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COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Morrison, 2012
    ONCA 897

DATE: 20121219

DOCKET: C53912

Rosenberg, Sharpe and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jessiah Morrison a.k.a. Jessiah MacDonald

Appellant

Peter Copeland, for the appellant

Philip A. Perlmutter, for the respondent

Heard: December 17, 2012

On appeal from the conviction entered on June 2, 2009 and
    the sentence imposed on September 14, 2009 by Justice Laurence A. Pattillo of
    the Superior Court of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant raises the following issues regarding conviction all
    dealing with the charge to the jury.

1.

We agree with Crown counsel that the error respecting consent as a
    defence to wounding was harmless, since consent was not available on the facts
    of this case. This was an attack by three men on the unarmed victim and there
    was no evidence of consent from the victim or any other source.

2.

The instructions on s. 21(1) if anything may have been overly
    favourable. The jury would understand from those instructions that they could
    only convict of wounding if the appellant knew the principal offender intended
    to commit the offence of wounding. In any event, given the jurys verdict on
    the other counts it is apparent that the jury convicted the appellant not on
    the basis of s. 21(1) but on s. 21(2). The instructions on s. 21(2) were
    unobjectionable.

3.

Finally, given the circumstances, the offence of assault was properly
    left as it was by the trial judge. This is not a case like
R. v. Haughton
,
    where the jury had no route to common assault.

[2]

As to sentence, given the Supreme Court of Canada decision in
R. v.
    Knott
, there was no error in imposing probation. The sentence of
    imprisonment was fit. It properly recognized the appellants lesser role, but
    took into account that of the three, this appellants record for violence was
    far worse than the co-accused.

[3]

Accordingly, the appeal from conviction and sentence is dismissed.



