CITATION: R. v. MacDonald, 2010 ONCA 178
DATE: 20100309
DOCKET: C49826
COURT OF APPEAL FOR ONTARIO
Sharpe, LaForme and Rouleau JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Paul Ryan MacDonald
Appellant
Paul Calarco, for the appellant
Joanne Stuart, for the respondent
Heard: February 22, 2010
On appeal from the conviction entered by Justice E.A. Ready of the Ontario Court of Justice on June 19, 2008 and the sentence imposed by Justice Ready on September 24, 2008.
H.S. LaForme J.A.:
OVERVIEW
[1] The appellant and the co-accused were tried for a vicious attack on the complainant. They argued self-defence. The appellant testified while the co-accused did not; rather, the Crown tendered the co-accused’s statement to the police as evidence for the truth of its content. The trial judge held that the cuts and damage to the complainant constituted wounding; she categorically rejected the claim of self-defence and found both the appellant and co-accused guilty of aggravated assault.
[2] The trial judge imposed a sentence of 12 months in jail for the aggravated assault, followed by 12 months probation, a DNA order and a s. 109 order for 10 years. He appeals his conviction and seeks leave to appeal his sentence on the grounds that it is unfit.
BACKGROUND FACTS
[3] On March 16, 2007, the appellant and several friends, including his co-accused at trial, went to a local bar. It is agreed that shortly after midnight the appellant threw a beer bottle at the complainant and that the co-accused threw a beer mug. Both struck the complainant in the face. The beer bottle knocked him unconscious and he suffered lacerations and an injury to his jaw.
[4] At trial, the Crown claimed the assault was retaliation for the complainant’s earlier accusation that the appellant and his friends had stolen his bag. The defence claimed that the co-accused had made a comment about the complainant’s pool playing abilities to which the complainant responded by pulling a knife. The co-accused then went to the appellant and told him about the knife. The appellant approached the complainant to try to calm things down, and the complainant charged at him while reaching into his pocket. In self defence, the appellant and co-accused threw their drinks at the complainant and were then asked to leave.
[5] At trial, the Crown called the complainant, a cleaner at the bar, and the bar’s owner to testify. The latter two Crown witnesses saw a bottle and mug thrown at the complainant. Neither saw an earlier altercation and neither saw a knife. No knife was found on the complainant, although police admit he was never searched. The Crown also submitted notes of a statement made by the co-accused to police after the incident in which no knife was mentioned. The Crown also submitted a statement made by the co-accused to the police after his arrest in which he did not mention the complainant having a knife.
[6] The defence called the appellant and two of the friends who were with him that night. Both friends agreed with the basic narrative of an earlier altercation, a knife, and the complainant reaching into his pocket when the appellant and co-accused threw their beverages. However, one described the complainant as walking, while the other described him as charging.
[7] The trial judge found that the complainant never pulled a knife, and that while he may have approached the appellant, he was not aggressive in doing so. She found the defence evidence unbelievable and the product of collusion, and rejected the claims of self-defence. She found that the appellant and his co-accused engaged in an unprovoked attack.
APPEAL ON THE MERITS
[8] The appellant’s main ground of appeal is his assertion that the trial judge erred in using the out of court statement of the co-accused as evidence against him. Before addressing this issue, however, I will briefly comment on the other grounds of appeal advanced by the appellant, which I reject.
(i) Common Enterprise
[9] Here the appellant argues that the trial judge treated the appellant and the co-accused as acting in a joint enterprise, and therefore failed to evaluate the actions of each accused separately. I disagree.
[10] The trial judge considered the actions of the appellant and the co-accused as principals. She found that each of them made a significant contribution to the assault and in our view there was no need for her to determine the exact factual extent of the harm occasioned by each. Both are legally responsible for the full extent of the harm.
[11] In this case there was no question that the appellant hit the complainant squarely in the face with a beer bottle, which shattered on impact and caused the complainant to fall to the floor. The appellant, therefore, materially contributed to the wounds suffered by the complainant.
(ii) Self-Defence
[12] The appellant submits that the trial judge failed to consider the question of whether the Crown had negated self-defence. He says that she failed to consider whether the appellant reasonably believed himself to be subject to an unlawful assault and whether he used reasonable force to repel the assault.
[13] While the appellant’s statement of the law is correct, I disagree that the trial judge failed to consider it. Indeed, she considered every issue the appellant relied upon to ground his subjective belief in the need to resort to self-defence. She rejected the self-defence claim in its entirety. In doing so she found that there was no knife, and that the defence witnesses colluded in giving their confirmatory evidence. In my view, she properly concluded that there was no evidentiary basis for a self-defence claim.
(iii) Ignoring Relevant Evidence
[14] The trial judge found that the bar owner observed no aggressive conduct by the complainant, and that an employee observed no aggressive conduct by the appellant. The appellant argues that the trial judge failed to properly understand their evidence; if she had, he says, she may have found support for the appellant’s self-defence claim. That is to say, the trial judge misapprehended the evidence.
[15] Contrary to the appellant’s arguments, the evidence of the two Crown witnesses was not in conflict with the findings made by the trial judge. The owner only testified that he saw the two men close together and that he saw the complainant say “one word”, without hearing what it was. He did not see any aggressive conduct. The employee testified to “bickering” not aggressiveness. Thus, the findings by the trial judge do not arise out of any misapprehension of the evidence on her part.
[16] The appellant also argues that the Crown led statements made by the appellant in chief that contained both inculpitory and exculpatory aspects. He says that the trial judge erred by considering only the inculpitory portions. Again, I disagree.
[17] The agreed statement of fact filed at trial stipulated that the appellant informed police that the co-accused told the appellant that the complainant pulled a knife on the co-accused, but explained that the throwing of the bottle was in response to the complainant throwing a pool cue. This conflicted with the appellant’s trial evidence. The trial judge was entitled to consider the inconsistency between the version of the story told by the appellant in the agreed statement of fact and the story he told on the stand. There is no error.
(iv) Out of Court Statements
[18] No one takes issue with the fundamental principle of law that in a trial an out of court statement made by one accused is not admissible as evidence against a co-accused for any purpose: see R. v. Parberry (2005) 2005 CanLII 40137 (ON CA), 202 C.C.C. (3d) 337 (Ont. C.A.). It is presumed that the trial judge knew this law.
[19] I do, however, acknowledge that the reasons of the trial judge are lacking in clarity in respect of her treatment of this fundamental legal principle. Indeed, if she was alive to this issue she has failed to demonstrate it. I accept that a reasonable reading of the trial judge’s reasons for decision gives rise to the regrettable conclusion that she improperly considered the statement of the co-accused in deciding the guilt or innocence of the appellant.
[20] Given that the trial judge’s reasons demonstrate the error of law alleged, I turn to consider the curative proviso s. 686(1)(b)(iii) of the Criminal Code. In doing so I find that the error caused no harm and had no effect on the verdict, as I explain below.
[21] An appellate court is justified in refusing to allow an appeal against a conviction if the Crown satisfies it that the error of law falls into one of two categories: (i) minor errors that could not possibly have affected the verdict; and (ii) more serious errors that were committed in the face of an overwhelming case against the accused. The underlying question is always whether the verdict would have been the same if the error had not been committed: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, para. 36.
[22] I consider the error by the trial judge to be serious because it appears to have been used by her in assessing the appellant’s credibility. That of course was essential to the appellant’s claim of self-defence and to reasonable doubt. Nevertheless, and as I said, I do not believe the result of his trial would have been any different had the alleged error not occurred.
[23] The co-accused did not advance a cutthroat defence; rather, the appellant relied on virtually the same account as the co-accused to advance the same defence. Second, and importantly, where the appellant’s evidence was inconsistent with co-accused’s statement, it was similarly inconsistent with other admissible evidence.
[24] The entire foundation for the appellant’s self-defence argument depended on the co-accused telling him that the complainant had pulled a knife on the co-accused. In this way, the appellant’s account was corroborated by the co-accused’s account of events. Although a co-accused’s statement could not be used either for or against the appellant, the co-accused’s statement was far less prejudicial insofar as there are no incriminating allegations.
[25] The trial judge did not need the co-accused’s statement to find that that the story about the knife had been fabricated or to reject the claim of self-defence. In every instance where the trial judge noted an inconsistency between the appellant’s evidence and the co-accused’s statement, she cited further substantial evidence - other than the co-accused’s statement - to support her finding that the appellant was not credible. This included blood evidence that the trial judge found demonstrated that there was a pool table between the complainant and the appellant at the time the complainant was struck. From this, she concluded that the complainant had not charged toward the appellant.
[26] Additionally, the trial judge found that the evidence of the appellant and the two witnesses he called was contradictory in several respects, including the colour of the alleged knife, whether the blade was extended, and whether the complainant walked or charged toward the appellant. The trial judge therefore found the evidence of these witnesses not to be credible and relied instead on the evidence of the complainant and the two other Crown witnesses.
[27] In sum, the trial judge did not believe the appellant, she did not believe the co-accused’s account in his statement, and she found that the other defence witnesses colluded in giving their confirmatory evidence. I am confident, on this record, that the verdict would have been the same had the error noted above not been made. This is an appropriate case, in my view, to apply the curative proviso.
SENTENCE
[28] Recent events resulted in the revocation of the appellant’s bail pending appeal and the appellant abandons his request for a conditional sentence. Nevertheless, he continues to maintain that his sentence was too harsh for a first time offender. I disagree.
[29] The trial judge considered relevant aggravating circumstances, mitigating factors, and that the appellant was considered a first offender for purposes of sentencing and had not served a custodial sentence before. She held that even though the appellant was technically a youthful first offender, the degree of violence in this case required that denunciation and general deterrence operated as the paramount sentencing objectives in this case.
[30] I can find no error on the part of the trial judge and her conclusions are entitled to a high degree of deference from this court. In view of the circumstances of this offence and this offender, the one-year custodial term imposed in this case cannot be said to fall outside the appropriate range of sentence. Accordingly, I would grant leave to appeal the sentence imposed, but dismiss the appeal.
DISPOSITION
[31] For these reasons I would dismiss the appeal. As to sentence, I would grant leave to appeal but I would dismiss it.
RELEASED:
“RJS” “H.S. LaForme J.A.”
“MAR -9 2010” “I agree Robert J. Sharpe J.A.”
“I agree Paul Rouleau J.A.”