COURT OF APPEAL FOR ONTARIO

CITATION: R. v. O’Connell, 2014 ONCA 881

DATE: 20141209

DOCKET: C57277

Strathy C.J.O., Tulloch and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Timothy O’Connell

Appellant

Erika Chozik, for the appellant

Michael Bernstein, for the respondent

Heard: December 1, 2014

On appeal from the conviction entered on May 21, 2013 by Justice James A. Ramsay of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was charged with assault causing bodily harm to his nephew. The trial lasted one day. Both the complainant and the appellant testified. After hearing submissions from the appellant’s trial counsel, the trial judge took a brief recess. When he returned, he delivered brief reasons convicting the appellant. The following day he sentenced him to a fine of $2,000.

[2] The appellant advances the following grounds of appeal: (a) the trial judge misapprehended material parts of the evidence and made factual findings and drew inferences from the facts that were not supported by the evidence; (b) he misapprehended the law of self-defence and held the appellant to an unreasonable standard; and (c) the reasons were inadequate and did not come to grips with the evidence or with credibility issues. He says that collectively these errors resulted in a verdict that was unreasonable and a miscarriage of justice.

[3] The circumstances were as follows. There had been “bad blood” between the 48 year old appellant and the complainant, his 29 year old nephew. A dispute over the complainant’s car blocking the appellant’s resulted in a physical confrontation in the driveway. There was a tussle and the complainant fell to the ground. The appellant admitted that as the complainant was trying to get up, he kicked him twice in the head. He stood back for a moment and then kicked the complainant three more times, in the body. The complainant had no memory of the events after he fell to the ground.

[4] The trial judge was unable to conclude who was the first to use force, but found that the appellant quickly got the better of the complainant and “put him down” on the ground. At that point, the trial judge found, “it should have been all over.” What happened next, the kicking, “was purely the product of the accused person’s anger and desire to inflict punishment” on his rather difficult nephew.

[5] The trial judge concluded:

I find that he kicked him twice in the face, that he caused the bodily harm in question, that the dental injuries were not the product of the fall, and that it was not necessary for the accused to kick his nephew to prevent an assault or to protect himself or anyone else from harm. It was not reasonable for him to think that it was necessary, and he did not think that it was necessary.

[6] The appellant says the trial judge failed to consider his evidence that the kicks were administered to prevent the continuation of the attack and that this belief, even if mistaken, was reasonable: R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96 (Ont. C.A.), at p. 111.

[7] We disagree. The evidence relied upon was that the complainant “started to get up”, so the appellant kicked him in the head. The appellant said he did not want the complainant coming after him because he was furious. After this, when he was moving away, he thought the complainant was “reaching out”, so he kicked him in the arm, the shoulder and the leg. These observations were hardly evidence that a renewal of the confrontation was imminent. Based on the two kicks to the head, followed by three kicks to the body, the trial judge was entitled to find, as he did, that the purpose of the kicks was punishment, rather than self-defence and that the appellant did not subjectively believe that they were necessary to defend himself.

[8] The trial judge was also entitled to find that the serious injuries to the complainant’s mouth and teeth were caused by the kicks to the head, rather than by the complainant’s fall to the ground in the initial struggle. While the complainant conceded that it was a “possibility” that he hit his mouth in the fall, he had no memory of hitting the ground or of the kicks, but said that he did not fall “face first”. The trial judge was entitled to reject the evidence of the complainant’s grandmother that she saw him fall on his face. His conclusion that the complainant’s injuries were caused by the kicks and not by the fall was available to him on the evidence and he did not misapprehend the evidence.

[9] The appellant says the trial judge held him to an overly exacting standard and should have considered the events as one transaction. In our view, the trial judge was entitled to find that once the complainant had been taken to the ground and the appellant remained on his feet, the dispute should have been at an end and the application of bodily harm was not necessary to prevent a renewal of the fighting.

[10] The trial judge was not required to engage in a detailed review of the evidence or the law: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3. Although concise, his reasons demonstrate that he captured the substance of the case and disclose his reasoning process. He did not accept the appellant’s evidence about why he kicked the complainant in the head and that evidence did not give rise to reasonable doubt when viewed together with all the evidence.

[11] This appeal was argued together with R. v. Bengy (C57571) and Modeste (C55821)and R. v. Rogers (C51859), dealing with the retrospectivity of the Citizen’s Arrest and Self-defence Act, S.C. 2012, c. 9. Unlike those cases, in which the convictions preceded the coming into force of the legislation, the trial here occurred after the legislation came into effect. Counsel for the appellant fairly conceded that the amendment of the legislation would have had no impact on the outcome in this case, even if it were found to be applicable to an offence preceding the effective date of the new provision. We do not therefore find it necessary to address the issue of whether the amendment could or should have been applied at the appellant’s trial.

[12] For these reasons, the appeal is dismissed.

“G.R. Strathy C.J.O.”

“M.H. Tulloch J.A.”

“C.W.