Court File and Parties

CITATION: R. v. Rowe, 2011 ONCA 2

DATE: 20110105

DOCKET: C49955

COURT OF APPEAL FOR ONTARIO

Rosenberg, Goudge and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joacquin Rowe

Appellant

Joseph Wilkinson, for the appellant

Andreea Baiasu, for the respondent

Heard: December 22, 2010

On appeal from the conviction entered on March 19, 2008 and the sentence imposed on June 20, 2008 by Justice Omatsu of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant appeals his conviction for aggravated assault. His ground of appeal is that the trial judge’s reasons for conviction indicate that she rejected his claim of self defence under s. 37 of the Criminal Code solely and exclusively because of the extent of the injuries suffered by the complainant. Despite Mr. Wilkinson’s able argument, we do not agree. We do not read her reasons that way.

[2] The incident giving rise to the charge took place in a holding cell at Old City Hall in Toronto. The appellant and complainant were being held there with several other inmates.

[3] The incident was captured on the security video, which the trial judge watched a number of times during the trial and which we have also viewed. It showed the complainant asleep on a bench in the cell. The appellant put a long white sock over his right hand, approached the complainant, leaned over and made some contact with the complainant. As a result, the complainant woke up, stood up and took several steps towards the appellant with his arms outstretched. The appellant backed off a little, then punched the complainant once in the face. The complainant fell to the floor, motionless, with bloody running down his face. The appellant moved away, took off his sock and removed his sweatshirt.

[4] The complainant’s injuries were serious. His nose, forehead and eye were damaged and he needs reconstructive surgery.

[5] In this court, the appellant concedes that in view of the trial judge’s finding that he provoked the assault by the victimm he must rely on s. 37. The question the trial judge addressed was whether the appellant used more force than necessary to prevent the assault constituted by the complainant’s advancing towards him with his arms outstretched.

[6] In conducting this proportionality analysis, the trial judge took into account the way the punch was struck as shown in the video. She also took into account the serious injuries the complainant suffered, which she found were caused by the punch. These considerations allowed her to determine the force used by the appellant and to conclude that it was excessive in the circumstances. Her ultimate focus was on the force used by the appellant and not exclusively on the injuries suffered by the complainant. She did not commit the error argued by the appellant.

[7] The appeal must be dismissed.

“M. Rosenberg J.A.”

“S. T. Goudge J.A.”

“R. A. Blair J.A.”