COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McDonald, 2015 ONCA 791

DATE: 20151120

DOCKET: C58157

Laskin, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mackenzie McDonald

Appellant

John Hale, for the appellant

Michael Perlin, for the respondent

Heard: October 29, 2015

On appeal from the conviction entered by Justice Gary W. Tranmer of the Superior Court of Justice, sitting with a jury, on October 24, 2013, and from the sentence imposed on January 14, 2014.

Pardu J.A.:

[1] The appellant was charged with and convicted of aggravated assault. The charge stemmed from a confrontation between the appellant and Darren Gibson. The appellant was waiting in line at a restaurant when Gibson tried to cut in line. A physical confrontation, which lasted about 20 seconds, ensued. It ended badly for Gibson. He passed out from the pressure of a headlock applied by the appellant, and hit his head hard, on the tile floor.

[2] The appellant was tried and convicted of the charge in 2010. On appeal, this court set aside his conviction because the trial judge did not leave open the defence that the confrontation between the appellant and Gibson was a consensual fight. A retrial occurred where the appellant was convicted once again.

[3] The appellant advances two arguments before this court. First, the trial judge’s instructions to the jury on the issue of consent were inadequate, and effectively took the defence away from him. Second, the trial judge erred in refusing to stay the proceedings because of the delay caused by the appellate process following the appellant’s first trial.

A. The confrontation

[4] On September 28, 2008, around two o’clock in the morning, the appellant was standing in line at a crowded Subway restaurant. Gibson walked into the restaurant, stood in the line briefly, and then attempted to bypass it. Both the appellant and Gibson had been drinking that night.

[5] There was evidence at trial that, before a fight broke out between the two, the appellant put his arm on Gibson’s shoulder and complained to Gibson about his bypassing the line. Gibson may then have grabbed the appellant by the arm, and the two pushed and pulled each other by the arms.

[6] At some point, the appellant put Gibson in a headlock, and Gibson put his arms around the appellant’s hips. The appellant testified that he tried to swing Gibson around and out of the restaurant. Gibson lost consciousness and then hit his head on the tile floor. There was a dispute at trial about whether the appellant simply released Gibson, or pushed him with some force.

[7] Parts of the interaction were recorded on a cell phone. However, as conceded by the Crown on appeal, the video did not clearly prove or preclude any of the versions of events described at trial.

B. Ground #1: Instructions on COnsent

[8] The trial judge correctly instructed the jury that consent was not a defence if the appellant intended to cause serious bodily harm.

[9] The impugned jury instructions are as follows:

Consent, or for that matter the absence of consent, is a state of mind – Mr. Gibson’s state of mind. Consent refers to Mr. Gibson’s state of mind toward [the appellant’s] conduct, at the time of that conduct. It is Mr. Gibson’s actual state of mind, not [the appellant’s] or anybody [else’s] state of mind, that is [the] focus of this question.

Consent involves freedom of choice, and knowledge. It is the voluntary agreement of Mr. Gibson to the force that [the appellant] intentionally applied. A voluntary agreement is one made by a person who is free to choose, to agree or disagree, of his own free will. For an agreement to be voluntary, Mr. Gibson must know what is going to happen – what [the appellant] is going to do. Mr. Gibson does not have to know every detail of [the appellant’s] conduct, but must know of its essential nature, and freely decide to let [the appellant] do it. [Emphasis added.]

[10] At trial, the appellant objected to the charge on the ground that it effectively took the defence away from the jury. He maintains that challenge before this court. The appellant submits that these instructions effectively removed the defence of consent because the jury was instructed that it had to determine whether Gibson consented to everything the appellant did. No one in these circumstances would have consented to a headlock rendering them unconscious, or sustaining serious head injuries.

[11] The Crown points out that the charge was consistent with a model charge on this issue, and submits that the jury would not have believed it was necessary to find that the appellant needed to agree to being strangled or dropped on his head for consent to exist.

[12] The trial judge’s instructions on the law and his review of the evidence were accurate. However, the jury needed more help relating the evidence to the law in a way that was less abstract. In this case, the instructions on the law and the review of the evidence were contained in such separate silos that significant misunderstanding was possible.

[13] Several scenarios were possible on this evidence:

• Gibson did not consent to any form of physical contact.

• Gibson consented to some pushing and shoving, but the appellant’s actions went beyond the scope of Gibson’s consent.

• Gibson consented to the fight, and the headlock and force intentionally applied by the appellant was within the scope of the force consented to by Gibson.

[14] The trial judge should have related the evidence to the law of consent in a way that brought home to the jury the relationship between the law and the evidence by discussing, in concrete terms, potential scenarios available on the evidence.

[15] Where parties consent to a physical confrontation, it may be impossible to predict the exact manoeuvres each will perform. The jury instruction here, that Gibson must have known what the appellant was going to do in order to consent to the confrontation, could have, in the absence of guidance from the trial judge relating the facts to the law, unfairly restricted the defence of consent. This was not a case of a knife or shotgun pulled out in the course of a consensual fistfight, where the injuring force was obviously outside the scope of any consent.

[16] As Doherty, J.A. pointed out in R. v. Rowe, 2011 ONCA 753, 281 C.C.C. (3d) 42, at para. 62, the model instructions are not a “one-size-fits-all product; at best, they “provide the basic building blocks for finals and other instructions”. As noted at para. 66:

…jury instructions must be shaped by trial judges and reviewed by appellate courts having regard to the purpose those instructions are intended to serve. A proper jury instruction is one that fully and fairly arms a jury with the information it needs to reach a fair and proper verdict in the circumstances of the particular case. Trial judges cannot simply cut and paste their charges together using the model instructions in Watt’s Manual. Nor can appellate courts review the adequacy of jury instructions without regard to the positions taken at trial and the circumstances of the particular case.

[17] The key question is whether the positions of the Crown and the defence were fairly put to the jury. As Watt J.A. observed in R. v. P.J.B., 2012 ONCA 730, 298 O.A.C. 267, at paras. 44 and 49:

The responsibility of the trial judge to relate the evidence to the issues raised by the defence involves two components. The first is a review of the evidence. The second is a relation of the evidence to the position of the defence. Except in rare cases, where it would be unnecessary to do so, a trial judge must review the substantial parts of the evidence and give the jury the position of the defence so that the jury appreciates the value and effect of that evidence. Typically, trial judges review the evidence in the context of the various issues and indicate what parts of the evidence support the positions of the respective parties on those issues. Judicial review of the evidence refreshes the jurors’ memory of the evidence given. Judicial relation of the evidence to the issues improves jurors’ understanding of the particular aspects of the evidence that bear on their decision on each essential issue in the case.

Jury charges do not take place in isolation, but in the context of the trial as a whole. Appellate review of the adequacy of jury charges must acknowledge this reality, especially where the complaint is about the extent to which the trial judge has reviewed the evidence in final instructions. Appellate review on this issue includes consideration of the complexity and volume of the evidence adduced at trial, the extent of its review by counsel in their closing addresses, the length of trial proceedings, the issues to be resolved by the jury, the effect of a more complete and balanced review of the evidence, and whether counsel objected to the charge on the ground advanced on appeal. The test is one of fairness. Provided the evidence is left to the jury in a way that will permit the jurors to fully appreciate the issues raised and the defences advanced, the charge will be adequate. [Citations omitted.]

[18] The Crown’s position was that Gibson did not consent to any form of physical interaction. The defence position was that the appellant had no intention of hurting anyone, and that he thought Gibson wanted to fight, based on his grabbing the appellant’s arm. The appellant’s position was that he found himself very suddenly in a struggle with a complete stranger who was quite strong and would not let go of him.

[19] The positions of the Crown and defence were put to the jury. However, because of the failure to relate the evidence to the law on consent, the jury may have thought that unless Gibson specifically consented to everything the appellant did and all that happened, consent was not a defence.

[20] Accordingly, the conviction must be set aside and a new trial ordered.

C. Ground #2: Delay Caused by appellate process

[21] The appellant also submits that unreasonable delay resulted from the Crown’s unsuccessful attempt to obtain leave to appeal the earlier decision of this court setting aside his first conviction.

[22] This court’s first decision in this matter was rendered on June 6, 2012. Leave was refused on December 13, 2012. The new trial commenced on October 14, 2013. The appellant concedes that the delay between leave being refused and the commencement of the new trial was within acceptable limits.

[23] This question was conclusively answered by the Supreme Court of Canada in R. v. Potvin, 1993 CanLII 113 (SCC), [1993] 2 S.C.R. 880. At p. 909, Sopinka J. stated that s. 11(b) “applies to the pre-trial period and the trial process but not to appellate proceedings”.

[24] I would accordingly reject the appellant’s argument that the time spent by the Crown seeking leave to appeal violated his rights guaranteed by s. 11(b) of the Charter.

D. Disposition

[25] For these reasons, the conviction is set aside and a new trial ordered.

Released: (M.T.) November 20, 2015

“G. Pardu J.A.”

“I agree John Laskin J.A.”

“I agree M. Tulloch J.A.”