2012 QCCA 1219, 2012 QCCA 1219

Renshaw c. R. 2012 QCCA 1219 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL MINUTES OF THE HEARING DATE: June 29, 2012 THE HONOURABLE ALLAN R. HILTON, J.A. No: 500-10-005190-127 ( 505-01-069521-074 ) PETITIONER ATTORNEY MARK RENSHAW Mtre Leonard Waxman (ABSENT) WAXMAN DORVAL PERRON DEL NEGRO RESPONDENT ATTORNEY HER MAJESTY THE QUEEN Mtre Daniel Royer (ABSENT) Procureur aux poursuites criminelles et pénales No: 500-10-005191-125 ( 505-01-069521-074 ) PETITIONER ATTORNEY JOEL BOULIANNE Mtre Leonard Waxman (ABSENT) WAXMAN DORVAL PERRON DEL NEGRO

RESPONDENT ATTORNEY HER MAJESTY THE QUEEN Mtre Daniel Royer (ABSENT) Procureur aux poursuites criminelles et pénales MOTIONS FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON MAY 7, 2012, BY THE HON. PIERRE BELISLE OF THE QUEBEC COURT DISTRICT OF LONGUEUIL Clerk: Annick Nguyen Court Room: —— HEARING Continuation of June 27, 2012, hearing. Counsel are advised that judgment will be rendered on the minutes of the hearing and their presence in Court is not required. Judgment – See page 4. Annick Nguyen Clerk JUDGMENT [ 1 ] Mark Renshaw and Joel Boulianne were convicted at a judge alone trial on two counts of assault with a weapon contrary to subsection 267(

a) Cr.C . and aggravated assault contrary to subsection 268(1) Cr.C . The weapons to which reference is made in the counts under subsection 267(

a) are respectively a half broomstick that measured 18 inches in length and a dog, which is variously described as a Staffordshire Terrier or one of Pitbull mix.

[2] The applicants did not deny the assault on the victim, X, who was then 15 years old.[1] He was severely beaten about theface, and left in a pool of blood as the applicants fled the scene and later attempted to conceal their involvement in the assault. After thebeating, the victim only regained consciousness when hospitalized. The trial judge described the injuries the applicants inflicted on thevictim as being a fracture of the nose, several contusions, bruises and a major injury to his left eye. [3] The applicants sought their acquittal based on self-defence.

They contended that they acted as they did because they wereaware the victim carried a knife in his pocket, and was known to be violent. In fact, a pocket knife the victim had been carrying wasfound at the scene, however, there was no evidence X had used it to either assault the applicants or defend himself from their assault. [4] When they encountered each other on the evening in question, an altercation developed over the fact that X was then seeingJoel Boulianne's former girlfriend, Y. The victim was unappreciative of continuing contacts between Y and Joel subsequent to theirbreak up.

The victim knew these contacts had included a sexual encounter between the former couple after he had begun to date her. Hehad previously threatened Joel Boulianne and made it known to him he would only be able to drink with a straw if he continued to speakto his new girlfriend. Matters soon degenerated after the victim put his hands in his pants pockets, which the applicants claimed theyunderstood to be a gesture that would lead to them being stabbed or shot. Mark Renshaw then initiated the assault, in which he wasquickly joined by Joel Boulianne.

The victim was evidently taken by surprise, as he never responded to defend himself.

The assault wascarried out in such a way as to render the victim totally helpless as the two of them fled, since they testified that they feared he wouldshoot at them if they did not disable him. [5] For the most part, the Crown and defence evidence, which included the testimony of the applicants, focussed on the variouselements of self defence and whether the facts found by the trial judge gave rise to its application. [6] In a lengthy, comprehensive judgment, the trial judge concluded that the evidence relating to self-defence based onsubsection 34(2) Cr.C. had a sufficient air of reality to shift the burden to the Crown to disprove self-defence beyond a reasonabledoubt.[2] Nevertheless, the Crown was successful in doing so, thus resulting in the applicants' conviction.

In reaching this conclusion,the trial judge held that: • the assault was unprovoked; • despite the attitude of the victim, the force the applicants employed to pre-emptively defend themselves was excessive in thecircumstances; • the degree of force used was consistent with an intention to inflict grievous bodily harm; • the applicants' subjective belief that they were about to be themselves the victim of an assault, assuming it to be true, was objectivelyunreasonable in the circumstances. [7] Both applicants seek leave to appeal on questions of mixed law and fact pursuant to subparagraph 675(1)(a)(ii) Cr.C.

Theyclaim that the trial judge "failed to appreciate and or completely disregarded" what they then describe as "the following relevantevidence".

No less than 33 items are then set out. [8] The motion then identifies 13 errors the judge would have committed in concluding that the Crown had succeeded indisproving the defence of self defence. [9] I note at the outset, as did counsel for the Crown, that the applicants have not filed a notice of appeal as of right in whichthey allege errors of law.[3] They are therefore taken not to be challenging the trial judge's understanding of the law of self defence, andin particular his decision to exclude it under subsection 34(1) Cr.C.

It is only the application of the facts to the law of self defence undersubsection 34(2) Cr.C. that they seek to put in issue. [10] My reading of the 33 alleged errors the trial judge is alleged to have committed do not persuade me that any of them, viewedindividually or collectively, are potentially determinative such that they might give rise to an order for a new trial. In fact, they seem tobe trivial.

Simply by way of illustration, the applicants allege that one witness, Laurence Authier, did not notice if X had his hands in hispockets as she was moving in a car and only saw part of the incident in her rear view mirror. Another alleged error is that the victim andY appeared to be arguing as they were walking towards the applicants. [11] These supposed errors have the hallmark of what might well have been argued at trial after the close of the evidence in orderto raise a reasonable doubt, but they hardly amount to a basis on which this Court could properly intervene.

At best, they are peripheral tothe trial judge's critical findings of fact. [12] The same is true of the 13 supposed other alleged errors that the applicants assert constitute a misinterpretation of theevidence. The first of them is also illustrative: that the trial judge erred in stating there was no evidence of aggression on the part of Xbecause they described in their testimony their own impression of his behaviour, and because Y testified she received "bad vibes" fromhis demeanour.

The trial judge was careful to explain, however, why he did not believe the testimony of Joel Boulianne on this issue, andwhy he discounted that of Mark Renshaw as well. The "vibes" of Y hardly amount to evidence of much. [13] Such findings would leave little room for intervention by this Court. [14] In this respect, the words of Fish, J. in R. v. Clark[4] bear repeating: [9] […] Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless theyare clearly wrong, unsupported by the evidence or otherwise unreasonable.

The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm: see Stein v. The Ship “Kathy K”, (SCC), [1976] 2 S.C.R. 802; Lensen v. Lensen,(SCC), [1987] 2 S.C.R. 672; Geffen v. Goodman Estate, (SCC), [1991] 2 S.C.R. 353; Hodgkinson v. Simms, 1994

70 (SCC), [1994] 3 S.C.R. 377; Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, (SCC), [1994]1 S.C.R. 114; Schwartz v. Canada, (SCC), [1996] 1 S.C.R. 254; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC33. [Emphasis added.] [15] So too do those of Binnie, J. in R. v. Loher: [5] [1] This is an appeal as of right from convictions of the appellant for aggravated assault and uttering a threat. A majority of the B.C.Court of Appeal affirmed the convictions. Hollinrake J.A. dissented. He found applicable to this case what was said by Doherty J.A. ofthe Ontario Court of Appeal in R. v.

Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193, as follows at p. 221: Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential

part in thereasoning process resulting in a conviction, then, in my view, the accused’s conviction is not based exclusively on the evidence and isnot a “true” verdict. Later in the same paragraph, Doherty J.A. stated: If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow thatthe appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actuallyadduced at trial, was capable of supporting a conviction.

We agree with these observations. […] [2] Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substancerather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge.

Once those hurdles aresurmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified mustplay an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”. [Emphasis added] [16] I do not see any possibility that the "stringent standard' Binnie, J. describes could possibly be met in this case if leave were tobe granted. [17] The motion for leave to appeal is therefore DISMISSED. ALLAN R. HILTON, J.A.