Court of Appeal for Ontario

Date: 2018-10-11 Docket: C62813

Judges: Simmons, Rouleau and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Mark Moore Appellant

Counsel

Louis P. Strezos, as duty counsel Mark Moore, in person Lorna Bolton, for the respondent

Heard: October 4, 2018

Appeal Book Endorsement

[1] On behalf of the appellant, duty counsel raised three issues on the conviction appeal. He argued that the trial judge misapprehended the evidence as to who instigated the dispute, that the trial judge erred in finding excessive force was used given the jail cell context, and further erred in her assessment of Officer Chen's observations of the altercation.

[2] We do not accept these submissions. It was for the trial judge to make the factual determinations based on the evidence led before her. On our review of the record we see no error. The conviction appeal is dismissed.

[3] As for sentence, this was a serious aggravated assault and the context as found by the trial judge was interference with a justice system participant, namely a person about to testify against the appellant on very serious charges. In the circumstances, we consider the sentence imposed entirely fit and reject the appellant's submissions that it was harsh and excessive or otherwise in error. Leave to appeal sentence is granted, but the sentence appeal is dismissed.