Court File and Parties

Court File No.: SCA 3/21 Date: 2022-04-12 Ontario Superior Court of Justice

Between: Her Majesty The Queen And: Donnovan Junior McLean, Appellant

Counsel: Daniel Gutman, for the Respondent Breanna Vandebeek, for the Appellant

Heard at Toronto: April 12, 2022

Before: S.F. Dunphy J.

Reasons for Judgment

[1] On January 7, 2020, Chapman J. convicted the appellant Mr. Donnovan Junior McLean of assaulting his pregnant wife Ms. S. P. and of assaulting her then 14 year old son Mr. M.P. with a weapon. Written reasons were released on January 7, 2020 and the sentence was rendered with oral reasons on December 18, 2020. Mr. McLean was given a sentence of 60 days intermittent with directions for late Friday check-in and early Monday release to interfere as little as possible with his work plus probation.

[2] The incident was an alleged domestic assault that occurred in the evening of June 28, 2018. This case was heard over two days. The Crown called the two complainants Ms. S.P. and Mr. M.P. The appellant testified in his own defence.

[3] On the Crown’s evidence, the appellant was alleged to have punched his wife in the parking garage of their apartment in the course of an argument about his alleged mistreatment of her 14 year old son Mr. M.P. and after she shoved him and slapped him. She reacted to his punches by returning her wedding rings to him, telling him their relationship was at an end and telling him to leave. He entered the apartment a few minutes later and was alleged to have punched her again when she tried to put a hand on his arm him to ask him to leave the apartment. She bit his thumb when he did this and he reacted by punching her some more and allegedly put his hands around her neck. Photographs introduced at trial showed her to have received a black eye, allegedly from this incident.

[4] Her son, Mr. M.P. witnessed this and tried to intervene by asking the appellant to stop. The appellant is alleged to have struck him repeatedly with the leg from a telescope causing injuries in the form of a number of cuts. Photographs introduced into evidence showed a number of cuts that were alleged to have been caused by this incident. The appellant is then alleged to have kicked Mr. M.P. violently causing hit to stagger back into the next room.

[5] The appellant’s evidence was to a very different effect. He only hit his wife on the side of her head in the parking garage after she would not stop slapping and shoving him and after he warned her to stop. Back in the apartment, he said that he merely pushed her away to get her out of his face and while doing so she bit his thumb. He hit her on the side of the head to make her let go of his thumb. Her son came into the room at this point and would not leave when asked to do so. The appellant said that he then grabbed Mr. M.P. by his arms. At this point. Mr. M.P. tried to trip him but fell. While on the ground he tried to kick Mr. McLean. Ms. S.P. then began trying to hit the appellant with the telescope leg hitting him at least once and missing a few times. On cross-examination, he suggested that the injuries to Mr. M.P. may have arisen from attempts by Ms. M.P. to hit him that went astray.

[6] The appellant appeals both conviction and sentence.

[7] The appellant raises three grounds of appeal regarding the conviction. First, the trial judge is alleged to erred in assessing the evidence by finding that there was no air of reality to self-defence. Second, the trial judge is alleged to have erred in relying upon a prior statement of the appellant that he did not recall making as a basis to undermine his credibility and reliability. Finally, the trial judge is alleged to have erred in relying upon a theory regarding injuries sustained by the complainants not advanced by the defence to undermine the appellant’s credibility.

[8] The trial judge carefully examined all of the evidence of the three witnesses. She considered their evidence in the context of the photographic evidence of the injuries sustained by the two complainants which she found to be consistent with the complainants’ evidence and inconsistent with the evidence of the accused. She gave detailed and coherent reasons for not accepting the evidence of the accused. She gave detailed reasons for finding the complainants’ evidence to be, on the whole, credible and reliable. Reading her reasons as a whole, I am not persuaded that the trial judge misapprehended the evidence in any material way or at all.

[9] I shall consider each of the three grounds of appeal of conviction below, although each is related to the other and is in reality an allegation of a misapprehension of the appellant’s evidence resulting in the learned trial judge’s rejection of that evidence.

[10] In paragraph 22 of her reasons, the learned trial judge wrote “I would observe that even on his own account Mr. McLean agrees that he assaulted both Mr. M.P. and his mother Ms. S.P. and there is no air of reality to either a self-defence claim, or a consent fight defence, in the circumstances described by him.”

[11] Mr. McLean described an incident where he did no more to his step-son than take him by the arms to restrain him from hitting him as he approached with balled fists. As described, his evidence is a long way from assault with a weapon (the charge the appellant faced in relation to Mr. M.P.) and certainly not a circumstance making self-defence an inconceivable defence to raise.

[12] Viewed in isolation, the statement in paragraph 22 appears to be in error. However, viewed fairly and in its full context, I am not persuaded that her reasons betrayed a misapprehension of the evidence so much as a moderately unfortunate choice of words. This broader context is found in a consideration of the second alleged error raised which I consider next.

[13] Mr. McLean was cross-examined about an alleged prior inconsistent statement to police. That statement was never proved by the Crown and of course could not be relied upon for the truth of its contents. Mr. McLean remembered making a statement to police the night of the incident when his memory was fresh but initially denied telling police that he had thrown Mr. M.P. to the ground. On further cross-examination on this point he said, “If I said that I stand corrected” and further added “I don’t remember saying to the officer that I threw [Mr. M.P.] to the ground”.

[14] The learned trial judge correctly found that she could not rely on the unadopted and unproved prior statement for the truth of its contents but found “Mr. McLean's inability to say with greater certainty whether or not he in fact said this to police” was a factor in assessing his credibility. This was by no means the only reason she rejected his evidence. She found other aspects of his evidence to be embellished and that his explanation for the photographic evidence of injuries to both complainants at odds with his account of events to “make absolutely no sense” this latter conclusion being in relation to the third ground of appeal raised.

[15] Read fairly and in context, I find no misapprehension of the evidence by the learned trial judge in the use made by her of the cross-examination exchange in question or in her rejection of the speculative evidence of the accused regarding the possible origins of the injuries sustained by both complainants. She had a reasonable foundation for these conclusions.

[16] It is not my role on a summary conviction appeal to substitute my views on credibility for the reasoned decision of the learned trial judge. She had the considerable advantage of hearing all of the evidence including cross-examinations and was not restricted to the dry reading of lifeless transcripts available to appellate judges. A summary conviction appeal is not a re-trial and requires the demonstration of material errors that played a role in the reasoning process leading to a conviction. That is not the case here. The grounds of appeal raised in respect of the conviction must fail.

[17] The appellant’s appeal of sentence must also fail. The learned trial judge did not fetter her discretion to consider making a conditional discharge order given that such a sentence might have had a lesser impact on the ability of the accused to sponsor his wife for permanent resident status in Canada. She considered that circumstance to be a collateral one and found that the weight of the parity principle, the necessity for denunciation and deterrence in the context of domestic assaults and the presence of the aggravating features of domestic assault and an assault upon a young person by a person standing in a position of trust or authority over him were not offset by any extraordinary circumstances. I find no error of reasoning in the sentencing reasons given by the learned trial judge and the resulting sentence was by no means manifestly inappropriate. To the contrary, it was sensitively constructed around the particular circumstances of this offender and objectively stands near the low end of the range of sentences that would be suggested by the parity principle.

[18] This appeal was dismissed from the bench with reasons to follow. These are those reasons.

Released: April 12, 2022 S.F. Dunphy J.