Court of Appeal for Ontario

Date: 2017-06-20 Docket: C63010

Panel: MacPherson, Blair and MacFarland JJ.A.

Between

Her Majesty the Queen Respondent

and

Richard Charron Appellant

Counsel

Anthony Moustacalis, for the Appellant

Scott Latimer, for the Respondent

Heard: June 16, 2017

On appeal from the conviction entered on May 14, 2015 and the sentence imposed on June 15, 2015 by Justice Jon-Jo Douglas of the Ontario Court of Justice.

By the Court

Introduction

[1] Following an altercation during which he repeatedly kicked and punched the complainant and threatened to "rip [the complainant's] throat out", Mr. Charron was convicted of theft, robbery, uttering a threat, breach of recognizance and choking to overcome resistance. He was sentenced to a term of imprisonment for 30 months less two months' credit for pre-trial custody (based on 55 days of pre-trial custody, rounded up to two months, on a 1 for 1 basis).

[2] He appeals from his convictions, and seeks leave to appeal from the sentence imposed.

[3] The appellant argues that the trial judge's verdicts were unreasonable on all counts on which he was convicted. He also asserts that the trial judge misapplied the burden of proof and failed to consider his defence of self-defence properly. With respect to sentence, he submits that the trial judge erred in failing to award him enhanced credit for pre-trial custody.

[4] We would not give effect to these grounds of appeal.

Factual Background

[5] During the evening of December 15, 2014, the complainant was socializing inside a Tim Horton's outlet in Barrie. He had left his bicycle outside. The bicycle was stolen.

[6] When he discovered the bicycle at a nearby McDonalds restaurant, the complainant approached the lone patron inside the McDonalds – the appellant – and asked whether he had stolen the bike. The appellant responded "yes" or "yeah, okay bud". At this point, the complainant left the McDonalds, took his bike and returned to the Tim Hortons.

[7] Shortly after, however, the complainant returned to the McDonalds, as the appellant was leaving. The complainant, still standing astride his bicycle, again confronted the appellant about stealing his bike. It was at this point that the altercation occurred.

[8] The appellant grabbed the complainant by the throat and choked him. The complainant fell to the ground, on top of his bike. Eyewitnesses observed the appellant severely kicking and punching the complainant as he lay on the ground. The complainant testified that the appellant demanded his wallet during the beating.

[9] One eyewitness overheard the complainant say "Take it, just take it." Another took a picture of the assault as it was ongoing.

[10] The complainant suffered a concussion, multiple abrasions, and emotional trauma as a result of the attack.

[11] At the time of the altercation the appellant was on bail and subject to a curfew. He was outside of his residence past the curfew. Although he said that he had a note from his surety (his mother) permitting him to be out – which would have put him in compliance with his bail condition – he had no such note with him and the trial judge ultimately found that no such note existed for that night.

[12] The appellant testified. He denied stealing the bicycle. He said that he was defending himself and struck the first blow because the complainant rode up to him on the bike, stopped millimeters from his face, and demanded the appellant's bag of fast food. The appellant admitted that he said he would "rip [the complainant's] throat out", but said that he did so in order to ward off an assault from the complainant's "posse" – a group of people that he said was approaching him, but which none of the witnesses observed.

The Trial Judge's Decision

[13] The trial judge rejected the appellant's evidence, as he was entitled to do. Applying the principles enunciated in R. v. W.(D.), he found as well that neither the appellant's testimony nor the balance of the evidence raised a reasonable doubt in his mind. He was satisfied that the Crown had proved the appellant's guilt beyond a reasonable doubt.

[14] In arriving at his verdicts, the trial judge carefully examined the evidence presented by the defence – the testimony of the appellant and that of his mother – together with the evidence tendered by the Crown. In addition to the testimony of the complainant, the Crown's evidence consisted of the testimony of a McDonalds' patron (who witnessed most of the assault), a McDonalds' employee (who witnessed most of the assault and who took the picture of it that was made an exhibit), and that of the arresting officer. He accepted the essential elements of the eyewitness testimony and of the complainant's testimony, finding the complainant to be a "candid and forthright witness who did not, in any sense, exaggerate the accused's conduct." He found that the appellant was not a credible witness, rejecting his evidence that his conduct that evening was affected by an overconsumption of either his anxiety medications or alcohol, that he was only being "sarcastic" when he admitted to stealing the bike, that the complainant was the physical aggressor, and that the complainant's "posse" was threatening him. The trial judge ultimately concluded that he could not rely on the testimony of the appellant's mother.

[15] In the end, the trial judge found the appellant guilty on all counts except one. With respect to sentence, the trial judge concluded that a penitentiary sentence was warranted given the severity of the appellant's violence, his criminal record and his probation officer's conclusion that the appellant's "behaviour has escalated in a deteriorating and violent pattern" and that "community supervision orders over the years have made little impact on [the appellant's] ability to change". The trial judge sentenced the appellant to 30 months' imprisonment, less two months of pre-trial custody credited on a 1 for 1 basis.

The Conviction Appeal

[16] An "unreasonable verdict" is one that no properly instructed jury, acting judicially, could reasonably have rendered: R. v. Biniaris, at paras. 24, 36-42.

[17] None of the verdicts here falls into that category. The trial judge considered all relevant legal principles, including those set out in R. v. W. (D.) and the principles regarding the defence of self-defence. He made no error in his assessment of the evidence, in our view, and there was evidence on each count that, once accepted, supported the conviction on that count. We will deal with each briefly.

Count One (Theft Under $5000)

[18] With respect to count one, the trial judge effectively found the appellant guilty "by circumstances and his own admission".

[19] The appellant argues, however, that his statement "yes" or "yeah, okay bud" when asked if he had stolen the bike, was "equivocal at best" (the appellant said he was just being sarcastic; the complainant said the statement was made in a rude but not sarcastic fashion) and could not form the basis for a reasonable verdict. We disagree.

[20] The trial judge resolved the equivocation by rejecting the appellant's testimony and accepting that of the complainant. Regarding the statement as an admission in those circumstances was not an error and, together with the other evidence respecting the "circumstances" of the theft, was sufficient to ground the conviction.

Counts Two and Three (Assault with Intent to Steal, Robbery; Uttering Threats)

[21] The trial judge accepted the evidence that the appellant had demanded the complainant give him his wallet during the altercation. He found that the appellant had used language reasonably interpreted as a threat to both kill and do serious bodily harm, noting that his finding in this regard was consistent with the appellant's admission that he had said "I will rip your throat out" to the complainant. This evidence formed the basis for the convictions on counts two and three.

[22] The appellant submits, however, that the trial judge failed to consider certain contradictions in the evidence, misapplied the burden of proof and failed to consider self-defence properly.

[23] We do not accept this submission. The trial judge applied his mind to the appellant's self-defence theory, namely that he was reasonably defending himself against, and only spoke the threatening words in the context of, the threats posed by the complainant and his menacing posse. He rejected the evidence upon which that theory was based, and we see nothing to suggest that he reversed the burden of proof in rejecting the appellant's theory.

[24] The appellant suggests that, because the eyewitness who testified that she heard the complainant say to the appellant during the beating "Take it, just take it" did not testify that she heard anything else said between the two, an unresolved conflict that would lead to an unreasonable verdict arose. However, one does not follow from the other, and the trial judge accepted the "take it, just take it" evidence, which, once accepted, is only consistent with either the theft of the bicycle or the demand for the complainant's wallet. It confirmed the complainant's testimony regarding the appellant's demand that he hand over his wallet.

Count Six (Choking)

[25] The trial judge recognized that count six was somewhat problematic – to find the appellant guilty of choking with intent to choke would be tautological – but ultimately accepted the Crown's position that the choking was done to disable the complainant in order to continue with his intended beating and "to facilitate what followed".

[26] The appellant submits the trial judge erred in this regard, and that choking that is incidental to an assault does not amount to the offence of overcoming resistance by choking. As noted, the trial judge recognized this tautology. He founded the choking conviction on a different theory, though. In effect, he concluded that there were two instances of the appellant's application of force to the complainant: first, choking the complainant while he was still standing astride his bicycle; second, punching and kicking the complainant while he was on the ground. In short, the choking was in furtherance of the assault that followed.

[27] These findings were open to him on the record. It is not clear what the appellant's argument is to the effect that the trial judge misapplied the burden of proof in connection with count six. In any event, we see nothing to suggest that he did so.

Failure to Comply

[28] Finally, with respect to the conviction for failure to comply, in addition to arguing an unreasonable verdict, the appellant submits that the trial judge erred by shifting the burden to the appellant to show that he had permission from his mother to be off-residence after his curfew hour.

[29] The defence was that the appellant's mother, his surety, had supplied him with permission that evening before he went to McDonalds. No note was ever produced, although the appellant said he must have left it at home in the garage before leaving and he did not think to ask his mother to produce it because he did not think it was relevant. His mother said she had prepared a note but could not remember if it was for that specific night. The trial judge rejected the idea that there was a note, and was entitled to do so on the evidence. He did not believe the appellant or his mother. In doing so, he was not reversing the burden.

Disposition of the Conviction Appeals

[30] In essence, the appellant's argument on the conviction appeals asks us to accept the appellant's version of what happened, as amplified by the testimony of his mother, and conduct our appellate analysis based upon that revised version of the facts. We cannot do so. The trial judge made no palpable or overriding errors in his factual finding and properly addressed the relevant principles of law.

[31] The appeal as to conviction is dismissed.

The Sentence Appeal

[32] The appellant argues that he is entitled to enhanced credit, for pre-trial custody. He spent 55 days in pre-trial custody in relation to these charges, which the trial judge appears to have rounded up to two months on a 1 for 1 basis but the appellant seeks credit for 84 days credited on a 1.5 to 1 basis.[1]

[33] The trial judge addressed the issue of enhanced credit and declined to award it in the circumstances. In arriving at this decision he took into account the "particularly violent nature" of the offences, the appellant's criminal record stretching back to 1996 and the flagrant nature of the breach in this case.

[34] We see no basis for interfering with his decision in this regard.

Conclusion

[35] For the foregoing reasons, the appeal from the appellant's convictions is dismissed. Leave to appeal sentence is granted, but the appeal as to sentence is dismissed as well.

Released: June 20, 2017

"JCM" "J.C. MacPherson J.A."

"R.A. Blair J.A."

"J. MacFarland J.A."

Footnote

[1] In his reasons for sentence, the trial judge misspoke, referring to 73 days of pre-trial custody which he counted as two months. There appears to be no issue, however, that the appellant had spent 55 days in pre-trial custody in relation to these charges.