2012 NBCA 10, 2012 NBCA 10

COURT OF APPEAL OF NEW BRUNSWICK 95-11-CA DANY DESCHÊNES APPELLANT DANY DESCHÊNES APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Deschênes v. R., 2012 NBCA 10 Deschênes c.

R., 2012 NBCA 10 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Bell The Honourable Justice Quigg CORAM : L’honorable juge en chef Drapeau L’honorable juge Bell L’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: June 8, 2011 Appel d’une décision de la Cour du Banc de la Reine: Le 8 juin 2011 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: January 18, 2012 Appel entendu : Le 18 janvier 2012 Judgment rendered: January 18, 2012 Jugement rendu : Le 18 janvier 2012

Counsel at hearing: No one appeared for Dany Deschênes For the respondent: Pierre F. Roussel, Q.C. Avocats à l’audience : Personne n’a comparu pour Dany Deschênes Pour l’intimée : Pierre F. Roussel, c.r. THE COURT The application for leave to appeal is dismissed. LA COUR Rejette la demande en autorisation d’appel. English version of the decision delivered by THE COURT (Orally) [1] Dany Deschênes challenges the basis for his conviction for assault causing bodily harm (s. 267(

b) of theCriminal Code). The conviction was entered by a Provincial Court judge following a trial, during which Mr. Deschênes opted to exercisehis right to silence despite damning testimony by Crown witnesses. Indeed, the complainant testified he felt acute pain in his jaw afterMr. Deschênes violently punched him in the face. Moreover, the attending physician confirmed the complainant sustained a fracture ofthe jaw. [2] Mr. Deschênes submits the testimony forming the basis of the judge’s finding of guilt is unreliable.

It follows,in his view, that the judge should have rejected it and entered a verdict of acquittal. [3] It has consistently been held that an appellate court should not retry cases. The role of the court of appeal wasdescribed as follows in R. v. Simon, [1999] N.B.J. No. 393 (QL), at para. 2: Since this Court is a court of review, its function is not to retry an accused. Rather, its role is essentially to review the record of theproceedings below to determine whether the accused received a fair trial on proper evidence and according to the law.

Matters ofcredibility are clearly within the province of the trier of fact and this Court is duty bound to respect a trial judge’s conclusions in respectof such matters except in the most unusual cases. See R. v. Léger, [1999] N.B.J. No. 43, (January 27, 1999 (N.B.C.A.). Indeed, thecredibility of witnesses, including the accused, is a question of fact and leave to appeal on this ground must first be obtained pursuant tos. 675(1)(a)(ii) of the Code. See also R. v. Shalala (R.H.) (2000), (NB CA), 224 N.B.R. (2d) 118, [2000] N.B.J. No. 14 (C.A.) (QL) leave toappeal refused, [2000] S.C.C.A. No. 133 (QL); Boudreau v.

R., 2004 NBCA 87, [2004] N.B.J. No. 416 (QL); Sweeney v. R., 2005NBCA 91, [2005] N.B.J. No. 431 (QL); Moffitt v. R., 2006 NBCA 100, [2006] N.B.J. No. 464 (QL) and Thomas v. R., 2007 NBCA 3,310 N.B.R. (2d) 342. [4] Section 265(1)(

a) of the Code states that “ [a] person commits an assault when […] without the consent ofanother person, he applies force intentionally to that other person, directly or indirectly”.

Section 267(

b) provides that every one who, incommitting an assault, causes “bodily harm” to the complainant is guilty of an indictable offence or an offence punishable on

summaryconviction. This case was prosecuted by indictment. Finally, s. 2 equates “bodily harm” to “any hurt or injury to a person that interfereswith the health and comfort of the person and that is more than merely transient or trifling in nature”. The trial judge found, on thestrength of the above-mentioned testimony, that Mr. Deschênes committed the assault described in the information and that this assault

had caused bodily harm to the complainant. These, of course, are findings of fact. [ 5 ] Mr. Deschênes would have us set aside these findings and substitute findings that are favourable to him. Yet, he points to no significant error in the trial judge’s assessment of the evidence. Given this assessment, the above-mentioned provisions of the Code and the applicable principles of law, we can only conclude the trial judge was entitled to make the contested findings and enter the conviction Mr. Deschênes challenges on appeal. [ 6 ] Since the grounds of appeal are based solely on questions of fact, Mr.

Deschênes cannot appeal his conviction without first obtaining leave under s. 675(1)( a )(ii). Mr. Deschênes has failed to satisfy us that such leave is appropriate. His application is therefore dismissed. _____________________________________ J. Ernest Drapeau, Juge en chef du Nouveau-Brunswick ______________________________________ B. Richard Bell, j.c.a _______________________________________ Kathleen A. Quigg, j.c.a.