COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hudson, 2020 ONCA 557

DATE: 20200909

DOCKET: C66214 & C66357

Lauwers, Brown and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent (Appellant by cross-appeal)

and

Matthew Hudson

Appellant (Respondent by cross-appeal)

Anthony Marchetti, for the appellant/respondent by cross-appeal

Andrew Hotke, for the respondent/appellant by cross-appeal

Heard: August 27, 2020 by videoconference

On appeal from the conviction imposed by Justice Douglas K. Gray of the Superior Court of Justice on February 8, 2018 with reasons reported at 2018 ONSC 871 and on cross-appeal from the sentence imposed by Justice Douglas K. Gray of the Superior Court of Justice on December 5, 2018.

REASONS FOR DECISION

[1] Matthew Hudson appeals from his conviction for aggravated assault. The Crown seeks leave to appeal the suspended sentence and two years’ probation imposed by the trial judge. For the following reasons, we would dismiss both the conviction appeal and the sentence appeal.

The background facts and findings below

[2] On the evening of September 1, 2015, and on into the early hours of September 2, 2015, the appellant, the complainant, and others were at a party at a home in Oakville.

[3] As the night progressed, most of the party-goers became increasingly intoxicated, having consumed alcohol and marijuana. The party was taking place outside of the residence, including a spot outside where a table and some chairs were set up. This is where the appellant and the complainant, along with others, were seated.

[4] The appellant and the complainant did not know each other. At some point, the complainant found herself on the ground with the appellant on top of her. The complainant’s mother pushed the appellant off of the complainant. When the complainant stood up, she realized that she was bleeding from the neck. She was later taken to hospital where she received 10 to 12 stitches.

[5] The complainant did not see a knife or any other weapon and did not see anyone injure her. She testified that there was no apparent reason for the appellant to attack her.

[6] Another person at the party gave evidence that, at some point, he saw the appellant and the complainant on the ground. He testified that the appellant was grabbing the complainant around the waist area with one hand and that his other hand was around the area of the complainant’s throat. This witness never saw a knife. He also did not notice that the complainant was bleeding until she was standing up.

[7] A close friend of the appellant’s, Ms. W., was also at the party. She testified that everyone at the party was “really drunk.” She testified that the appellant was trying to “hit on” the complainant and that the complainant was being rude. At one point, the complainant flicked ash from her cigarette onto the appellant’s hair and he “snapped”.

[8] Ms. W. also testified that she did not see the appellant and the complainant fall to the ground, but she did see them on the ground. She ran over to where the appellant and the complainant were on the ground. She testified that she saw a knife in the appellant’s hand and that the blade of the knife was on the complainant’s neck. She testified that she put her left hand under the blade of the knife, grabbed the blade, and then threw the knife away.

[9] A knife was found at the scene. It was submitted for DNA analysis. That analysis showed that, on the blade of the knife, DNA was found with three contributors: the complainant, Ms. W., and a third sample that was not suitable for comparison. On the handle of the knife, DNA was found from two contributors: a major contributor, the appellant, and a minor contributor that was not suitable for comparison.

[10] The appellant gave evidence. The appellant testified that he had a knife in his pocket, similar to the one found at the scene, that he used for work. He indicated that he was wearing the same pants as he had worn the day before at work, and that the knife was simply left in the pocket from the previous day.

[11] At one point in the evening, the appellant said that he received a call from Peel Regional Police about a domestic dispute involving the appellant’s girlfriend. The police asked to meet with him. The appellant agreed. Prior to going to meet with the police, the appellant said that he gave his knife to Ms. W.

[12] With respect to his interactions with the complainant, the appellant testified that he and the complainant were acting flirtatiously towards each other. At one point, the complainant put her arms out, as if to ask for a hug from the appellant, and the appellant leaned in to hug her. When he did so, he and the complainant fell over. The appellant testified that he does not know what happened, but he was on the ground with the complainant and his arms were around her. The appellant denied having caused the injury to the complainant.

[13] The trial judge found the appellant guilty. In doing so, the trial judge expressly found that Ms. W.’s evidence, by itself, would not be sufficient to establish guilt beyond a reasonable doubt, because of certain flaws he found in Ms. W.’s evidence. However, the trial judge found that other evidence corroborated the central aspects of Ms. W.’s evidence. In particular, the trial judge relied on the DNA evidence regarding the presence of Ms. W.’s DNA on the blade of the knife and the appellant’s DNA on the handle. The trial judge noted that Ms. W. sustained injuries to her hand consistent with her grabbing the open blade of the knife. He also pointed to the fact that the knife was found at the scene in a location consistent with her evidence that she threw the knife away.

[14] The trial judge rejected the appellant’s evidence. He found the appellant’s evidence to be “riddled with improbabilities”, including his claimed visit to the police and his claim that he gave the knife to Ms. W. The trial judge also found that the appellant’s evidence did not raise any reasonable doubt.

The conviction appeal

[15] We do not see any palpable and overriding error in the trial judge’s analysis and conclusion. He reviewed the evidence and made findings of fact that were consistent with the evidence and which would sustain a conviction for the offence of aggravated assault.

[16] The appellant complains about the trial judge’s use of the DNA evidence and also of his failure to address problems with the evidence of Ms. W. With respect to the second complaint, the trial judge was clearly aware of the issues with Ms. W.’s evidence, as his reasons make clear. While that evidence, standing alone, did not satisfy him of guilt beyond a reasonable doubt, he found other evidence that corroborated the evidence of Ms. W. We do not find any error in the trial judge’s treatment of that corroborating evidence. In terms of the first complaint, the appellant parses the evidence and, in particular, treats the DNA evidence in isolation from the rest of the evidence. That is not the proper approach. The trial judge was required, and did, examine all of the evidence in reaching his conclusion.

[17] The appellant also raises ineffective assistance of counsel as a ground of appeal. Various complaints were made with respect to trial counsel’s conduct of the case. We do not find, either individually or collectively, that these complaints rise to the level necessary to establish ineffective assistance of counsel.

[18] To establish ineffective assistance of counsel, an appellant must establish on a balance of probabilities that: (1) the representation provided by trial counsel was incompetent, and (2) the incompetent representation resulted in a miscarriage of justice: R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), leave to appeal to S.C.C. refused, 25430 (January 31, 1997).

[19] Much of what the appellant complains about regarding the actions of his trial counsel relate to matters of trial tactics. Judgment calls relating to trial tactics do not generally constitute incompetence even if, with the benefit of hindsight, a different call might have been better: Joanisse, at paras. 73-74. The appellant has not demonstrated that anything that trial counsel did, or did not do, compromised the fairness of the verdict or resulted in a miscarriage of justice. Indeed, at least one of the complaints, the one dealing with the failure to obtain and place into evidence the contents of a 911 call, could very well have done more harm than good to the appellant’s defence.

[20] In the end result, none of the complaints relate to the central evidence that formed the basis of the trial judge’s conclusion that the offence was proved beyond a reasonable doubt. Put another way, the appellant has failed to show “that there is a reasonable probability that but for the alleged incompetence, the result of the proceeding would have been different”: R. v. Dunbar, 2007 ONCA 840, at para. 23.

[21] The conviction appeal is dismissed.

The Crown’s sentence appeal

[22] The Crown seeks leave to appeal from the suspended sentence with probation imposed by the trial judge. The Crown submits that a custodial sentence was required in these circumstances.

[23] We begin by noting the principle laid down in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11: “[E]xcept where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit.”

[24] The appellant has not satisfied us that the sentencing judge made any error in principle, and while we accept that imposing a suspended sentence was especially lenient given the circumstances of the offence, we do not accept that the sentence rises to the level of being demonstrably unfit. Suspended sentences have been upheld in other cases – see, for example, R. v. Peters, 2010 ONCA 30, 250 C.C.C. (3d) 277 – although we accept that such results are exceptional.

[25] We do not accept the Crown’s submission that the sentencing judge failed to properly consider denunciation and deterrence. The sentencing judge was well aware of the seriousness of the conduct, to which he made reference a number of times in the course of his reasons. At the same time, the sentencing judge considered that the many positive factors relating to the appellant drove the appropriate sentence away from the need for incarceration.

[26] The sentencing judge explained that the appellant was a young man (18 at the time of the offence); who had no prior criminal record; who received a positive pre-sentence report; who was gainfully employed; and who had strong support in his community. The trial judge also noted that the offence was a “spur of the moment” event that was fueled by the consumption of alcohol and drugs.

[27] Lacasse, at para. 49, cautions appellate courts that the fact that a sentencing judge weighs relevant factors differently than the appellate court might have done, is not a basis upon which the appellate court is entitled to interfere with the sentence. With respect, that is essentially what the Crown invites us to do.

[28] While leave to appeal sentence is granted, the appeal is dismissed, save and except to set aside the victim fine surcharge that was imposed.

“P. Lauwers J.A.”

“David Brown J.A.”

“I.V.B. Nordheimer J.A.”