Court of Appeal for Ontario

Date: 2022-10-17 Docket: C68535

Judges: Doherty, Benotto and Copeland JJ.A.

Between:

His Majesty the King Respondent

and

Stephen James Cameron Appellant

Counsel: Anthony Moustacalis and Aidan Seymour-Butler, for the appellant Samuel G. Walker, for the respondent

Heard: October 12, 2022

On appeal from the conviction entered by Justice Peter T. Bishop of the Ontario Court of Justice, dated October 29, 2019, and from the sentence imposed on July 7, 2020.

Reasons for Decision

[1] The appellant was convicted of one count of dangerous driving and one count of aggravated assault. The two charges arose out of the same incident.

[2] The appellant was sentenced to 120 days on the aggravated assault conviction, with that sentence to begin a little less than two months after the imposition of the sentence. The appellant was placed on probation for that two-month period. On the dangerous driving charge, the trial judge imposed a conditional sentence of eight months, followed by probation for one year.

[3] The appellant appeals conviction and sentence. At the end of oral argument, the court dismissed the conviction appeal, and allowed the sentence appeal on the aggravated assault charge only. These reasons explain our disposition.

Background

[4] The complainant, Dr. Wood, and his wife separated about three years before the relevant events. The separation was acrimonious. About two years after the separation, the appellant began seeing Dr. Wood’s ex-wife.

[5] Although Dr. Wood did not know the appellant, Dr. Wood repeatedly made highly offensive, disparaging remarks about the appellant and his children. He suggested the appellant was a drug dealer. These comments were made by Dr. Wood to his children, among others. His children lived with his ex-wife and the appellant.

[6] In addition to the disparaging remarks made by Dr. Wood, there was also evidence he spied on his ex-wife using equipment he surreptitiously installed on her computer. His ex-wife reported this matter to the police. The appellant became aware of the allegation shortly before the relevant events.

[7] The appellant testified he attempted to speak to Dr. Wood and clear the air. He was determined to keep matters on a civil basis. Dr. Wood rebuffed those attempts in very crude terms.

The Relevant Events

[8] Shortly after midnight on July 2, 2017, Dr. Wood was walking his dog along the side of the road, not far from where he lived, and also not far from where the appellant and Dr. Wood’s ex-wife lived. The appellant drove by in his pickup truck. He saw Dr. Wood, turned his truck around, and approached Dr. Wood, driving on the wrong side of the road. He stopped his vehicle. A verbal confrontation between Dr. Wood and the appellant ensued, followed by a fistfight. Dr. Wood was badly beaten during the altercation. He suffered serious facial and head injuries. The appellant had minor bruises and a scratch on his chest.

[9] Dr. Wood and the appellant gave very different versions of what happened. It is unnecessary to detail their respective versions of events. We will focus on the findings of the trial judge.

[10] In his reasons, with minor exceptions, the trial judge believed and accepted the evidence of Dr. Wood and rejected the evidence of the appellant. On the dangerous driving charge, the trial judge found, that when the appellant saw Dr. Wood walking along the side of the road shortly after midnight, he turned his truck around and drove back toward Dr. Wood. He drove his truck up to Dr. Wood and his dog and stopped abruptly very close to Dr. Wood and his dog. The trial judge found the appellant was intent upon confronting, engaging, and intimidating Dr. Wood. His vehicle blocked one lane of traffic and at least one oncoming vehicle had to move around the truck. The trial judge accepted the evidence of Dr. Wood that the appellant’s truck came very close to him as it approached, and that Dr. Wood had to move out of the way of the truck.

[11] The trial judge referred to the law governing the offence of dangerous driving and determined that the Crown has established all of the elements beyond a reasonable doubt.

[12] On the aggravated assault charge, the trial judge found that the appellant was very angry with Dr. Wood. He chose to confront him in a “dangerous, intimidating manner”. The appellant was the aggressor from the outset of the confrontation. It was never his purpose to defend himself. He intended to intimidate and provoke Dr. Wood. The appellant was very upset with Dr. Wood’s behaviour towards him, his comments about his children, and Dr. Wood’s treatment of his ex-wife. The appellant’s physical response during the confrontation, specifically the beating he administered to Dr. Wood, was not proportional to anything Dr. Wood had done. The serious injuries suffered by Dr. Wood met the criteria for an aggravated assault.

The Grounds of Appeal

[13] The grounds of appeal essentially invite this court to retry the case. To a large degree, the submissions ignore the reasons of the trial judge.

[14] The appellant submits that the trial judge’s finding that Dr. Wood had to move out of the way of the appellant’s vehicle as it approached him was based on a misapprehension of the video evidence. A video recording from a nearby neighbour showed parts of the confrontation. The appellant submits that the video clearly shows that Dr. Wood did not have to move to avoid the appellant’s vehicle.

[15] The Crown says there is no misapprehension of the evidence. The trial judge accepted Dr. Wood’s evidence that he had to move. The trial judge also considered the video evidence and concluded that it did not show one way or the other whether Dr. Wood had to move to avoid the vehicle. At the relevant time, Dr. Wood’s body could not be seen on the video.

[16] We have viewed the video. We do not agree that it clearly demonstrates that Dr. Wood did not move. We cannot disagree with the trial judge’s description of the video.

[17] The appellant next argues that the trial judge’s conclusion the appellant was angry and the aggressor during the physical confrontation was based on “conjecture and speculation”. The appellant submits that the trial judge should have accepted the appellant’s evidence that he never had any animosity toward Dr. Wood and had always hoped that both could behave civilly.

[18] In support of this argument, the appellant relies almost exclusively on the appellant’s evidence to the effect that he had no animosity towards Dr. Wood prior to the night in issue. As we understand the argument, without evidence of prior animosity, a finding that the appellant was angry and was the aggressor on the night in question was unreasonable.

[19] We accept the Crown’s submission that there was a great deal of evidence from which the trial judge could reasonably infer that the appellant was angry with Dr. Wood, both prior to, and on the night in question. The trial judge concluded, as a matter of common sense, that the way in which Dr. Wood spoke about the appellant and his family, and the way he treated his ex-wife, would inevitably, and quite naturally, lead the appellant to have animosity toward Dr. Wood. This is far from conjecture or speculation.

[20] The trial judge was further satisfied that the appellant’s actions leading up to the confrontation demonstrated his anger and his aggression. Once again, common sense indicates that the time, place and manner in which the appellant chose to approach and confront Dr. Wood at the side of the road was consistent only with someone who was anxious to provoke and intimidate Dr. Wood.

[21] The appellant submits that the cross-examination of Dr. Wood on his alleged installation of spyware on his former wife’s computer was improperly curtailed by the trial judge. This argument took on a central role in counsel’s oral submissions.

[22] During cross-examination, it was established that Dr. Wood’s wife had alleged that Dr. Wood improperly installed spyware on her computer. She went to the police and the police spoke to Dr. Wood.

[23] Dr. Wood was cross-examined on this allegation. In response, he began to talk about his relationship with his ex-wife and the bad things she had done to him. The trial judge interrupted Dr. Wood, indicating his answer was getting “far afield” and had little to do with the charges before the court.

[24] Dr. Wood’s ex-wife testified. She gave her version of the events relating to the alleged installation of spyware on her computer.

[25] The trial judge’s limiting of the cross-examination of Dr. Wood fell within his trial management powers. The trial judge’s ruling was more a limit on Dr. Wood’s answers than on any line of questioning proposed by counsel for the appellant. In any event, by the end of the trial, Dr. Wood’s improper conduct in respect of his ex-wife’s computer had been fully put before the trial judge in her testimony.

[26] Counsel’s submission in oral argument that the trial judge’s ruling prevented counsel from cross-examining Dr. Wood to show that the appellant was the peacemaker and Dr. Wood the aggressor throughout their relationship is not borne out by the transcript. There is no reason to think that Dr. Wood had any helpful evidence to give the appellant on either issue. More to the point, the trial judge did not prohibit questions on the relationship between Dr. Wood and the appellant.

[27] It is also relevant that any evidence about Dr. Wood installing spyware on his ex-wife’s computer cut both ways. While it certainly cast Dr. Wood in a bad light, it supported the Crown’s case that the appellant’s discovery of the installation of the spyware by Dr. Wood was one of the things that caused the appellant to be so upset when he confronted Dr. Wood in the early morning hours of July 2, 2017.

[28] The appellant next submits the trial judge erred in drawing an inference of animus against Dr. Wood from the appellant’s after-the-fact conduct. According to the appellant, after-the-fact conduct does not “automatically” mean the relevant animus existed at the relevant time.

[29] The trial judge did not suggest that after-the-fact conduct “automatically” proved anything. The trial judge was satisfied that the appellant’s comment to Dr. Wood very shortly after he had beaten him up, to the effect that Dr. Wood may be “back for more”, was evidence of animus. That inference was reasonably available based on the comment and the context in which it was made.

[30] The appellant submits that the finding that the appellant was the aggressor during the fight was inconsistent with the appellant’s injuries. To the contrary, the injuries suffered by the appellant and Dr. Wood in the fight were reasonably capable of supporting the inference that the appellant, who suffered very minor injuries, was clearly the aggressor and inflicted serious damage on Dr. Wood.

[31] Counsel’s submission that the scratch on the appellant’s chest must have come from the zipper on his shirt and, if it did, the appellant must have been the aggressor, makes far too much of the evidence about the scratch. There is no evidence of how the scratch was inflicted, or whether it was connected to the zipper on the appellant’s shirt. Nor does it follow, even if Dr. Wood had something to do with inflicting the scratch by pulling the shirt over the appellant’s head, that Dr. Wood must have been the aggressor in the fight. The serious injuries suffered by Dr. Wood, compared to the minor scratch and bruises suffered by the appellant, suggest the appellant was the aggressor.

[32] The appellant also submits the finding the appellant was the aggressor was inconsistent with the video. The Crown submits there was no misapprehension of the video. That video shows the two men fighting, but is of little, if any, help on the specifics of that confrontation. We have viewed the video. We agree with the Crown’s submission.

[33] Finally, the appellant argues the trial judge failed to consider significant inconsistencies in Dr. Wood’s testimony, but instead referred to them compendiously and indicated they did not affect his assessment of Dr. Wood’s credibility.

[34] The appellant also argues that the trial judge indicated he did not consider those discrepancies as significant because Dr. Wood was not “on trial”. This submission rests on a misreading of the reasons for judgment. The reference to Dr. Wood not being on trial had nothing to do with the trial judge’s consideration of the inconsistencies in Dr. Wood’s evidence, but was a reference to Dr. Wood’s obviously improper behaviour towards his ex-wife and the appellant. The trial judge remarked that Dr. Wood was not on trial for that improper behaviour.

[35] Crown counsel in his factum has gone through the various inconsistencies in Dr. Wood’s evidence referred to by the appellant. In some instances, the trial judge referred to those inconsistencies, but did not give them the weight which the appellant says he should have. In other instances, there were no actual inconsistencies and, finally, in some instances, the inconsistencies that existed could only be described as minor.

[36] We see no error in the trial judge’s assessment of those inconsistencies.

The Sentence Appeal

[37] The trial judge imposed a 120-day sentence on the aggravated assault charge, but postponed the beginning of that sentence for about two months. On the dangerous driving charge, he imposed an 8-month conditional sentence, to be followed by 12 months probation. The conditional sentence and the probation period have been served. We would not interfere with the sentence imposed on the dangerous driving charge. The rest of these reasons focus on the sentence imposed on the aggravated assault charge.

[38] The trial judge could not postpone the commencement of the appellant’s jail term on the aggravated assault conviction: Criminal Code, R.S.C. 1985, c. C-46, s. 719(1). The sentence imposed was unlawful and must be varied to a lawful sentence.

[39] The Crown submits, that while the trial judge erred in delaying the commencement of the appellant’s sentence, the period of incarceration imposed by the trial judge was appropriate and necessary in the interests of denunciation and general deterrence. He submits that the court should impose a 120-day sentence on the aggravated assault charge.

[40] In the circumstances, we cannot accept the Crown’s submission. Taking into account the appellant’s background, his many positive contributions to the community, his employment, and the unique constellation of factors which led the appellant to act entirely out of character, we are satisfied it is not necessary to incarcerate the appellant at this juncture.

[41] All other things being equal, we would have imposed a conditional sentence of about 6 to 8 months. However, the appellant has already completed, without incident, an 8-month conditional sentence and a 12-month probation period. Nothing would be gained by imposing a second conditional sentence at this time.

[42] We would allow the sentence appeal, and vary the sentence imposed on the aggravated assault charge to a suspended sentence. Given the passage of time and the appellant’s successful completion of a probationary term on the related dangerous driving charge, we see no value in an additional period of probation.

Conclusion

[43] The conviction appeal is dismissed. The sentence appeal in respect of the dangerous driving charge is dismissed. The sentence appeal in respect of the aggravated assault charge is allowed and the sentence is varied to a suspended sentence.

Doherty J.A. M.L. Benotto J.A. J. Copeland J.A.