



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hockey, 2015 ONCA 421

DATE: 20150610

DOCKET: C58248

Laskin, MacFarland and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Devin Hockey

Appellant

Richard Litkowski, for the appellant

John McInnes, for the respondent

Heard and released orally: May 26, 2015

On appeal from the conviction entered on November 21,
    2013 and the sentence imposed on January 14, 2014 by Justice Robert F. Scott of
    the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals his convictions for aggravated assault and assault
    with a weapon arising from an incident outside a bar in Trenton. He appeals his
    convictions on three grounds:

(1) the
    trial judge erred in his assessment of the appellants evidence and in
    particular, misapplied
W.D.
in his treatment of the appellants two
    police statements;

(2) the
    trial judge erred in his assessment of the evidence of the witness Howell; and

(3) the
    trial judge erred in his assessment of the evidence of the witness Todd.

[2]

The context for the appellants submissions is important. The eye injury
    to the victim Schubert could have been inflicted only by the appellant or by
    Todd. Not a single witness said Todd was the assailant. Schubert, whom the
    trial judge found credible and whose evidence he accepted, said that though,
    he, Schubert, had had a confrontation with Todd both in and out of the taxi, he
    was certain that Todd was not the assailant. Todd denied that he was the
    assailant and Howell identified the appellant as the assailant. Thus, the
    evidence of the three key witnesses in this case all pointed to the appellant
    as being the assailant. With that context we now turn to the appellants
    submissions.

[3]

First, the principles in
W.D.
apply to the appellants two
    police statements and we accept that the trial judge used loose language in
    describing their application. Nonetheless from reading his reasons we are
    satisfied that he applied the reasonable doubt standard to the appellants two
    statements. Indeed at the end of his reasons he expressly said: I have
    considered what evidence I have of the defendant as favourably as I could.

[4]

The trial judge rejected the appellants evidence in his police
    statements because of various inconsistencies he identified. A few of these
    inconsistencies seem minor. But we agree with the Crown that on critical points,
    for example, when the appellant first saw blood and how the fight unfolded, the
    appellants evidence changed significantly during the course of his statements.
    Thus, we see no basis to interfere with the trial judges rejection of the
    appellants evidence.

[5]

Second, the trial judge could perhaps have said more about Howells
    evidence but these were oral reasons given after a relatively short trial. The
    trial judge recognized that Howell was drunk but accepted that he could
    identify the perpetrator of this horrific incident. He did not err in his acceptance
    of Howells evidence.

[6]

Third, similarly the trial judge was entitled to accept Todds evidence.
    It was consistent with Schuberts evidence which, as we have said the trial
    judge believed.

[7]

Accordingly the appeal is dismissed.

John Laskin J.A.

J. MacFarland J.A.

Paul Rouleau J.A.


