellant asserts error in the failure of the trial judge to assess the reliability of the complainant's evidence and in finding the complainant credible largely on the basis of his demeanour and without considering contradictory evidence. In her factum, counsel points to four specific factual concerns in support:

i. the locked door at the place where the assault occurred;

ii. the laceration to the complainant's head;

iii. the condition of the complainant's right hand; and

iv. the complainant's drug use at the relevant time.

[10] We would not give effect to the overarching submission that the verdicts rendered by the trial judge are unreasonable, or that his findings on the specific issues advanced by the appellant are flawed.

[11] We accord credibility assessments and determinations of the reliability of evidence a high degree of deference. Absent palpable and overriding error, we will not interfere with findings of fact based on the credibility of witnesses and the reliability of their testimony. It is well-settled that a trial judge is under no obligation to address every inconsistency arising in the evidence, or eliminate every potential contrary inference said to arise from individual items of evidence. As it seems to us, the appellant is inviting us to retry this case, to draw inferences different from those drawn by the trial judge. We are satisfied that the inferences the trial judge drew in relation to the injuries to the appellant's right hand and the complainant's head were available and reasonable on the evidence adduced at trial. To draw contrary inferences is not a course open to us. We do not retry cases.

[12] The only inconsistency the appellant identifies is with respect to the condition of the door to the premises where the complainant was assaulted. That he said at one point that it was locked, but that it was not so when he left, in our view, is not a material inconsistency. It has no say in connection with proof of any of the essential elements of any offence with which the appellant was charged.

[13] For these reasons, the appeal from conviction is dismissed.

The Appeal from Sentence

[14] As to the appeal from sentence, the only error of which the appellant complains is the failure of the trial judge to consider, as a mitigating factor, that the appellant was sexually abused as a child. Although the trial judge made no express mention of this as a mitigating factor in determining the sentence he imposed, he did make reference to it in summarizing the position advanced on behalf of the defence on the issue of sentence. This omission had, in our view, no impact on the sentence imposed which was demonstrably fit and reflective of the predominant principles of denunciation and deterrence.

[15] In the result, although we would grant leave to appeal sentence, we dismiss the sentence appeal.

"David Watt J.A."

"M.L. Benotto J.A."

"L.B. Roberts J.A."