



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Camara, 2017 ONCA 817

DATE: 20171025

DOCKET: C57838

van Rensburg, Pardu and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roberto Camara

Appellant

Roberto Camara, acting in person

Ian R. Smith, duty counsel

Lorna Bolton, for the respondent

Heard: October 4, 2017

On appeal from the conviction entered on December 19,
    2008 and the sentence imposed on October 2, 2013 by Justice E.N. Libman of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals his conviction for
    aggravated assault and his designation as a dangerous offender.

[2]

The predicate offence involved the assault of a
    bar patron with a pool cue causing serious and permanent injuries. The assault
    was a sudden, unprovoked and violent attack on a stranger.

[3]

In his conviction appeal the appellant argues
    that the trial judge erred in concluding that he was the person who attacked
    the complainant. The essence of his argument is that, on the evidence in this
    case, the verdict was unreasonable.

[4]

The complainant testified that he was in the bar
    to watch sports, when someone was looking at him very strangely. When he asked
    him to stop, the person, without saying anything, struck him in the face with a
    pool cue. The complainant was unable to identify his attacker. He suffered
    serious injuries, including a lasting injury to one of his eyes and a broken
    jaw.

[5]

The evidence connecting the appellant to the
    offence was that of Gaspare Perricone, the owner of the bar. Mr. Perricone was
    sleeping and did not see the assault. After being roused by an employee, he
    went upstairs and saw the complainant bleeding. The complainant motioned to
    someone in the bar who was sitting calmly, within ten feet. Mr. Perricone
    approached that person and had a conversation with him before asking him to
    leave the bar. The trial judge accepted Mr. Perricones identification of the
    appellant as the person he approached and spoke to, and that during the
    conversation the appellant admitted that he hit the complainant. The
    appellants conviction turned on the trial judges acceptance of this evidence.

[6]

The appellant says there were two errors in the
    trial judges treatment of Mr. Perricones evidence.

[7]

First, he says that the trial judge ought not to
    have accepted Mr. Perricones evidence that he was the assailant, when Mr.
    Perricone mistakenly insisted that he was bald. A photo of the appellant at the
    time of the offence showed that he had short hair, but could not have been
    fairly described as bald. The appellant says that Mr. Perricones evidence
    identifying the appellant was unreliable and ought not to have been accepted.

[8]

We do not give effect to this argument.

[9]

First, Mr. Perricone explained his understanding
    of the term bald in relation to the man he spoke to. He explained that the
    man had very, very short hair, bald. He also described it as maybe small
    hair. Mr. Perricone testified that, to him, a bald person may have shaved his
    head the week before.

[10]

It was open to the trial judge to come to the
    factual conclusion that the appellant was the person who had the conversation
    with Mr. Perricone. The trial judge correctly cited the law and noted the
    frailties of identification evidence, demonstrating his appreciation for the
    caution that was required. He also correctly noted that this was not a case of
    eyewitness identification of a stranger. The witness knew the appellants
    family, knew him by his first name, and had spoken with him many times over
    several months while he was a patron in his bar. He identified the appellant as
    the person he had a conversation with after the incident, and asked to leave
    the bar. There was no error here in the trial judges acceptance of the
    identification evidence notwithstanding that the witness was mistaken in his description
    of a material aspect of the appellants appearance.

[11]

The second argument in the conviction appeal has
    to do with the conversation Mr. Perricone had with the appellant. The appellant
    says that the trial judge erred in concluding that he admitted hitting the
    victim, when the evidence did not clearly disclose an admission.

[12]

Mr. Perricones evidence on this point in direct
    examination was as follows:

Q. tell me the exact words you used when you
    approached him.

A. I said, What did you do, you know.

Q. And exactly what he said?

A. And he said he heard voices at the time. He
    was like, you know, he heard the voice, saying I hit the man, but thats it.
    And then I said, What the hell you do?

Q. He said, I heard a voice. I hit the man?

A. Yeah. As I said, and then I told him to go
    and he left, so you know.

[13]

Under cross-examination, the following exchange
    took place:

Q. And Im going to suggest to you that the
    response about hearing voices was then followed by, not, I hit the man, but,
    He hit the man, right?

A. No, I just said what he said, thats it. He
    didnt say that, that He [ph] hit the man.

Q. Was he asking you a question about

A. Who?

Q. This person Roberto, was he asking you a
    question

A. No.

Q.I hit the man?

A.

No.

[14]

The appellant says that the trial judge
    unreasonably concluded from this evidence that he admitted hitting the
    complainant.

[15]

We disagree. While the transcript may suggest
    that there was some ambiguity in what Mr. Perricone recalled the appellant
    saying, the trial judge, who heard and saw the witness testify, was in the best
    position to assess his evidence.

[16]

The trial judge recounted the evidence elicited
    by the Crown, as the appellant having stated that he had heard voices and hit
    the man. The trial judge also recounted Mr. Perricones testimony in
    cross-examination, disagreeing that he heard the appellant say that another
    person hit the man. The trial judge reviewed and considered the defence
    position that the statement was not made as recounted by the witness, or at
    least that he should have a doubt about that fact. The trial judge found as a
    fact that the appellant related to Mr. Perricone the odd conversation about
    hearing voices and hitting the complainant, and that Mr. Perricones having
    asked the appellant to leave the bar was consistent with understanding him to
    say that he had hit the man.

[17]

In these circumstances, there is no basis to
    interfere with the trial judges conclusion that the appellant was the person
    Mr. Perricone approached after the assault, and that he admitted having hit the
    complainant. The conviction appeal is therefore dismissed.

[18]

With respect to the sentence appeal the
    appellant makes two arguments.

[19]

First, he says that the trial judge erred in
    concluding that he met the criteria for a dangerous offender under s.
    753(1)(a)(i) and (ii) of the
Criminal Code.
Second, he argues that the trial judge erred in concluding that his risk was
    not manageable within the community, and that he should have received instead a
    long-term supervision order of ten years.

[20]

The appellant says that the two incidents relied
    on by the trial judge - the predicate offence and an earlier incident in 1995
    (where he took out a gun and shot strangers at a casino, resulting in his
    conviction for multiple offences and a 12 year custodial sentence) - were not
    enough incidents, were not close enough in time, and were not sufficiently
    similar to constitute a pattern of repetitive behaviour (under s.
    753(1)(a)(i)) or a pattern of persistent aggressive behaviour (under s.
    753(1)(a)(ii)). He also says that the trial judge improperly took into
    consideration his behaviour while in prison as part of the pattern.

[21]

We do not give effect to these arguments.

[22]

The appellant committed a serious personal
    injury offence on January 10, 2008. He was convicted on December 19, 2008. The
    hearing of the dangerous offender application commenced with evidence in June
    2011. Closing submissions were made in June and July 2013. Judgment was
    rendered October 2, 2013.

[23]

While the dangerous offender legislation changed
    between the date of offence and date of sentencing, it appears that the trial
    judge, Crown counsel,
amicus
and Mr. Camara
    operated under the legislation in place at the time that the serious personal
    injury offence was committed. In the circumstances of this case, bearing in
    mind the conclusions reached by the trial judge, both schemes would have given
    rise to the same result.

[24]

While the appellant did not have counsel at the
    hearing, because he had fired him, the court was assisted by his former counsel
    as
amicus. Amicus
asserted
    that Mr. Camara should not be found a dangerous offender because the statutory
    criteria had not been met. In the alternative, if Mr. Camara was found to meet
    the statutory criteria to be declared a dangerous offender,
amicus
argued that he should be subjected to
    a long-term supervision order and not to an indeterminate sentence.
Mr. Camara joined in the submission that the statutory criteria for
    a dangerous offender finding had not been met. He argued that he should be
    sentenced in the normal course to a finite sentence, time served.

[25]

The trial judge did not err in his articulation
    of the proper test or in his detailed and thorough evaluation of the evidence,
    which included the testimony of several lay witnesses, the expert evidence of a
    psychiatrist who examined the appellant and his history, the details of the
    offences disclosed in the appellants lengthy criminal record, and his conduct
    while in prison and in dealing with correctional authorities.

[26]

It was open to the trial judge to find that, on
    all the evidence, although there were some factual differences, the shooting
    incident in 1995 and the predicate offence were remarkably similar as
    unprovoked attacks on unarmed strangers while the appellant was intoxicated,
    with severe and permanent impacts on the victims, and that they showed a
    pattern of unrestrained dangerous conduct.

[27]

The trial judge also properly concluded that the other elements of
    s. 753 (1)(a)(i) were made out on the evidence. The appellant was convicted of
    a serious personal injury offence. The evidence of the combination of his gross
    intoxication, his refusal to get treatment or accept beneficial programming,
    and his inability to follow rules, demonstrated
an inability to control
    himself so as to make likely the fact that he would cause injury to others in
    the future. Similarly, the trial judges conclusion that the appellant met the
    additional criteria under s. 753(1)(a)(ii) is fully supported by the evidence.
    His substantial indifference to the consequences of his aggressive behaviour
    was shown in his more than 20 criminal convictions, including 11 convictions
    for assaults, his lack of empathy for his victims and the fact he blamed his
    difficulties on others.

[28]

We
    do not therefore accept the appellants argument that there was an error in the
    trial judges conclusion that he met the test for being a dangerous offender.

[29]

As
    for the argument that the trial judge ought to have concluded the appellant was
    a long-term offender, qualifying for a determinate sentence and long-term
    supervision, the appellant is unable to identify any error in the trial judges
    analysis, and we see no error. The trial judge properly concluded on the
    extensive record before him that there was no reasonable possibility of
    eventual control in the community of the appellants risk of recidivism.

[30]

For these reasons leave to appeal sentence is
    granted, but the sentence appeal is dismissed.

K
    van Rensburg J.A.

G.
    Pardu J.A.

Fairburn
    J.A.


