Court of Appeal for Ontario

Date: 2019-09-20 Docket: C62459

Judges: Juriansz, Watt and Hourigan JJ.A.

Between

Her Majesty the Queen Respondent

and

Geran Williams Appellant

Counsel

For the Appellant: Carlos Rippell and Jeffrey Fisher

For the Respondent: Linda Shin

Heard: May 23, 2019

On Appeal

On appeal from the conviction entered by Justice Jane Ferguson of the Superior Court of Justice, sitting with a jury, on March 11, 2016 and from the sentence imposed on June 6, 2016, with reasons reported at 2016 ONSC 3219.

Reasons for Decision

[1] We dismissed the appellant's appeal of his conviction for aggravated assault with reasons to follow. These are the reasons.

A. Facts

[2] The appellant was at a bar with friends on the evening of March 27, 2015. He was wearing his work vest, which contained a five-inch folding knife that he used for his job at a glass factory. After the group left the bar, they encountered the complainant and his friends on the street. The complainant, most of his friends, and the appellant's friends had been drinking that night. The complainant testified that he was "blackout drunk" and had no memory of the incident.

[3] An argument broke out between the two groups. According to the appellant, the complainant punched him, his glasses went flying, and he felt woozy. He pulled out his knife and waved it, telling the complainant to "get away." The complainant was not intimidated. The appellant testified the complainant's friends held the complainant back and the appellant ran away down the street, unaware the complainant had been cut. The complainant broke free, pursued the appellant, and the fight continued.

[4] No one witnessed the second stage of the fight. The appellant said he stopped and saw the complainant coming after him. The complainant punched the appellant again and tried to take the knife from him. The appellant said he waved the knife to create space between himself and the complainant. He said he ran and jumped into a taxi. He did not think the complainant was hurt.

[5] In fact, the complainant was seriously injured from 13 stab wounds. The appellant sustained minor injuries. An independent witness said she saw the complainant bloodied on the sidewalk after the fight, holding his wounds and yelling, "[w]hy'd you do that?" She said the appellant walked away from the complainant at a normal pace and looked back. She and her friend then took the complainant to a restaurant and asked staff to call 911.

[6] The appellant was tried on one charge of possession of a weapon for a purpose dangerous to the public peace, contrary to s. 88(1) of the Criminal Code, and one charge of aggravated assault under s. 268(1). The trial judge granted a directed verdict of acquittal on the first charge. The jury convicted the appellant of aggravated assault.

[7] At trial, the appellant claimed he had acted in self-defence. The Crown conceded that the complainant was likely the initial aggressor in the fight. The issue was whether the appellant had used more force than reasonably necessary.

B. Appellant's Arguments

[8] The appellant advanced three arguments on appeal.

[9] First, the appellant contended that the trial judge erred by refusing his application under R. v. Scopelliti, 34 O.R. (2d) 524, to call a witness who, on an earlier occasion, had been attacked by the complainant. The trial judge also limited the appellant's cross-examination of the complainant on why he entered a peace bond after being charged with assault on that earlier occasion.

[10] Second, the appellant submitted that the trial judge erred in dismissing his application to exclude his own criminal record pursuant to R. v. Corbett, [1988] 1 S.C.R. 670.

[11] Third, the appellant argued that the trial judge should have instructed the jury that the directed verdict on the weapon dangerous charge was an acquittal.

C. Dismissal of the Appellant's Scopelliti Application and Restriction of the Cross-Examination of the Complainant

[12] The complainant had been charged in 2011, about four years before the offences charged, for a drunken assault of the manager of a sports bar. The charges were withdrawn when the complainant entered a peace bond.

[13] In cross-examination, the complainant acknowledged the incident occurred but claimed he was too drunk to remember what happened. The trial judge limited the appellant's cross-examination of the complainant as to why he had entered a peace bond. The appellant brought a Scopelliti application to call the victim of the complainant's previous attack to testify that the complainant had aggressively attacked him while drunk. The trial judge dismissed the application with brief reasons and did not reconsider her decision following the appellant's unsuccessful Corbett application.

[14] The appellant submitted that the complainant's history of aggressive behaviour while highly intoxicated was relevant to his (the appellant's) defence of self-defence. The evidence tended to support the appellant's claim that the complainant was the aggressor and thus the appellant's response was in self-defence.

[15] We were not persuaded by this argument. At trial, it was not disputed that the complainant was the aggressor, both in the initial altercation and following his chase of the appellant. Evidence that the complainant became aggressive when drunk on another occasion was unnecessary. As well, the probative value of the proposed evidence was minimal: it involved an incident in 2011, when the complainant was 19 years old.

[16] In the context of this trial, the trial judge did not need to provide detailed reasons for her ruling on the Scopelliti application. The ruling had a clear basis in the record and the issues were straightforward.

[17] Moreover, much of the proposed evidence was already before the jury. In cross-examination, the complainant stated that the last time he got "blackout drunk," he was arrested for punching a man at a bar, referring to the 2011 incident. Although the trial judge precluded further questioning about this incident and denied the appellant's Scopelliti application, the details of the peace bond were before the jury in an agreed statement of fact. The record provided defence counsel with the basis to argue, as he did, that the jury should find that the complainant tended to become violent when drunk.[1]

[18] The appellant argued that the trial judge ought to have revisited her Scopelliti ruling after denying the appellant's Corbett application. We reject this submission. The evidence of the complainant's past conduct did not become relevant simply because the trial judge admitted evidence of the appellant's past criminal conduct.

D. Dismissal of the Appellant's Corbett Application

[19] The appellant brought a Corbett application to exclude his five convictions, which were all related to his possession of a loaded firearm on a single occasion.

[20] Though the trial judge dismissed the application, she admitted evidence of only one of the appellant's five convictions. She admitted only the conviction for possession of a prohibited or restricted firearm with ammunition, contrary to s. 95(1) of the Criminal Code, and excluded the other four convictions as they arose out of the same incident.

[21] The appellant argued that the trial judge should have allowed his Corbett application because possession of a restricted firearm is not a crime of dishonesty, and admission of the criminal record created a real risk that the jury might reason that the appellant had a propensity for violence.

[22] This ground of appeal failed because the appellant's entire criminal record was presumptively admissible, the one conviction admitted was relevant to the appellant's credibility even though it was not a crime of dishonesty, and the probative value of the conviction outweighed its potential prejudicial effect.

[23] Accordingly, we rejected this ground of appeal.

E. The Trial Judge's Failure to Inform the Jury that the Appellant Was Acquitted on the Weapons Charge

[24] After allowing the defence's application for a directed verdict on the charge of possession of a weapon for a dangerous purpose, the trial judge gave the jury the following mid-trial instruction:

THE COURT: All right. And I need to instruct you on this, as a matter of law I'm withdrawing from your consideration count number two, namely the count of possession of a weapon, a knife, for a purpose dangerous to the public. And I am entering the verdict on this count that I would otherwise have directed you to give as a matter of law. What remains for your determination is the aggravated assault charge.

[25] The appellant argued that the trial judge ought to have informed the jury that he had been acquitted. He submitted that the jury could have suspected that the he had been found guilty, creating a risk of prejudicial reasoning. The jury might have inferred that the appellant was carrying the knife for a dangerous purpose, and not because he needed it for work as he testified.

[26] The argument could not succeed as the trial judge used the very language directed by the Supreme Court of Canada in R. v. Rowbotham; R. v. Roblin, [1994] 2 S.C.R. 463, at p. 477. Lamer C.J. writing for the court said:

I conclude that the common law procedure with respect to directed verdicts should be modified -- in instances where in the past the trial judge would have directed the jury to return a particular verdict, the trial judge should now say "as a matter of law, I am withdrawing the case from you and I am entering the verdict I would otherwise direct you to give as a matter of law" . [Emphasis added.]

[27] In any event, there is no basis for the appellant's argument that the jury may have reasoned that the appellant had been found guilty of the weapons possession charge. In defence counsel's closing submissions, he described to the jury in detail why it was normal for the appellant to be carrying the folding knife for work. The trial judge repeated in her charge that the appellant was carrying a knife he used at work. The jury was left with no suggestion that the appellant was convicted of the weapons charge.

F. Conclusion and Disposition

[28] The appellant abandoned his appeal against sentence.

[29] For these reasons, the appeal was dismissed.

"R.G. Juriansz J.A."

"David Watt J.A."

"C.W. Hourigan J.A."

Footnote

[1] We leave for another day whether the principles in Scopelliti apply to non-fatal offences against the person. See, R. v. Borden, 2017 NSCA 45, 349 C.C.C. (3d) 162.