R. v. English, 2012 NLCA 64

Date: 20121009 Docket: 11/07, 11/09, 11/10 Citation: R. v. English , 2012 NLCA 64 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : HER MAJESTY THE QUEEN APPELLANT AND : JASON ENGLISH RESPONDENT/ APPELLANT BY CROSS APPEAL Coram: Welsh, White and Hoegg JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador St. John’s, NL Appeal Heard: September 19, 2012 Judgment Rendered: October 9, 2012 Reasons for Judgment by Welsh J.A. Concurred in by White and Hoegg JJ.A. Counsel for the Appellant (Provincial Crown): Vikas Khaladkar Counsel for the Appellant (Federal Crown): John Brooks Q.C. Counsel for the Respondent: James Goodwin

Welsh J.A.: [ 1 ] Jason English was convicted of aggravated assault and breach of a conditional sentence order as a result of an altercation in which a portion of the victim’s ear was bitten off. The Crown appeals the sentence of eight months imprisonment imposed for the aggravated assault conviction, and the manner in which the trial judge reduced the sentence to account for Mr. English’s pre-sentence incarceration. By way of cross-appeal, Mr. English appeals his conviction for aggravated assault.

Success on that appeal would result in a setting aside of the conviction for breach of the conditional sentence order which was based on failure to keep the peace as a result of the assault. BACKGROUND [ 2 ] In her oral decision, the trial judge determined that Mr. English was employed as a bouncer in a drinking establishment (the “Loft”) in the early morning hours of May 23, 2010. When that establishment closed about 3:00 a.m., he proceeded to a nearby “after hours” drinking establishment (“Spin”). Both establishments were owned at the time by the same person, Mr. Dooley. The trial judge noted: Mr.

Dooley indicated in his evidence that he owned Loft and Spin and that from December 29, 2009 until the end of May, 2010, Mr. English worked for him at Loft on the door, bouncing and generally helping out as needed. He would pay Mr. English in cash what he could afford and when he could afford it. … Although staff would generally be assigned separately, there was some sharing of staff as needed, particularly, Mr.

Dooley indicates, that Jason English would, on occasion, be called upon to assist at Spin and English did not need to be given specific direction in order for him to go down to Spin. … … In the meantime, it would seem that these businesses, if in fact there were two, were operated in a very loose way. There does not appear to have been much in the way of payroll which in a typical business could give good evidence as to who actually worked there. Even the bar staff at Spin were not paid wages, they worked for tips and drinks. … [ 3 ] The trial judge found that Mr.

English was working at both the Loft and Spin in the early morning hours of May 23, 2010. There was no evidence as to who was managing Spin on that morning. Mr. English arrived at Spin with his girlfriend and her two friends. His girlfriend went to the washroom, which was occupied, and began beating on the door and demanding, “perhaps using profanity”, that the occupant hurry. While this was going on, Stephen Layman came out of the men’s washroom and had a verbal exchange with Mr. English’s girlfriend about how she was behaving. Ultimately, Mr.

Layman, who was not employed at Spin, but was a friend of the manager and of the bartender, attempted to physically move Mr. English’s girlfriend toward the exit. When Mr. English saw this, he intervened and pushed Mr. Layman against an adjacent wall. At this point, the bartender, Chesley Bursey (the “complainant”), punched Mr. English on the side of the head. The complainant admitted that he struck the first blow and that Mr. English would not have seen it coming. The blow caused Mr. English to turn to the complainant, grab him and push him backwards. There was some evidence that Mr.

English was struck on the top of his head by another person, but the trial judge made no finding of fact on this point. The trial judge concluded: The next point is the most critical. Mr. English did push [the complainant] away; however, either just before or during the push, I find that he did bite down on [the complainant’s] ear, removing a portion of the ear. … It is this ear biting that resulted in Mr. English being charged with the aggravated assault on [the complainant] contrary to section 268(1) of the Criminal Code . [ 4 ] The trial judge then determined that self-defence could not be relied upon by Mr.

English because he used more force than was necessary or reasonably justified: In the instant case I do not find that there was an air of reality with regard to the accused having no alternative but to bite down on [the complainant’s] ear. Mr. English is six feet four inches tall and at the time of this incident, was over 200 pounds and in good shape. He was working as a bouncer and would therefore have experience in dealing with physical altercations. [The complainant], though smaller than Mr. English, was admittedly a bar room brawler and having blindsided Mr. English could reasonably expect Mr.

English to use force against him. I find that the force, in the form of Mr. English grabbing [the complainant] and then the two moving across the dance floor and ultimately Mr. English pushing [the complainant] away from him, even if at that point that – up to that point was all – would have all been reasonable in the circumstances, but even if Mr. English was struck on the head by something, this incident, as described, doesn’t lead to an air of reality that there was no other option available to Mr. English but to bite down on [the complainant’s] ear. Mr.

English’s evidence did indicate to me that although he may have been dazed, he was sufficiently strong that he could grab [the complainant], move the both of them onto the dance floor and ultimately push [the complainant] away from him. The ear biting was then a gratuitous act which was not required by the circumstances. I would therefore find that section 34(2) is not available as a defense in the instant case on the assault on [the complainant].

In like manner, if I’m wrong and the ear biting did not constitute grievous bodily harm, I would find under section 34(1) that it was force which was more than was necessary to enable Mr. English to defend himself. … [ 5 ] In the result, the trial judge convicted Mr. English of aggravated assault, for which she imposed a sentence of 243 days imprisonment. In addition, because Mr. English failed to keep the peace and be of good behaviour, he was convicted of breach of his conditional sentence order. Based on an assessment of Mr.

English’s pre-sentence imprisonment, the trial judge reduced his sentence by 223 days, leaving twenty days remaining to be served. (For convenience of the analysis, I will refer to the 243 day sentence as a sentence of eight months.) ISSUES [ 6 ] At issue in the appeal against conviction is whether the trial judge erred in her assessment of the self-defence provisions of the Criminal Code . The Crown’s appeal against the fitness of sentence relates to the consideration of aggravating factors. Finally, the manner in which the trial judge reduced the sentence to account for pre-sentence detention is at issue.

ANALYSIS Appeal Against Conviction [7] Mr. English was convicted of aggravated assault contrary to section 268(1) of the Criminal Code, which provides: Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. [8] The trial judge’s finding that Mr. English bit off a portion of the complainant’s ear is not contested. Rather, the focus of theappeal is whether the trial judge erred in her analysis of self-defence under sections 34 and 37 of the Criminal Code.

Section 34provides:

(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he usesis not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if (

a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originallymade or with which the assailant pursues his purposes; and (

b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. [9] Principles of law to be applied under

section 34 are discussed by the majority in R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R.3. If the accused establishes an air of reality with respect to the components of the defence, the Crown must prove beyond a reasonabledoubt that the defence does not apply (paragraph 39). An air of reality is established if “there is evidence on the record upon which aproperly instructed jury acting reasonably could acquit” (paragraph 49).

Whether there is an air of reality “is a question of law, subject toappellate review” because it amounts to “a legal conclusion about the presence or absence of an evidential foundation” for the defence(paragraph 55). [10] As discussed in Cinous, section 34(2) has three constituent elements for which the accused must establish an air of reality: [93] In Pétel [ (SCC), [1994] 1 S.C.R. 3], at p. 12, Lamer C.J. stated the three constitutive elements of self-defenceunder s. 34(2): “(1) the existence of an unlawful assault; (2) a reasonable apprehension of a risk of death or grievous bodily harm; and (3)a reasonable belief that it is not possible to preserve oneself from harm except by killing [or grievously injuring] the adversary”.

Allthree of these elements must be established in order for the defence to succeed. The air of reality test must therefore be applied to eachof the three elements. … [94] Each of the three elements under s. 34(2) has both a subjective and an objective component. The accused’s perception of thesituation is the “subjective” part of the test. However, the accused’s belief must also be reasonable on the basis of the situation heperceives.

This is the objective part of the test. … With respect to each of the three elements, the approach is first to inquire about thesubjective perceptions of the accused, and then to ask whether those perceptions were objectively reasonable in the circumstances. [11] In the case now before this Court, the focus is on the third component of the defence; that is, whether there is an air of reality tothe submission that Mr. English had a reasonable belief that it was not possible to preserve himself from grievous harm except byinflicting the injury he did on the complainant. [12] In rejecting Mr.

English’s submission on this point, the trial judge gave reasons for her conclusion based on an objectiveperception of a reasonable person. She pointed to the facts that Mr. English is six feet four inches tall and at the time of the incident wasin good shape. While she noted that the complainant is smaller in stature, she recognized that he “was admittedly a bar room brawler”. The judge took account of the fact that Mr. English had experience dealing with physical altercations by virtue of his employment as abouncer. The altercation did not last long. In the circumstances, Mr.

English has not pointed to any error by the trial judge regarding herassessment of section 34(2) of the Criminal Code. [13] The above factors lead to the same result when section 34(1) is applied. Under that provision, the force used by the accusedmust be “no more than is necessary to enable him to defend himself”. Mr. English did not point to any basis on which this Court couldfind that the trial judge erred in her conclusion applying section 34(1) in the alternative. [14] Mr. English further submitted that the trial judge erred by failing to apply

section 37 of the Criminal Code, which provides:

(1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than isnecessary to prevent the assault or a repetition of it.

(2) Nothing in this

section shall be deemed to justify the willful infliction of any hurt or mischief that is excessive, having regard to thenature of the assault that the force used was intended to prevent. (Emphasis added.) [15] Assuming this provision would apply in the circumstances of this case, the reasons that were relevant under

section 34 wouldlead to the same result under

section 37; that is, biting off part of the complainant’s ear amounted to excessive force in thecircumstances. I note in passing that neither counsel for Mr. English nor counsel for the Crown could cite, nor have I found, any cases inwhich a court accepted that biting off a portion of a victim’s ear satisfied the requirements of self-defence. [16] In the result, Mr. English’s appeal against conviction for aggravated assault is dismissed. Appeal Against Sentence

Fitness of the Sentence [ 17 ] Counsel for the Crown submitted that the sentence of eight months imprisonment imposed by the trial judge was unfit. He submitted that the trial judge failed to take account of aggravating factors, in particular, the gravity of the offence, Mr. English’s criminal record and the fact that he was serving a conditional sentence at the time of the offence. [ 18 ] In her oral decision, the trial judge stated that “there are no statutory aggravating factors”. Nonetheless, she recognized that Mr.

English had a prior criminal record and that he was serving a conditional sentence at the time the offence was committed. From this, I take the judge’s reference to “no statutory aggravating factors” to mean those specifically listed in

section 718.2 (

a) of the Criminal Code . She went on to consider relevant aggravating and mitigating factors arising from the particular circumstances. In addition, she considered the seriousness of the offence, referring to the disfigurement suffered by the complainant. [ 19 ] As to the fitness of the sentence, the Crown conceded that an eight month term of imprisonment was within the range for an offence of this type. In the result, there is no basis on which to conclude that the trial judge erred in imposing a sentence of eight months imprisonment as a consequence of the aggravated assault conviction.

Effect of Pre-Sentence Imprisonment [ 20 ] The central focus of the Crown’s appeal as to sentence is that the trial judge erred in the manner in which she reduced the eight month sentence to take account of Mr. English’s incarceration prior to imposition of the sentence for aggravated assault. Assessment of this submission requires a review of the relevant provisions of the Criminal Code together with the particular facts of this appeal. [ 21 ] At the time of the offence, Mr. English was serving a twenty-one month conditional sentence requiring him, among other things, to keep the peace and be of good behaviour.

This sentence expired on September 10, 2010. Mr. English was arrested for the aggravated assault on May 23, 2010 and consented to be remanded in custody on May 24 th . On July 15, 2010, after a hearing, he was denied judicial interim release. The trial judge concluded that: 1) The period from May 23 to July 15, 2010 was not attributable to time remaining to be served on the conditional sentence, and would, therefore, be considered to be time served on remand for the current charges, to be credited at the rate of one and one-half days for each day of imprisonment. 2) As of July 15, 2010 when Mr.

English was denied judicial interim release, he began to serve the remaining time on his conditional sentence. 3) Mr. English would be entitled to thirty-six days remission for time served on the conditional sentence. 4) The period after the conditional sentence was served until Mr. English was sentenced would be considered time served on remand, and would be credited at a rate of one and one-half days for each day of imprisonment.

The trial judge’s reason for crediting one and one-half days for each day on remand was that, for much of that time, the prison was on lockdown due to overcrowding. [ 22 ] The relevant provisions of the Criminal Code do not support the trial judge’s assessment of credit to be granted to Mr. English for the period of time he was incarcerated prior to sentencing.

There are three bases on which the trial judge erred: first, as to time attributable to the conditional sentence; second, crediting time at one and one-half days for each day served while on remand; and third, crediting remission time in respect of the time served on account of the conditional sentence. [ 23 ] First, the period from May 23 rd to July 15 th must be credited, not to time on remand, but to completion of Mr. English’s conditional sentence.

Section 742.6 of the Criminal Code provides procedures to be applied upon breach of a conditional sentence, incorporating reference to judicial interim release under

section 515 of the Code : …

(2) For the purpose of the application of

section 515, the release from custody of an offender who is detained on the basis of an alleged breach of a condition of a conditional sentence order shall be governed by subsection 515(6). …

(10) The running of a conditional sentence order imposed on an offender is suspended during the period that ends with the determination of whether a breach of condition had occurred and begins with the earliest of … (

b) the arrest without warrant of the offender for the alleged breach, … …

(12) A conditional sentence order referred to in subsection (10) starts running again on the making of an order to detain the offender in custody under subsection 515(6) and … continues running while the offender is detained under the order. Section 515(6), which imposes an onus on an offender who breaches a conditional sentence order to show cause why his detention in custody is not necessary, provides: Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused’s detention in custody is not

justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused is dealtwith according to law, … [24] At his May 23rd and 24th appearances in court, Mr. English did not attempt to show cause why his detention in custody was not justified. Rather, he consented to his detention pending his court appearance on July 15th. In these circumstances, the period of time between May 23rd, when he was arrested, and September 10th, when his conditional sentence was completed, must be credited as timeserved on account of the conditional sentence.

The fact that Mr. English consented to his detention, rather than challenging it in May,does not alter this conclusion because, in either case, an order detaining the accused within the meaning of

section 515 is made. Rosenberg J.A., for the Court, discussed the underlying rationale in R. v. Atkinson (2003), (ON CA), 174 C.C.C. 144(ONCA): [20] In my view, for the purpose of s. 742.6 it does not matter whether there has been a formal show cause hearing. I do not find ithelpful to distinguish between the order made detaining the offender pending his attempt, if any, to show cause why he should bereleased and the “formal” detention order made after the show cause hearing. In either case, the justice makes an order detaining theoffender in custody.

The main purpose of the reference to s. 515(6), in my view, is a procedural one, to place the burden on the offenderto show cause for his release. Whether he is detained in custody while he is given an opportunity to do so or whether he is detained afterhe has been given the opportunity, he can fairly be said to be detained under s. 515(6). [25] It follows that the trial judge erred in dealing with the period between May 23rd and July 15th as time served on remand forwhich she credited a day and one-half for each day served. [26] With respect to crediting Mr.

English with one and one-half days for each day he served on remand from September 10th, whenhis conditional sentence was completed, until he was sentenced for the assault,

section 719 of the Criminal Code applies: …

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent incustody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each dayspent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody … .

(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record. … [27] In the case before this Court, the trial judge gave the lockdown of the prison as her reason for crediting Mr. English with oneand one-half days for each day he served on remand. However, the lockdown occurred when Mr. English was serving the remainder ofhis conditional sentence, not when he was on remand. Mr.

English did not point to any basis on which it would be appropriate to granthim credit in excess of one day for each day served on remand. [28] However, the Crown has conceded, and I accept, that Mr. English should be credited with one day for each day served onremand. As a general rule, credit as set out in section 719(3) should be given for time spent in custody prior to sentencing unless there issome good reason for denying it. (See, for example, the rationale discussed in R. v. Provost, 2006 NLCA 30, 256 Nfld. & P.E.I.R. 205,at paragraphs 33 to 35; and in R. v.

Jacque, 2011 NLCA 12, 304 Nfld. & P.E.I.R. 155; and also: R. v. Gibbs (2007), 2007 BCCA 241, 221 C.C.C. 271 (BCCA).) [29] In the result, Mr. English should be credited on the basis of one day for each day served from September 10th to the date ofsentencing. [30] Finally, the trial judge erred in granting thirty-six days remission time in respect of the conditional sentence. Whether remissiontime is available to an offender is an administrative matter and is outside the jurisdiction of the courts to grant.

Remission is directed tothe offender’s behaviour while incarcerated, allowing for earlier release to reward good behaviour. [31] In the result, Mr. English’s sentence of 243 days imprisonment for aggravated assault is affirmed. However, he shall havecredit of one day for each day served while he was on remand from when his conditional sentence was completed to the time ofsentencing, that is, 111 days (calculated from September 11, 2010 to December 30, 2010). Accordingly, the term of imprisonment fromDecember 31, 2010 would be 132 days. Reincarceration of Mr. English [32] Counsel for Mr.

English submitted in the factum that Mr. English should not be returned to prison even if his sentence islengthened as a result of this appeal: There would be no public interest served by re-ordering Jason English back into custody on this matter for a few more months or evenweeks requested by the Provincial Crown Attorney in his factum. It should only be in the clearest case that the accused, once havingserved his sentence, and released, should again be placed back in custody.

This is not such a case it is respectfully submitted. [33] While there are exceptional circumstances when an offender who has been released from prison will not be required to serve theremainder of a sentence that has been varied on appeal, that exception does not apply in this case. A variation on appeal resulting in alengthened sentence occurs when a trial judge has made an error. The varied sentence is, in fact, the sentence that should have beenimposed in the first instance.

To accept the submission that an accused, once released, should not be returned to prison would beinconsistent with the principle of sentencing requiring that “a sentence should be similar to sentences imposed on similar offenders for

similar offences committed in similar circumstances” (section 718.2(

b) of the Criminal Code). The exceptional circumstances when,despite an error in sentencing, the offender may not be required to serve the remainder of an appropriate sentence are discussed in R. v.Oates (1992), (NL CA), 100 Nfld. & P.E.I.R. 289 (NLCA); R. v. J.J., 2004 NLCA 81, 244 Nfld. & P.E.I.R. 24; and R.v. Kane, 2012 NLCA 53, at paragraphs 45 to 47. [34] Finally, I note in passing that it was unnecessary in this case to decide whether an error, in respect of the manner in which asentence imposed upon conviction was reduced, would result in a setting aside of the entire sentence or simply that portion of thesentence dealing with the reduction.

SUMMARY AND DISPOSITION [35] The trial judge did not err in the

interpretation or application of sections 34 and 37 of the Criminal Code. The appeal againstconviction is dismissed. [36] Neither did the trial judge err in imposing a sentence of 243 days in respect of the conviction for aggravated assault. Thesentence is not unfit and the trial judge did not fail to consider relevant aggravating factors. The sentence of 243 days is, therefore,affirmed. [37] The trial judge erred in the manner in which she reduced the 243 day sentence to account for Mr. English’s pre-sentencedetention.

The only reduction to which he is entitled is one day for each day he was imprisoned from September 10, 2010 when hisconditional sentence was completed until December 31, 2010 when he was sentenced for the aggravated assault. Accordingly, thesentence imposed by the trial judge is varied such that his term of imprisonment is 132 days commencing December 31, 2010. [38] There is no basis on which to issue a court order that Mr. English be exempted from serving the remainder of his sentence. ______________________________ B. G. Welsh J.A. I Concur: _____________________________ C. W. White J.A.

I Concur: _____________________________ L. R. Hoegg J.A.