) ) Her Majesty the Queen Respondent – v. –, 2017 ONSC 4843

CITATION : R. v. Stewart, 2017 ONSC 4843 COURT FILE NO.: 112/16 DATE: 20170818 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Her Majesty the Queen Respondent – and – John Bradley Stewart Appellant ) ) ) ) ) ) ) ) ) Heather Davies, for the Crown Nick Cake, for the appellant ) HEARD: August 8, 2017 garson j. On appeal from the Conviction and Sentence of the Honourable Madam Justice J. LeRoy on May 11, 2016 and August 23, 2016 . INTRODUCTION AND BACKGROUND [ 1 ] The appellant appeals both his conviction and sentence on one count of assault contrary to s. 266 of the Criminal Code , R.S.C., 1985, c.

C-46 [ Code ]. [ 2 ] The appellant was convicted of one count of assault and was given a suspended sentence with 12 months of probation (along with some ancillary orders). [ 3 ] For the purposes of this appeal, I need only briefly outline the circumstances surrounding this matter. Many of the facts were not disputed. [ 4 ] On June 9, 2015, an altercation took place outside of the Morrissey House pub in London, Ontario. The complainant, Mr.

Pinney, was sitting on a retaining wall looking at his phone and having a coffee and a cigarette before starting work at Morrissey House. [ 5 ] According to the complainant, the appellant, John Stewart, approached him on his bicycle and pushed him from the retaining wall and proceeded to strike him roughly 20–30 times until a co-worker (Mike Gingerich) arrived on the scene, intervened, and told him to leave.

The complainant also testified that the appellant threw his coffee on him. [ 6 ] According to the appellant, the complainant yelled out “hey faggot” as he was riding by and this caused the appellant to approach the complainant. When the appellant’s attention was drawn to a camera in the vicinity, the complainant punched the appellant in the stomach and tried to punch him in the face. At this point, the appellant proceeded to defend himself. The complainant “turtled” on the ground, and the appellant struck him roughly 5–6 times with a closed fist.

The appellant stopped delivering blows because he figured the complainant was not getting up (not because of the intervention of Mr. Gingerich). He told the complainant that he “deserved that for hitting me” [the appellant]. [ 7 ] Both parties acknowledge exchanging vulgar and offensive texts prior to this incident, including the previous day where the complainant texted the appellant calling him “a whiney, petulant, petty and drunken ass clown”.

The complainant posted on Facebook shortly after the incident that he could have easily “kicked [the appellant’s] ass” but chose not to. [ 8 ] Mike Gingerich testified that he arrived to hear the complainant saying that “this man is assaulting me” and to observe the complainant laying on the ground and kind of tucked into a ball with the appellant delivering 3–4 punches to the complainant with a closed fist. He heard the appellant state to the complainant “you had this coming to you Jeff”. He did not observe the appellant throw any coffee on the complainant.

He did not observe how the altercation started. [ 9 ] The injuries suffered by the complainant and photographed by the police are not in dispute nor is the fact that such injuries (black eye lasting a week and a half and scarring from leg scrapes) are more than merely transient or trifling in nature. GROUNDS OF APPEAL Conviction

[10] The appellant raises three main grounds of appeal against conviction: (

a) the trial judge erred in her assessment of the complainant’s and the appellant’s credibility and misapprehended portions of theevidence and testimony; (

b) the trial judge failed to consider the appellant’s defence that the complainant consented to the altercation and the defence ofself-defence; and (

c) the trial judge erred in applying the test in R. v. W.D. and engaged in an unbalanced scrutiny of the evidence. [11] Although not specifically pleaded, the appellant also suggested that the reasons of the trial judge were insufficient to supportthe pathway to conviction. Sentence [12] The appellant raises the following ground of appeal against sentence: (

a) The trial judge failed to impose a proper sentence and to properly consider in her Reasons for Sentence the defence’s requestopposing a DNA order in these circumstances. CONVICTION APPEAL Standard of Review – Conviction [13] A trial judge’s finding of fact and assessment of credibility are entitled to a significant degree of deference from a reviewingcourt. Absent palpable and overriding error or otherwise being clearly wrong, unreasonable, or unsupported by the evidence, suchfindings and assessments should not be disturbed: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; R. v.

Horton, 2014ONCA 616, 116 W.C.B. (2d) 228. [14] A legal error made in the assessment of credibility may displace the deference and require appellate intervention: see R. v.Luceno, 2015 ONCA 759 at para. 34, 331 C.C.C. (3d) 51. Similarly, applying different or uneven standards to the assessment of thecomplainant and the appellant may constitute a legal error: see R. v. Rhayel, 2015 ONCA 377 at paras. 95–98, [2015] O.J.

No. 2675. [15] A trial judge’s reasons are to be read as a whole and the trial judge need not detail her finding on each piece of evidence solong as there is a logical link between the findings on the evidence and the verdict. The trial judge occupies a unique position in beingable to see and hear witnesses and a lifeless transcript and selective review of the trial record cannot replicate the unfolding of thenarrative at trial: see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; and R. v. Howe (2005), 192 C.C.C. (3d) 480, (Ont.C.A.).

Discussion [16] It is not the role of an appellate court to essentially re-try the case and substitute its own opinion of the credibility of witnesses.Nor is it proper to embark on a fresh analysis of the factual arguments made at trial and considered by the trial judge: see R. v. Beaudry,2007 SCC 5, [2007] 1 S.C.R. 190; R. v. Drabinsky, 2011 ONCA 582 at paras. 39–40, 107 O.R. (3d) 595. [17] Intervention is limited to those circumstances where the reasons disclose that the trier was not mindful of applicable legalprinciples or reached a verdict unsupported by factual findings: see R. v.

Binaris, 2000 SCC 15 at paras. 36–37; [2000] 1 S.C.R 381. [18] I now turn to the four grounds of appeal. (

a) Credibility Assessment [19] The appellant argues that the trial judge misapprehended certain evidence. [20] The main misapprehensions deal with the evidence of the complainant’s coffee and the text message exchanges between theparties. There is also a concern about utterances the complainant may have made when Mike Gingerich arrived on scene. (

i) The Coffee [21] The appellant argues that inconsistencies in the complainant’s evidence between the coffee being beside him and subsequentlyin his hand should cast doubt on the credibility of the complainant. [22] I disagree. The trial judge was clearly alive to the inconsistencies in the evidence regarding the coffee. She was alive to the factthat Mr. Gingerich did not see the complainant covered in coffee. [23] In any event, this inconsistency is far from “glaring” and speaks to a peripheral matter.

The gist of the allegations before thetrier dealt with whether the parties were engaged in a consensual fight and whether there was any legal justification for the blowsdelivered by the appellant to the head and shoulder area of the complainant. [24] A trial judge need not recite in her reasons every inconsistency in a witnesses’ evidence. When her reasons are reviewed as awhole, it is clear to me that she did not misapprehend the evidence about the coffee. [25] In any event, any misapprehension must relate to a material issue and not a collateral or peripheral matter: see R. v.

Morrissey(1995), (ON CA), 22 O.R. (3d) 514 at 541, O.J. No. 639 (C.A.); R. v. Lohrer, 2004 SCC 80 at para 2, [2004] 3 S.C.R.732.

(ii) Texting between the Parties [26] At trial, the appellant argued that the prior vulgar texts amounted to an invitation for confrontation, coupled with the vulgarcomment allegedly made at the start of the incident, gave the appellant the right to confront the complainant.

The appellant also reliedupon complainant’s attendance at the home of the appellant late one evening to discuss the complainant’s displeasure with theappellant’s behaviour towards a mutual friend. [27] In her review of the evidence at p. 3, line 10 of her Reasons for Sentence, the trial judge was aware of the history between theparties and the string of vulgar text messages. She did not misapprehend or misinterpret what took place.

She was entitled to conclude onthe evidence before her that these exchanges did not constitute any express or implied invitation for physical confrontation. [28] I reject the submission that the string of earlier text messages and earlier attendance by the complainant at the appellant’sresidence constituted aggression sufficient to conclude that the complainant would lash out in a pre-emptive fashion at the appellant. [29] The trial judge expressly rejected the evidence of the appellant. She expressly accepted the evidence of Mr. Gingerich, theindependent witness.

At p. 7, line 30 of her Reasons for Sentence, she also accepted the evidence of the complainant whom she describesas a “credible witness”. [30] Her findings of fact are based on reasonable and permissible inferences drawn from the evidence. [31] Substantial deference must be afforded to findings of credibility made by the trial judge. The trial judge provided amplejustification and explanation for the basis for such findings. [32] This was a classic case about credibility.

I can find no palpable or overriding error in the trial judge’s assessment and findingsregarding credibility. [33] There was more than sufficient evidence to support the complainant’s version of events. The trial judge properly assessed boththe credibility and reliability of the evidence of the complainant in accordance with the Court of Appeal’s guidance in Morrissey. [34] More importantly, there was an independent third-party witness who materially corroborated much of the evidence of thecomplainant and refuted much of the evidence of the appellant.

He observed the appellant repeatedly strike the complainant with aclosed fist as the complainant laid on the ground tucked into a ball. He heard the appellant say “you had this coming to you Jeff”. Thefact that the complainant did not recall yelling out to Mr. Gingerich is not a material inconsistency as the complainant did not give anyevidence on this point. [35] The trial judge rejected the evidence of the appellant based on a considered and reasoned acceptance beyond a reasonabledoubt of the conflicting and credible evidence of the complainant and Mr. Gingerich.

The existence of the confirmatory evidence of Mr.Gingerich stands as independent evidence that supports and confirms the trial judge’s belief in and acceptance of the complainant’sevidence: see R. v. J.J.R.P. (2006), (ON CA), 215 C.C.C. (3d) 252 at para 53; [2006] OJ No 4749 (Ont. C.A.); R. v.A.N., 2017 ONCA 647 at para. 19. (

b) Consent and Self-Defence (

i) Consent [36] The trial judge found that this was not a consensual fight. I agree. [37] The repeated blows to the head and shoulders of a “turtled” person on the ground are actions inconsistent with a consensualfight. The trial judge specifically found at p. 8 line 9 of her Reasons for Judgment that the appellant was “looking for a fight”. Even ifthe trial judge had found that the complainant consented, the act of “turtling” by the complainant in these circumstances amounted to anexpress withdrawal of any consent.

In any event, such consent is vitiated by the clear intent of the appellant to cause bodily harm and thefact that he did so: see R. v. Paice, 2005 SCC 22 at para. 12, [2005] 1 S.C.R. 339; R. v. Jobidon, (SCC), [1991] 2 S.C.R.714, 66 C.C.C (3d) 454. [38] The argument that the appellant held an honest but mistaken belief in consent must also fail.

Simply put, once the trial judgefound that the complainant did not consent, there was no evidence available to the appellant to support this defence. (ii) Self-Defence [39] The new test for self-defence pursuant to s. 34(1) of the Code (amended in 2013) has been simplified into three requirements: (

b) a reasonable belief; (

c) a defensive purpose; and (

d) a reasonable response. See R. v. Bengy, 2015 ONCA 397 at para. 28, 325 C.C.C (3d) 22. [40] Under the previous provisions, self-defence was not available to a party to a consensual fight since neither party was the victimof an unprovoked assault: see Paice at para. 20. [41] The trial judge properly took into account the fact that although the appellant did not necessarily have a duty to retreat, she wasentitled to consider in accordance with s. 34(2)(

b) whether the use of force was “imminent and whether there were other means availableto respond to the potential use of force”.

[42] She was further entitled to consider under s. 34(2)(

g) and (h): (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. [43] Her conclusion that the appellant was not justified in using the force in acting in defence of himself based on reasonablegrounds and reasonable force and taking into account the appellant’s role in the altercation was an eminently reasonable and justconclusion. [44] She was mindful of the communication between the parties prior to the incident, which was properly taken into account unders. 34(2)(f.1). [45] Simply put, this was not a case where the defence of self-defence was available on the facts as found by the trial judge. (

c) W.D. Analysis [46] The appellant argues that the trial judge engaged in an uneven or imbalanced assessment of the evidence. [47] I disagree. At p. 7 of her Reasons for Sentence, she properly articulated the three-part test set out in R. v. W.D., (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397. She further makes clear her ability to accept all, some, or none of a witness’s evidence. [48] The test is not simply whether another judge could have exercised his or her assessment of the evidence differently or whetherthe trial judge failed to comment on every statement or account of each witness.

Rather, the appellant must demonstrate that her reasonsclearly reflect the application of different standards in assessing the evidence of the witnesses: see R. v. Chanmany, 2016 ONCA 576 atparas 26–28, [2016] O.J. No. 3859. [49] The unbalanced scrutiny argument remains a difficult argument to advance and attracts a healthy level of deference on review. [50] By accepting the evidence of Mr. Gingerich, the trial judge also accepted:

i) that the appellant delivered at least 3–4 blows to the complainant with a closed fist while he was “turtled”; and ii) that the appellant stated to the complainant “you had this coming”. [51] It is clear on the evidentiary record before me that the trial judge was entitled to and did disbelieve the accused, based in largepart on her belief in the complainant and the independent witness.

Further, the evidence that she accepted was more than sufficient tosatisfy her beyond a reasonable doubt of the guilt of the appellant. [52] She was mindful of the need at p. 7 line 18 of her Reasons for Conviction, to avoid the trap of a credibility contest where onesimply chooses between the competing versions of events. [53] She did not unfairly, unevenly or haphazardly scrutinize the evidence of the witnesses by holding them to differing levels ofaccount. (

d) Sufficiency of Reasons [54] It is well established that a trial judge on a criminal trial has a duty to give reasons. This duty informs the parties why thedecision was made, provides public accountability, and permits effective and meaningful appellate review: see R.E.M., at paras. 11, 14. [55] Although not specifically pleaded in the formal grounds for appeal, the appellant now argues that the reasons given by the trialjudge were inadequate. Adequacy must be assessed in the context of the evidence and arguments at trial. [56] In R. v.

Sheppard, 2002 SCC 26 at para. 46, [2002] 1 S.C.R. 869, Binnie J. set out the following test: Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides nosignificant impediment to the exercise of the right of appeal, the appeal court will not on that count intervene. [57] Therefore, the trial judge must give reasons that provide a logical pathway or connection between the decision and the basis forthat decision. [58] I am mindful that by some estimates, more than 95 percent of all criminal cases are dealt with in the Ontario Court of Justice.This is a high volume court and trial judges deliver both oral and written judgments on a daily basis.

It would be wrong to require them toexplain in detail every essential point upon which they based their decision or verdict: see R. v. Boucher, 2005 SCC 72 at para. 29,[2005] 3 S.C.R. 499. [59] The appellant is entitled to know why the judge decided what she did. The requirement is not one of perfection or exactitude,but rather one of fairness. The appellant must know that his arguments were heard, properly understood, and fairly dealt with.

A trialjudge sitting alone need not expressly state the findings on each piece of evidence or controverted fact, provided the findings as a wholelogically connect the evidence to the outcome. [60] An examination of the Reasons for Judgment reveals that the trial judge articulates her conclusions and the basis for reachingsuch results. She was mindful of the applicable legal principles and her conclusions were consistent with her factual findings. She seizedthe substance of the issues that needed to be addressed.

She was alive to the contradictions in the evidence and was not required toproduce a verbatim recital of each piece of conflicting evidence in her Reasons for Judgment.

[61] Her reasons demonstrate that she understood and considered the arguments and positions raised by the appellant in reaching herdecision. [62] The evidence in this matter was capable of supporting the conviction. The reasons, read as a whole, adequately explain thepathway to conviction. Conclusion – Conviction Appeal [63] In the result, the appeal against conviction is dismissed. SENTENCE APPEAL [64] The appellant argues that the sentence imposed was disproportionate to the gravity of the offence and the limited criminalantecedents of the appellant. [65] The parties presented a joint submission to the trial judge for a suspended sentence with probation and a

section 110 order. Theparties differed in the length of probation (18 months for the Crown and 12 months for the appellant). The Crown requested a DNAorder, which the appellant was opposed to, continuing his assertion that this was close to a consensual fight and not worthy of a DNAorder. Standard of Review [66] A sentence should only be varied where there has been an error in principle, an relevant factor that impacts on the sentenceimposed has been overlooked, or the sentence is manifestly unfit: see R. v.

Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v.Shropshire, (SCC), [1995] 4 S.C.R. 227, 129 D.L.R. (4th) 657; R. v. M (C.A.), (SCC), [1996] 1 S.C.R.500, 105 C.C.C. (3d) 327; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163. [67] Any error in law or principle may permit appellate intervention and allow the reviewing judge to substitute his or her views oropinion for that of the trial judge. [68] Proportionality, both with respect to the gravity of the offence and the responsibility of the offender, is paramount in measuringthe fitness of a sentence: see Lacasse at paras. 51–54.

Discussion [69] The Reasons for Sentence demonstrate that the trial judge was aware of the defence request for no DNA order and ultimatelydetermined that such an order was appropriate in the circumstances. [70] The wide latitude afforded the sentencing judge includes the latitude of whether or not to order a DNA sample. [71] Although I may have chosen to exercise my discretion differently, there is nothing in her Reasons for Sentence thatdemonstrates a failure to consider or overemphasize any relevant factors nor was the sentence imposed demonstrably unfit. [72] This was a joint submission with some minor differences.

The trial judge acceded to the sentencing request. She was correct indoing so. Joint submissions should not be departed from unless the proposed sentence would bring the administration of justice intodisrepute or otherwise be contrary to the public interest: see R. v.

Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204. [73] Her decision to impose a period of 18 months of probation is well within the acceptable range of sentence in thesecircumstances. [74] As for the DNA order, the trial judge properly balanced the privacy interests of the appellant against the public interest byconsidering his criminal record and the nature of circumstances of the offence. There was nothing unusual or compelling before the trialjudge with respect to the impact of such an order or the appellant’s privacy and security of his person.

In light of the minimal intrusion inthe ordinary course, the trial judge was entitled to exercise her discretion to make the order after weighing and balancing the necessaryfactors. [75] Her discretion merits substantial deference on review. Conclusion [76] In the result the appeal against sentence is dismissed. ​​​​​​​​​​​​​_”Justice M. A. Garson” Justice M. A. Garson Released: August 18, 2017

CITATION : R. v. Stewart, 2017 ONSC 4843 COURT FILE NO.: 112/16 DATE: 20170818 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Her Majesty the Queen – and – John Bradley Stewart REASONS FOR JUDGMENT Garson J. Released: August 18, 2017