Court of Appeal for Ontario

Date: 2019-06-21 Docket: C65096

Judges: Benotto, Miller and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Jason Meloche Appellant

Counsel

Eva Taché-Green, for the appellant

Manasvin Goswami, for the respondent

Heard

June 17, 2019

Appeal Information

On appeal from the conviction entered on September 22, 2017 and the sentence imposed on November 20, 2017 by Justice Nancy Mossip of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] Introduction

The appellant represented himself at trial where he was convicted of aggravated assault and sentenced to 40 months' incarceration. He appeals his conviction on the basis that the verdict was unreasonable and the trial judge did not provide adequate assistance thereby rendering the trial unfair. He also appeals sentence.

[2] Facts

The appellant was at a house party hosted by his brother. As the evening progressed the appellant became intoxicated and was angry and aggressive. The appellant and his brother began fighting and were having an altercation in the kitchen when the complainant, his brother's roommate, came out of his bedroom. The complainant testified that he saw the appellant and his brother fighting, stood nearby and he held up his hands and said "whoa" as the appellant appeared to lunge at his brother. The complainant recalled that he felt like he "got punched" in the stomach. In fact he was stabbed. He did not testify as to who stabbed him but stated that the appellant was standing in front of him, next to a wooden knife block, and the appellant's brother was to his left and a little behind him.

[3] Witness Evidence

A number of witnesses testified saying the appellant was intoxicated and aggressive, including four witnesses who had locked themselves in the bathroom out of fear earlier in the night. Two witnesses testified that after they had left the bathroom, they saw the appellant upstairs with a knife and when they left the house, found the complainant in the driveway bleeding. The complainant had been stabbed with a serrated knife. The surgeon who treated the victim described it as a life threatening injury involving a 10-15 cm stab wound.

[4] Representation at Trial

The appellant was initially represented by counsel. When his counsel sought to be removed from the record, the presiding judge repeatedly advised him to obtain a lawyer. He had a legal aid certificate that presumably could have been transferred.

[5] Self-Representation

He said he wanted to represent himself because he knew what happened. So, he was unrepresented at trial.

[6] Trial Judge's Assistance

The trial judge twice provided the appellant with a "Trial Information for Self-Represented Accused" handbook and answered questions during the proceedings.

Unreasonable Verdict

[7] Appellant's Submission

The issue at trial was who stabbed the complainant. The appellant submits that there are other inferences available as to the stabber. There were several people at the party and any one of them could have stabbed the complainant – for example, the appellant's brother.

[8] Court's Finding

We do not accept this submission. The only reasonable inference that could be drawn from the entirety of the evidence was that the appellant was the stabber.

[9] Evidence Supporting Conviction

The trial judge noted that no witness testified that they saw the appellant stab the victim. However, she relied on the evidence of witnesses that the appellant was angry and aggressive. He was arguing with his brother standing next to a wooden knife block. There were two knives later missing from the knife block. The appellant's blood was found on the counter near the block. The appellant was seen upstairs after the stabbing holding a knife at chest height with the blade pointing outward. A knife was retrieved from upstairs with the appellant's blood on the handle and victim's blood on the blade.

[10] Flight from Scene

The appellant fled the scene and was found covered in blood.

[11] Intent

The trial judge found the "punch" the victim felt in the abdomen was actually the injury of the knife. The trial judge found that the depth of the wound indicated that the stabbing was intentional.

[12] Strength of Crown's Case

Appellant's counsel fairly acknowledges that this was "not a weak circumstantial case". The real ground of appeal is the allegation that the trial was unfair because the trial judge did not provide adequate assistance to the appellant.

Unfair Trial

[13] Appellant's Allegation

The appellant submits that the trial judge did not discharge her duty to assist him and this rendered the trial unfair.

[14] Specific Complaints

In particular, he submits that she did not adequately explain circumstantial evidence, did not assist him with his confusion over forensic evidence, did not explain the elements of the offence, did not arrange for him to consider calling his brother as a witness, and did not give him guidance with respect to testifying.

[15] Trial Judge's Assistance Provided

The trial judge provided extensive assistance to the appellant. She explained each step of the process and twice gave him "Trial Information for Self-Represented Accused" handbook. At one point she read portions of it to him.

[16] Adequacy of Assistance

The trial judge explained circumstantial evidence in plain language, assisted him with respect to his questions regarding forensic evidence, explained his right to call evidence, including his brother who was under subpoena by the Crown, and gave him a thorough review about his decision to testify or not. Although the trial judge did not specifically review the elements of aggravated assault, this did not render the trial unfair. The issue at trial was identity. The severe wound suffered by the complainant indicated that intent was not an issue.

[17] Fair Trial Standard

The trial judge took every reasonable step and as a result the trial was fair. A fair trial "must not be confused with the most advantageous trial; in the real world, perfection is seldom attained": R. v. Richards, 2017 ONCA 424 at para. 110.

Sentence

[18] Sentence Appeal

The appellant submits that the sentence is unfit and he should have been given credit for onerous bail conditions. We do not agree. The sentence fits within the range of sentences for aggravated assault, especially given the appellant's criminal record. We see no error in principle in the 40 month sentence imposed.

[19] Disposition

The appeal as to conviction is dismissed. Leave to appeal the sentence is allowed, but the appeal is dismissed.

M.L Benotto J.A.

B.W. Miller J.A.

G. T. Trotter J.A.