Court of Appeal for Ontario

Date: 2018-04-19 Docket: C62855 Judges: Feldman, Roberts and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Bernard Benjamin Appellant/Applicant

Counsel

Mark Halfyard, for the appellant

Matthew Asma, for the respondent

Hearing and Release

Heard and released orally: April 17, 2018

On appeal from: The conviction entered on March 4, 2016 and the sentence imposed on August 12, 2016 by Justice S. Bacchus of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals from his convictions for aggravated assault, assault with a weapon, weapons dangerous and assault. He received an 18 month sentence. He has abandoned his sentence appeal.

[2] The offences arise out of an altercation between the appellant and his partner's uncle. The appellant and the complainant gave different accounts of what happened, including who initiated the dispute and how the respective injuries sustained by the appellant and the complainant were inflicted. The appellant submits that the trial judge erred in her treatment of the relevant evidence and his defence of self-defence. He asks for a new trial.

[3] We agree that the trial judge erred and that a new trial is required. The trial judge gave a number of reasons for rejecting the evidence of the appellant. He submits that three of those were based on misapprehensions of the evidence. Crown counsel fairly concedes one of the misapprehensions but takes the position that it is not material given the other findings of the trial judge.

[4] We agree with Crown counsel's concession that the trial judge erred in finding that there was no blood on the swivel chair or near it. She therefore rejected the appellant's claim that he used the swivel chair defensively around the time the complainant cut the appellant's hands. The effect of this misapprehension was to undercut the basis for the appellant's self-defence claim and was key to that defence.

[5] We also agree with the appellant that the trial judge appeared to misapprehend the evidence regarding the complainant greasing up his body. That misapprehension could have led the trial judge to reject the appellant's claim that he perceived the complainant as fixed for a fight and as the aggressor.

[6] We conclude that these misapprehensions cannot be viewed as other than material to the analysis. A new trial is therefore required.

[7] Accordingly, the appeal is allowed and a new trial is ordered.

"K. Feldman J.A."

"L.B. Roberts J.A."

"G.T. Trotter J.A."