Court of Appeal for Ontario

Date: 2019-04-03 Docket: C64306

Judges: Doherty, Pepall and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Mark Foster Appellant

Counsel

Paul Calarco, for the appellant Andrew Cappell, for the respondent

Heard and released orally: April 3, 2019

On appeal from: the conviction entered by Justice Mary E. Misener of the Ontario Court of Justice, dated March 28, 2017 and the sentence imposed on September 25, 2017.

Reasons for Decision

Overview

[1] The appellant was convicted of aggravated assault and possession of various drugs. He received a sentence of two years, less a day on the aggravated assault conviction and short sentences on the drug charges. The sentences on the drug charges were concurrent to the sentence on the aggravated assault charge. In total, the appellant received a sentence of two years, less a day, followed by two years' probation.

[2] The appellant appeals conviction and sentence. The conviction appeal is limited to the conviction on the aggravated assault charge.

[3] The aggravated assault charge arose out of an altercation between the appellant and John Lavery, during which the appellant slashed Mr. Lavery with an X-Acto knife, causing serious injury. The appellant, who testified, advanced a self-defence claim.

[4] In her reasons, the trial judge summarized her findings and conclusions as follows:

…I accept his testimony that there was a confrontation between Mr. Foster and Mr. Lavery that night. Mr. Foster approached Mr. Lavery in an attempt to be amicable, offering his hand to shake and suggesting that they let bygones be bygones. Mr. Lavery would not accept. Within a matter of seconds the two men were involved in a heated verbal confrontation. One of them pushed the other in what would have been a consensual fight. Mr. Foster became enraged, reached into his pocket, pulled out the blade and slashed Mr. Lavery in an act of aggression.

The Conviction Appeal

Ground #1 – The Crown's Cross-Examination of the Appellant

[5] We agree with counsel for the appellant that the Crown improperly cross-examined the appellant on the contents of a statement allegedly made to the police by the appellant's girlfriend. She was present during, and involved to some extent in, the altercation that led to the charges.

[6] We also agree with the Crown's submission that the improper questioning did not result in any prejudice to the appellant's defence. We come to that conclusion for several reasons.

[7] First, there was no objection to any of the questions asked by the Crown, presumably because counsel for the appellant had indicated before his client testified that he intended to call the girlfriend as a defence witness. Presumably, everyone involved, including the trial judge, assumed when the Crown was cross-examining the appellant that the girlfriend would be testifying and giving viva voce evidence about her involvement in the altercation. Had she done so, her evidence would have been admissible for and against the appellant. It would have been appropriate for the trial judge to compare her trial evidence with that of the appellant in arriving at her findings of fact.

[8] Second, this was a judge-alone trial. The risks associated with this kind of improper questioning, particularly the risk that the content of the questions would be taken as having some evidentiary value, is significantly diminished in a judge-alone trial. The trial judge's reasons contain only one brief reference to the girlfriend's statement. In that reference, the trial judge did not misuse the statement by taking its contents as evidence of the truth, but instead referred to the cross-examination on the statements to make the point that the appellant's testimony on various matters shifted as he was questioned in cross-examination.

[9] Third, a review of the transcript demonstrates that the cross-examination on the girlfriend's alleged statement was not particularly effective from the Crown's perspective. The appellant handled those questions premised on the alleged contents of the statement effectively.

[10] The appellant also argues that he was improperly cross-examined on his character or propensity for violence, especially when drinking. We do not accept this submission. The appellant put his character on these matters in issue during examination-in-chief. He testified that he generally dealt with confrontation by becoming frightened and running away. The Crown was entitled to cross-examine on that assertion. We also note that there was no objection to this question and this part of the Crown's cross-examination appeared to play no role in the trial judge's assessment of the appellant's evidence.

[11] This is not one of those cases in which the questioning of the appellant was so improper that it can be said that the integrity of the criminal process was undermined regardless of the impact on the particular accused.

[12] To succeed on this ground of appeal, the appellant had to show prejudice flowing from the improper questioning. He has failed to do so.

Ground #2 – The Splitting of the Crown's Case

[13] The Crown did not call the appellant's girlfriend as part of its case. As indicated above, defence counsel had told the trial judge he intended to call the girlfriend as part of the defence case. Ultimately, however, he chose not to call her.

[14] The Crown then called the girlfriend in reply. There was no objection taken by counsel for the defence. Part way through the examination-in-chief, the defence did object on the basis that the Crown was improperly splitting its case.

[15] After hearing argument, the trial judge agreed with defence counsel and ruled that the girlfriend could not testify in reply. Defence counsel specifically told the trial judge that the defence was not seeking a mistrial and was entirely satisfied that the trial judge would ignore the girlfriend's evidence. The trial continued. The trial judge made no reference to the girlfriend's evidence in her reasons for judgment.

[16] The Crown should not have been allowed to call the girlfriend in reply. However, like defence counsel at trial, we are confident that the trial judge was capable of and did ignore the girlfriend's evidence. The reasons for judgment confirm that assessment. This ground of appeal must fail.

Ground #3 – The Self-Instruction on the Defence of Self-Defence

[17] The trial judge, at para. 19 of her reasons, correctly identified the three elements of self-defence under s. 34 of the Criminal Code. Ultimately, after a review of the evidence and a reasoned assessment of that evidence, the trial judge concluded that the appellant became "enraged" in the course of an altercation with Mr. Lavery and slashed him with the X-Acto blade "in an act of aggression". Acts of aggression are the antithesis of acts taken for a "defensive purpose", one of the elements of a s. 34 defence.

[18] The appellant submits that the trial judge failed to consider the appellant's "subjective perceptions" at the time he slashed Mr. Lavery. With respect, a finding that the appellant had become "enraged" is a finding of the appellant's subjective state of mind. That finding belies the appellant's claim that he acted in fear, or based on a perceived need to protect himself or his girlfriend. The trial judge made no error in her consideration of the defence of self-defence.

[19] The conviction appeal is dismissed.

The Sentence Appeal

[20] The appellant also seeks leave to appeal, and if leave is granted, appeals sentence. He argues that his concurrent sentences for the drug offences were unwarranted. In our view, this issue is secondary to the determination of the overall fitness of the sentence and we would not interfere with the sentence on that basis.

[21] In terms of the aggravated assault count, we agree with the trial judge's assessment of the seriousness of the offence and the injuries suffered by the victim. Denunciation and deterrence are important objectives in sentences for aggravated assault. However, these goals could have been achieved with a much shorter sentence.

[22] The assault was not premeditated and was found by the trial judge to be, at first, a consensual fight. The appellant is a first offender. He has a unique and compellingly sympathetic background. By the time he was sentenced, the appellant had taken significant steps to address the life challenges that he has faced, including substance abuse and relatedly the ongoing psychological impact of his mother's death which happened when he was just four years old.

[23] The appellant has insight into his offending. As the trial judge recognized, the appellant has made "very important strides in his own rehabilitation", and he has a loving and supportive partner and extended family and friends who support his efforts at dealing with his substance abuse and psychological issues.

[24] There is no doubt that the appellant's conduct requires substantial incarceration. However, in the circumstances, we think the protection of society is best achieved by a sentence that both reflects the seriousness of the crime imposed by imposing a significant jail sentence, but also facilitates the appellant's continued rehabilitation.

[25] In our view, the sentence of two years, less a day imposed was grossly excessive. We would reduce the sentence to one of 12 months' imprisonment.

[26] In the circumstances, it is not necessary to address the application to admit fresh evidence.

[27] On consent, we would also vacate the victim surcharge imposed in light of the subsequent jurisprudence, holding that the relevant provisions are unconstitutional.

[28] In the result, we reduce the sentence on the aggravated assault charge to 12 months' imprisonment, and delete the victim surcharge. All other aspects of the appellant's sentence remain as imposed.

"Doherty J.A."

"S.E. Pepall J.A."

"G.T. Trotter J.A."