



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dawson, 2016 ONCA 869

DATE: 20161117

DOCKET: C60150

Hoy A.C.J.O., Doherty and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher R. Dawson

Applicant (Appellant)

John K. Lefurgey, for the appellant

Kathleen Healey, for the respondent

Heard and released orally:  November 9, 2016

On appeal from the conviction entered on May 13, 2014 by
    Justice R.H. Turnbull of the Superior Court of Justice, and the sentence
    imposed on January 22, 2015.

ENDORSEMENT

[1]

This was a single issue trial  did the appellant know that the package
    given to him by the man named McIntyre contained cocaine.

[2]

The appellant testified and denied that he had any knowledge of the
    contents.  The assessment of the appellants credibility was central to the
    outcome of the case.  The trial judge concluded that the appellants testimony
    was incredible.  He gave cogent reasons for that finding.  It is fair to say
    that the appellants evidence stretched credulity.

[3]

The appellant alleges that the credibility finding made by the trial
    judge was tainted by three misapprehensions of the evidence.  To succeed on a
    submission based on an alleged misapprehension of the evidence, the appellant
    must show first, an error, that is, that the trial judge got the evidence
    wrong, and second, that the error was material in the sense that it played an
    essential role in the trial judges reasoning process:  see
R. v. Lohrer
,
    [2004] 3 S.C.R. 732.

[4]

We see no reason to describe each of the three alleged misapprehensions
    of evidence in any detail.  The first relates to the evidence of a defence
    witness, Mr. Hoekstra.  We see no error in the trial judges summary of that
    evidence.

[5]

The second alleged misapprehension of the evidence arises out of the
    trial judges summary of the evidence describing the appellant driving into a
    Shell gas station at or about the same time as McIntyre drove into the gas
    station.  The trial judge referred to this evidence during his summary of the
    evidence.  His reference to the evidence is not entirely accurate.  However,
    assuming some misapprehension of the evidence, that misapprehension had nothing
    to do with the trial judges rejection of the appellants evidence as to how he
    came to drive into the Shell station and meet with McIntyre.  The trial judges
    reasons for rejecting that testimony are set out at para. 87.  We need not
    repeat them.  It is sufficient to say they are cogent indeed.  The
    misapprehension of the evidence was not material to the rejection of the
    appellants evidence.

[6]

The third alleged misapprehension relates to the appellants evidence
    about the exchange between him and McIntyre regarding the contents of the
    package at the time McIntyre asked the appellant to hold the package.  The
    trial judge summarized this evidence, at para. 47.  Like all summaries, the
    summary did not refer to the entirety of the evidence.  However, there is
    nothing inaccurate in the summary.  In any event, the trial judges findings
    with respect to this evidence, at para. 90, accurately summarized the thrust of
    the appellants evidence on this point.  There is no misapprehension of the
    evidence.

[7]

The appellant also alleges inconsistent findings of fact made by the
    trial judge concerning the impact of the appellants head injury on his ability
    to testify.  The appellant contrasts the trial judges description of the
    effect of the head injury in the trial judges reasons for judgment with the
    trial judges description of the effect of the head injury in his reasons for
    sentence.

[8]

Without accepting that an argument alleging inconsistent findings of
    fact, which compares findings made in reasons for judgment with findings made
    on sentence, can succeed, we see no inconsistent findings here.  The reasons
    for judgment focussed on whether the head injury affected the appellants
    ability to understand the questions put to him, both at trial and during the
    police interview.  The trial judge found that the head injury did not explain
    the appellants evasiveness and demeanour when answering the questions.  There
    was nothing said on sentencing that contradicts that finding.

[9]

This ground of appeal cannot succeed.  The appeal is dismissed.

Alexandra
    Hoy A.C.J.O.

Doherty J.A.

K. van Rensburg J.A.


