



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Akindolire, 2014 ONCA 545

DATE: 20140714

DOCKET: C56044

Strathy C.J.O., Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Claire Akindolire

Appellant

Howard L. Krongold, for the appellant

Christine Tier, for the respondent

Heard and released orally: June 27, 2014

On appeal from the conviction entered on June 12, 2012
    and the sentence imposed on September 21, 2012 by Justice Dianne M. Nicholas of
    the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant appeals her conviction on two counts of assault with a
    belt and two counts of assault causing bodily harm in relation to her son, who
    was ten years old at the time of trial. She also sought leave to appeal her
    sentence of
nine months imprisonment.

[2]

The trial in the Ontario Court of Justice lasted 14 days, spread over
    many months. The trial judge gave lengthy reasons in which she reviewed the
    evidence of all witnesses and made specific findings of fact. She disbelieved
    the evidence of the appellant and some of the other defence witnesses, and
    believed the evidence of the complainant.

[3]

The appellant asserts that the trial judges credibility findings were
    based on several misapprehensions of the evidence and that her findings of fact
    were not supported by the record, and were contradictory or speculative. The
    appellant identifies five alleged errors.

[4]

We agree with the respondent that the test is set out in
R. v.
    Lohrer
, [2004] 3 S.C.R. 732 at para. 2, namely,

The misapprehension of the evidence must go to the substance
    rather than to the detail. It must be material rather than peripheral to the
    reasoning of the trial judge. Once those hurdles are surmounted, there is the
    further hurdle (the test is expressed as conjunctive rather than disjunctive) that
    the errors thus identified must play an essential part not just in the narrative
    of the judgment but in the reasoning process resulting in a conviction.

[5]

In our view, the errors asserted by the appellant do not meet the test, whether
    considered individually or cumulatively. Moreover, the trial judges reasons
    are capable of being read in a manner that does not reflect any misapprehension
    of the evidence.

[6]

We would add that the trial judge made one uncontroverted finding based
    on the complainants evidence and the trial judges own observations of the
    complainants back and arm. His evidence that he had been beaten with a belt was
    corroborated by scars on his back and arm, for which the appellant provided no
    explanation.

[7]

The appeal against sentence was not pursued either in the factum, or in
    oral argument. Leave to appeal sentence is denied.

[8]

The appeal against conviction is dismissed.

G.R.
    Strathy C.J.O.

K.
    Feldman J.A.

David
    Watt J.A.


