



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Henry, 2019 ONCA 229

DATE: 20190321

DOCKET: C65327

Rouleau, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yohan Henry

Appellant

Paul Calarco, for the appellant

Megan Petrie, for the respondent

Heard and released orally: March 18, 2019

On appeal from the conviction entered by Justice John
    Ritchie of the Ontario Court of Justice on October 16, 2017, and from the sentence
    imposed on December 13, 2017.

REASONS FOR DECISION

[1]

The appellant submits that the transcript of the complainants evidence
    suggests that a police officer may have condoned the complainant lying in his
    statement to police. This suggestion was not addressed by the trial judge in
    his assessment of the complainants credibility. In the appellants view, this
    failure infected the entire proceeding and undermined the trial judges
    acceptance of the complainants testimony as well as the appellants
    conviction.

[2]

We disagree.

[3]

From our review of the transcript, the complainants evidence was
    somewhat confusing and we are not satisfied that the suggestion advanced by the
    appellant is the only interpretation of that evidence. In any event, as this
    concern was not raised or pursued at trial, the trial judge cannot be faulted
    for his failure to deal with the concern now being raised by the appellant for
    the first time. The trial judge, in his reasons, dealt with the inconsistencies
    between the complainants statement to police and his in-court testimony. He
    accepted the in-court testimony as being true and we see no basis to interfere
    with this assessment of the evidence.

[4]

Significantly, in this case, there was also other substantial incriminating
    evidence. In our view, therefore, the conviction was fully supported by the record.

[5]

As for the sentence appeal, an eight-year total sentence, less two years
    credit for pre-sentence custody, was well within the appropriate range, given the
    serious nature of the offences, including an armed robbery with a fully loaded
    semi-automatic handgun pointed directly at the complainant and in light of the
    appellants lengthy criminal record, including another conviction for armed
    robbery.

[6]

The appellant argues that the trial judge erred by failing to take a gap
    in his criminal record into account. We disagree. The trial judge specifically adverted
    to that gap on two occasions. Even in light of the gap, the sentence was
    entirely fit.

[7]

Finally, with respect to the victim fine surcharge, the Crown concedes
    that in light of the recent decision in
R. v. Boudreault
, 2018 SCC 58,
    50 C.R. (7th) 207, the victim fine surcharge ought to be removed.

[8]

As a result, the conviction appeal is dismissed. Leave to appeal sentence
    is granted, but the sentence is varied only to the extent of striking the
    victim fine surcharge.

Paul Rouleau J.A.

B.W. Miller J.A.

Fairburn J.A.


