ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
B E T W E E N:
HER MAJESTY THE QUEEN
A. C. Presswood, for the Respondent
Respondent
- and -
DAMION HONNIGAN
R. Fedorowicz, for the Appellant
Appellant
HEARD: November 17, 2017, at Brampton
REASONS FOR JUDGMENT
[on appeal from conviction by Monahan J. on November 20, 2015
and the sentence imposed on September 16, 2016]
HILL J.
INTRODUCTION
1After a two-witness trial, Damion Honnigan was convicted of assault with a weapon and sentenced to 60 days’ incarceration to be served on an intermittent basis and 2 years’ probation as well as the imposition of DNA and weapons prohibition orders.
2The appellant appeals against conviction and sentence.
3For the following reasons, the appeal against conviction is dismissed, leave to appeal sentence is granted, and the sentence appeal is allowed.
THE FACTUAL BACKGROUND
4In 2014, Clayton Campbell (the complainant) owned a semi-detached home at 48 Royal Palm Drive, Brampton. Campbell had a prior criminal record from 2012 to 2013 for assault with a weapon (x2) and uttering threats – convictions arising from domestic contexts involving his mother and his then girlfriend. According to Campbell, for reasons described at trial, he pled guilty although he was not.
5By July 8, 2014, the appellant had been renting a basement apartment in Campbell’s residence for a number of months. While he had paid his rent to Campbell in cash in the early months, he paid by cheque from March onward because he felt that the complainant had cheated him out of reimbursement from insurance proceeds referable to a flood in the basement which had damaged some of the appellant’s property. Campbell, who preferred cash as it would be off-the-books undeclared income, had accepted cheques without complaint. In some months, the appellant was late paying his rent money.
6Mr. Campbell denied that he met with the appellant early in the morning of July 8 to provide him a cheque for the July 2014 rent. On the appellant’s evidence, such a meeting did occur in which the complainant angrily demanded cash and, when it was refused, told him to find some other place to live. He had no other place to move to. At trial, the appellant produced his cheque book with a July 8, 2014 rent cheque made out to the complainant still in the cheque book.
7On July 8, 2014, during the evening, the complainant heard an audible sound coming from the entry keypad of his front door. Whoever was pressing the pad was unable to secure entry. When the complainant attended the door, he met Judith Martin who he had seen in the appellant’s company on some previous occasion.
8The complainant told Ms. Martin that he would not let her in until the appellant arrived home. The appellant had arranged to meet his friend at the house but she had arrived first. Ms. Martin returned to her car which was parked in the 2-car driveway beside the complainant’s pickup truck.
9The appellant testified that Ms. Martin phoned him to say that the complainant had refused her entry to the home and had directed her not to park in the driveway. The appellant further informed the trial court that he made two or three attempts to reach the complainant by phone but without success. He hurried home. Within minutes, the appellant drove his car into the driveway and parked diagonally behind the other vehicles including, according to Mr. Campbell, on the grass.
10On the complainant’s evidence, he came downstairs to his front door and called out to the appellant to get his car off the lawn. He would need to get his own truck out of the driveway to get to work early in the morning. On the appellant’s evidence, when he arrived home, the complainant was seated at the table in the garage wearing flip flop footwear. The appellant recalled Mr. Campbell approaching him in the driveway and loudly telling him to move his vehicle or it would be towed. According to the appellant, “after talking and talking”, he moved his car onto the street.
11The complainant had no recall whether he was wearing flip flops. He testified that he was not in the garage but at the front door propping the glass/screen door open with his foot when the appellant, holding Ms. Martin’s hand, approached and accused Campbell of trying to “diss” or disrespect him. The complainant testified that when the appellant told Ms. Martin to come on and not to worry about anything, he told them that he was not moving from the doorway until the car was moved off of the lawn.
12According to the complainant, the appellant continued to come ahead saying words to the effect of, “you know how long me want to kill you?” In his police statement given at the hospital, the complainant did not include reference to this threat.
13The principal witnesses also provided divergent accounts of what happened next.
14Mr. Campbell reported that the appellant used his right hand to pull something from his waist area before swinging that hand forward toward him. At first, he could not see what the appellant had in his hand. As they stood about two feet apart, the complainant raised his left arm to block being struck. He was cut on the thumb of his left hand. The complainant then saw that the appellant had a knife which he then used to stab straight ahead striking the complainant’s forehead. The complainant also described the second blow as a jab or a poke. In cross-examination, the complainant agreed that the blow to his head may have been caused by the handle of the knife. He also agreed that the appellant may have used his left hand to strike the two blows.
15The complainant testified that he was unarmed and that he tried to push the appellant away but did not strike or threaten the appellant.
16On the appellant’s evidence, as he and Martin walked toward the residence front door where Campbell was positioned, the complainant, who was angry, stated that he wanted “nobody in his house”. The appellant testified that he was not upset – he said to Campbell, “What’s the disrespect for man?”, before taking Ms. Martin by the hand, saying “Don’t pay him any mind”. When he tried to squeeze past the complainant at the residence front door, there was pushing between himself and the complainant, before Campbell punched him on the forehead. He then shoved the complainant backward “real hard” causing Campbell to strike his head on some part of the door variously described as the door, the door jam or the door frame. The complainant then quickly retreated inside toward the kitchen where, on the appellant’s assumption, the complainant was intent on obtaining a weapon.
17The appellant testified the he has always been left-handed. A video of the appellant at the police station showed him using a phone with his left hand.
18Mr. Campbell informed the trial court that when he was stabbed and bleeding, Ms. Martin exclaimed, “Oh, my God …Oh my God”, while he called out to his father, who was descending stairs to the home’s main level, “Diamond stabbed me. Diamond stabbed me”. He heard the appellant call to Martin, “Let’s go. Let’s go.”
19On the complainant’s evidence, as the appellant headed toward his car, he called to Ms. Martin to come with him. Campbell reported that he felt it important to photograph Ms. Martin’s vehicle licence plate, presumably because she had witnessed what occurred. To this end, he quickly obtained an item, from the home’s interior, not described more particularly in the evidence, and entered the garage through an interior door activating and raising the front exterior garage door as he went. According to the complainant, because of blood in his eyes he was unable to get a photo before Ms. Martin drove away.
20In his testimony, the complainant denied obtaining a knife, tripping on sandals in the garage, falling and cutting his hand.
21The appellant testified that because he thought the complainant might arm himself, he grabbed a piece of steel pipe from the side of the house before heading for his vehicle. He was not in the garage at any point. On his account, he saw the complainant, wearing his flip flops, rush into the garage from the house, slip and fall, and “instantaneously” scream out to his father, “Diamond stabbed me. Diamond stabbed me”. He could see nothing in Campbell’s hands or any injury to his person. The appellant heard the complainant’s father tell him to call the police. He decided to drive away for his own safety.
ANALYSIS
22The complainant called 9-1-1 and waited in his garage. Police and an ambulance attended. The complainant testified that the paramedics did not enter the residence. A Peel Regional Police Services officer took photographs of the exterior of Campbell’s residence and of the interior of the garage where a pair of sandals were located near the door to the home’s interior and blood drops were clearly visible on the floor. The police did not photograph in the residence interior.
23At the hospital, the cut to the complainant’s forehead was cleaned and bandaged. The cut to the dorsal, lateral and ventral sides of the complainant’s left thumb was closed with six stitches.
ABSENT WITNESSES
24The complainant testified that his father had returned to Jamaica and was unavailable to testify.
25On June 25, 2015, the first day of trial, Judith Martin, the only other eyewitness, was present at court. After the appellant testified, defence counsel (not Mr. Fedorowicz) informed the trial judge, “I have one more witness”. As the court day closed out, at the request of the defence, Monahan J. bound the witness over to appear on the date scheduled to complete the trial, November 25, 2015. On November 20, defence counsel informed the court that Ms. Martin had been in attendance at the courthouse but, having decided not to call her to testify, he had told her that she was free to go.
THE CONVICTION APPEAL
The Grounds of Appeal
26On behalf of the appellant, three grounds of appeal were submitted:
(1) the trial judge misapprehended the evidence by failing to take account of evidence supportive of the appellant’s version of events:
(a) the “splayed out” sandals in the garage proximate to the interior access door probative of a trip or fall by the complainant
(b) the only independent evidence of the location of blood were the police photos of the garage interior supportive of the complainant sustaining self-injury in the garage not in the home’s interior
(c) the unnegotiated cheque in the appellant’s chequebook confirming the appellant’s account of a dispute over rent with Campbell earlier in the day on July 8, 2014
(2) the trial judge erred in concluding that there was “corroboration in the blood evidence … as well as the serious injuries to his hand and forehead” – this evidence was not confirmatory of how the complainant suffered the injury to his hand
(3) the trial judge erred in applying a higher level of scrutiny to defence evidence:
(a) though self-instructing to be cautious about the complainant’s evidence, the court unfairly diminished the significance of Campbell’s prior criminal record and his admitted misleading of courts through “bogus” guilty pleas
(b) inconsistencies in the complainant’s evidence were downplayed without explanation:
(i) the complainant’s equivocation as to whether the appellant used his right or left hand to strike him
(ii) the complainant’s shift from stating that he had been stabbed in the head to speculating that the blow may have been with the butt of a knife
(iii) the complainant said nothing in his police statement about the appellant threatening to kill him
(c) the absence of any evidence “corroborating the complainant’s assertion that he had been cut at the front door of the house”
(d) failure to assess the “obvious question” as to why, on the complainant’s evidence, he would rush outside to take a photograph of Martin’s vehicle thereby moving “in the direction of the individual that had just stabbed him with a knife”
(e) the manner of the trial judge’s rejection of the appellant’s evidence respecting the July 8 rent dispute and the likelihood of Campbell remaining angry about the matter later that evening
(f) although the appellant testified in a straightforward manner, the court unreasonably concluded that his evidence was “fanciful … devoid of common sense”.
Alleged Misapprehension of Evidence
27As summarized in R. v. Doodnaught, 2017 ONCA 781, at para. 71, a misapprehension of evidence “may involve a failure to consider relevant evidence; a mistake about the substance of evidence; a failure to give proper effect to evidence or some combination of these failings: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 218”.
28The limits of the scope of appellate review in the case of a misapprehension of evidence submission were summarized in R. v. C.B., 2017 ONCA 862, at paras. 41-46:
41 Where a verdict is not unreasonable, an appeal court must next determine whether an alleged misapprehension of evidence occasioned a miscarriage of justice under s. 686(1)(a)(iii) of the Criminal Code. To constitute a miscarriage of justice, the trial judge must have misapprehended evidence going to the substance of the evidence material to the trial judge's reasoning process that resulted in conviction: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 4.
42 To succeed on an appeal alleging misapprehension of evidence, the appellant must show two things.
43 First, the appellant must show that the trial judge did in fact misapprehend the evidence in that he or she: (1) failed to consider evidence relevant to a material issue; (2) was mistaken as to the substance of the evidence; or (3) failed to give proper effect to the evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (Ont. C.A.), at pp. 538-540.
44 Second, the appellant must show that the trial judge's misapprehension of the evidence was central to the trial judge's reasoning. The misapprehension must be substantial, material, and play an essential role in the decision to convict: Morrissey, at pp. 538-540. This can include evidence that goes to elements of the crime charged, assessments of credibility, and proof beyond a reasonable doubt, so long as the misapprehension was essential to the conviction.
45 With regard to credibility assessments, only where the assessment is central to the decision to convict and only where an alleged misapprehension is central to that credibility assessment can there a case for miscarriage of justice.
46 Where such an alleged misapprehension involves a failure to allude to specific evidence, the claim can only succeed if the failure to allude to evidence demonstrates that the trial was unfair and the verdict was not a "true" verdict: Morrissey, at pp. 538-540.
(footnotes omitted)
See also R. v. Mugabo, 2017 ONCA 323, at para. 30; R. v. Marshall, 2017 ONCA 801, at paras. 54-5; R. v. Orwin, 2017 ONCA 841, at para. 45.
29An assertion of misapprehension of evidence can easily, but improperly, become an invitation to have the appellate forum retry the case: R. v. D.C., 2017 ONCA 143, at para. 8; R. v. Moore, 2017 ONCA 217, at para. 7. Accordingly, under the rubric of alleged misapprehension of evidence, a reviewing court cannot be asked to “reweigh the evidence and draw different conclusions”: R. v. Karigar, 2017 ONCA 576, at para. 51 (appln for leave to appeal filed [2017] S.C.C.A. No. 385).
30In my view, the submission of material misapprehension of evidence on the part of the trial court is not reasonably sustainable on consideration of the whole of the court’s reasons for judgment.
31Turning first to the two sandals in the garage photographed by the police (Appeal book, pages 40, 42, 43), pointing in different directions and at different levels and locations at the interior garage door heading into the house, the complainant denied any trip or fall at that location. He could not recall what footwear he was wearing on July 8, 2014. In support of the appellant’s account of the complainant falling in the garage, the defence pointed to the condition of the sandals to variously speculate that Campbell tripped over the sandals “laying on the stairs” or fell out of his sandals as he rushed into the garage. In closing submissions, the defence highlighted the sandals’ evidence. In his reasons for judgment, the trial judge reviewed the evidence relating to the sandals and concluded, on the whole of the evidence, that there had been no trip on the part of the complainant “falling on his flip flops”. There was no misapprehension of evidence. The trial court’s conclusion was reasonably based upon evidence accepted by the court.
32The trial judge was familiar with the police photos of blood in the garage made exhibits at trial. The fact that the police identification work was confined to the garage, perhaps because the complainant and his father had departed in the ambulance for the hospital, does not mean that there was no blood in the front foyer of the residence or that the limits of the police photography should diminish the credibility of the complainant. At its highest, the defence argument was that there was no objective forensic confirmation of injuries sustained at the home’s front door. The trial judge considered the relevant submission in the defence closing and concluded that, in the final analysis, the absence of photos from the interior was “of no great moment one way or the other”. This finding was fairly and reasonably open to the trial judge and no misapprehension of evidence occurred.
33The appellant’s chequebook containing the unnegotiated July 2014 rent cheque, said to demonstrate that Campbell “had not been straightforward about his relationship” with the appellant, was made an exhibit at trial. The trial judge had the opportunity to hear the appellant’s evidence about the rent cheque and defence counsel’s relevant closing submissions. The cheque was not independent of the appellant – the document amounted to what might be described as a late rent cheque – while the appellant maintained that it was prepared on July 8, there was no evidence, apart from the appellant’s evidence, that that was so as opposed to after his arrest. There is no reason to conclude that the trial judge did not consider the cheque book evidence and give it the weight he believed it should be accorded on the whole of the evidence.
The Corroboration Issue
34“Corroborative evidence is always helpful and does strengthen the evidence of the party relying on it”: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 80. Not infrequently, counsel and courts use various terms interchangeably, such as ‘corroborative’ or ‘confirmation’ or ‘support for’, without intending to convey the legal or formal notion of corroboration which, as commonly understood, refers to evidence from a source other than the witness whose evidence is challenged which is capable of confirming the veracity of the challenged witness”: R. v. Zou, 2017 ONCA 90, at para. 40.
35At the outset of his closing submissions at trial, defence counsel submitted:
Your Honour, it’s my submission that the entirety of the case against Mr. Honnigan rises and falls on the evidence of Mr. Clayton Campbell, who was the only Crown prosecution witness to be called in the case. And, although, my friend might say well, there’s confirmatory evidence. You know, he’s saying that he was stabbed by Mr. Honnigan and he had an injury. It’s my submission that, that, that isn’t enough confirmatory evidence on the Crown’s side of the case because even how he received the injury depends on what Your Honour, Your Honour finds with respect to Mr. Clayton Campbell’s credibility.
36Thereafter, again in closing submissions, counsel submitted on multiple occasions that there was “nothing” corroborating the complainant’s evidence and in particular that he had been stabbed at the front door of his residence. At one point, there was this exchange:
DEFENCE COUNSEL: What I’m suggesting is there’s no corroboration of the complainant on that point.
THE COURT: But does there have to be?
DEFENCE COUNSEL: I’m suggesting with his credibility issues, there has to be. There has to be something more than simply Mr. Clayton Campbell making the assertions in this circumstance…
37There was of course no suggestion that Campbell was an untrustworthy or disreputable witness whose evidence would attract a Vetrovec-level caution. The trial judge made an express finding that the cut to the complainant’s thumb was “quite severe … swollen and red”. Review of the relevant exhibit photos (Appeal book, pages 14-16) emphatically supports this description as accurate with the cutting injury beginning on the dorsal surface of the left thumb, extending along the right lateral surface and across the ventral plane of the digit. A fair reading of the trial judge’s concluding observation in his reasons for judgment relating to the blood and the nature of the documented injuries as corroborative of the complainant’s version of events is that the court was concluding that that evidence was supportive and more consistent with injuries sustained in a defensive posture repelling an attack rather than a severe hand injury caused by a fall.
38There is no reversible error relating to the manner in which the trial court considered the blood and injury evidence.
The Uneven Scrutiny Argument
39An uneven scrutiny submission relating to the manner in which a trial judge, in reasons for judgment, assessed the respective evidence within the prosecution and defence cases has long been recognized as “a difficult argument to make successfully”: R. v. R.B., 2017 ONCA 75, at para. 12; R. v. C.F., 2017 ONCA 480, at para. 97; and Orwin, at para. 33:
This argument, or some variation of it, has become a staple in appeals from conviction in judge alone trials where the evidence sets the word of the complainant, on the one hand, against the denial of the accused, on the other, with the result contingent upon the trial judge's credibility assessments. This is a difficult argument to advance successfully. An appellant must do more than show that a different trier of fact could have decided credibility differently. Or that the trial judge left something out that she could have said in assessing the respective credibility of the principals. Or that the trial judge failed to set out, in express terms, legal principles relevant to that credibility assessment. To succeed the appellant must point to something in the trial judge's reasons, or perhaps elsewhere in the trial record, that makes it clear that the trial judge applied different standards in assessing the evidence of the appellant and the complainant: R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59.
40To similar effect are the observations in R. v. Radcliffe, 2017 ONCA 176, at paras. 22-26:
22 In my assessment of this claim of uneven scrutiny, I keep in mind several basic principles.
23 First, as the appellant recognizes, this is a difficult argument to make successfully. The reasons are twofold. Credibility findings are the province of the trial judge. They attract significant appellate deference. And appellate courts invariably view this argument with skepticism, seeing it as little more and nothing less than a thinly-veneered invitation to re-assess the trial judge's credibility determinations and to re-try the case on an arid, printed record: R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59; R. v. George, 2016 ONCA 464, 349 O.A.C. 347, at para. 35.
24 Second, to succeed on an uneven scrutiny argument, an appellant must do more than show that a different trial judge assigned the same task on the same evidence could have assessed credibility differently. Nor is it enough to show that the trial judge failed to say something she or he could have said in assessing credibility or gauging the reliability of evidence: Howe, at para. 59.
25 Third, to succeed on the argument advanced here, the appellant must point to something, whether in the reasons of the trial judge or elsewhere in the trial record, that makes it clear that the trial judge actually applied different standards of scrutiny in assessing the evidence of the appellant and complainant: Howe, at para. 59; George, at para. 36.
26 Fourth, in the absence of palpable and overriding error, there being no claim of unreasonable verdict, we are disentitled to reassess and reweigh evidence: George, at para. 35; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20.
41Campbell was cross-examined at trial, laboriously and intensively, upon his propensity for dishonesty. Defence counsel at trial submitted that it was, not so much the fact of the complainant’s prior convictions which should give the trier of fact concern about his credibility, but rather the deception of two courts on previous occasions that he was guilty while claiming in the present trial that he was factually innocent of those charges. In his reasons for judgment, the trial judge agreed with the defence submission that some “caution” was warranted and that it was “a concern that he [the complainant] was prepared to tell the court that he was guilty of certain offences” while presently maintaining he was not guilty of those crimes. That said, the trial judge, with the inestimable advantage of seeing and hearing the witnesses, and careful analysis of the logical and common sense of the testimonial accounts, was entitled to make a favourable determination of Campbell’s evidence.
42The trial court was within its fact-finding jurisdiction to give what weight it felt was warranted in terms of consistencies, or perceived inconsistencies, in the complainant’s evidence.
43The complainant was more certain that the appellant used his right hand to stab him than his left hand. On his account, Campbell had to react in a split second to try to defend himself. While the appellant may be left-handed, on the evidence that he was holding Martin’s hand as he sought to push his way through the front door, it is not at all inconceivable that his right hand was free to draw and use a knife. In the end, the trial judge, having reviewed all of the relevant evidence on this issue, concluded that the appellant “likely used his right hand” to attack Campbell. That finding was reasonably available on the evidence.
44The complainant testified that the second blow delivered to his person was the one delivered to his head. He had an arm up trying to protect himself. In his trial evidence, the witness variously described the blow as a stab, a jab and a poke. In his police statement, the complainant said that he thought he may have been struck with the handle of the knife. Given the circumstances of the attack as described, and the complainant’s efforts to protect himself, it is not apparent that he saw how the knife struck his forehead as opposed to feeling the blow. The photographic evidence depicts a chunk of skin gone from Campbell’s forehead. Defence counsel raised the alleged inconsistency with the trial judge which was undoubtedly considered by the court and given the weight it was felt that it properly deserved.
45In his testimony, the complainant agreed in cross-examination that in his statement to the police he had not included reference to a threat by the appellant to kill him. However, the witness was not asked the reason for the omission. Given this circumstance, and seeing the complainant testify, including the manner in which he responded, “I didn’t make it up”, the trial judge was entitled to conclude that Campbell was nevertheless being truthful that the appellant did utter a threat before attacking him.
46The appellant’s characterization in his factum of “[i]nconsistencies between Campbell’s [e]vidence and the [p]olice [i]nvestigation”, relating to the photographed location of blood, has in part been discussed at para. 32 above. This is not an inconsistency. As observed in Bumstead v. Dufresne, [2017] ABCA 122, at para. 9 (appln for leave to appeal refused [2017] S.C.C.A. No. 226), “Assigning little weight to evidence, or preferring some evidence over other evidence, is not the same thing as ignoring evidence”.
47In terms of the trial court’s approach to the appellant’s evidence, and specifically the alleged failure of the trial judge to ask himself the obvious question as to why, if the complainant had been attacked at he described, he would come outside and move forward through his garage when an armed appellant remained out front, these observations are warranted. In closing submissions, defence counsel raised this argument with the trial judge. While at the front door, the complainant heard the appellant call Ms. Martin to come away. On the appellant’s own evidence, he was on the street when the garage overhead door opened. Accordingly, there was a considerable distance between the principals. There was a basis in the evidence for the trial judge to conclude in his reasons for judgment that when Campbell entered the garage, he believed that the appellant “had taken off or was in the process of doing so and Ms. Martin was doing the same”.
48The appellant’s argument relating to the significance of the unnegotiated cheque produced by the appellant at trial, recast as an instance of uneven scrutiny, is no more persuasive that when argued as an alleged misapprehension of evidence ground of appeal.
49Finally, believing as he does that he testified in a straightforward manner, “never seriously shaken in cross-examination”, the appellant submitted that the trial judge erred in concluding that his version of events was “fanciful…devoid of common sense”. Having heard and seen the witnesses testify, and properly self-instructed on W.D. burden of proof principles, the trial judge provided lengthy, detailed and careful oral reasons on the date when closing submissions were completed. A fair and contextual reading of the court’s reasons does not reveal any imbalance in terms of unfair criticism of the defence evidence or a posture of more generous and understanding of weaknesses in the prosecution case.
50The appellant was the beneficiary of the court not raising the issue as to whether, in the circumstances as they unfolded at trial, his failure to call Judith Martin as a witness should be seen as diminishing the credibility of his account. More significant is the generous decision of the court not to have given substantive admissibility for the truth of its contents, to Campbell’s spontaneous, excited utterance that the appellant had stabbed him (see R. v. Carty, 2017 ONCA 770, at paras. 4-12).
51Be that as it may, the judicial experience of the court, applying logic and common sense, resulted in a verdict reasonably grounded in the evidence based upon articulated reasons. The appellant’s account of Campbell accidentally and seriously stabbing himself received the credit it deserved.
The Sentence Appeal
52The appellant is 36 years of age. He has no criminal record. The sentencing court was informed that the appellant was employed full time doing electrical installations and working toward being a licenced electrician. He had four children for whom he provided some child support – two in Canada, and one in each of Jamaica and the United States. The appellant continues as well to provide financial support to his mother in Jamaica.
53Employment/character letters were filed with the court in the sentencing hearing. As well, a letter from the Ontario College of Trades confirmed the appellant’s electrician journeyman qualification and eligibility to write the Certificate of Qualification exam.
54The appellant, a citizen of Jamaica, came to Canada in 2006. He became a permanent resident of Canada in 2012, not a citizen. As such, ss. 36(1)(a) and (3)(a) of the Immigration and Refugee Protection Act (IRPA) provide that:
36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
(3) The following provisions govern subsections (1) and (2):
(a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily;
Because the sentencing hearing in this case took place before the decision in Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, the court and the parties were erroneously of the view that the phrase “term of imprisonment” included conditional sentences.
55Where a person becomes inadmissible on account of s. 36(1)(a) “serious criminality”, he may become the subject of an admissibility hearing as provided for by ss. 44(1)(2) of the IRPA:
44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.
(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.
56Where a removal order is made, s. 64(2) of the IRPA governs the appeal process:
64 (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(b) or (c).
57No victim impact statement was filed before the sentencing judge.
58Before the sentencing court, the appellant sought to have a conditional discharge and probation imposed primarily in an effort to avoid the collateral consequence of serious criminality immigration status risking deportation. In the alternative, it was submitted that the court ought to consider a conditional sentence in the range of 90 to 120 days.
59The Crown opposed imposition of a conditional discharge, submitting that the gravity of the offence and the necessity for a deterrent sentence made a discharge disposition unfit. The prosecutor submitted that incarceration of 30 to 60 days’ duration, which could be served intermittently, together with probation and certain corollary orders should be imposed. After hearing defence counsel’s alternative submission for a conditional sentence, Crown counsel informed the court that, “In terms of a conditional sentence, I wouldn’t be opposed, assuming he’s eligible “under s. 742 of the Criminal Code.
60The sentencing court’s reasons include the following features:
(1) the assault with a weapon was a crime of violence, committed with a knife and an accompanying threat to kill – the assault, which resulted in a serious injury to the victim’s hand, could have been much worse had the victim not engaged in defensive steps
(2) the victim did not provoke a confrontation by preventing entry to the home where the appellant resided as a tenant
(3) the appellant showed no remorse disentitling him from the mitigation otherwise available from the presence of such contrition
(4) the appellant’s lack of a prior criminal record is a “significant mitigating factor” and “[t]he only mitigating circumstance” in this case
(5) as to potential immigration consequences of sentencing, (a) such a collateral consequence is a relevant factor, (b) any disposition other than a discharge would result in the appellant being classed in the serious criminality category under the IRPA, (c) imprisonment longer than 6 months would deprive the appellant of a right of appeal, (d) a conviction would “very likely” lead to referral for an immigration admissibility hearing, (e) while “the precise immigration consequences for Mr. Honnigan” if a conviction was registered “are uncertain”, there will be “some immigration consequences” for the appellant
(6) a conditional discharge would not be in the public interest and not a fit sentence in the circumstances, in particular considering precedential Ont. C.A. authorities, the nature of the assault resulting in injury, the absence of remorse, the appellant’s inability to control his anger, the absence of “extenuating” or “exceptional circumstances”, and the requirements of denunciation as well as specific and general deterrence
(7) as to the option of a conditional sentence, the sentencer dealt with such a disposition in this order in his reasons:
(a) acknowledgement that the Crown was not opposed to such a disposition
(b) a conclusion that “this is a case in which only a period of incarceration” would satisfy relevant sentencing principles
(c) then, in dealing with “the potential” for a conditional sentence, such a disposition was held to be inappropriate having regard to:
(i) public safety and risk of reoffence – the appellant produced “no evidence” that “he has taken any anger management training”
(ii) the requirements of denunciation and specific and general deterrence
(iii) a sentence longer than 6 months would have serious immigration consequences for the appellant
(8) in all the circumstances, a custodial sentence of 60 days was considered to be at the low end of the range of a fit sentence.
61The standard for appellate intervention on an appeal from sentence is circumscribed to determining whether a fit sentence was imposed by the trial court. The limits of review are clearly articulated in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 36-72.
62On the record here, as summarized at para. 60(5) above, it cannot be said that the sentencing judge failed to consider, as an aspect of his proportionality analysis, the potential immigration consequences for the appellant should a conviction be entered. Such a collateral consequence was considered but, on the totality of the circumstances, not seen to be a factor capable of overcoming other relevant features of the case favouring imprisonment: R. v. Regis, 2017 ONCA 848, at para. 6. In R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 16, the court stated:
These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk.
63There was no error on the part of the sentencing court in its treatment of the immigration consequences issue.
64Turning to the trial judge’s rejection of a conditional discharge as an appropriate disposition, the sentencing court reviewed applicable jurisprudence from the Ontario Court of Appeal (R. v. Huh, 2015 ONCA 356; R. v. Wood (1975), 1975 CanLII 1410 (ON CA), 24 C.C.C. (2d) 79 (Ont. C.A.)) as well as authorities from this Court in this judicial region: R. v. Land, [2000] O.J. No. 4983 (S.C.J.); R. v. Hayes, [1999] O.J. No. 938 (S.C.J.). The sentencing judge specifically noted the guidance set out in Huh, at para. 12:
We adopt the observation in R. v. Wood (1975), 1975 CanLII 1410 (ON CA), 24 C.C.C. (2d) 79 (C.A.), at para 4: "[i]n cases of violence resulting in injury the requirement of general deterrence to the public militates, in almost every case, against the grant of a conditional discharge, notwithstanding considerations personal to the accused."
65In finding a conditional discharge to amount to a disproportionately lenient disposition, the court took account of relevant factors including the circumstances of production and use of a weapon, the nature of the weapon, the injuries inflicted, and the unavailability of the mitigating factor of remorse. In the circumstances, there is no basis for interfering with the presumptive deference owed the trial court in its assessment that a conditional discharge would not be in the public interest.
66Apart from the influence of pre-Tran thinking, the sentencing court’s rejection of a conditional sentence as a fit disposition is more problematic. The trial judge concluded that “incarceration” was necessary before assessing the fitness of imprisonment being served on a conditional basis. As acknowledged by the respondent on appeal, the court erred in concluding that the lack of a prior criminal record was the sole mitigating circumstance. There was, in addition, evidence of the appellant’s good character, stable employment and support of his children. And significantly, without clear explanation, no weight was accorded the Crown’s agreement that a conditional sentence, not exceeding 6 months less a day, would not be an unfit disposition in the circumstances of this case. The trial Crown’s position was fairly repeated by Mr. Presswood before this court. While not perhaps an entirely joint submission before the sentencing court (see R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, at fn 1), and whether described as erroneous consideration of a relevant factor or unreasonable under-emphasis of a relevant factor, the Crown’s position had to be treated as an important consideration. In these circumstances, the deference ordinarily extended to a trial court’s reasons for sentence is unavailable.
67Having regard to the totality of the circumstances, including the prosecution position respecting the fitness of a conditional sentence of imprisonment, such a disposition would not endanger the community and would be consistent with the fundamental purpose and principles of sentencing.
68The sentencing court neglected to extend to the appellant his personal right of allocution pursuant to s. 726 of the Criminal Code allowing an opportunity to speak on his own directly to the issue of a fit sentence.
69The appellant has served 6 days’ incarceration (2 days at arrest and 4 days prior to bail pending appeal).
70The appeal against sentence is allowed to the limited extent of setting aside the sentence of incarceration. The probation order, weapons prohibition order, and DNA order remain legally valid.
71With credit for 6 days’ pre-disposition custody, the appellant is sentenced to 9 months’ imprisonment to be served on a conditional basis on the mandatory statutory terms of s. 742.3(1) of the Code as well as the following optional conditions:
(1) for the first 4 months of the sentence, the appellant shall remain within his residence on a daily basis without exception between midnight and 6:00 a.m. of the next day; and from 6:00 a.m. to midnight on any day of the sentence he shall remain within his residence subject to the following exceptions with travel to be limited directly to and from, and attendance at, the described exception:
(a) attendance at scheduled meetings with a conditional sentence order (CSO) supervisor or probation officer
(b) the performance of lawful employment, schooling, or training activities as reported to the CSO supervisor
(c) for one (1) 4-hour time per week, as scheduled with the CSO supervisor, shopping for necessities
(d) attendance at scheduled medical appointments as pre-reported to the CSO supervisor
(e) such further and other exceptions as may be granted by the CSO supervisor
(2) no communication or contact, directly or indirectly, with Clayton Campbell.
CONCLUSION
72The appeal against conviction is dismissed.
73The appeal against sentence is allowed in the terms described in paras. 70-71 above. The appellant is ordered to appear forthwith at the Brampton courthouse to formally execute the conditional sentence order.
74It is ordered that the clerk of the appeal court comply with Rule 40.23(1) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) as to distribution of these Reasons for Judgment.
Hill J.
DATE: December 11, 2017
CITATION: R. v. Honnigan, 2017 ONSC 7406
COURT FILE: SCA(P) 1872/16
DATE: 2017 12 11
ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
RE: R. v. DAMION HONNIGAN
COUNSEL: C. Presswood, for the Respondent
R. Fedorowicz, for the Appellant
REASONS FOR JUDGMENT
[on appeal from conviction Monahan J. on November 20, 2015 and the sentence imposed on September 16, 2016]
Hill J.
DATE: December 11, 2017