



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Corbett, 2013 ONCA 431

DATE: 20130621

DOCKET: C56069

Rouleau, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert P. Corbett

Appellant

Vincenzo Rondinelli, for the appellant

Michael Medeiros, for the respondent

Heard and released orally: June 13, 2013

On appeal from the conviction entered by Justice David G.
    Carr of the Ontario Court of Justice on April 5, 2011.

ENDORSEMENT

[1]

The appellant appeals from his conviction for aggravated assault. He
    argues that the trial judge applied a different level of scrutiny to the Crown
    and defence evidence, and that the trial judge erred in drawing an adverse
    inference from the appellants exercise of his right to silence at the time of
    his arrest.

[2]

With respect to the first ground of appeal, the appellant submits that
    the trial judge provided no analysis or reasons as to why he accepted the
    complainants evidence, apart from the latters seemingly forthright demeanour.
    Given the complainants criminal record, his high level of intoxication that
    evening, and his acrimonious relationship with the appellant, the trial judge
    ought to have scrutinized the complainants evidence and his credibility in
    more detail. According to the appellant, this failure to scrutinize the
    complainants credibility stands in sharp contrast to the trial judges
    treatment of the appellants testimony.

[3]

We disagree. The alleged omissions relating to the complainants
    intoxication, acrimony towards the appellant, and criminal record had little or
    no importance in the circumstances of this case. First, the same alleged
    shortcomings applied equally to the appellant and the trial judge did not rely
    on them when assessing his credibility. Second, and more importantly, as the
    trial judge noted, the complainants evidence was straightforward, corresponded
    with the nature of the injuries the complainant suffered, and was supported by the
    testimony of the other witnesses whose evidence the trial judge accepted. By
    contrast, the appellants testimony defied common sense. For example, according
    to the appellants account of how he held his knife, one would have expected a
    puncture wound  but the complainants injury was a slash wound. This is
    clearly inconsistent with the accuseds testimony that he neither moved nor
    swung the knife.

[4]

The trial judges rejection of the appellants evidence was detailed and
    well-reasoned. There was simply no different level of scrutiny applied to the
    Crown and defence evidence.

[5]

The second ground of appeal is that the trial judge erred in drawing an
    adverse inference from the appellants exercise of his right to silence at the
    time of his arrest. We would not give effect to this submission.

[6]

In our view, the trial judge did not fault the appellant for failing to
    disclose his claim of self-defence upon arrest, as alleged by the appellant.
    Rather, the trial judge noted that upon arrest, the appellant chose to make a
    statement to police. His statement come on its a pocket knife made his trial
    testimony less likely to be true. The appellants trial testimony was that the complainant
    attacked him without provocation and that he accidentally injured the
    complainant with a knife whilst falling. Our reading of the relevant passage in
    the trial judges reasons does not support the claim that the trial judge used
    the appellants right to silence as a piece of evidence supportive of his
    guilt. Rather, the trial judge considered the inconsistency between the
    appellants statement to the police and his trial testimony as a factor, along
    with others, relevant to the appellants credibility and the reliability of the
    evidence he gave at trial.

[7]

This was a permissible use of the statement. Read in context, we do not therefore
    interpret the trial judges reference to what the appellant did not say upon
    arrest as indicating that the trial judge improperly drew an adverse inference
    from the appellants exercise of his right to silence.

[8]

As a result, the appeal is dismissed.

Paul Rouleau J.A.

David Watt J.A.

Gloria Epstein J.A.


