2011 QCCA 1098, 2011 QCCA 1098

Unofficial English Translation R. c. Noroozi 2011 QCCA 1098 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004447-098 (540-01-031305-074) DATE: June 13, 2011 CORAM: THE HONOURABLE MARC BEAUREGARD, J.A. JACQUES CHAMBERLAND, J.A. FRANÇOIS PELLETIER, J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v.

ALI NOROOZI RESPONDENT – Accused JUDGMENT [ 1 ] THE COURT; - On the appeal from a judgment delivered from the bench on July 8, 2009, by the Court of Quebec, Criminal and Penal Division (the Honourable Judge Maurice Parent), acquitting the respondent of the following charge: [ translation ] On or about September 29, 2006, at Laval, District of Laval, did assault J. S., thereby inflicting bodily harm and committing the indictable offence set out in

section 267 (

b) of the Criminal Code . [ 2 ] Having examined the file, heard the parties, and on the whole deliberated; [ 3 ] For the reasons of Chamberland, J.A., with which Beauregard and Pelletier, JJ.A. agree: [ 4 ] DISMISSES the appeal. MARC BEAUREGARD, J.A. JACQUES CHAMBERLAND, J.A. FRANÇOIS PELLETIER, J.A. Mtre Jonathan Boivin Director of criminal and penal prosecutions For the Appellant Mtre Serge Lamontagne Lamontagne, Oshriyeh, Deschênes, attorneys, n.p. For the respondent Date of hearing: May 10, 2011

REASONS OF CHAMBERLAND, J.A. [ 5 ] The appellant appeals from a judgment delivered from the bench on July 8, 2009, acquitting the respondent of the following charge (count amended at trial): [ translation ] On or about September 29, 2006, at Laval, District of Laval, did assault J. S. thereby inflicting bodily harm and committing the indictable offence set out in

section 267 (

b) of the Criminal Code . [ 6 ] The events giving rise to the charge occurred on the morning of September 29, 2006, on the ramp off Samson Boulevard, in Laval, leading to Highway 13, going south. [ 7 ] Midway onto the ramp, with vehicles driving bumper to bumper, Mr. S. saw a sports utility vehicle in his rear-view mirror that was attempting to pass the vehicles in front of it even at the risk of hitting them and despite the narrowness of the road. Worried about getting into a fender-bender, Mr.

S. manoeuvred his vehicle to block the way. [ 8 ] Both passengers in the sports utility vehicle—one of whom was the respondent—then got out and approached Mr. S.'s vehicle. [ 9 ] The witnesses could not agree on how the events unfolded afterwards except to confirm that a skirmish broke out. According to Mr. S., the respondent started the fight; according to the respondent, however, Mr. S. was responsible for getting that particular ball rolling. [ 10 ] The judgment was delivered from the bench.

After briefly summarizing the testimony of both parties, the judge stated that he did not have a [translation] "clear picture" of the events or of who initiated the skirmish. The judge stated his doubt as to whether it was the complainant or the accused who threw the first punches. He acquitted the accused. [ 11 ] Shortly thereafter, during a brief conversation with Crown counsel directly after entering the acquittal, the judge added that he could not even say who had caused the injuries sustained by Mr.

S. [ 12 ] The Crown raises the following grounds of appeal: 1) The judge failed to state the reasons that led him to have a doubt regarding the cause of the bodily harm sustained by Mr. S. 2) The judge based his decision to acquit the respondent on considerations unrelated to the charges laid against him. 3) The judge failed to consider the lesser included offence of assault. [ 13 ] I will address these grounds in the same order they were submitted.

Doubt concerning bodily harm [ 14 ] After the charge was modified at trial, the respondent was tried on charges of assault causing bodily harm. [ 15 ] The essential elements of the offence are set forth in paragraphs 265(1) and 267(

b) Cr. C. : 1) force is intentionally applied 2) to another person, without their consent 3) thus causing bodily harm to that person. [ 16 ] The appellant criticizes the trial judge for failing to state his reasons for doubting the source (who and how) of the bodily harm sustained by the complainant S. [ 17 ] The appellant refers to one-way evidence, uncontradicted by the defence, but upon reading the transcripts, it appears fairer to say that the evidence was, in fact, contradictory. [ 18 ] Mr.

S. stated that he was hit on the jaw and then fought back by head-butting the respondent on the nose before they wrestled each other to the ground and rolled around there until police officers separated them. [ 19 ] Mr. Noroozi stated that he was head-butted before he grabbed Mr. S. and that they were both locked together, rolling around on the ground when the police officers put an end to it by separating the two combatants. [ 20 ] As to the source of the injuries sustained by Mr. S., the trial judge had this to say in answer to the prosecution's comment that [translation] "it was Mr. Noroozi who injured Mr.

S.": [translation] I don't know that, no, who caused the injuries, they fell to the ground. Did it happen when he fell, doing what, I don't know.

[ 21 ] The reasons are brief, but we cannot say that they are so deficient as to constitute an obstacle to effective appellate review. [ 22 ] Obviously, the judge could not decide between the two versions and did not reject the possibility that Mr. S. hurt himself by falling to the ground and rolling around there while the two men wrestled. He may have been wrong, but I do not think that it can be concluded that he committed the error of not providing reasons for his opinion respecting this essential element of the offence.

Acquittal based on erroneous considerations Lesser included offence of assault [ 23 ] I will consider these two grounds of appeal as one since they are, in my opinion, inseparable in the context of this case. [ 24 ] The offence of assault causing bodily harm may lead to several distinct verdicts: conviction on the charge laid, conviction on the lesser included offence of assault, or acquittal on one or both of these offences. [ 25 ] We know that the trial judge had a doubt as to the source of the bodily harm sustained by Mr.

S. but that he made this known only after acquitting the accused, in answer to a comment by the prosecutor concerning the source of these injuries. [ 26 ] The sequence of events leads me to conclude that the judge had, although without explicitly stating it, clearly set aside the charge of assault causing bodily harm and that, consequently, his judgment delivered from the bench concerned the lesser included offence of assault. [ 27 ] He acquitted the accused because, in his words, he was unable to determine, beyond a reasonable doubt, whether it was the complainant or the respondent who had delivered the first blows (who was the aggressor).

This issue, however, does not constitute one of the essential elements of the offence of assault (any more than it is one of the essential elements of the offence of assault causing bodily harm). On this point, therefore, the appellant is right to maintain that the judge erred in basing his conclusion on this reason alone . In my opinion, however, this error is without consequence. [ 28 ] An accused who commits assault may be found guilty regardless of whether he or she was the aggressor. Obviously, if the accused is not the aggressor, he or she may be acquitted if the conditions of self-defence in

section 34 Cr. C. are met. [ 29 ] In the present case, both protagonists stated that they acted in self-defence. [ 30 ] The trial judge understood this well when he summarized the respondent's version: [translation] Mr. Noroozi tells us no, no, no, it's Mr.

S. that immediately came forward, head-butted me and then we grabbed each other, and so I defended myself and then we were on the ground and it was the police that split us up. (Emphasis added.) [ 31 ] At the end of the trial, the judge felt unable to determine, beyond a reasonable doubt, which of the two was the aggressor and, consequently, which of the two was simply defending himself. This conclusion clearly excludes the theory that the respondent committed assault by attacking Mr. S. This leaves the second theory, that he committed assault while defending himself.

On this matter, which concerns simple assault, I do not believe I am mistaken in saying that, in light of his

summary of the respondent's version, the judge clearly concluded that either the complainant had consented to fighting the respondent or the respondent was acting in self-defence. [ 32 ] For these reasons, I would dismiss the appeal. [ 33 ] In closing, and with great respect for the trial judge, I would make one last comment. I will not revisit the error of law that he committed; no one is above making an error, regardless of the court.

I do believe, however, that this appeal could have been avoided if the judge had taken a few additional minutes to organize his thoughts before delivering his judgment from the bench. He would then have necessarily understood the importance of deciding—and stating the reasons for his decisions—the issues of bodily harm, of assault and of self-defence. His reasoning would thereby have been clearer and safe from any challenge on appeal by the Crown. JACQUES CHAMBERLAND, J.A.