



COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Bonnington, 2015 ONCA 122

DATE: 20150223

DOCKET: C57764

Gillese, Watt and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dean Bonnington

Appellant

Jill R. Presser, for the appellant

Greg Skerkowski, for the respondent

Heard: February 19, 2015

On appeal from the conviction entered on April 16, 2013
    by Justice Michael K. McKelvey of the Superior Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

The appellant, Dean Bonnington, was charged with one count of aggravated
    assault arising out of an incident which occurred on July 2, 2011, off the
    shore of Big Chief Island in Lake Couchiching. As a result of the incident the
    complainant, David Gibbons, suffered an injury to his left eye that caused him
    to lose his sight in that eye.

[2]

Following a two-day trial, the appellant was convicted of aggravated
    assault and received a sentence of nine months incarceration and two years
    probation.

[3]

The appellant appeals his conviction on two grounds. First, the
    appellant submits that the trial judge erred by misapprehending material
    evidence in relation to (i) whether there was an intentional application of
    force to the complainant by the appellant, and (ii) whether the altercation was
    consensual. Second, the appellant submits that the trial judge erred in failing
    to consider the defence of accident.

Factual overview

[4]

On the Canada Day weekend in 2011, both the complainant and the
    appellant had taken their boats to Big Chief Island.  They were part of a large
    group who had anchored their boats on a nearby sandbar. The boats were anchored
    together in closely-packed rows. The complainant had tied his boat to a group
    of three others owned by his friends.

[5]

In order to proceed from his anchorage to clear water, the appellant had
    to maneuver his boat between two rows of parked boats, turn left around the
    complainants boat, which was anchored at the end of one row, and then proceed
    through another row of boats before turning into the open waters of Lake
    Couchiching.

[6]

The appellant owned a large power boat and he proceeded between the rows
    of parked boats under motor.

[7]

As the appellant navigated his boat behind and around that of the
    complainant, the complainant yelled to the appellant that he should be walking,
    not motoring, his boat to open water in order to avoid fouling the anchor lines
    of the moored boats.  The appellants boat fouled the rear anchor line of the
    complainants boat. Unpleasant words were exchanged between the two men. After
    clearing the lines, the appellant motored around the side and front of the
    complainants boat.  The exchange of strong words continued. The appellants
    motor fouled the lines of other boats.  When free of those lines and at the
    edge of open water, the appellant stopped his boat and waded back through the
    water to the rear of the boat to which the complainants was tied.

[8]

The appellant twice tried to climb onto that boat from its rear swimming
    platform. An incident ensued. By the end of the incident, the complainant had
    suffered a serious injury to his left eye. He underwent surgery and lost the
    sight in his left eye.

[9]

At trial, the appellant testified in his own defence. He stated that the
    complainant had encouraged him to come up onto the boat, which he had tried to
    do twice, but each time was pushed back into the water by the complainant and a
    male friend. The appellant testified that as he went backwards into the water
    for the second time, he raised his arms in an effort to grab onto something. 
    The appellant said he was not able to grab anything or touch anyone, and fell
    back into the water.  He then saw the complainant in the water, but testified
    he did not see any injury on the complainant at that point.  The appellant returned
    to his boat and left the area.

[10]

The
    trial judge did not accept the evidence of the appellant, or the other two
    witnesses called by the defence in respect of the incident. The trial judge
    found that: the appellant had intended to physically confront the complainant;
    he understood he was not welcome on the back of the boat, having been pushed
    off the first time; the appellant was angry with the insults the complainant
    had thrown at him; and, the second time the appellant had tried to climb onto
    the boat he had taken a swing towards the complainants face and either punched
    or slapped him intentionally in a forceful manner. The trial judge found beyond
    a reasonable doubt that the complainant did not consent to participate in a
    physical altercation or fight.

Analysis

[11]

In
    our view the appeal should be dismissed.

[12]

We
    do not agree that the trial judge misapprehended the evidence. Misapprehension
    of evidence involves a "stringent standard":
R. v. Lohrer
,
    2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2. This standard is met only
    "[w]here a trial judge is mistaken as to the substance of material parts
    of the evidence and those errors play an essential part in the reasoning
    process resulting in a conviction":
R. v. Morrissey
(1995), 22
    O.R. (3d) 514 (C.A.), at p. 541, cited with approval in
Lohrer
.

Misapprehension of evidence: intentional application of force

[13]

In
    his reasons, the trial judge accurately summarized the evidence of Lora-Lee
    Fitzgerald, George Pond and Kenneth Griffiths about how the events unfolded at
    the rear of the boat when the appellant tried to board it.  The trial judge
    also examined the consistencies in the evidence given by Ms. Fitzgerald and Mr.
    Pond at the trial with that they had given at the preliminary inquiry.

[14]

The
    appellant submits the trial judge misapprehended the evidence of Ms. Fitzgerald
    on whether she had seen the appellant make contact with the complainant and
    whether the contact had been a punch or a grab.  The trial judges reasons
    disclose no such misapprehension.  Throughout her evidence Ms. Fitzgerald
    testified that she saw the appellant make contact with the complainant.  While
    she described the appellant as making a punch, grab motion, she testified
    that the appellant came back on the boat the second time fist ready.

[15]

The
    appellant submits the trial judge failed to deal with material evidence by
    failing to consider the assumption made by Mr. Pond in his evidence that the
    appellant had punched the complainant based upon the nature of the injuries
    suffered.  We do not accept that submission.  The trial judge accurately noted
    that while Mr. Pond had testified he did not actually see the blow which
    injured the complainant, he had seen the appellant punch or take a swing at the
    complainant.  The trial judge accepted the evidence of Ms. Fitzgerald and Mr.
    Pond about how the injury occurred because it was consistent both with the
    physical actions of the appellant and with the complainants eye injury
    identified immediately after the incident.

[16]

The
    appellant also submits that the trial judge failed to consider whether the
    appellants punch/grab motion was consistent with defence evidence that the
    appellant was trying to grab onto something as he was pushed off the boats
    swim platform for a second time.  When the trial judges review of the evidence
    is read as a whole, it is clear that in concluding the appellant intentionally
    applied force to the complainants face, the trial judge necessarily rejected
    the defences theory of an accidental application of force.

[17]

Finally,
    the appellant submits that the trial judge did not give full or proper
    consideration to the defence evidence and position on this issue.  We do not
    accept this submission.  In his reasons the trial judge reviewed the material
    parts of the evidence called by the defence, accurately described its substance
    and explained why he did not accept that evidence.

Misapprehension of evidence: consent

[18]

The
    appellant submits that the trial judge erred in concluding that the altercation
    between the complainant and appellant was not consensual because he ignored the
    defence evidence that the complainant had continued to taunt the appellant
    after he was thrown off the boat for the first time, disregarded the approach
    taken by the Crown during part of its cross-examination of the appellant, and
    failed to characterize the initial act of throwing the appellant off the boat
    as one of fighting.

[19]

This
    was a simple, factual case which turned on the credibility of the seven
    witnesses who observed the single incident.  The trial judges reasons amply
    demonstrated that he understood the significance of the credibility issue going
    to the element of consent, fully addressed the relevant evidence, applied the
    correct burden of proof and made the necessary credibility findings.  After
    considering the totality of the evidence, the trial judge found two of the
    Crown witnesses credible  Ms. Fitzgerald and Mr. Pond  and accepted their
    evidence. He was satisfied that the Crown evidence proved the appellant's guilt
    beyond a reasonable doubt. We see no fault in the trial judge's reasoning or in
    his ultimate findings.

Failure to consider the defence
    of accident

[20]

The
    appellant submits that the trial judge failed to consider the defence of
    accident  i.e. that the appellant did not intentionally apply force to the
    complainant or, if he did apply force, he did so accidentally in the melee of a
    consensual incident.  We accept the Crowns submissions that although in his
    reasons the trial judge did not refer to the word accident, his analysis of
    the elements of the intentional infliction of force and consent, and his
    findings on those issues, clearly foreclosed the availability of the defence of
    accident in the circumstances.

[21]

For
    those reasons, we dismiss the appeal.

E.E. Gillese J.A.

David
    Watt J.A.

David
    Brown J.A.


