Court File and Parties

Court of Appeal for Ontario

Date: 2022-04-04 Docket: C68964

Before: Pepall, Tulloch and Huscroft JJ.A.

Between: Her Majesty the Queen, Respondent and Amierthan Navukarasu, Appellant

Counsel: Bryan Badali and Marcela Ahumada, for the appellant Gregory Furmaniuk, for the respondent

Heard: March 25, 2022 by video conference

On appeal from the conviction entered on July 23, 2020 and the sentence imposed on October 2, 2020 by Justice Edwin B. Minden of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant appeals his conviction for robbery and aggravated assault, resulting from an incident that occurred at a pool hall/lounge.

[2] While he was inside the lounge, the appellant was seen on video taking the complainant’s jacket, putting it on, and putting his own jacket over it, before leaving the lounge.

[3] Once the complainant realized that his jacket was missing, he went outside and saw the appellant wearing his jacket. He confronted the appellant and an altercation ensued. During the altercation, the appellant chased the complainant in the parking lot, brandishing a knife. This encounter was captured on a parking lot surveillance video and was played in evidence at the appellant’s trial.

[4] After the complainant escaped from the appellant, the appellant was confronted by the complainant’s girlfriend, who demanded the return of the jacket. The appellant pushed her to the ground and subsequently slashed her forehead with the knife, after which he threw the jacket to the ground.

[5] At trial, the appellant denied that he deliberately stole the appellant’s jacket. He said that he took it inadvertently, thinking it was his own. He also denied ever having a knife.

[6] The appellant raises three arguments against conviction in his factum but focused on two issues at the hearing. First, he argues the trial judge improperly inferred his guilt from disbelief of his testimony. Second, the appellant argues the robbery conviction is unreasonable.

[7] We do not accept these arguments.

[8] First, at no point did the trial judge rely on his rejection of the appellant’s evidence as circumstantial evidence of the appellant’s guilt. The trial judge rejected the appellant’s evidence as he was entitled to do. He found that the appellant’s evidence frequently “showed a complete disregard for the truth” and was “transparently false”, and he rejected it in strongly worded terms. The trial judge’s rejection of the appellant’s evidence was independent of his assessment of the appellant’s motive for offering his testimony. The reasons must be viewed as a whole and should not be parsed in an attempt to suggest that the decision is somehow tainted. Read as a whole, the reasons for the appellant’s conviction are clear and reveal no error.

[9] Second, the verdict is not unreasonable. The appellant argues that the theft of the jacket was complete by the time the confrontation occurred, so he could not be convicted of robbery. But that argument depends on rejecting the facts as found by the trial judge. The trial judge found that Mr. Jeffries searched the lounge for his jacket and went outside a few minutes later to look for it. The appellant had left the lounge with the complainant’s jacket and remained outside the lounge with some of his friends. The appellant argued that at the time, he did not know he had taken a jacket that did not belong to him. It was open to the trial judge to find that the taking of the jacket and the violence that occurred outside the lounge were a single continuous transaction constituting robbery under s. 343(a) of the Criminal Code, R.S.C. 1985, c. C-46. The trial judge found that the appellant used violence or the threat of violence in order to complete or perfect his theft of the jacket. That was his call to make, and in the absence of a palpable and overriding error it is entitled to deference. We see no such error.

[10] In his factum, the appellant argues that the trial judge provided insufficient reasons for his decision, and in particular failed to address the absence of DNA on the knife. There is no merit to this argument. First, as noted in the Agreed Statement of Facts, “blood may or may not transfer to a knife”. Second, the trial judge gave extensive reasons. Third, the appellant is clearly seen on the video surveillance brandishing the knife, while chasing the complainant in the parking lot.

[11] This was an overwhelming case: there were two credible and reliable witnesses along with video footage capturing the appellant’s taking of the jacket and showing the appellant, armed with a knife, chasing the owner of the jacket outside the lounge. It is clear from the reasons why the appellant was convicted.

[12] The appeal from conviction is dismissed.

[13] The appellant seeks leave to appeal sentence. He argues that the trial judge erred in finding that the appellant had evinced “some degree of deliberation” by carrying and concealing the knife and in rejecting the appellant’s request for a conditional sentence.

[14] We do not agree with these submissions. The finding was open to the trial judge to make. We see no reason to interfere with the custodial sentence imposed by the trial judge. It was a fit sentence in the circumstances.

[15] The appeal is dismissed. Leave to appeal sentence is granted, but the appeal is dismissed.

“S.E. Pepall J.A.” “M. Tulloch J.A.” “Grant Huscroft J.A.”