Court of Appeal for Ontario

Date: 2018-05-17 Docket: C64392

Justices: Doherty, Epstein and Pepall JJ.A.

Between

Her Majesty the Queen Respondent

and

Stephen Lawrence Appellant

Counsel

Ian Carter, for the appellant

Rebecca De Filippis, for the respondent

Heard

May 10, 2018

Appeal

On appeal from the conviction entered on April 19, 2017 by Justice Diane M. Lahaie of the Ontario Court of Justice, sitting without a jury.

Reasons for Decision

Background Facts

[1] The appellant and the complainant were drinking together in the evening at the complainant's house. No one else was home. The appellant was severely intoxicated, but the complainant was not. The complainant had to work the next day and drank moderately. The appellant became boisterous, and the complainant asked him to simmer down. The complainant went into the bathroom, and when he emerged, the appellant knocked him to the ground and bit off a large portion of his ear. The complainant felt a sharp pain and blood running onto his skin. He applied paper towels to his ear. The appellant spat the complainant's ear out onto the bar. The complainant yelled at the appellant to leave and called 911. He retrieved his ear and placed it on ice in a zip-lock bag. He then was taken to the hospital. Doctors reattached the complainant's ear. The next morning, the appellant and the complainant exchanged text messages. The appellant noted that he could not remember coming home and hoped he had not become a "super ass hole last night", to which the complainant responded that the appellant had bit his ear off and he might lose it. The appellant responded "O fuck me." Unfortunately for the complainant, weeks later his reattached ear fell off.

[2] In his statement to the police, the appellant could not recall what happened at the complainant's house. He also confirmed that there was no one else at the residence. It was "obviously" him, and he was "not denying it."

[3] The appellant was charged with aggravated assault.

The Trial

[4] The trial was short. The Crown's case was completed in a day and consisted of the complainant's testimony, the appellant's police statement, photographs of the complainant's ear taken the day before trial, text messages, and the complainant's hospital records from the night of the incident. The defence called no evidence.

[5] At trial, the appellant's theory was that the complainant was an alcoholic, who was intoxicated on the night of the offence, and did not remember and could not describe what had happened or how the injury occurred. As such, the Crown was unable to establish the actus reus of the offence, that there was objective foresight of bodily harm, or that the appellant was not acting in self-defence.

[6] The trial judge rejected the appellant's theory and accepted the position of the Crown. She found the complainant to be credible and reliable. She accepted his evidence that he had been drinking to moderation because of work the next day and that alcohol had not impaired his perception of what the appellant had done to him. She was not left in any doubt that the appellant had bitten off the complainant's ear:

I find that the accused "lost it" when he was told to simmer down by the complainant as he went to the washroom. When the complainant returned, the accused threw him to the floor, jumped on top of him, and bit his ear off, spitting it out onto the bar.

Grounds of Appeal

[7] The appellant raises two grounds of appeal.

[8] First, he submits that the trial judge failed to resolve alleged material inconsistencies in the complainant's evidence on critical issues: his description of the attack and his description of his wife's stance on his drinking. Second, he submits that the trial judge impermissibly speculated about the cause of the injury.

[9] We do not accept either argument.

[10] Regarding alleged inconsistencies in the complainant's evidence, the trial judge considered the alleged inconsistencies. She acknowledged that there was no mention in the complainant's statement to the police that the appellant got on top of him and that this was a detail the complainant provided at trial. However, it did not affect her assessment of the complainant's credibility or reliability.

[11] Second, the complainant never claimed to have a specific memory of the appellant biting off his ear. In his examination-in-chief, he testified:

Q. And what happened?

A. He had – before I knew it he had, my ear was bitten off and I – I felt to the side of my head and I could feel the blood, so there was a roll of paper towels on a bookshelf directly in front of it, which I put on the ear, 'cause the blood was running down my face, and then I - I started yelling at him to get out of the house.

Q. And do you remember at what point you realised that it was your ear?

A. Well, when I felt the blood running down the side of my face, I had a sharp pain.

[12] Similarly, in his statement to the police, he agreed that he did not "feel when it happened, the bite to the ear". There was no inconsistency.

[13] Significantly, the trial judge found that the appellant had spat the complainant's ear out onto the bar. This finding was available to her based on the evidence given by the complainant. In the face of that evidence, there can be no serious dispute that the Crown had proven its case. There really was no issue but that the appellant had bitten off the complainant's ear.

[14] The trial judge also addressed, in detail, the issue of the complainant's wife and his drinking. This argument was not pressed in oral submissions. To the extent there was any inconsistency in the complainant's evidence on his wife's stance on his drinking, it was minor in nature.

[15] The Crown had a very strong case. The trial judge was not required to review and resolve every inconsistency in the complainant's evidence nor did she have to respond to every argument advanced by counsel. At the conclusion of the evidence, the core of the complainant's allegations against the appellant remained intact, namely, his ear had been bitten off by the appellant.

[16] Regarding the appellant's claim of impermissible speculation, the appellant complains that the trial judge found that the complainant's injury resulted from a human bite in the absence of expert evidence.

[17] We are unable to accept this submission. The trial judge did not speculate. Rather, she accepted the complainant's uncontradicted testimony that the appellant had bitten off his ear. Although the complainant's appearance in court and the photographs could not independently establish a human bite, they were consistent with the complainant's testimony.

[18] For these reasons, the appeal is dismissed.

"Doherty J.A."

"Gloria Epstein J.A."

"S.E. Pepall J.A."