COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rocchetta, 2016 ONCA 577

DATE: 20160720

DOCKET: C59519 and C59656

Doherty, Feldman and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jordan Rocchetta and Ryan Joseph Rocchetta

Appellants

Michael Lacy, for the appellant Jordan Rocchetta

Donald R. Orazietti, Q.C., for the appellant Ryan Joseph Rocchetta

Karen Papadopoulos, for the respondent

Heard: June 23, 2016

On appeal from the convictions entered by Justice E. Gareau of the Superior Court of Justice on June 25, 2014, with reasons reported at 2014 ONSC 3058, and from the sentences imposed on October 31, 2014, with reasons reported at 2014 ONSC 5668.

By the Court:

I

[1] The appellants, who are brothers, were tried together on a two-count indictment. Count one alleged that both appellants committed an aggravated assault on Jake Doan. The appellant, Jordan Rocchetta (“Jordan”) was convicted of that charge and received a sentence of 21 months’ imprisonment to be followed by three years’ probation. The appellant, Ryan Joseph Rocchetta (“Ryan”) was convicted of the included offence of assault. He received a suspended sentence with three years’ probation. Count two alleged that Ryan assaulted Matthew Gauthier. He was acquitted on that charge.

[2] Jordan appealed his conviction and sentence. Ryan also appealed conviction and sentence but abandoned his sentence appeal in oral argument.

[3] At the end of oral argument, the court dismissed both conviction appeals. The court allowed Jordan’s sentence appeal and reduced his sentence to nine months’ incarceration and indicated that the probation order may or may not be varied. We have determined that three years’ probation on the same terms and conditions as imposed by the trial judge is appropriate. These are our reasons for those dispositions.

II

count two: the alleged assault by ryan on matthew gauthier

[4] The assault alleged in count two occurred immediately before the assault that gave rise to count one in the indictment. We will begin with a brief outline of the facts relevant to count two, even though there is no appeal from the acquittal on that count.

[5] Ryan, Jordan, Mr. Doan, and Mr. Gauthier were among many guests attending a party at a camp (cottage) held to celebrate an upcoming wedding. Ryan and Jordan were related to the bride. Mr. Gauthier was the best man and Mr. Doan was a close friend of Mr. Gauthier. The party started early in the afternoon and extended into the early morning the following day. There was a lot of drinking. Everyone was having fun and enjoying themselves.

[6] Sometime shortly after midnight, the festive mood suddenly changed. Mr. Doan, who had been drinking a lot, began to tease a teenage boy in a sexually suggestive manner. The teenager understandably took issue with Mr. Doan’s comments. A verbal exchange, with some physical interaction between Mr. Doan and the teenage boy, ensued.

[7] Ryan, who had also been drinking a lot, and was a friend of the teenage boy, became angry with Mr. Doan’s treatment of the young man. He stepped in to defend his friend. Ryan and Mr. Doan exchanged words and began a physical confrontation. Things became more heated and the two men found themselves outside on the deck of the cottage in a face-to-face confrontation.

[8] As Ryan and Mr. Doan faced each other in the middle of a gathering crowd, Mr. Gauthier came through the crowd intent on helping his friend, Mr. Doan. According to defence witnesses, Mr. Gauthier, who was a large and muscular young man, pushed Ryan backwards into the wall of the cottage and advanced on him with his arms raised. Ryan responded with a single punch striking Mr. Gauthier in the head and knocking him to the ground unconscious.

[9] The trial judge carefully considered the conflicting versions of the relevant events and ultimately preferred Ryan’s evidence over the evidence relied on by the Crown (see paras. 37-38). The trial judge was not satisfied that the Crown had proved beyond a reasonable doubt that Ryan did not act in self-defence.[^1] He acquitted Ryan on count two.

count one: the assault on jake doan

[10] Immediately after Ryan knocked Mr. Gauthier to the floor on the deck of the cottage, Mr. Doan ran (or was chased) out onto the lawn. Jordan admitted in his testimony that as Mr. Doan was running across the lawn, he punched Mr. Doan as hard as he could in the face knocking him to the ground. Jordan claimed that he was defending himself from the oncoming Mr. Doan. Others testified that Jordan chased Mr. Doan and “sucker punched” him from the side or behind knocking him to the ground.

[11] Mr. Doan suffered a very serious eye injury. He is virtually blind in his right eye and there is very little prospect that his sight will ever improve.

[12] Various witnesses testified that Ryan was chasing Mr. Doan when Jordan knocked Mr. Doan to the ground. According to these witnesses, Ryan kicked and punched Mr. Doan as he lay on the ground semi-conscious. Within a few seconds, several other people piled on top of Mr. Doan. The owner of the cottage quickly interceded and pulled Mr. Doan out of the pile.

[13] The trial judge rejected Jordan’s self-defence claim holding, at para. 88:

In reviewing the totality of the evidence and finding as a fact that Jordan Rocchetta was running behind Jake Doan, that he caught up to Jake Doan, at which point he struck Doan in the face, I am satisfied that the Crown has discharged its burden of proof and established beyond a reasonable doubt that the accused was not acting in lawful self-defence.

[14] The trial judge also found that the blow administered by Jordan caused Mr. Doan’s serious eye injury and that the injury was sufficient in law to justify a conviction on the aggravated assault charge (see paras. 98-100).

[15] The trial judge rejected the Crown’s argument that Ryan was a party to Jordan’s aggravated assault (see paras. 103-113). However, he convicted Ryan of the included offence of common assault based on the punches and kicks administered by Ryan after Mr. Doan had been knocked to the ground by Jordan (see paras. 76, 119).

III

jordan’s conviction appeal

[16] Jordan challenges both the trial judge’s rejection of his self-defence claim and the trial judge’s finding that the blow struck by Jordan caused Mr. Doan’s serious eye injury. We will address the causation-related arguments first.

(i) The Causation Arguments

[17] There are two components to the challenge to the trial judge’s causation finding. First, counsel argues that the trial judge misapprehended Jordan’s evidence and relied on that misapprehension in finding that Jordan struck Mr. Doan in the right eye as opposed to somewhere else on his face. Second, counsel submits that even if one assumes that Jordan struck Mr. Doan in the right eye, the trial judge failed to consider whether it was that blow that caused the serious eye injury, as opposed to blows struck by Ryan or the group of people that descended upon Mr. Doan when he was semi-conscious on the ground. Counsel submits that the failure to address the alternative sources of the injury renders the finding that Jordan caused the serious eye injury unreasonable.

[18] The trial judge gave detailed reasons for judgment. At one point in his reasons, the trial judge stated that Jordan admitted that he hit Mr. Doan “in the right eye” (see para. 99). In fact, the appellant did not testify that he punched Mr. Doan in the eye. He testified that he hit Mr. Doan as hard as he could in the face. The trial judge correctly summarized Jordan’s evidence in several other parts of his reasons (see e.g. paras. 78, 84, 100). Considering the reasons as a whole, we agree with the Crown that the trial judge’s single misstatement of Jordan’s evidence considered in the context of the entirety of his reasons does not support the submission that the trial judge misapprehended Jordan’s evidence, or relied on that misapprehension in making the finding that Jordan struck Mr. Doan in the right eye. The trial judge’s finding that Jordan hit Mr. Doan “as hard as [he] could” in the area of the right eye (see para. 92) is unassailable on appeal.

[19] We approach counsel’s second causation argument on the basis that Jordan struck Mr. Doan in the right eye. This was no glancing blow. It was a vicious blow struck with full force by an angry man. The blow knocked Mr. Doan to the ground and left him dazed. According to the witnesses, whose evidence the trial judge accepted, the blow was accompanied by a “loud crack” that “sounded like bone breaking”. Significant trauma to Mr. Doan’s eye was the inevitable consequence of this assault. The medical evidence established that the trauma caused bleeding in the eye, which in turn led to permanent scarring at the centre of the retina. That scarring all but destroyed Mr. Doan’s vision in his right eye.

[20] Causation is a matter of inference from the evidence. It is wholly untenable to suggest that the blow struck by Jordan to Mr. Doan’s eye was not a significant contributing cause of the injury to Mr. Doan’s eye. Whether a later blow or blows struck by Ryan or someone in the group that jumped on Mr. Doan after he had been knocked to the ground by Jordan also had some role to play in the injury is of no legal consequence: see R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, at paras. 15-29.

[21] Counsel’s attack on the trial judge’s causation finding is further undermined by the speculative nature of the assertion that other blow or blows may have had any role to play in the injury suffered by Mr. Doan. On the testimony accepted by the trial judge, there was no evidence that anyone in the group that briefly pummelled Mr. Doan after Jordan had knocked him to the ground struck Mr. Doan with any force in the area of his right eye. Nor did the physical or medical evidence support a finding of multiple blows to the eye. Apart from Jordan’s evidence about the encounter with Mr. Doan, which was in large measure rejected by the trial judge, there was no evidence of the extent of the force used by Ryan when he struck Mr. Doan after he was on the ground.

[22] In our view, the trial judge’s finding that Jordan’s blow caused the serious eye injury was not only reasonable, it was the only reasonable conclusion available on the evidence.

(ii) The Self-Defence Arguments

[23] Counsel submits that the trial judge wrongly placed the burden on Jordan to demonstrate that he acted in self-defence when he struck Mr. Doan. Counsel refers to a passage in the reasons in which the trial judge describes the defence of self-defence as predicated on an acceptance of Jordan’s evidence. Counsel also refers to a second passage in the reasons in which the trial judge makes findings of fact relating to the defence of self-defence based on a balance of probabilities assessment (see paras. 84-85).

[24] Reasons for judgment must be read as a whole. The trial judge correctly and repeatedly identified the burden of proof as it applied to the defence of self-defence (see e.g. paras. 28, 36 and 41). He applied the burden of proof in acquitting Ryan on count two based on the self-defence claim.

[25] The requirement of proof beyond a reasonable doubt does not apply to each and every factual finding made by a trial judge. The trial judge, after a thorough review of the evidence and for several reasons which he clearly articulated, preferred the evidence of two independent and sober witnesses (Sacha and Deborah Shaughnessy) over the evidence of Jordan and Ryan. The trial judge was entitled to make factual findings based on the evidence that he accepted. He was also required to determine whether having regard to the factual findings he had made, considered in the context of the entirety of the evidence, the Crown had proved beyond a reasonable doubt that Jordan did not act in self-defence. The trial judge did exactly that (see para. 88).

[26] Counsel also submits that in considering the defence of self-defence, the trial judge placed undue emphasis on Jordan’s failure to retreat. There are two problems with this submission. First, an argument framed in terms of “undue emphasis” is usually an argument about the weight assigned to a particular factual feature of the case. It is the function of the trial judge to decide the significance of a particular feature of the evidence. This court must defer to those assessments absent legal error or palpable and overriding factual error.

[27] More significantly, the failure to retreat had nothing to do with the trial judge’s rejection of the defence of self-defence. Based on the trial judge’s findings, Jordan chased after Mr. Doan, caught up to him and struck him. In light of these findings, the problem with Jordan’s self-defence claim was not that he did not try hard enough to get away from Mr. Doan, but that he attacked Mr. Doan as Mr. Doan ran away from him.

[28] The passage relied on by the appellant to support the claim that the trial judge overemphasized Jordan’s failure to retreat (see para. 87) is an aside in the reasons and not an integral part of the trial judge’s reasoning. The trial judge begins his reference to the failure to retreat with the observation: “If Jordan’s version is correct”. In fact, the trial judge rejected Jordan’s version of events. On the facts as accepted by the trial judge, the failure to retreat had nothing to do with the trial judge’s rejection of the self-defence claim.

[29] Counsel further contends that the trial judge made inconsistent credibility findings in his assessment of the self-defence claim advanced on behalf of Jordan on count one and his assessment of the self-defence claim advanced on behalf of Ryan on count two. There is no merit to this submission. The two assault charges and the self-defence claims were based on different evidence and had to be considered individually. For example, Sacha and Deborah Shaughnessy, two witnesses who clearly impressed the trial judge, gave evidence that belied any suggestion that Jordan acted in self-defence when he struck Mr. Doan. There was no comparable independent evidence supporting the Crown’s case on the charge that Ryan assaulted Mr. Gauthier. There is no inconsistency between the trial judge’s findings of fact in respect of the two counts or his acceptance of the self-defence claim on count two and his rejection of the self-defence claim on count one.

[30] Counsel has not persuaded us that the trial judge erred in his consideration of Jordan’s self-defence claim.

IV

jordan’s sentence appeal

[31] The trial judge gave thorough and thoughtful reasons for sentence in respect of both Jordan and Ryan. We agree with much of what he said.

[32] Like Ryan, Jordan is a young first offender (23 at the time of the offence) and a valuable member of the community. He and Ryan have operated their own successful business since 2008. Jordan is in a committed, long-term, loving relationship. He has no history of anger control problems or substance abuse. He is truly sorry for the serious injury he caused Mr. Doan. In short, all signs indicate that this offence is an aberration. Jordan presents no danger to the community and no risk of reoffending.

[33] In our view, Jordan’s moral culpability cannot be meaningfully distinguished from Ryan’s. Both violently attacked Mr. Doan with force that could reasonably be expected to result in significant injury to Mr. Doan. Luckily for Ryan, his assault did not cause significant injury. Unfortunately for Jordan, his assault caused a very serious life-altering injury to Mr. Doan. Both Jordan and Ryan acted spontaneously out of some misguided sense of loyalty to each other or the teenaged boy who was approached by Mr. Doan.

[34] The trial judge, after thoroughly reviewing factors relevant to sentencing, correctly concluded that Ryan should receive a suspended sentence. He also correctly concluded that the very serious injury caused by Jordan’s assault moved deterrence and denunciation to the forefront of the operative sentencing principles (see paras. 47-48). We agree with the trial judge that despite the many mitigating factors, a significant period of incarceration was required for Jordan because of the serious injury he caused.

[35] In fixing the appropriate sentence of imprisonment, however, the trial judge failed to advert to the restraint principle as applied to young first offenders facing a period of incarceration. That principle, reflected in s. 718.2(d) and (e) directs that a first period of incarceration imposed on a young first offender should be as short as possible while giving adequate weight to the principles of general deterrence and denunciation: R. v. Hayman (1999), 1999 CanLII 3710 (ON CA), 135 C.C.C. (3d) 338 (Ont. C.A.) at para. 22. The restraint principle should have been one of the primary considerations in fixing the appropriate period of incarceration. Instead, the trial judge failed to apply the principle. His failure to do so necessarily impacted materially on the length of the jail term imposed by the trial judge. Appellate intervention is justified: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44, 83. The sentence should be varied downward.

[36] Applying the restraint principle to the circumstances of the offence and the offender as described by the trial judge, we concluded that a sentence of nine months would be a fit sentence. Nine months is a significant jail term for this offender and does not either understate the need to deter others from engaging in this kind of conduct or fail to adequately denounce the behaviour of Jordan.

V

Ryan’s conviction appeal

[37] Count 1 of the indictment alleged that Jordan and Ryan:

[S]tand charged that they on or about the 24th of July, 2011 at the Township of MacDonald, in the said Region, did wound Jake Doan thereby committing an aggravated assault, contrary to section 268 of the Criminal Code of Canada.

[38] Common assault is an included offence in the charge of aggravated assault: see Criminal Code, ss. 265, 268, 662(1). Counsel does not quarrel with that proposition. He submits however that the assault for which the trial judge convicted Ryan, that is the kicking and punching of Mr. Doan immediately after Jordan knocked Mr. Doan to the ground, was not the assault alleged in count one.

[39] Counsel claims that by charging aggravated assault in count one, the Crown limited the count exclusively to Jordan’s punch to Mr. Doan, the assault that allegedly caused the injury that amounted to an aggravated assault. Counsel further contends that the Crown did not allege that Ryan actually committed the assault that amounted to the aggravated assault but rather alleged that Ryan was liable as a party to Jordan’s aggravated assault.

[40] Counsel’s submissions that count one refers only to Jordan’s blow to Mr. Doan’s eye and charges Ryan only as a party to an assault committed by Jordan finds no support in the actual language used in the charge. None of the qualifiers read into the charge by counsel in his submissions are present in the language used in the count. The charge alleges an aggravated assault by both brothers at a specified time on a specified person at a specified place. No language in the charge limits the actus reus to a specific blow, or Ryan’s liability to that of a party.

[41] It is true that the Crown argued that Ryan was liable for aggravated assault as a party to Jordan’s assault on Mr. Doan. The Crown did not argue that any blow struck by Ryan caused the kinds of injuries that could amount to an aggravated assault. The Crown’s theory of liability does not however constitute particulars that limit the scope of the charge in the indictment: see R. v. Khawaja, 2010 ONCA 862, 103 O.R. (3d) 321, at paras. 143-45, aff’d on other grounds 2012 SCC 69, [2012] 3 S.C.R 555.

[42] Counsel for Ryan next submits that even if the actual wording of count one does not limit Ryan’s potential liability to that of a party to the blow struck by Jordan, his liability for the included offence of common assault was limited to an assault that was part of the same transaction as the blow struck by Jordan: see Criminal Code, s. 581(1). High authority supports counsel’s submission. In R. v. Ovcaric (1973), 1973 CanLII 1425 (ON CA), 11 C.C.C. (2d) 565 (Ont. C.A.), at p. 568, Martin J.A. described two preconditions to a finding that one offence was included in another:

[I]n order to permit a jury or Court to convict of an included offence, two conditions must be present. First, the offence charged in the indictment must contain all the essential elements of the included offence and secondly, the offence charged in the indictment and the included offence must both refer to the same transaction. [Emphasis added.]

[43] The question becomes – did Jordan’s punch to Mr. Doan’s eye and Ryan’s kicking and hitting of Mr. Doan occur within the same transaction? A single transaction can encompass several acts, each of which may have been chargeable as a discrete offence: R. v. Selles, 1997 CanLII 1150 (ON CA), 116 C.C.C. (3d) 435, at para. 17 (Ont. C.A.); R. v. M. (G.L.) (1999), 1999 BCCA 467, 138 C.C.C. (3d) 383, at paras. 9-14 (B.C.C.A.). The distinction between the offence charged, that is the act to be proved, and the transaction within which the offence occurred, is made clear in the language of s. 581(3) of the Criminal Code, the fundamental criminal law rule of pleading:

A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence or insufficiency of detail does not vitiate the count. [Emphasis added.]

[44] A series of acts that are sufficiently connected will make up a single transaction for the purposes of s. 581(1). The sufficiency of the connection will depend on the circumstances. The requisite connection may be established by the proximity in time or place of the acts, the identity of the parties to the acts, the similarities of the conduct involved in the acts, the ongoing relationship of the parties to the acts, or other factors tending to show that each act is properly viewed as part of the larger whole: see R. v. Hulan (1969), 1969 CanLII 306 (ON CA), 2 O.R. 283 (C.A.).

[45] Looking at the events from a common sense perspective, it is artificial to treat the two assaults as discrete transactions. Both are part of a single narrative. Mr. Doan was the victim of both assaults. Both assaults occurred in the context of rapidly unfolding hostilities. Those hostilities began with the exchange between Mr. Doan and Ryan in the cottage, escalated to the confrontation on the deck which resulted in the blow to Mr. Gauthier and moved quickly to the pursuit of Mr. Doan across the lawn by various people, including Ryan and Jordan. The pursuit ended when Jordan knocked Mr. Doan to the ground allowing Ryan and the others in pursuit to catch up and assault Mr. Doan. The blows struck by Jordan and Ryan were closely connected in time. Jordan’s blow to Mr. Doan preceded Ryan’s by a matter of several seconds.

[46] Counsel advanced three arguments in an effort to rebut the undeniably close factual connection between the two assaults. He began with the trial judge’s reasons. He referred to the trial judge’s comment that the events from start to finish were not “one continuous transaction” (para. 112). The trial judge went on to divide the events into several “transactions” for the purpose of his analysis.

[47] The trial judge’s observations were made in the context of considering whether the Crown had proved beyond a reasonable doubt that Ryan and Jordan were acting pursuant to a common unlawful purpose when Jordan struck Mr. Doan in the eye. Determining whether events compel an inference of joint enterprise is quite different from the question of whether events can be properly viewed as part of a single transaction for the purposes of framing a count in the indictment. The trial judge was not addressing the pleadings question raised on appeal in the passage relied on by counsel. His reasons do not assist Ryan’s argument.

[48] Counsel also relies on the majority judgment in R. v. Taylor (1991), 1991 CanLII 2610 (NS CA), 66 C.C.C. (3d) 262 (N.S.C.A.). The facts in Taylor have some similarity to the facts in the present case. In Taylor the accused was charged with assault causing bodily harm. The Crown alleged that the accused struck the victim with a beer glass cutting his face. The accused testified that she struck the accused accidentally with the glass. The Crown also led evidence that very shortly before the incident involving the beer glass, the accused had thrown beer in the victim’s face. The trial judge acquitted on the charge of assault bodily harm based on the accused’s testimony, but convicted on the included offence of common assault relying, not on the blow with the beer glass but on the throwing of the beer into the victim’s face.

[49] The majority in Taylor allowed the appeal from the assault conviction, holding that the throwing of the beer into the victim’s face was not part of the same transaction in which the victim was hit with the beer bottle. The majority in considering whether those two events were part of the same transaction, framed the issue this way, at p. 269: “The question is raised whether an accused can be convicted under s. 267(1)(b) of an assault not causally connected with the bodily harm.” The majority answered the question in the negative observing that the only assault included in the allegation of assault bodily harm was the assault that was alleged to have caused the bodily harm.

[50] With respect, the majority’s approach fails to distinguish between the acts to be proved to establish the offence as charged and the transaction referred to in the charge. The latter describes an event or a series of events. The former refers to the essential element of the charge. Proof of bodily harm was an essential element of the full offence charged in Taylor. The allegation of bodily harm did not, however, necessarily limit the scope of the transaction referred to in the allegation to the assault that caused the bodily harm. The scope of the charge depended on the wording of the charge and the evidence describing the circumstances of the alleged offence. A single transaction alleging an assault causing bodily harm can encompass the actus reus of more than one assault. Liability for the included offence of common assault is established if the Crown proves a common assault that occurred within the terms of the transaction referred to in the charge. We decline to apply the majority judgment in Taylor.[^2]

[51] Counsel next submits that Ryan’s ability to plead autrefois acquit or autrefois convict should he be charged with another assault arising out of the events at the cottage would be compromised by the trial judge’s approach to his potential liability under count one. Counsel submits that Ryan is not in a position to know exactly what assaults were or were not covered by that charge.

[52] We do not accept this argument. A court considering a special plea is entitled to consider the entire record of the earlier proceeding: see Criminal Code, s. 608; R. v. Robinson (2001), 2001 CanLII 24059 (ON CA), 153 C.C.C. (3d) 398, at para. 28 (Ont. C.A.). The record of this trial would make it clear that Ryan’s jeopardy under count one extended to any assault against Mr. Doan which he perpetrated or was a party to that occurred from the time of the initial altercation in the cottage to the time when the owner of the cottage interceded and pulled Mr. Doan away from his attackers. The approach taken by the trial judge to count one ensured that Ryan would not have to go through another trial involving an allegation of an assault by him against Mr. Doan at the time and place referred to in the indictment.

[53] We stress that our characterization of the assault by Ryan and the assault by Jordan as part of the same transaction for pleading purposes, thereby allowing for Ryan’s potential conviction on the included offence of common assault based on his own actions, does no disservice to Ryan’s right to a fair trial or his ability to fully defend himself. Had the propriety of count one arisen at trial and had Ryan shown prejudice based on the manner in which the count was framed, the trial judge could have divided count one into two counts and he could have severed those two counts from each other: Criminal Code, ss. 590(2) and 591(3). Similarly, this court would set aside Ryan’s conviction as a miscarriage of justice were he able to demonstrate that he was prejudiced by the form of the indictment or the finding of liability based on the assault he perpetrated and not as a party to his brother’s assault on Mr. Doan.

[54] There is no possibility of any prejudice here. Ryan had full disclosure of the Crown’s case. He knew that it was alleged he kicked and punched Mr. Doan as he lay on the ground. There is no suggestion that Ryan and his counsel did not appreciate the nature of the evidence or the essential elements of the charge. It was Ryan’s testimony that he did not kick or punch Mr. Doan at any time. It is impossible to imagine how the case and more specifically, Ryan’s defence, would have evolved any differently had the Crown laid a separate assault charge based on the allegation that Ryan kicked and punched Mr. Doan. We are satisfied that the trial would have followed the same course.

VI

CONCLUSION

[55] The conviction appeals are dismissed. Ryan’s sentence appeal is dismissed as abandoned. Jordan’s sentence appeal is allowed. His sentence is varied to nine months’ incarceration. We see no reason to interfere with the trial judge’s conclusion that three years’ probation on the terms and conditions he imposed was appropriate.

Released: “DD” “JUL 20 2016”

“Doherty J.A.”

“K. Feldman J.A.”

“David M. Brown J.A.”

[^1]: In considering the defence of self-defence, the trial judge applied the present legislation rather than the legislation that was in place at the time of the alleged assault. He did so based on the submissions of both counsel for the defence and the Crown. In light of the subsequent decision of this court in R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22, the trial judge should have applied the legislation as it existed at the time of the alleged assault. Counsel, however, agree that in the circumstances of this case, there is no meaningful difference between the defence as framed in the former legislation and as set out in the present legislation.

[^2]: The majority in Taylor also held, at p. 274, that the assault involving the throwing of the beer into the victim’s face was not an included offence in the charge of assault causing bodily harm because the throwing of the beer did not involve “an intent to cause bodily harm”. With respect, intent to cause bodily harm is not an element of the offence of assault causing bodily harm and cannot justify limiting potential liability to the assault said to have caused bodily harm.