



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Neekan, 2013 ONCA 756

DATE: 20131212

DOCKET: C56270

Doherty, Feldman and MacPherson JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Isaiah Reuben Lee Neekan

Appellant

Graeme A. Hamilton, for the appellant

Gavin MacDonald, for the respondent

Heard and released orally: December 10, 2013

On appeal from the convictions entered on June 7, 2012 by
    Justice A.Thomas McKay of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant Isaiah Neekan appeals his convictions by Justice A. Thomas
    McKay of the Ontario Court of Justice at Sioux Lookout on June 7, 2012, for
    possession of a weapon for a dangerous purpose and aggravated assault.

[2]

The events that gave rise to the charges took place at Robin
    Basketwangs home.  The only people present were the accused, his brother,
    Wayne Neekan, and his cousin, Mr. Basketwang.  The Crown alleged that, after a
    long evening party involving a great deal of drinking, there was an altercation
    in which the appellant slashed Mr. Basketwang near an eyelid with a knife.

[3]

The main Crown witness was the appellants brother, Wayne.  The
    appellant testified and another defence witness was Albert Neekan, Isaiahs and
    Waynes uncle, who was not present in the Basketwang home that evening.

[4]

The appellant appeals his convictions on four grounds, three relating to
    the trial judges reasons and one relating to fresh evidence.

[5]

First, based on the fresh evidence, the appellant asserts that there
    were deficiencies in the interpretation of Alberts evidence by a qualified
    Ojibway interpreter that resulted in a miscarriage of justice.

[6]

We disagree.  Albert was a very peripheral witness, his testimony was
    not even mentioned in the trial judges reasons, and, in our view, although
    there may have been one or two material differences between the in-the-moment
    interpretation at the trial and the more comprehensive translation tendered as
    fresh evidence, they did not affect the result, given the trial judges
    reasons.  The fresh evidence could not have made a difference and is,
    therefore, not admitted.

[7]

Second, the appellant asserts that the trial judge misapprehended the
    evidence in finding that the appellants account of his altercation with the
    victim was inconsistent with the victims injuries.

[8]

We disagree.  The trial judge reasonably compared the victims injury
    with the appellants explanation and reached an entirely reasonable conclusion.

[9]

Third, the appellant submits that the trial judge erred by permitting
    the Crown to adduce evidence of the appellants bad character to establish a
    general disposition for violence and by subsequently relying on this evidence
    in his reasons for judgment.

[10]

We
    disagree.  The evidence that was labelled bad character evidence was led by
    the appellant and was a necessary part of his theory of the case, namely, that
    he gave his knife to the victim because he did violent things when
    intoxicated.  The trial judge treated this evidence within this context, merely
    mentioning it in his summary of the appellants own testimony.

[11]

Fourth,
    the appellant submits that the trial judge erred by inferring from Waynes
    post-event conduct  taking the victim to a medical clinic for treatment  that
    he was a credible witness.

[12]

The
    trial judge did not draw a negative inference against the appellant from
    Waynes conduct supporting the injured victim.  He simply used this evidence as
    supportive of Waynes description of the events of the evening, including
    whether the appellant attacked the victim.

[13]

The
    appeal is dismissed.

Doherty J.A.

K. Feldman J.A.

J.C. MacPherson J.A.


