



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lewis, 2016 ONCA 690

DATE: 20160920

DOCKET: C61702

Gillese, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Derek Lewis

Appellant

Catriona Verner, for the appellant

Luke Schwalm, for the respondent

Heard: September 14, 2016

On appeal from the conviction entered on April 1, 2016
    and the sentence imposed on April 24, 2016 by Justice Ronald J. Richards of the
    Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted on several counts relating to an alleged
    assault and robbery of the complainant during a drug transaction: assault
    causing bodily harm; robbery; uttering a death threat; and breach of a
    probation order.

[2]

The appellant appeals only his conviction for robbery. His argument is a
    narrow one  the insufficiency of the trial judges reasons.

[3]

The appellant contends the trial judge must not have accepted certain
    parts of the complainants evidence because he did not convict the appellant on
    the charge of aggravated assault, but only on the lesser included offence of
    assault causing bodily harm. In light of that, the appellant argues the trial
    judge was obligated to explain in his reasons how he dealt with the complainants
    conflicting evidence relating to the robbery count, specifically the
    complainants confusing evidence about what sum of money was taken from him
    during the assault.

[4]

The appellant submits the trial judge failed to do so, stating only in
    his reasons:

In respect to the count of robbery, while the court accepts
    that some money was handed over to Mr. Lewis voluntarily as part of the attempt
    to obtain his pill, the court also accepts that other monies, while not
    specifically stated, were obtained through the violent attack and threats by
    Mr. Lewis, and thus the count of robbery has been proven beyond a reasonable
    doubt.

[5]

The appellant submits those reasons are insufficient to support the
    conviction for robbery, and that conviction should be set aside.

[6]

We do not agree. The trial judges reasons provided a sufficient
    explanation of the basis for convicting the appellant on the robbery count and
    responded to the theory of the defence that the complainant was an unreliable
    witness who was confused about matters concerning the essence of the robbery
     where he kept the money on his person and the denominations taken from him.

[7]

The complainant testified that on the day in question he had pawned his
    X-box for $150 before embarking on his search to purchase drugs. The Crown
    filed a receipt from the pawnshop for that transaction. The complainant
    testified he received from the pawnshop a $50 bill and five $20 bills.

[8]

The complainants testimony was inconsistent about the amount of money he
    voluntarily handed over to the appellant to purchase drugs, the precise
    denominations he used, and where he had kept the money on his person. The trial
    judge was alive to the inconsistencies. As he noted in his reasons: [t]here is
    confusion over the amounts of money and where they were kept on his person.

[9]

However, the complainant was consistent in his evidence that during the
    assault the appellant forced him to hand over more money. This led the trial
    judge to conclude: [o]ne thing certain from his testimony is that he had $150
    from the X-Box sale and some of that money was handed over voluntarily for
    drugs and some was not voluntarily handed over. The amount really does not
    matter. Although the trial judge acknowledged imperfections in the
    complainants evidence, he held that these areas of imperfection would not
    affect his reliability or his credibility. Having accepted the complainants
    evidence that the appellant forced him to hand over money, the trial judge
    concluded that other monies, while not specifically stated, were obtained
    through the violent attack and threats by Mr. Lewis.

[10]

These reasons on the robbery count were sufficient in the circumstances.
    They clearly explained why the trial judge found the complainant reliable and accepted
    the complainants consistent evidence that he did not voluntarily hand over all
    his cash to purchase drugs, but had retained some, only to be forced to part
    with some of it as a result of the appellants assault. Read in their entirety
    and in the context of the evidence, the reasons show why the judge decided as
    he did:
R. v. Vuradin
, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 15.

[11]

Finally, the trial judges decision to dismiss the charge of aggravated
    assault and convict of the lesser and included offence of assault causing
    bodily harm did not, as the appellant suggests, show that the trial judge
    disbelieved parts of the complainants testimony. The trial judge explained
    that some of the complainants injuries were caused by a fall he suffered
    subsequent to the assault and it was not possible to conclude, with the
    requisite degree of certainty, which injuries were caused by the assault and
    which were caused by the subsequent fall.

[12]

The appeal is dismissed.

E.E. Gillese J.A.

Paul Rouleau J.A.

David Brown J.A.


