



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smith, 2014 ONCA 511

DATE: 20140702

DOCKET: C56597

Laskin, MacFarland and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Darren Smith

Appellant

Richard Litkowski, for the appellant

M. David Lepofsky, for the respondent

Heard: June 25, 2014

On appeal from the conviction entered on April 25, 2012
    and the sentence imposed on July 10, 2012 by Justice Peter H. Howden of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant appeals his convictions for aggravated assault and assault
    with a weapon on two grounds.  First, the trial judge commented unfairly on the
    evidence of the appellant.  Second, the trial judge erred by failing to relate
    the evidence to the elements of the two offences the appellant was convicted
    of.

[2]

On the first ground, the appellant contends that the trial judge gave
    what amounts to a
Vetrovec
warning on the appellants evidence.  He
    refers to the trial judges comments at pp. 50-51 of the charge to the jury,
    and emphasizes the sentence: This was his opinion and should be treated with
    caution for that reason.

[3]

We do not accept the appellants contention.  The trial judge cautioned
    the jury on a very narrow point  when the knife caused the injury.  In his
    evidence, the appellant never said he could see when his knife made contact
    with the complainant.  Instead, the appellant offered an after-the-fact theory
    about what likely happened.  In this context, the trial judges comment was
    fair.

[4]

On the second ground of appeal, the appellant acknowledges that the
    trial judge accurately set out the evidence in relation to the charge of
    attempted murder.  He argues, however, that the trial judge should have repeated
    the evidence in relation to the assault charges so that the jury would
    appreciate the appellants defence of accident.

[5]

We do not accept this argument.  The trial judges review of the
    evidence came shortly before he dealt with the two assault charges.  The trial
    judge told the jury that he had reviewed the evidence and that the jury should
    consider this evidence when deliberating on the aggravated assault and assault
    with a weapon charges.  The trial judge then outlined the elements of the offences
    and the appellants claim of accident.  In our view no more was required.

[6]

We add two final comments.  First, the trial judges instructions now
    challenged on appeal were not objected to by defence counsel at trial.  To the
    contrary, at the pre-charge conference defence counsel approved the trial
    judges instructions.

[7]

Second, on the evidence at trial, a good deal of which was not disputed,
    the Crowns case against the appellant was overwhelming.

[8]

The appeal is dismissed.

John Laskin J.A.

J. MacFarland J.A.

P. Lauwers J.A.


