



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Benjamin, 2018 ONCA 385

DATE: 20180419

DOCKET: C62855

Feldman, Roberts and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bernard Benjamin

Appellant/Applicant

Mark Halfyard, for the appellant

Matthew Asma, for the respondent

Heard and released orally: April 17, 2018

On appeal from the conviction entered on March 4, 2016 and
    the sentence imposed on August 12, 2016 by Justice S. Bacchus of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals from his convictions for aggravated assault,
    assault with a weapon, weapons dangerous and assault. He received an 18 month
    sentence. He has abandoned his sentence appeal.

[2]

The offences arise out of an altercation between the appellant and his
    partners uncle. The appellant and the complainant gave different accounts of
    what happened, including who initiated the dispute and how the respective
    injuries sustained by the appellant and the complainant were inflicted. The
    appellant submits that the trial judge erred in her treatment of the relevant
    evidence and his defence of self-defence. He asks for a new trial.

[3]

We agree that the trial judge erred and that a new trial is required.
    The trial judge gave a number of reasons for rejecting the evidence of the
    appellant. He submits that three of those were based on misapprehensions of the
    evidence. Crown counsel fairly concedes one of the misapprehensions but takes
    the position that it is not material given the other findings of the trial
    judge.

[4]

We agree with Crown counsels concession that the trial judge erred in
    finding that there was no blood on the swivel chair or near it. She therefore
    rejected the appellants claim that he used the swivel chair defensively around
    the time the complainant cut the appellants hands. The effect of this
    misapprehension was to undercut the basis for the appellants self-defence claim
    and was key to that defence.

[5]

We also agree with the appellant that the trial judge appeared to
    misapprehend the evidence regarding the complainant greasing up his body. That
    misapprehension could have led the trial judge to reject the appellants claim
    that he perceived the complainant as fixed for a fight and as the aggressor.

[6]

We conclude that these misapprehensions cannot be viewed as other than
    material to the analysis. A new trial is therefore required.

[7]

Accordingly, the appeal is allowed and a new trial is ordered.

K.
    Feldman J.A.

L.B.
    Roberts J.A.

G.T.
    Trotter J.A.


