R v Hudson 2020 ONCA 557


This case concerns whether evidence was adequately evaluated, the ineffective assistance of counsel and whether a custodial sentence should have been imposed in lieu of a suspended one.

Facts

Matthew Hudson, the appellant, was sitting outside at a house party with the complainant when suddenly they were both noticed on the ground, with the appellant on top of the complainant, and with the appellant’s knife on the complainant’s neck. Ms. W, a friend of the appellant, interjected and pushed the knife away. The complainant was found to be bleeding and later received 10-12 stitches. How the altercation happened and how it came to be that both were on the ground could not be determined because of the intoxication of all of the parties present at the house party.

The appellant was convicted of aggravated assault and sentenced to a suspended sentence and two years’ probation. The appellant appealed the conviction. The Crown sought leave to appeal the sentence.

Issues

  1. Whether the trial judge erred using the DNA evidence and whether he failed to address the problems with Ms. W’s evidence?

  2. Whether there was ineffective assistance of counsel for the appellant?

  3. Whether the sentence should have been a custodial sentence?


Holding

Appeal dismissed.

Reasoning

Conviction Appeal

The Court of Appeal found no mistakes in the trial judge’s findings of fact. Although there were issues with Ms. W’s testimony, the trial judge found other corroborating evidence to satisfy himself beyond a reasonable doubt and examined all evidence when he reached his conclusion.

With reference to the two-part test for ineffective assistance of counsel in R v. Joanisse, the Court of Appeal found no conduct that would establish this claim.

Sentence Appeal

The Crown contended that a custodial sentence was appropriate in this case, however, referencing para. 11 of R v. Lacasse, the Court of Appeal may only vary a sentence when the sentencing judge has imposed a sentence that is demonstrably unfit, unless there has been an error of law or an error of principle that would have an effect on the sentence. They also referenced para. 49, which states that an appellate court should not vary the sentence even if they would have weighed the relevant factors differently than the sentencing judge. In this particular case, the Court of Appeal determined that the sentencing judge adequately considered the principles of denunciation and deterrence and mitigating factors when imposing the suspended sentence.

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