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Tom Rees | Criminal Defence Lawyer Winnipeg
15
Jan

Sentence reduced by 4 months for Assault Cause Bodily Harm

Winnipeg defence lawyer appeals mans conviction and sentence for assault causing bodily harm.

The man was convicted of Assault Causing Bodily Harm after a trial. The trial convicted him after viewing a video tape of the incident.

[2]  The accused was involved in an assault with several other individuals arising from a drunken brawl that occurred at the Northern Hotel.  The accused argues that the verdict of the trial judge was unreasonable and unsupported by the evidence and the trial judge’s reasons were insufficient.

[3]  While there was viva voce evidence at trial, the evidence relied on by the trial judge to come to his conclusion was primarily the videotape of the assault.  The accused submits that the inferences drawn by the trial judge based on a viewing of the videotape were not reasonable and were not adequately explained in his reasons.

The test for an appeal based on unreasonable verdict:

[4]  The test for appellate intervention on the basis of an unreasonable verdict is whether, on the whole of the evidence, the verdict is one that a properly instructed trier of fact, acting judicially, could reasonably have rendered.  The standard of review with respect to reasons for decision is a standard of adequacy.  See R. v. Flores (R.B.), 2013 MBCA 4 (CanLII) at paras. 19, 21, 288 Man.R. (2d) 173.

With respect to the conviction appeal:

[7]  Those are findings of fact which should not be interfered with unless there is no evidence to support them or a misapprehension of evidence.  There was evidence which supported the trial judge’s findings i.e., the videotape of the assault itself.  Moreover, in the context of the evidence and submissions of counsel, the trial judge’s reasons were sufficient.  We see no grounds for appellate intervention.

However, the court took a different view of the sentence appeal:

[8]  We take a different view with respect to the appeal as to sentence.   We believe that the trial judge did not give adequate consideration to s. 718.2(e) of the Criminal Code and the factors discussed by the Supreme Court of Canada in the cases of R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, and R. v. Ipeelee, 2012 SCC 13 (CanLII), [2012] 1 S.C.R. 433, and that he overemphasized the factors of denunciation and deterrence.

The court reviewed the circumstances of the accused person:

[10]  The accused has no previous record for violence whatsoever and has had no criminal involvement for over six years.  He is co-parenting a child.  He has a positive reference from his former employer and a relatively positive pre-sentence report.  He has been accepted into a program to upgrade his skills and education which starts next month.

[11]  He has already served approximately five months of his sentence from the time of sentencing on January 22, 2014, to the time of his release on judicial interim release on June 26, 2014.  The Crown conceded during oral submissions that it would serve no purpose to return the accused to jail at this point in time, and we agree.  This may be considered to be tinkering, but it is tinkering which will allow the accused to start his educational program next month and continue his efforts to turn his life around.  In our view, this is in keeping with the principles articulated in Gladue and Ipeelee.

Justice Steel varied the sentence to five months of custody, but did not vary the probation portion of the sentence.

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