



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lawrence, 2018 ONCA 464

DATE: 20180517

DOCKET: C64392

Doherty, Epstein and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Stephen Lawrence

Appellant

Ian Carter, for the appellant

Rebecca De Filippis, for the respondent

Heard: May 10, 2018

On appeal from the conviction entered on April 19, 2017 by
    Justice Diane M. Lahaie of the Ontario Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

Background Facts

[1]

The appellant and the complainant were drinking together in the evening at
    the complainants house.  No one else was home.  The appellant was severely
    intoxicated, but the complainant was not.  The complainant had to work the next
    day and drank moderately.  The appellant became boisterous, and the complainant
    asked him to simmer down.  The complainant went into the bathroom, and when he
    emerged, the appellant knocked him to the ground and bit off a large portion of
    his ear.  The complainant felt a sharp pain and blood running onto his skin.  He
    applied paper towels to his ear.  The appellant spat the complainants ear out
    onto the bar.  The complainant yelled at the appellant to leave and called 911. 
    He retrieved his ear and placed it on ice in a zip-lock bag.  He then was taken
    to the hospital.  Doctors reattached the complainants ear.  The next morning,
    the appellant and the complainant exchanged text messages.  The appellant noted
    that he could not remember coming home and hoped he had not become a super ass
    hole last night, to which the complainant responded that the appellant had bit
    his ear off and he might lose it.  The appellant responded O fuck me. 
    Unfortunately for the complainant, weeks later his reattached ear fell off.

[2]

In his statement to the police, the appellant could not recall what
    happened at the complainants house.  He also confirmed that there was no one
    else at the residence.  It was obviously him, and he was not denying it.

[3]

The appellant was charged with aggravated assault.

The Trial

[4]

The trial was short.  The Crowns case was completed in a day and
    consisted of the complainants testimony, the appellants police statement,
    photographs of the complainants ear taken the day before trial, text messages,
    and the complainants hospital records from the night of the incident.  The
    defence called no evidence.

[5]

At trial, the appellants theory was that the complainant was an
    alcoholic, who was intoxicated on the night of the offence, and did not
    remember and could not describe what had happened or how the injury occurred. 
    As such, the Crown was unable to establish the
actus reus
of the
    offence, that there was objective foresight of bodily harm, or that the appellant
    was not acting in self-defence.

[6]

The trial judge rejected the appellants theory and accepted the
    position of the Crown.  She found the complainant to be credible and reliable. 
    She accepted his evidence that he had been drinking to moderation because of
    work the next day and that alcohol had not impaired his perception of what the
    appellant had done to him.  She was not left in any doubt that the appellant
    had bitten off the complainants ear:

I find that the accused lost it when he was told to simmer
    down by the complainant as he went to the washroom.  When the complainant
    returned, the accused threw him to the floor, jumped on top of him, and bit his
    ear off, spitting it out onto the bar.

Grounds of Appeal

[7]

The appellant raises two grounds of appeal.

[8]

First, he submits that the trial judge failed to resolve alleged
    material inconsistencies in the complainants evidence on critical issues: his description
    of the attack and his description of his wifes stance on his drinking. Second,
    he submits that the trial judge impermissibly speculated about the cause of the
    injury.

[9]

We do not accept either argument.

[10]

Regarding
    alleged inconsistencies in the complainants evidence, the trial judge considered
    the alleged inconsistencies.  She acknowledged that there was no mention in the
    complainants statement to the police that the appellant got on top of him and
    that this was a detail the complainant provided at trial.  However, it did not
    affect her assessment of the complainants credibility or reliability.

[11]

Second,
    the complainant never claimed to have a specific memory of the appellant biting
    off his ear.  In his examination-in-chief, he testified:

Q.  And what happened?

A.  He had  before I knew it he had, my ear was bitten off and
    I  I felt to the side of my head and I could feel the blood, so there was a
    roll of paper towels on a bookshelf directly in front of it, which I put on the
    ear, cause the blood was running down my face, and then I - I started yelling
    at him to get out of the house.

Q.  And do you remember at what point you realised that it was
    your ear?

A.  Well, when I felt the blood running down the side of my
    face, I had a sharp pain.

[12]

Similarly,
    in his statement to the police, he agreed that he did not feel when it
    happened, the bite to the ear.  There was no inconsistency.

[13]

Significantly,
    the trial judge found that the appellant had spat the complainants ear out
    onto the bar. This finding was available to her based on the evidence given by
    the complainant.  In the face of that evidence, there can be no serious dispute
    that the Crown had proven its case.  There really was no issue but that the
    appellant had bitten off the complainants ear.

[14]

The
    trial judge also addressed, in detail, the issue of the complainants wife and
    his drinking.  This argument was not pressed in oral submissions.  To the
    extent there was any inconsistency in the complainants evidence on his wifes
    stance on his drinking, it was minor in nature.

[15]

The
    Crown had a very strong case.  The trial judge was not required to review and
    resolve every inconsistency in the complainants evidence nor did she have to
    respond to every argument advanced by counsel.  At the conclusion of the
    evidence, the core of the complainants allegations against the appellant
    remained intact, namely, his ear had been bitten off by the appellant.

[16]

Regarding
    the appellants claim of impermissible speculation, the appellant complains
    that the trial judge found that the complainants injury resulted from a human
    bite in the absence of expert evidence.

[17]

We
    are unable to accept this submission.  The trial judge did not speculate. 
    Rather, she accepted the complainants uncontradicted testimony that the
    appellant had bitten off his ear.  Although the complainants appearance in
    court and the photographs could not independently establish a human bite, they
    were consistent with the complainants testimony.

[18]

For
    these reasons, the appeal is dismissed.

Doherty
    J.A.

Gloria
    Epstein J.A.

S.E.
    Pepall J.A.


