



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Dinney, 2012
    ONCA 497

DATE:  20120711

DOCKET: C53869

Rouleau, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Connor Dinney

Appellant

Crystal Tomusiak, for the appellant

Holly Loubert, for the respondent

Heard and released orally: June 28, 2012

On appeal from the conviction entered on October 29, 2010,
    and the sentence imposed on April 1, 2011, by Justice K. Carpenter-Gunn of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant alleges several errors in
    the reasons for judgment of the trial judge vitiate his conviction of assault
    causing bodily harm and require a new trial. He also submits that the sentence
    imposed, imprisonment for six months, reflects errors in principle thus is
    unfit.

The
    Appeal from Conviction

[2]

On the appeal from conviction, the
    appellant says that the trial judge failed to properly apply the standard of
    proof, instead treated the case as a credibility contest between Crown and
    defence witnesses. She misapprehended some of the evidence, applied a stricter
    standard of proof to the evidence called by the defence than to that of the
    Crown, and drew speculative conclusions from other evidence, rather than
    logical common sense inferences. Her assessments of credibility were flawed by
    unwarranted assumptions and circular reasoning.

[3]

The incident upon which the prosecution
    was based occurred after closing time in an entertainment district in the City
    of Hamilton. It is beyond dispute that the appellant and his friends had been
    drinking heavily. They became embroiled in a number of fights with others
    outside one of the licensed premises.

[4]

Bouncers from a licensed establishment
    became concerned that the appellant, who according to some witnesses, was
    jumping up and stomping on the head of an apparently unconscious and bloodied
    man prone on the pavement, would cause the man serious injury or kill him. They
    interceded to break up the fight.

[5]

The appellant and his friends resisted
    the efforts of the bouncers to quell the disturbance. In the end, the appellant,
    who had left the area where the complainant was standing, returned and sucker
    punched him in the head. The complainant dropped immediately to the ground,
    struck his head on the pavement and suffered serious head injuries.

[6]

In a police interview that was admitted
    at trial, the appellant said that he hit the complainant with his hardest
    punch. He did not testify at trial, but contended on the basis of other
    evidence that his conduct was justified in defence of himself and others under
    his protection.

[7]

The reasons of the trial judge are far
    from ideal. That said, in the end this case reduced to a determination of two
    issues, namely, whether the appellant struck the complainant as alleged by the
    Crown and admitted by the appellant in his police statements, and whether the
    blow was justified in lawful self-defence or in defence of another person under
    the appellants protection. The trial judge was alive to these issues and
    grounded her findings largely on the evidence of a  sober, independent witness
    whose observations fully supported those findings.  This she was entitled to
    do.

[8]

In isolation, as is often the case,
    some passages in the reasons of the trial judge appear problematic. In the end,
    however, we are satisfied that her core findings do not reflect any of the
    errors assigned to them by the appellant.

[9]

The appeal as to conviction is
    dismissed.

The
    Appeal from Sentence

[10]

The appellant has also appealed
    sentence.

[11]

In our view, as counsel for the
    appellant acknowledges, the sentence imposed falls within the appropriate range
    of sentence for this offender and this offence. The trial judge considered the
    appellants relative youth, his unblemished record at the time of the offence,
    his subsequent expression of remorse and the fact that the assault involved a
    single blow. She was equally mindful of the relevant sentencing objectives and
    principles, including the fundamental principle of proportionality.

[12]

In the result, although we would grant
    leave to appeal sentence, the appeal from sentence is dismissed.

Paul
    Rouleau J.A.

David
    Watt J.A.

S.E.
    Pepall J.A.


