Court of Appeal for Ontario

Date: 2019-03-21 Docket: C65327

Judges: Rouleau, Miller and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Yohan Henry Appellant

Counsel

Paul Calarco, for the appellant

Megan Petrie, for the respondent

Heard and Released

Heard and released orally: March 18, 2019

On appeal from the conviction entered by Justice John Ritchie of the Ontario Court of Justice on October 16, 2017, and from the sentence imposed on December 13, 2017.

Reasons for Decision

[1] The appellant submits that the transcript of the complainant's evidence suggests that a police officer may have condoned the complainant lying in his statement to police. This suggestion was not addressed by the trial judge in his assessment of the complainant's credibility. In the appellant's view, this failure infected the entire proceeding and undermined the trial judge's acceptance of the complainant's testimony as well as the appellant's conviction.

[2] We disagree.

[3] From our review of the transcript, the complainant's evidence was somewhat confusing and we are not satisfied that the suggestion advanced by the appellant is the only interpretation of that evidence. In any event, as this concern was not raised or pursued at trial, the trial judge cannot be faulted for his failure to deal with the concern now being raised by the appellant for the first time. The trial judge, in his reasons, dealt with the inconsistencies between the complainant's statement to police and his in-court testimony. He accepted the in-court testimony as being true and we see no basis to interfere with this assessment of the evidence.

[4] Significantly, in this case, there was also other substantial incriminating evidence. In our view, therefore, the conviction was fully supported by the record.

[5] As for the sentence appeal, an eight-year total sentence, less two years' credit for pre-sentence custody, was well within the appropriate range, given the serious nature of the offences, including an armed robbery with a fully loaded semi-automatic handgun pointed directly at the complainant and in light of the appellant's lengthy criminal record, including another conviction for armed robbery.

[6] The appellant argues that the trial judge erred by failing to take a gap in his criminal record into account. We disagree. The trial judge specifically adverted to that gap on two occasions. Even in light of the gap, the sentence was entirely fit.

[7] Finally, with respect to the victim fine surcharge, the Crown concedes that in light of the recent decision in R. v. Boudreault, 2018 SCC 58, 50 C.R. (7th) 207, the victim fine surcharge ought to be removed.

[8] As a result, the conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence is varied only to the extent of striking the victim fine surcharge.

Paul Rouleau J.A.

B.W. Miller J.A.

Fairburn J.A.