R. v. B.N., (2002) 162 O.A.C. 396 (CA)

• Judge: Carthy, MacPherson and Armstrong, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 19, 2002
• Jurisdiction: Ontario
• Citations: (2002), 162 O.A.C. 396 (CA)

R. v. B.N. (2002), 162 O.A.C. 396 (CA)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. SE.043

Her Majesty The Queen (respondent) v. B.N. (appellant)

(C35923)

Indexed As: R. v. B.N.

Ontario Court of Appeal

Carthy, MacPherson and Armstrong, JJ.A.

September 19, 2002.

Summary:

The accused appealed his assault conviction on the grounds that (1) the trial judge erred in rejecting the testimony of a witness favourable to the accused and (2) erred in finding that the single punch thrown by the accused constituted excessive force, precluding a plea of self-defence under s. 34(1) of the Criminal Code.

The Ontario Court of Appeal, MacPherson, J.A., dissenting, allowed the appeal and ordered a new trial. Weaknesses in the findings respecting credibility of the witness were sufficient to support a finding that the trial judge misapprehended the evidence. Had the trial judge properly apprehended the evidence of the witness he may have come to a different conclusion on the issue of self-defence.

Criminal Law - Topic 239

General principles - Statutory defences or exceptions - Self-defence - [See Criminal Law - Topic 7655 ].

Criminal Law - Topic 7655

Summary conviction proceedings - Appeals - Grounds - Misapprehension of evidence - The accused was convicted of assaulting another student - The accused threw a single punch to the student's face - The accused submitted that the other student started it and that he threw the punch in self-defence - A defence witness supported the accused's version - The other student claimed that he was "sucker-punched" - The accused appealed on the grounds that (1) the trial judge erred in rejecting the testimony of the witness and (2) erred in finding that the single punch thrown by the accused constituted excessive force, precluding a plea of self-defence - The Ontario Court of Appeal allowed the appeal and ordered a new trial - Weaknesses in the findings respecting credibility of the witness were sufficient to support a finding that the trial judge misapprehended the evidence - Had the trial judge properly apprehended the evidence of the witness he may have come to a different conclusion on the issue of self-defence.

Cases Noticed:

R. v. Harper (1982), 34 N.R. 359; 65 C.C.C.(2d) 193 (S.C.C.), refd to. [para. 18].

Counsel:

Carol Ann Bauman, for the respondent;

Carolyne Kerr, for the appellant.

This appeal was heard on June 18, 2002, before Carthy, MacPherson and Armstrong, JJ.A., of the Ontario Court of Appeal.

On September 19, 2002, the judgment of the Court of Appeal was released and the following opinions were filed:

MacPherson, J.A., dissenting - see paragraphs 1 to 24;

Armstrong, J.A. (Carthy, J.A., concurring) - see paragraphs 25 to 33.