



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Berry, 2018 ONCA 86

DATE: 20180131

DOCKET: C60198

Hoy A.C.J.O., Sharpe and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Berry

Appellant

Anthony Moustacalis, for the appellant

Nancy Dennison, for the respondent

Heard and released orally:  January 24, 2018

On appeal from the conviction entered on December 18,
    2014, and the sentence imposed on March 27, 2015 by Justice E.M. Morgan of the Superior
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of aggravated assault. The trial judge
    rejected the appellants evidence that the appellants friend, Mr. McIntyre,
    and not the appellant, had pushed the complainant.

[2]

The appellant appeals his conviction on three grounds. First, he argues
    that the trial judge improperly drew an adverse inference from his failure to
    call Mr. McIntyre to testify at trial.

[3]

Second, he argues that the trial judge erred by failing to adequately
    consider the frailties of the eyewitness evidence identifying him, and not Mr.
    McIntyre as the man who pushed the complainant.

[4]

Third, he argues that there was no basis in the evidence to reject his
    evidence that Mr. McIntyre face-washed the complainant in the bar earlier in
    the evening.

[5]

We reject these arguments.

[6]

In our view, the trial judge did not draw an adverse inference from the
    appellants failure to call Mr. McIntyre to testify. Rather, the trial judge simply
    commented that Mr. McIntyres absence was convenient.

[7]

The trial judge was cognizant of defence counsels concerns about the
    eyewitness evidence and, in the context, adequately addressed the frailties in
    that evidence.

[8]

Finally, the trial judges rejection of the appellants version of what
    happened in the bar earlier in the evening was amply supported by the record.

[9]

The appellant also seeks leave to appeal the sentence imposed. In
    imposing sentence, the trial judge specifically considered that the appellant
    pushed, rather than hit, the complainant. We see no error in principle that
    would permit us to interfere with the sentence imposed. Moreover, in the
    circumstances, the sentence imposed was well within the range, particularly
    considering the severity of the injuries sustained by the complainant.

[10]

Accordingly,
    the appeal is dismissed. Leave to appeal sentence is granted, but the appeal of
    sentence is dismissed.

Alexandra Hoy
    A.C.J.O.

Robert J. Sharpe J.A.

Paul Rouleau J.A.


