Court of Appeal for Ontario

Date: October 25, 2017 Docket: C57838

Justices: van Rensburg, Pardu and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Roberto Camara Appellant

Counsel

Roberto Camara, acting in person Ian R. Smith, duty counsel Lorna Bolton, for the respondent

Heard: October 4, 2017

On appeal from: the conviction entered on December 19, 2008 and the sentence imposed on October 2, 2013 by Justice E.N. Libman of the Ontario Court of Justice.

Reasons for Decision

Conviction Appeal

[1] The appellant appeals his conviction for aggravated assault and his designation as a dangerous offender.

[2] The predicate offence involved the assault of a bar patron with a pool cue causing serious and permanent injuries. The assault was a sudden, unprovoked and violent attack on a stranger.

[3] In his conviction appeal the appellant argues that the trial judge erred in concluding that he was the person who attacked the complainant. The essence of his argument is that, on the evidence in this case, the verdict was unreasonable.

[4] The complainant testified that he was in the bar to watch sports, when someone was looking at him very strangely. When he asked him to stop, the person, without saying anything, struck him in the face with a pool cue. The complainant was unable to identify his attacker. He suffered serious injuries, including a lasting injury to one of his eyes and a broken jaw.

[5] The evidence connecting the appellant to the offence was that of Gaspare Perricone, the owner of the bar. Mr. Perricone was sleeping and did not see the assault. After being roused by an employee, he went upstairs and saw the complainant bleeding. The complainant motioned to someone in the bar who was sitting calmly, within ten feet. Mr. Perricone approached that person and had a conversation with him before asking him to leave the bar. The trial judge accepted Mr. Perricone's identification of the appellant as the person he approached and spoke to, and that during the conversation the appellant admitted that he hit the complainant. The appellant's conviction turned on the trial judge's acceptance of this evidence.

[6] The appellant says there were two errors in the trial judge's treatment of Mr. Perricone's evidence.

First Error: Description of Appearance

[7] First, he says that the trial judge ought not to have accepted Mr. Perricone's evidence that he was the assailant, when Mr. Perricone mistakenly insisted that he was bald. A photo of the appellant at the time of the offence showed that he had short hair, but could not have been fairly described as "bald". The appellant says that Mr. Perricone's evidence identifying the appellant was unreliable and ought not to have been accepted.

[8] We do not give effect to this argument.

[9] First, Mr. Perricone explained his understanding of the term "bald" in relation to the man he spoke to. He explained that the man had "very, very short hair, bald". He also described it as "maybe small hair". Mr. Perricone testified that, to him, a bald person may have shaved his head the week before.

[10] It was open to the trial judge to come to the factual conclusion that the appellant was the person who had the conversation with Mr. Perricone. The trial judge correctly cited the law and noted the frailties of identification evidence, demonstrating his appreciation for the caution that was required. He also correctly noted that this was not a case of eyewitness identification of a stranger. The witness knew the appellant's family, knew him by his first name, and had spoken with him many times over several months while he was a patron in his bar. He identified the appellant as the person he had a conversation with after the incident, and asked to leave the bar. There was no error here in the trial judge's acceptance of the identification evidence notwithstanding that the witness was mistaken in his description of a material aspect of the appellant's appearance.

Second Error: Alleged Admission

[11] The second argument in the conviction appeal has to do with the conversation Mr. Perricone had with the appellant. The appellant says that the trial judge erred in concluding that he admitted hitting the victim, when the evidence did not clearly disclose an admission.

[12] Mr. Perricone's evidence on this point in direct examination was as follows:

Q. …tell me the exact words you used when you approached him.

A. I said, "What did you do," you know.

Q. And exactly what he said?

A. And he said he heard voices at the time. He was like, you know, he heard the voice, saying "I hit the man," but that's it. And then I said, "What the hell you do?"

Q. He said, "I heard a voice. I hit the man?"

A. Yeah. As I said, and then I told him to go and he left, so you know.

[13] Under cross-examination, the following exchange took place:

Q. And I'm going to suggest to you that the response about hearing voices was then followed by, not, "I hit the man," but, "He hit the man," right?

A. No, I just said what he said, that's it. He didn't say that, that "He [ph] hit the man."

Q. Was he asking you a question about…

A. Who?

Q. This person Roberto, was he asking you a question…

A. No.

Q. …."I hit the man?"

A. No.

[14] The appellant says that the trial judge unreasonably concluded from this evidence that he admitted hitting the complainant.

[15] We disagree. While the transcript may suggest that there was some ambiguity in what Mr. Perricone recalled the appellant saying, the trial judge, who heard and saw the witness testify, was in the best position to assess his evidence.

[16] The trial judge recounted the evidence elicited by the Crown, as the appellant having stated that he had heard voices and hit the man. The trial judge also recounted Mr. Perricone's testimony in cross-examination, disagreeing that he heard the appellant say that another person hit the man. The trial judge reviewed and considered the defence position that the statement was not made as recounted by the witness, or at least that he should have a doubt about that fact. The trial judge found as a fact that the appellant related to Mr. Perricone the "odd conversation" about hearing voices and hitting the complainant, and that Mr. Perricone's having asked the appellant to leave the bar was consistent with understanding him to say that he had "hit the man".

[17] In these circumstances, there is no basis to interfere with the trial judge's conclusion that the appellant was the person Mr. Perricone approached after the assault, and that he admitted having hit the complainant. The conviction appeal is therefore dismissed.

Sentence Appeal

[18] With respect to the sentence appeal the appellant makes two arguments.

[19] First, he says that the trial judge erred in concluding that he met the criteria for a dangerous offender under s. 753(1)(a)(i) and (ii) of the Criminal Code. Second, he argues that the trial judge erred in concluding that his risk was not manageable within the community, and that he should have received instead a long-term supervision order of ten years.

[20] The appellant says that the two incidents relied on by the trial judge - the predicate offence and an earlier incident in 1995 (where he took out a gun and shot strangers at a casino, resulting in his conviction for multiple offences and a 12 year custodial sentence) - were not enough incidents, were not close enough in time, and were not sufficiently similar to constitute a "pattern of repetitive behaviour" (under s. 753(1)(a)(i)) or a "pattern of persistent aggressive behaviour" (under s. 753(1)(a)(ii)). He also says that the trial judge improperly took into consideration his behaviour while in prison as part of the pattern.

[21] We do not give effect to these arguments.

Chronology and Legislative Framework

[22] The appellant committed a serious personal injury offence on January 10, 2008. He was convicted on December 19, 2008. The hearing of the dangerous offender application commenced with evidence in June 2011. Closing submissions were made in June and July 2013. Judgment was rendered October 2, 2013.

[23] While the dangerous offender legislation changed between the date of offence and date of sentencing, it appears that the trial judge, Crown counsel, amicus and Mr. Camara operated under the legislation in place at the time that the serious personal injury offence was committed. In the circumstances of this case, bearing in mind the conclusions reached by the trial judge, both schemes would have given rise to the same result.

Representation and Arguments

[24] While the appellant did not have counsel at the hearing, because he had fired him, the court was assisted by his former counsel as amicus. Amicus asserted that Mr. Camara should not be found a dangerous offender because the statutory criteria had not been met. In the alternative, if Mr. Camara was found to meet the statutory criteria to be declared a dangerous offender, amicus argued that he should be subjected to a long-term supervision order and not to an indeterminate sentence. Mr. Camara joined in the submission that the statutory criteria for a dangerous offender finding had not been met. He argued that he should be sentenced in the normal course to a finite sentence, time served.

Trial Judge's Analysis

[25] The trial judge did not err in his articulation of the proper test or in his detailed and thorough evaluation of the evidence, which included the testimony of several lay witnesses, the expert evidence of a psychiatrist who examined the appellant and his history, the details of the offences disclosed in the appellant's lengthy criminal record, and his conduct while in prison and in dealing with correctional authorities.

Pattern of Repetitive and Persistent Aggressive Behaviour

[26] It was open to the trial judge to find that, on all the evidence, although there were some factual differences, the shooting incident in 1995 and the predicate offence were remarkably similar as unprovoked attacks on unarmed strangers while the appellant was intoxicated, with severe and permanent impacts on the victims, and that they showed a pattern of "unrestrained dangerous conduct".

[27] The trial judge also properly concluded that the other elements of s. 753(1)(a)(i) were made out on the evidence. The appellant was convicted of a serious personal injury offence. The evidence of the combination of his gross intoxication, his refusal to get treatment or accept beneficial programming, and his inability to follow rules, demonstrated an "inability to control himself" so as to make likely the fact that he would cause injury to others in the future. Similarly, the trial judge's conclusion that the appellant met the additional criteria under s. 753(1)(a)(ii) is fully supported by the evidence. His substantial indifference to the consequences of his aggressive behaviour was shown in his more than 20 criminal convictions, including 11 convictions for assaults, his lack of empathy for his victims and the fact he blamed his difficulties on others.

[28] We do not therefore accept the appellant's argument that there was an error in the trial judge's conclusion that he met the test for being a dangerous offender.

Long-Term Offender Alternative

[29] As for the argument that the trial judge ought to have concluded the appellant was a long-term offender, qualifying for a determinate sentence and long-term supervision, the appellant is unable to identify any error in the trial judge's analysis, and we see no error. The trial judge properly concluded on the extensive record before him that there was no reasonable possibility of eventual control in the community of the appellant's risk of recidivism.

Disposition

[30] For these reasons leave to appeal sentence is granted, but the sentence appeal is dismissed.

K van Rensburg J.A.

G. Pardu J.A.

Fairburn J.A.