



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Heffern, 2017 ONCA 564

DATE: 20170630

DOCKET: C59052

Watt, Benotto and Roberts J.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Reginald Patrick Heffern

Appellant

Carol Anne Matthews, for the appellant

Rebecca DeFilippis, for the respondent

Heard and released orally: June 27, 2017

On appeal from the conviction entered on February 19, 2013, and
    the sentence imposed on June 27, 2013, by Justice W. Guy G. Mahaffy of the Ontario
    Court of Justice.

REASONS FOR
    DECISION

[1]

The appellant appeals convictions
    of assault causing bodily harm, kidnapping and two counts of breach of
    probation entered at the conclusion of a trial before a judge at the Ontario
    Court of Justice. He also seeks leave to appeal the sentence imposed upon him.

[2]

The offences arise out of an
    incident in which four men, among them the appellant, arrived at the
    complainants apartment. Their arrival was not apparently unexpected. The
    complainant was caring for his two-year-old daughter when the men arrived. A
    friend was with him.

[3]

The appellant inquired about a
    bike that the complainant apparently had for sale. The bike was at a friends
    place a couple of blocks away. The complainant offered to take the appellant
    there as soon as his girlfriend arrived home to care for their daughter.
    Another man in the group complained about the theft of some of his property. He
    demanded its return. The others, including the appellant, reiterated this
    demand. The complainant denied any involvement in the theft and disavowed
    possession of the items alleged to have been taken. An argument ensued. The men
    searched the complainants apartment for the property but found nothing.

[4]

The man who alleged that his
    property had been stolen said that he wanted to take the complainant to see one
    of his neighbours whom, he claimed, had witnessed the theft and could identify
    the thief. The complainant resisted because he was caring for his daughter. The
    men told him that if he did not accompany them, he would be beaten in front of
    his daughter. The complainant left with the men.

[5]

When the group arrived at their
    destination, the complainant asked to see the witness/neighbour. He was
    directed to the house of one of the men and told to forget about the neighbour.
    He attempted to escape but was grabbed, dragged into the house, and the door
    locked behind him.

[6]

Inside the house, the men beat,
    kicked and punched the complainant. Someone struck him on the head with a
    weapon. He ended up severely cut as a result of going through a window. His
    abductors denied his request for an ambulance. He left the house in which he
    had been confined and walked back towards his home. A neighbour called 911.

[7]

The complainant suffered extensive
    lacerations to both forearms, his left wrist and to his head. He arrived at the
    hospital in critical condition and required blood transfusions.

[8]

The appellant was apprehended
    shortly after police responded to the 911 call. The appellants right hand was
    red and extremely swollen in the area of his knuckles.

The Appeal from Conviction

[9]

On the appeal from conviction, the
    appellant contends that the trial judge erred in his assessment of the evidence
    adduced at trial, ignored relevant evidence and thus reached a verdict that is
    unreasonable. To be more specific, the appellant asserts error in the failure
    of the trial judge to assess the reliability of the complainants evidence and
    in finding the complainant credible largely on the basis of his demeanour and
    without considering contradictory evidence. In her factum, counsel points to
    four specific factual concerns in support:

i.

the locked door at the place where
    the assault occurred;

ii.

the laceration to the
    complainants head;

iii.

the condition of the complainants
    right hand; and

iv.

the complainants drug use at the
    relevant time.

[10]

We would not give effect to the overarching submission that the verdicts
    rendered by the trial judge are unreasonable, or that his findings on the
    specific issues advanced by the appellant are flawed.

[11]

We accord credibility assessments and determinations of the reliability
    of evidence a high degree of deference. Absent palpable and overriding error,
    we will not interfere with findings of fact based on the credibility of
    witnesses and the reliability of their testimony. It is well-settled that a
    trial judge is under no obligation to address every inconsistency arising in
    the evidence, or eliminate every potential contrary inference said to arise
    from individual items of evidence. As it seems to us, the appellant is inviting
    us to retry this case, to draw inferences different from those drawn by the
    trial judge. We are satisfied that the inferences the trial judge drew in
    relation to the injuries to the appellants right hand and the complainants
    head were available and reasonable on the evidence adduced at trial. To draw
    contrary inferences is not a course open to us. We do not retry cases.

[12]

The only inconsistency the appellant identifies is with respect to the
    condition of the door to the premises where the complainant was assaulted. That
    he said at one point that it was locked, but that it was not so when he left,
    in our view, is not a material inconsistency. It has no say in connection with
    proof of any of the essential elements of any offence with which the appellant
    was charged.

[13]

For these reasons, the appeal from conviction is dismissed.

The Appeal from Sentence

[14]

As to the appeal from sentence, the only error of which the appellant
    complains is the failure of the trial judge to consider, as a mitigating
    factor, that the appellant was sexually abused as a child. Although the trial
    judge made no express mention of this as a mitigating factor in determining the
    sentence he imposed, he did make reference to it in summarizing the position
    advanced on behalf of the defence on the issue of sentence. This omission had,
    in our view, no impact on the sentence imposed which was demonstrably fit and
    reflective of the predominant principles of denunciation and deterrence.

[15]

In the result, although we would grant leave to appeal sentence, we
    dismiss the sentence appeal.

David Watt J.A.

M.L. Benotto J.A.

L.B. Roberts J.A.


