Court File and Parties

Court of Appeal for Ontario Date: 20230606 Docket: COA-22-CR-0092

MacPherson, Pepall and van Rensburg JJ.A.

Between:

His Majesty the King Respondent

and

Norman Perry Appellant

Counsel: Jason Alsbergas, for the appellant Dana Achtemichuk, for the respondent

Heard: May 30, 2023

On appeal from the conviction entered on March 17, 2022 by Justice Anthony F. Leitch of the Ontario Court of Justice.

Reasons for Decision

[1] After a day of drinking, the appellant threw a rock through a glass door of a tattoo parlour, shattering it. The appellant was charged with break and enter with intent to commit an indictable offence and assault with a weapon.

[2] On the break and enter count, the witness, Daniel McAlonan, testified that he had seen the appellant crawling through the door of the tattoo parlour where Mr. McAlonan was working. The appellant testified that he never went inside the tattoo parlour. The trial judge determined that he was left with a reasonable doubt as to the appellant’s entry into the tattoo parlour due to the photo of the glass in the doorway. He therefore acquitted the appellant of the break and enter count. In his reasons for decision on that count, he stated that it was unnecessary to analyze the degree to which he accepted the evidence of the witnesses. He would address that issue in his judgment on the other count.

[3] On the assault with a weapon count, Mr. McAlonan testified that he chased and tackled the appellant who told him he was going to stab him which caused Mr. McAlonan to retreat. According to Mr. McAlonan, the appellant then brandished a knife and backed away. In contrast, the appellant testified that there was no chase. He denied that there was any contact or scuffle and maintained that he made no threat and had no knife.

[4] Video footage showed the appellant walking towards the tattoo parlour wearing white socks on his hands and carrying a large rock. A bang and shattering glass are then audible. Seconds later, two shadows are seen running from the tattoo parlour. Mr. McAlonan can also be heard yelling at the appellant.

[5] The police were called and they arrested the appellant. White socks were found in his hoodie but a knife was not found. The police did not search the surrounding area for a knife.

[6] The trial judge convicted the appellant of assault with a weapon. He accepted that Mr. McAlonan had chased and caught the appellant and that the appellant had produced a knife and threatened him. The main though not exclusive focus of the trial judge’s reasons was on self-defence. This focus was consistent with the submissions at trial.

[7] The appellant only appeals from his conviction for assault with a weapon. His sole ground of appeal is that the trial judge provided insufficient reasons for accepting the evidence of Mr. McAlonan and in finding that the evidence of the appellant did not raise a reasonable doubt. He argues that the appellant’s acquittal on the break and enter count undermined Mr. McAlonan’s credibility.

[8] We disagree. The foundations of the trial judge’s decision are discernable when looked at in the context of the evidence and the submissions of counsel. Defence counsel canvassed the inconsistencies in Mr. McAlonan’s evidence, many of which were minor or peripheral, and the trial judge was actively engaged with these issues during submissions. It was evident what the trial judge decided, why he accepted Mr. McAlonan’s evidence on his interaction with the appellant and rejected the evidence of the appellant, and why he was left with no reasonable doubt that the appellant was guilty of assault with a weapon. Moreover, the reasons do not prevent meaningful appellate review.

[9] Importantly, the video evidence clearly contradicted the appellant’s evidence that Mr. McAlonan never chased him. The trial judge explained that he found Mr. McAlonan to be a fair witness who displayed no animus towards the appellant. Furthermore, the acquittal on the break and enter count was based on the reasonable doubt raised by the doorway photo. In that regard, Mr. McAlonan’s evidence was neither rejected nor accepted. The two verdicts are reconcilable.

[10] For these reasons, the appeal is dismissed.

“J.C. MacPherson J.A.” “S.E. Pepall J.A.” “K. van Rensburg J.A.”