



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hudson, 2020 ONCA 557

DATE: 20200909

DOCKET: C66214 & C66357

Lauwers, Brown and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent (Appellant by cross-appeal)

and

Matthew Hudson

Appellant (Respondent by cross-appeal)

Anthony Marchetti, for the appellant/respondent
    by cross-appeal

Andrew Hotke, for the respondent/appellant
    by cross-appeal

Heard: August 27, 2020 by
    videoconference

On appeal from the conviction imposed by
    Justice Douglas K. Gray of the Superior Court of Justice on February 8, 2018
    with reasons reported at 2018 ONSC 871 and on cross-appeal from the sentence
    imposed by Justice Douglas K. Gray of the Superior Court of Justice on December
    5, 2018.

REASONS FOR DECISION

[1]

Matthew Hudson appeals from his conviction for
    aggravated assault. The Crown seeks leave to appeal the suspended sentence and two
    years probation imposed by the trial judge. For the following reasons, we
    would dismiss both the conviction appeal and the sentence appeal.

The background facts and findings below

[2]

On the evening of September 1, 2015, and on into
    the early hours of September 2, 2015, the appellant, the complainant, and
    others were at a party at a home in Oakville.

[3]

As the night progressed, most of the party-goers
    became increasingly intoxicated, having consumed alcohol and marijuana. The
    party was taking place outside of the residence, including a spot outside where
    a table and some chairs were set up. This is where the appellant and the
    complainant, along with others, were seated.

[4]

The appellant and the complainant did not know
    each other. At some point, the complainant found herself on the ground with the
    appellant on top of her. The complainants mother pushed the appellant off of
    the complainant. When the complainant stood up, she realized that she was
    bleeding from the neck. She was later taken to hospital where she received 10
    to 12 stitches.

[5]

The complainant did not see a knife or any other
    weapon and did not see anyone injure her. She testified that there was no
    apparent reason for the appellant to attack her.

[6]

Another person at the party gave evidence that,
    at some point, he saw the appellant and the complainant on the ground. He
    testified that the appellant was grabbing the complainant around the waist area
    with one hand and that his other hand was around the area of the complainants
    throat. This witness never saw a knife. He also did not notice that the
    complainant was bleeding until she was standing up.

[7]

A close friend of the appellants, Ms. W., was
    also at the party. She testified that everyone at the party was really drunk.
    She testified that the appellant was trying to hit on the complainant and
    that the complainant was being rude. At one point, the complainant flicked ash
    from her cigarette onto the appellants hair and he snapped.

[8]

Ms. W. also testified that she did not see the
    appellant and the complainant fall to the ground, but she did see them on the
    ground. She ran over to where the appellant and the complainant were on the
    ground. She testified that she saw a knife in the appellants hand and that the
    blade of the knife was on the complainants neck. She testified that she put
    her left hand under the blade of the knife, grabbed the blade, and then threw the
    knife away.

[9]

A knife was found at the scene. It was submitted
    for DNA analysis. That analysis showed that, on the blade of the knife, DNA was
    found with three contributors: the complainant, Ms. W., and a third sample that
    was not suitable for comparison. On the handle of the knife, DNA was found from
    two contributors: a major contributor, the appellant, and a minor contributor
    that was not suitable for comparison.

[10]

The appellant gave evidence. The appellant
    testified that he had a knife in his pocket, similar to the one found at the
    scene, that he used for work. He indicated that he was wearing the same pants
    as he had worn the day before at work, and that the knife was simply left in
    the pocket from the previous day.

[11]

At one point in the evening, the appellant said
    that he received a call from Peel Regional Police about a domestic dispute
    involving the appellants girlfriend. The police asked to meet with him. The
    appellant agreed. Prior to going to meet with the police, the appellant said
    that he gave his knife to Ms. W.

[12]

With respect to his interactions with the
    complainant, the appellant testified that he and the complainant were acting
    flirtatiously towards each other. At one point, the complainant put her arms
    out, as if to ask for a hug from the appellant, and the appellant leaned in to
    hug her. When he did so, he and the complainant fell over. The appellant testified
    that he does not know what happened, but he was on the ground with the
    complainant and his arms were around her. The appellant denied having caused
    the injury to the complainant.

[13]

The trial judge found the appellant guilty. In
    doing so, the trial judge expressly found that Ms. W.s evidence, by itself,
    would not be sufficient to establish guilt beyond a reasonable doubt, because
    of certain flaws he found in Ms. W.s evidence. However, the trial judge found
    that other evidence corroborated the central aspects of Ms. W.s evidence. In
    particular, the trial judge relied on the DNA evidence regarding the presence
    of Ms. W.s DNA on the blade of the knife and the appellants DNA on the
    handle. The trial judge noted that Ms. W. sustained injuries to her hand consistent
    with her grabbing the open blade of the knife. He also pointed to the fact that
    the knife was found at the scene in a location consistent with her evidence
    that she threw the knife away.

[14]

The trial judge rejected the appellants
    evidence. He found the appellants evidence to be riddled with
    improbabilities, including his claimed visit to the police and his claim that
    he gave the knife to Ms. W. The trial judge also found that the appellants
    evidence did not raise any reasonable doubt.

The conviction appeal

[15]

We do not see any palpable and overriding error
    in the trial judges analysis and conclusion. He reviewed the evidence and made
    findings of fact that were consistent with the evidence and which would sustain
    a conviction for the offence of aggravated assault.

[16]

The appellant complains about the trial judges
    use of the DNA evidence and also of his failure to address problems with the
    evidence of Ms. W. With respect to the second complaint, the trial judge was
    clearly aware of the issues with Ms. W.s evidence, as his reasons make clear.
    While that evidence, standing alone, did not satisfy him of guilt beyond a
    reasonable doubt, he found other evidence that corroborated the evidence of Ms.
    W. We do not find any error in the trial judges treatment of that
    corroborating evidence. In terms of the first complaint, the appellant parses
    the evidence and, in particular, treats the DNA evidence in isolation from the
    rest of the evidence. That is not the proper approach. The trial judge was
    required, and did, examine all of the evidence in reaching his conclusion.

[17]

The appellant also raises ineffective assistance
    of counsel as a ground of appeal. Various complaints were made with respect to
    trial counsels conduct of the case. We do not find, either individually or
    collectively, that these complaints rise to the level necessary to establish ineffective
    assistance of counsel.

[18]

To establish ineffective assistance of counsel,
    an appellant must establish on a balance of probabilities that: (1) the
    representation provided by trial counsel was incompetent, and (2) the
    incompetent representation resulted in a miscarriage of justice:
R. v.
    Joanisse
(1995), 102 C.C.C. (3d) 35 (Ont. C.A.), leave to appeal to S.C.C.
    refused, 25430 (January 31, 1997).

[19]

Much of what the appellant complains about
    regarding the actions of his trial counsel relate to matters of trial tactics. Judgment
    calls relating to trial tactics do not generally constitute incompetence even
    if, with the benefit of hindsight, a different call might have been better:
Joanisse
,
    at paras. 73-74. The appellant has not demonstrated that anything that trial
    counsel did, or did not do, compromised the fairness of the verdict or resulted
    in a miscarriage of justice. Indeed, at least one of the complaints, the one
    dealing with the failure to obtain and place into evidence the contents of a
    911 call, could very well have done more harm than good to the appellants
    defence.

[20]

In the end result, none of the complaints relate
    to the central evidence that formed the basis of the trial judges conclusion
    that the offence was proved beyond a reasonable doubt. Put another way, the
    appellant has failed to show that there is a reasonable probability that but
    for the alleged incompetence, the result of the proceeding would have been
    different:
R. v. Dunbar
, 2007 ONCA 840, at para. 23.

[21]

The conviction appeal is dismissed.

The Crowns sentence appeal

[22]

The Crown seeks leave to appeal from the
    suspended sentence with probation imposed by the trial judge. The Crown submits
    that a custodial sentence was required in these circumstances.

[23]

We begin by noting the principle laid down in
R.
    v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11: [E]xcept
    where a sentencing judge makes an error of law or an error in principle that
    has an impact on the sentence, an appellate court may not vary the sentence
    unless it is demonstrably unfit.

[24]

The appellant has not satisfied us that the
    sentencing judge made any error in principle, and while we accept that imposing
    a suspended sentence was especially lenient given the circumstances of the
    offence, we do not accept that the sentence rises to the level of being
    demonstrably unfit. Suspended sentences have been upheld in other cases  see,
    for example,
R. v. Peters
, 2010 ONCA 30, 250 C.C.C. (3d) 277 
    although we accept that such results are exceptional.

[25]

We do not accept the Crowns submission that the
    sentencing judge failed to properly consider denunciation and deterrence. The
    sentencing judge was well aware of the seriousness of the conduct, to which he
    made reference a number of times in the course of his reasons. At the same time,
    the sentencing judge considered that the many positive factors relating to the
    appellant drove the appropriate sentence away from the need for incarceration.

[26]

The sentencing judge explained that the
    appellant was a young man (18 at the time of the offence); who had no prior
    criminal record; who received a positive pre-sentence report; who was gainfully
    employed; and who had strong support in his community. The trial judge also
    noted that the offence was a spur of the moment event that was fueled by the
    consumption of alcohol and drugs.

[27]

Lacasse
, at
    para. 49, cautions appellate courts that the fact that a sentencing judge
    weighs relevant factors differently than the appellate court might have done,
    is not a basis upon which the appellate court is entitled to interfere with the
    sentence. With respect, that is essentially what the Crown invites us to do.

[28]

While leave to appeal sentence is granted, the
    appeal is dismissed, save and except to set aside the victim fine surcharge
    that was imposed.

P.
    Lauwers J.A.

David
    Brown J.A.

I.V.B.
    Nordheimer J.A.


