



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Meloche, 2019 ONCA 521

DATE: 20190621

DOCKET: C65096

Benotto, Miller and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Meloche

Appellant

Eva Taché-Green, for the appellant

Manasvin Goswami, for the respondent

Heard: June 17, 2019

On appeal from the conviction entered on September 22,
    2017 and the sentence imposed on November 20, 2017 by Justice Nancy Mossip of
    the Superior Court of Justice, sitting without a jury.

REASONS FOR
    DECISION

[1]

The appellant represented himself at trial where
    he was convicted of aggravated assault and sentenced to 40 months
    incarceration. He appeals his conviction on the basis that the verdict was unreasonable
    and the trial judge did not provide adequate assistance thereby rendering the
    trial unfair.  He also appeals sentence.

[2]

The appellant was at a house party hosted by his
    brother. As the evening progressed the appellant became intoxicated and was
    angry and aggressive. The appellant and his brother began fighting and were
    having an altercation in the kitchen when the complainant, his brothers
    roommate, came out of his bedroom. The complainant testified that he saw the
    appellant and his brother fighting, stood nearby and he held up his hands and
    said whoa as the appellant appeared to lunge at his brother. The complainant
    recalled that he felt like he got punched in the stomach. In fact he was
    stabbed. He did not testify as to who stabbed him but stated that the appellant
    was standing in front of him, next to a wooden knife block, and the appellants
    brother was to his left and a little behind him.

[3]

A number of witnesses testified saying the
    appellant was intoxicated and aggressive, including four witnesses who had
    locked themselves in the bathroom out of fear earlier in the night. Two
    witnesses testified that after they had left the bathroom, they saw the
    appellant upstairs with a knife and when they left the house, found the complainant
    in the driveway bleeding. The complainant had been stabbed with a serrated
    knife. The surgeon who treated the victim described it as a life threatening
    injury involving a 10-15 cm stab wound.

[4]

The appellant was initially represented by
    counsel. When his counsel sought to be removed from the record, the presiding
    judge repeatedly advised him to obtain a lawyer. He had a legal aid certificate
    that presumably could have been transferred.

[5]

He said he wanted to represent himself because
    he knew what happened. So, he was unrepresented at trial.

[6]

The trial judge twice provided the appellant
    with a Trial Information for Self-Represented Accused handbook and answered
    questions during the proceedings.

Unreasonable verdict

[7]

The issue at trial was who stabbed the
    complainant. The appellant submits that there are other inferences available as
    to the stabber. There were several people at the party and any one of them
    could have stabbed the complainant  for example, the appellants brother.

[8]

We do not accept this submission. The only
    reasonable inference that could be drawn from the entirety of the evidence was
    that the appellant was the stabber.

[9]

The trial judge noted that no witness testified
    that they saw the appellant stab the victim. However, she relied on the
    evidence of witnesses that the appellant was angry and aggressive. He was
    arguing with his brother standing next to a wooden knife block. There were two
    knives later missing from the knife block. The appellants blood was found on
    the counter near the block. The appellant was seen upstairs after the stabbing
    holding a knife at chest height with the blade pointing outward. A knife was
    retrieved from upstairs with the appellants blood on the handle and victims
    blood on the blade.

[10]

The appellant fled the scene and was found
    covered in blood.

[11]

The trial judge found the punch the victim
    felt in the abdomen was actually the injury of the knife. The trial judge found
    that the depth of the wound indicated that the stabbing was intentional.

[12]

Appellants counsel fairly acknowledges that
    this was not a weak circumstantial case. The real ground of appeal is the
    allegation that the trial was unfair because the trial judge did not provide
    adequate assistance to the appellant.

Unfair Trial

[13]

The appellant submits that the trial judge did
    not discharge her duty to assist him and this rendered the trial unfair.

[14]

In particular, he submits that she did not
    adequately explain circumstantial evidence, did not assist him with his
    confusion over forensic evidence, did not explain the elements of the offence,
    did not arrange for him to consider calling his brother as a witness, and did
    not give him guidance with respect to testifying.

[15]

The trial judge provided extensive assistance to
    the appellant. She explained each step of the process and twice gave him Trial
    Information for Self-Represented Accused handbook. At one point she read
    portions of it to him.

[16]

The trial judge explained circumstantial
    evidence in plain language, assisted him with respect to his questions
    regarding forensic evidence, explained his right to call evidence, including
    his brother who was under subpoena by the Crown, and gave him a thorough review
    about his decision to testify or not. Although the trial judge did not
    specifically review the elements of aggravated assault, this did not render the
    trial unfair. The issue at trial was identity. The severe wound suffered by the
    complainant indicated that intent was not an issue.

[17]

The trial judge took every reasonable step and
    as a result the trial was fair. A fair trial must not be confused with the
    most advantageous trial; in the real world, perfection is seldom attained:
R.
    v. Richards
, 2017 ONCA 424 at para 110.

Sentence

[18]

The appellant submits that the sentence is unfit
    and he should have been given credit for onerous bail conditions. We do not
    agree. The sentence fits within the range of sentences for aggravated assault,
    especially given the appellants criminal record. We see no error in principle
    in the 40 month sentence imposed.

[19]

The appeal as to conviction is dismissed. Leave
    to appeal the sentence is allowed, but the appeal is dismissed.

M.L
    Benotto J.A.

B.W.
    Miller J.A.

G. T.
    Trotter J.A.


