Court of Appeal for Ontario

Date: 2017-10-23 Docket: C61795

Judges: Doherty, LaForme and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Robert Whiteley Applicant (Appellant)

Counsel

Eva Taché-Green, for the applicant (appellant)

Nancy Dennison, for the respondent

Heard

October 16, 2017

Appeal Information

On appeal from the conviction of Justice T. Cleary of the Ontario Court of Justice, dated December 22, 2014, and on appeal from the sentence imposed on February 13, 2015.

Reasons for Decision

Facts

[1] The appellant and Shawn Downey had a fight in the appellant's small one-room apartment. During the altercation, the appellant was pushed into the closet area by Mr. Downey and perhaps two others. As he was being struck by Mr. Downey, the appellant picked up a metal object from the floor of the closet and struck Mr. Downey with it many times. Several of the blows hit Mr. Downey in the head and face. He suffered very serious injuries.

[2] The appellant was charged with aggravated assault and other related offences. The trial judge convicted on the aggravated assault charge and entered stays on the other counts. He imposed a sentence of four years, 10 months in addition to credit of 14 months for presentence custody, resulting in an effective sentence of six years.

[3] The appellant appealed his conviction and, if leave be granted, his sentence. At the end of oral argument, the court dismissed the conviction appeal, granted leave to appeal sentence, and varied the sentence to time served. These are the reasons for our disposition.

The Conviction Appeal

[4] The appellant testified that he struck Mr. Downey in self-defence. He gave evidence about his prior relationship with Mr. Downey and the events in the hours and minutes immediately before the altercation. It was the defence position that in all the circumstances, it was reasonable for a person in the appellant's position to be afraid of Mr. Downey and to believe that significant force was required to neutralize the threat posed to the appellant by Mr. Downey.

[5] The trial judge accepted that the appellant had initially acted in self-defence. He further held, however, that the appellant went too far in the course of the altercation. The trial judge said:

There is no inference that I can make nor any direct evidence that he [the appellant] was being struck in such a way or such force was being used against him when Mr. Downey was on his knees as to require the repeated striking with the metal object. Even taking Mr. Downey's testimony at face value that he does not back down and he was holding on to this person, it is clear that he was on his knees when struck more than once with the door closer. It is only reasonable to infer that he was of very minimal physical danger to Mr. Whiteley. Mr. Whiteley simply got carried away. [Emphasis added.]

[6] Much of the oral argument focused on whether the trial judge had made a finding as to the point in the altercation when the appellant's blows could no longer be justified in self-defence. Counsel for the appellant submitted there was no clear finding on this issue. She further argued that on the appellant's evidence, which she stressed was not rejected by the trial judge, the altercation had to be looked at as a single ongoing event. In her submission, it was unreasonable to make different assessments of the availability of self-defence as the altercation progressed.

[7] Crown counsel acknowledges that the reasons are somewhat unclear. She submits, however, that the reasons are best understood as a finding that while the first or second blow with the metal object may have been justified in self-defence, the many that followed could not be justified. Crown counsel submits that this finding is readily available on the evidence. She points out that the trial judge properly instructed himself on the law of self-defence, in particular the objective/subjective assessment required in determining the reasonableness of the appellant's conduct in the circumstances.

[8] We agree with the Crown that the trial judge concluded that some of the blows landed with the metal object could not be justified in self-defence. That conclusion does not turn on an assessment of the appellant's credibility, but rather on the totality of the evidence, which included the appellant's testimony and his description of the relevant events in his statement. On that evidence, the trial judge concluded that the appellant continued to use deadly force after, on a reasonable assessment of the circumstances as perceived by the appellant, the use of that degree of force was no longer necessary as the appellant was not in any imminent danger. On that analysis, which was open to the trial judge on the evidence, the self-defence claim failed.

[9] The appellant also argued that the trial judge failed to consider separately his claim that he was defending his property. Mr. Downey was no doubt a trespasser and defence of property under s. 35 was in play. However, in our view, in the circumstances of this case, that defence added nothing to the defence available to the appellant under s. 34. The trial judge's failure to give separate consideration to the defence of property argument did not prejudice the appellant.

The Sentence Appeal

[10] The trial judge imposed an effective sentence of six years. He gave the appellant credit for 14 months presentence custody, yielding a net sentence of four years, 10 months.

[11] The appellant makes two submissions on his sentence appeal. First, he submits that the trial judge erred in his calculation of credit for presentence custody. Had the appellant received the 1.5:1 credit for his presentence custody, he would have been entitled to a total credit of 17 months. The trial judge reduced the 17 months to 14 months on the basis that the appellant's criminal record could result in the appellant not being released at the two-thirds point of his sentence. The appellant submits that while he has a significant record, it comes nowhere near the kind of record that would justify an assumption that the appellant would not be released after two-thirds of his sentence had been served.

[12] There is merit to this submission. However, as we would give effect to the second submission made by the appellant, we need not decide whether the trial judge erred in failing to give full 1.5:1 credit for the appellant's presentence custody.

[13] Counsel's second argument goes to the fitness of the length of the jail term imposed by the trial judge. Counsel submits that the trial judge failed to consider the central mitigating fact in this case. Counsel argues that, on the trial judge's findings, the appellant was justified in using significant force to defend himself against Mr. Downey, even to the point of striking him with the metal bar. Counsel contends that sentences imposed on accused persons who are justified in acting in self-defence, but go beyond the limits of the defence, are inevitably significantly lower than sentences imposed on accused whose assaultive conduct is not justified in any way. He submits that the lower sentences reflect the lower level of culpability applicable to offenders who are found to have initially acted in self-defence. Counsel points to the reasons in R. v. Smith, [1999] O.J. No. 2766, where Durno J. said, at para. 7:

The final mitigating factor is critical in determining an appropriate sentence in this case. This case is one of excessive force in self-defence during an incident in which Mr. McShane [the victim] engaged in repulsive racist behaviour and was the initiator of physical aggression.

[14] In this case, Mr. Downey was the aggressor, at least until the appellant had struck him with the metal object. Mr. Downey was a trespasser and over several hours had intimidated the appellant and ignored the appellant's requests that he leave the appellant's home.

[15] Mr. Downey's role in the altercation and the fact that the appellant was justified in using significant force against Mr. Downey, should have been treated as significant mitigating factors on sentence. The trial judge made no reference to either. Instead, he referred to the mitigating factors as "very minimal". The trial judge's failure to recognize the dominant mitigating factors constitutes an error in principle, justifying appellate intervention.

[16] The trial judge did refer to the appellant's criminal record, which is extensive and was to a degree an aggravating feature. We note, however, that there has been only one entry in the record since 2002. The appellant was convicted of criminal harassment in 2012 and received a four-month sentence. The trial judge made no references to this significant gap.

[17] Having regard to the circumstances of the altercation between the appellant and Mr. Downey, the serious injuries suffered by Mr. Downey, and the appellant's antecedents, three years would have been an appropriate sentence.

[18] The appellant has been in custody for about two and one-half years since he was sentenced. In our view, he has served enough time for this offence.

Conclusion

[19] As indicated at the end of oral argument, the conviction appeal is dismissed, leave to appeal sentence is granted and the sentence is varied to time served.

"Doherty J.A."

"H.S. LaForme J.A."

"David M. Paciocco J.A."