Court of Appeal for Ontario

Date: 2018-01-15

Docket: C63388 & C63240

Judges: Rouleau, Watt, Brown JJ.A.

Between

Her Majesty the Queen Respondent/Applicant/Appellant

and

Amir Shahcheraghi Appellant/Respondent

Counsel

Catriona Verner, for the appellant

Frank Au, for the respondent

Hearing and Release

Heard and released orally: January 10, 2018

On appeal from: The conviction entered on November 10, 2016 and the sentence imposed on January 24, 2017 by Justice Edward M. Morgan of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

Introduction

[1] Amir Shahcheraghi, whom we will describe as the appellant, was convicted of aggravated assault after a trial before a judge sitting without a jury. The passing of sentence was suspended and the appellant ordered to comply with the terms of a probation order for three years.

[2] The events that gave rise to the charge occurred when the complainant, a severely intoxicated young man, was asked to leave a bar where the appellant was the head of security. While outside the bar, the complainant became involved in a verbal exchange with the appellant and a second member of the security team. A skirmish followed. The complainant, probably more due to the extent of his intoxication than anything else, pushed into the other security guard causing that guard to lose his balance and fall to the ground with the complainant, a large man, on top of him. The appellant walked over and pulled the complainant off the security guard.

[3] Three witnesses testified about having seen the appellant "smash" the complainant's head against a set of glass doors, and two of them claimed to have seen the appellant punch the complainant in the face. There was also evidence that the other security guard had punched the complainant in the face several times with considerable force.

[4] The appellant testified in his own defence. He acknowledged having restrained the complainant up against the glass doors, but denied doing so forcibly and denied punching the complainant in the face.

[5] The complainant suffered two lacerations to the area of his left eye and cheek, including one that severed his tear duct. The defence conceded that the tear duct injury met the definition of wounding in s. 268 of the Criminal Code. Fortuitously, expert medical care at St. Michael's Hospital repaired the damage, leaving the complainant without any apparent lasting impacts.

[6] The appellant appeals his conviction of aggravated assault. The Crown appeals the sentence imposed.

The Appeal from Conviction

[7] On the appeal from conviction the appellant advanced three grounds of appeal. He says that the trial judge:

i. misapprehended evidence about the appellant's conduct during the assault and relied upon his incorrect understanding of the evidence to find that the appellant had caused the complainant's injury;

ii. failed to consider other reasonable possibilities as to what caused the complainant's eye injury; and

iii. failed to properly address potential collusion amongst prosecution witnesses.

[8] For our purposes it is sufficient to consider only the first ground of appeal.

[9] The respondent agrees that the trial judge made several mistakes about the substance of the evidence given at trial. Those errors were critical to his finding on causation, the central issue at trial. The respondent acknowledges that these errors not only related to a material issue, but also played an essential role in the reasoning process leading to the appellant's conviction of aggravated assault. As a result, the respondent concedes those errors warrant appellate intervention. We agree: see R. v. Lohrer, 2004 SCC 80, at paras. 1 and 2.

[10] In the usual course, the errors identified and acknowledged here would warrant an order quashing the appellant's conviction and directing that a new trial be held on the indictment. However, counsel jointly propose a different result. They say that we should exercise our authority under ss. 686(1)(b)(i) and (3) of the Criminal Code to substitute a verdict of assault simpliciter in place of that recorded at trial, aggravated assault.

[11] It is well settled that the fault element in aggravated assault is the fault element in assault, coupled with objective foresight of the risk of bodily harm. The "aggravation" lies in the consequences of the assault, and the nexus between those consequences, in this case said to be wounding, and the assault itself.

[12] In this case, the errors of the trial judge had to do with the essential link between the appellant's assault and the consequences, "the wounding", to the complainant. But those errors do not vitiate the finding that an assault occurred and that the appellant committed it.

[13] In the result, we are satisfied that, although the appellant was not properly convicted of the count of aggravated assault, he was properly found guilty of the included offence of assault simpliciter. Accordingly, as s. 686(3) authorizes but does not require us to do, we dismiss the appeal from the conviction of aggravated assault and substitute a finding of guilt of assault simpliciter. We use the term "finding of guilt" at this stage because the parties invite us to determine a fit sentence, and the appellant asks us to impose an absolute discharge.

[14] In light of the substituted verdict the Crown is not pursuing its sentence appeal.

The Appeal from Sentence

[15] The appellant and respondent invite us to deal with the issue of sentence, rather than to remit it to the trial court, as we are permitted to do.

[16] The appellant asks us not to enter a conviction, but rather to discharge the appellant absolutely or, in the alternative, conditionally. The appellant submits that it is not contrary to the public interest to do so and manifestly in his interest that he be discharged. After all, he is a first offender with excellent prospects, who has already complied with probationary terms for a year including counselling and community service requirements. What is more, a conviction may well jeopardize his prospect for a renewal of his security licence.

[17] We are not persuaded that a discharge, whether absolute or conditional, is the appropriate sentencing disposition in this case.

[18] This was a serious offence. It involved repeated striking of the complainant's head against a glass door. It represented significantly excessive force against the patron who, though grossly intoxicated and perhaps somewhat obnoxious, was in no condition to threaten or resist, and had not exhibited any meaningful aggressive tendencies.

Conclusion

[19] In the result, the appeal from conviction of aggravated assault is dismissed and a conviction of assault simpliciter is entered. We affirm the sentence imposed by the trial judge. In light of the substituted verdict, the Crown's appeal from sentence on the original conviction is dismissed.

Paul Rouleau J.A.

David Watt J.A.

David Brown J.A.