COURT OF APPEAL FOR ONTARIO DATE: 20210730 DOCKET: M52670 (C68671) Thorburn J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen Respondent

and

Michael Theriault Applicant (Appellant)

Counsel: Michael W. Lacy and Deepa Negandhi, for the applicant Susan Reid, for the respondent

Heard: July 23, 2021, by videoconference

ENDORSEMENT

OVERVIEW

[1] The applicant, Michael Theriault, seeks bail pending the determination of his application for leave to appeal to the Supreme Court of Canada. He seeks leave to appeal both his conviction for assault and his sentence of nine months’ imprisonment.

[2] He claims he meets the test for granting bail as his appeal is not frivolous, he will surrender when required, and the public interest favours granting him bail pending determination of his application for leave to appeal to the Supreme Court.

[3] In seeking bail, the applicant focuses on three main grounds of appeal raised in his leave application from this court’s endorsement of the trial judge’s decision:

1. the trial judge erred in his use of social context and systemic racism to inform credibility assessments and increase the range of sentence;
2. the trial judge erred in his finding with respect to the way a door or window was damaged; and,
3. the trial judge erred in holding that simple assault is a lesser and included offence of aggravated assault.

[4] The Crown claims these grounds of appeal are frivolous and the applicant’s continued detention is in the public interest and that he should therefore remain in detention.

[5] For the reasons that follow, the application for bail is denied.

THE EVIDENCE AT TRIAL

[6] The circumstances giving rise to the charges before the trial judge are as follows: The applicant is a Toronto police officer. While he was off duty, he chased and struck the complainant – Dafonte Miller, a young Black man – leaving him permanently blind in one eye.

[7] The complainant testified that the applicant chased and struck him for no reason.

[8] The applicant testified that, after seeing the complainant and his friends break into a vehicle on his parents’ property, he and his brother gave chase. They caught the complainant and body checked him. He claimed that the complainant then began to hit him with what he later learned was an aluminum pipe. He, in turn, punched the complainant in the face to disarm him. The applicant denied using the pipe to strike the complainant.

[9] The trial judge rejected the complainant’s account that the applicant chased and struck him for no reason, noting that the complainant “attempted to proffer a false version of events” and perjured himself. He found his testimony internally inconsistent and contradicted by physical evidence. Instead, the trial judge accepted the applicant’s testimony that the complainant was breaking into cars and fled to avoid being apprehended. He also accepted that the complainant’s injury was likely caused by being punched and he had a reasonable doubt as to whether the punch was in self-defence.

[10] The applicant was therefore acquitted of aggravated assault.

[11] However, the trial judge did not believe the applicant’s evidence that he did not hit the complainant with the pipe. Instead, he concluded that, at the end of the struggle, the applicant struck the complainant in the head with the pipe as he sought assistance at a nearby house. The applicant could not have been acting in self-defence at the time. He was therefore convicted of assault.

[12] In so doing, the trial judge held that the complainant’s evidence on this issue could be relied on notwithstanding that he perjured himself, because his evidence could be corroborated in several respects and, as a young Black man, he might have reasons to distrust law enforcement.

THE TEST FOR BAIL PENDING LEAVE TO APPEAL TO THE SUPREME COURT

[13] The test for bail pending determination of an application for leave to appeal to the Supreme Court is governed by s. 679(3) (a) to (c) of the Criminal Code, R.S.C. 1985, c. C-46. The applicant must establish that: (a) the application for leave is not frivolous, (b) the applicant will surrender into custody as required, and (c) detention is not necessary in the public interest.

[14] The applicant bears the burden of establishing each of the three itemized release considerations on a balance of probabilities before an interim judicial release order may be made: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19.

[15] In an application for post-appeal bail pending leave such as this, the court not only has the benefit of the first-instance decisionmaker’s reasons for conviction and sentence but also the decision of the panel that rejected what are presumably the applicant’s best arguments in seeking a further appeal against that conviction and sentence. However, even in these circumstances, reasonable measures should be taken to ensure the applicant is not deprived of the benefits of a successful second appeal, particularly where he will have served all or almost all of his sentence before the appeal is adjudicated: R. v. Manuel, 2021 ABCA 187, at paras. 48-49.

[16] There is no concern about the applicant surrendering himself into custody as required. He has therefore satisfied the criterion in s. 679(3) (b). The only issues to be addressed therefore are (1) whether the application for leave is frivolous and (2) whether detention is necessary in the public interest.

DISCUSSION

(1) Is the application for leave to appeal not frivolous?

[17] As noted above, the applicant raises three issues in this bail application that he says makes his application for leave not frivolous.

[18] Before addressing these issues, it is important to recall the principles governing the consideration of the “not frivolous” criterion. There is no dispute that, as the Supreme Court observed in Oland, at para. 20, the “not frivolous” criterion sets “a very low bar”. The purpose of this criterion is to require the applicant to demonstrate that the leave application has some merit such that the appellate process is not abused by those attempting to forestall the execution of a custodial sentence: see R. v. T.S.D., 2020 ONCA 773, at para. 24.

[19] Although the “not frivolous” criterion is not a high threshold, its consideration at this stage of the proceedings must take account of the stringent requirements for obtaining leave to appeal to the Supreme Court: see, e.g., R. v. Boussoulas, 2018 ONCA 326, at para. 14; Manuel, at para. 30; and R. v. Boima, 2018 BCCA 498, at para. 18. The Supreme Court grants leave to appeal sparingly: R. v. Fundi, 2012 ONCA 227, at para. 8. The assessment of whether the application for leave to appeal is not frivolous is informed by this context.

[20] Bearing these principles in mind, I consider each of the applicant’s three grounds of appeal. The first is the trial judge’s use of social context in assessing the complainant’s credibility and in sentencing the applicant.

(a) Use of social context in assessing credibility and sentencing

[21] In reviewing the complainant’s evidence, the trial judge held that “as a young black man, Mr. Miller may well have had many reasons for denying any wrongdoing including a distrust of law enforcement.” He noted that the complainant’s evidence should be assessed “in a fair context and with a sensitivity to the realities that racialized individuals face in society.”

[22] Further, in deciding what an appropriate sentence would be, he held that a heightened degree of denunciation was required because of increasing awareness of anti-Black racism and that sentences must evolve in tandem with developing societal values. He imposed a nine-month sentence for assault.

[23] In affirming the trial judge’s conviction, this court held that:

[I]t is incumbent on trial judges to consider relevant social context, such as systemic discrimination, when making credibility assessments.

[24] In affirming the sentence, this court held that:

As our society comes to grips with disproportionate rates of police violence against Black people, it is integral that the need for denunciation of crimes that are emblematic of these broader social patterns develops accordingly.

[25] The applicant argues that this reasoning is flawed as it suggests that:

[I]t would amount to legal error for a trial judge to fail to consider relevant social context, including systemic racism, when making credibility assessments. What the decision does not unpack is how a trier of fact is to do so? Does it mean that when a racialized person is testifying, their evidence is to be assessed differently than non-racialized persons? Do normal credibility indicators need to be abandoned, adapted or reconsidered? What about standard jury instructions involving credibility assessments? What are juries to be told?

The decision has the potential to impact and affect credibility assessments not only for victims of violent crime (as the Court concluded Mr. Miller was) but also any racialized accused person alleged to have committed a crime who testifies. [Footnote omitted.]

[26] The applicant claims that the use of social context in assessing credibility and determining an appropriate sentence is an issue of public importance that transcends the circumstances of this case, given that this was not a racially motivated crime. As such, there is a reasonable chance the applicant will be granted leave to appeal to the Supreme Court on this issue.

[27] I disagree.

[28] This court’s assertion that “it is incumbent on trial judges to consider relevant social context, such as systemic racism, when making credibility assessments” has been addressed by the Supreme Court in R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692. The issue is not a new one.

[29] In Le, at para. 89, the court held that:

[I]nformation about race and policing plays a crucial role and may also inform many issues, including fact finding, credibility assessments, determining what evidence is accepted as persuasive….

[30] Triers of fact are routinely instructed to consider whether there is any explanation for evidence proffered and whether it makes sense. The standard jury instructions state that, in addition to factors such as honesty and a witness’ interest in the case, “other case-specific factors” may be added.

[31] The trial judge considered social context but he did not invoke social context to accept the complainant’s evidence and excuse any inconsistences because the complainant was Black; he rejected significant aspects of the complainant’s version of events and only relied on those aspects that were confirmed by independent evidence.

[32] As noted by this court, the trial judge found that the complainant’s evidence as to what happened during the assault was independently supported by several pieces of evidence, including a scrape on the glass of the front door, the complainant’s blood on the end of the pipe, and the applicant’s admission that he brandished the pipe.

[33] The statement from this court was that “it is incumbent on trial judges to consider relevant social context” (emphasis added) when making credibility assessments. This does not mean that credibility indicators need to be abandoned, but merely reflects the existing obligation on triers of fact to consider all relevant factors that may affect the credibility and/or reliability of a witness’ testimony. This statement is entirely consistent with the earlier statement of the Supreme Court in Le, set out above, that social context “plays a crucial role and may also inform many issues, including fact finding, credibility assessments, [and] determining what evidence is accepted as persuasive”.

[34] Turning to the role of social context in sentencing, defence counsel conceded in his sentencing submissions at trial that the court could take judicial notice of the problematic issue of interactions between police and Black youth. The trial judge concluded that the case called for a heightened degree of denunciation given the social context and the importance of denunciation as a collective statement of societal values, including increased awareness of anti-Black racism. However, he also held that:

I remain mindful of the need to maintain proportionality. While the sentence I impose must reflect the need for denunciation, the sentence must ultimately remain proportionate to the gravity of the offence and the offender’s degree of moral responsibility. The gravity of the offence must be assessed against the contextual backdrop, however, the sentence imposed cannot be disproportionate in an attempt to right past societal or systemic failings.

[35] General and specific denunciation and deterrence are two factors that must be taken into account in sentencing in this case. The trial judge balanced the need for denunciation and deterrence with the need to impose a sentence that was proportionate to the offence and the offender. There is no clear range of sentence that reflects these circumstances, the cases referred to by the defence at trial are dated and distinguishable, and there is no reason to conclude the sentence was unfit.

[36] Lastly, in assessing whether a ground of appeal raised in application for leave is not frivolous, the court must consider the stringent requirements for leave to the Supreme Court. Speaking extrajudicially, Sopinka J. observed that one consideration in the determination of public importance is whether the question is germane to the disposition of the case: see Henry S. Brown et al., Supreme Court of Canada Practice (Toronto: Thomson Reuters Canada Ltd., 2020), at s. 1.2 (WL), quoting John Sopinka, “The Supreme Court of Canada” (April 10, 1997).

[37] Important issues such as social context must therefore be examined in the context of the evidence adduced in a particular case. If there is little or no prospect that the findings or the outcome will be altered in a given case, leave to appeal may be denied regardless of the fact that issues of public importance are addressed in the case.

[38] For these reasons, the applicant has not satisfied me that his ground of appeal impugning the trial judge’s use of social context is not frivolous.

(b) Misapprehension of evidence or finding corroboration where none exists

[39] The second ground of appeal the applicant raises is the claim that the trial judge misapprehended the evidence and/or improperly found corroboration where none existed.

[40] The applicant raises several issues in the trial judge’s findings, affirmed by this court. For example, the applicant claims that the trial judge improperly concluded that certain damage was caused by the aluminum pipe in the absence of expert evidence or any witness having attested to the same.

[41] This court held that:

[I]t was within the trial judge’s discretion, as the trier of fact, to reject defence counsel’s theory. The trial judge found that a hand or fist would not have caused the gouge/scrape in the glass, whereas, it would have been caused by contact with the edge of a metal pipe. While this finding was neither supported by any expert evidence, nor expressed by any of the witnesses, it nevertheless rested on common sense…. This non-technical matter did not require expert evidence as it was within the knowledge and experience of the ordinary person and trier of fact: R. v. Mohan, [1994] 2 S.C.R. 9, at pp. 23-25.

[42] The applicant properly acknowledges “that this type of argument is not one that the [Supreme] Court would normally grant leave on” but claims that the supposed misapprehensions are “inextricably linked to the trial judge’s approach to the credibility assessment generally.”

[43] In my view, the factual arguments raised by the applicant add little to the credibility-based ground of appeal, which I have already discussed.

[44] This ground of appeal also does not meet the “not frivolous” threshold and the applicant has therefore not satisfied the requirement in s. 679(3) (a) on this ground.

(c) Whether assault is a lesser and included offence of aggravated assault

[45] The third issue raised by the applicant is whether assault is a lesser and included offence of aggravated assault. The charge was that on or about December 28, 2016, he “did wound, maim and/or disfigure Dafonte Miller, thereby committing an aggravated assault”.

[46] The trial judge acquitted the applicant of aggravated assault because he concluded that the injury to the complainant’s eye was caused by a punch not by being struck by a pipe and that,

[W]hen I consider the whole of the evidence, I am left with reasonable doubt about whether Michael and Christian Theriault were acting in lawful self-defence during this portion of the incident. If Mr. Miller initially wielded the pipe, Michael and Christian would have been entitled to act in self-defence by repeatedly punching Mr. Miller to disarm him and thereafter to prevent him, within reason, from engaging in any further assaultive conduct. [Emphasis added.]

[47] He therefore acquitted the applicant of aggravated assault.

[48] He held, however, that he was satisfied beyond a reasonable doubt that later in the transaction, the applicant was no longer acting in self-defence when he struck the complainant with the pipe, although it caused no injury. He therefore convicted the applicant of simple assault.

[49] The trial judge was later asked to reopen the case to address the issue of whether the conviction for assault was a lesser and included offence of aggravated assault: R. v. Theriault, 2020 ONSC 5725. In dismissing the application, he rejected the applicant’s assertion that the assault was not a lesser and included offence for the following reasons:

[Defence counsel] argues that once the defence admitted that Mr. Miller’s injuries constituted “wounding”, “maiming” or “disfiguring”, the only issue for the court to determine was whether those injuries were the result of an assault committed without any justification or excuse. As such, the simple assault that Michael Theriault was found guilty of committing later in the altercation was not a lesser and included offence of the specific aggravated assault that was charged and was the subject of the trial. Boiled down to its essence, the argument is that Michael Theriault was found guilty of an offence that fell outside the transaction contemplated by the indictment, the procedural history and the admissions.

This argument is also without merit. The count in the indictment was not particularized in any fashion. It simply alleged an aggravated assault. The transaction that sat at the core of the Crown’s case was a beating of Mr. Miller by Michael and Christian Theriault. The beating was comprised of many individual blows delivered by both accused. The beating started when Mr. Miller ran in-between the homes and ended once police arrived and found Mr. Miller on the ground. The issue the court had to determine was whether some, none or all of the blows during this incident amounted to unlawful assaults and if so, whether it was proven beyond a reasonable doubt that the injuries Mr. Miller suffered were caused by these assaults. [Italics in original; underlining added.]

[50] This court upheld the verdict on the basis that the assault was part of the same transaction as the aggravated assault and therefore was a lesser and included offence. This court has previously taken this approach in similar circumstances: see R. v. Rocchetta, 2016 ONCA 577, 352 O.A.C. 130.

[51] In seeking leave to appeal, the applicant claims there is competing appellate authority on the issue of what constitutes a lesser and included offence and that the approach of the majority in R. v. Taylor (1991), 66 C.C.C. (3d) 262 (N.S.S.C. App. Div.), should be preferred and would lead to his acquittal for assault.

[52] Relying on Taylor, the applicant argues that his conviction for assault was not part of the same transaction as the charge of aggravated assault and therefore cannot be a lesser and included offence.

[53] I disagree.

[54] Section 581(1) of the Criminal Code provides that each count in an indictment applies to “a single transaction”.

[55] Simple assault is the “intentional non-consensual application of force”: Criminal Code, s. 265(1)- (2); Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, at para. 1. Aggravated assault is the intentional non-consensual application of force that “wounds, maims, disfigures or endangers the life of the complainant”: Criminal Code, s. 268(1). The only distinguishing feature of aggravated assault is the element of wounding, maiming, disfiguring, or endangering the life of another person assaulted.

[56] The Taylor decision is dated and has since been distinguished by this court in Rocchetta, at paras. 49-50, for the following reasons:

The majority [in Taylor] 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.

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. [Emphasis added.]

[57] This definition of a single transaction is consistent with the observation in R. v. Manasseri, 2016 ONCA 703, 344 C.C.C. (3d) 281, at para. 73, leave to appeal refused, [2016] S.C.C.A. No. 513, that a single transaction can include circumstances that are “successive and cumulative and which comprise a series of acts” that are sufficiently connected. It has been followed by this court on several occasions: see, e.g., R. v. Kenegarajah, 2018 ONCA 121, at paras. 30-32, leave to appeal refused, [2018] S.C.C.A. No. 472; R. v. Schoer, 2019 ONCA 105, 371 C.C.C. (3d) 292, at para. 62. It has also been followed by courts across Canada: see, e.g., Drouin c. R., 2020 QCCA 1378, at para. 219, leave to appeal refused, [2020] S.C.C.A. No. 465 (Lafortune), and [2020] S.C.C.A. No. 468 (Amato); R. v. James, 2021 BCSC 1408, at para. 83.

[58] By contrast, the reasons of the majority in Taylor have not been followed to any appreciable extent, despite being rendered twenty-five years prior to Rocchetta.

[59] Moreover and in any event, the majority in Taylor, at p. 270, accepted that “[a] ‘transaction’ may and frequently does include a series of occurrences extending over a length of time”: at p. 270, quoting R. v. Barnes (1975), 26 C.C.C. (2d) 112 (N.S.S.C. App. Div.), at p. 119, quoting R. v. Canavan and Busby, [1970] 5 C.C.C. 15 (Ont. C.A.), at p. 18, leave to appeal refused, [1970] S.C.R. viii.

[60] The majority in Taylor, at p. 270, quoted with approval the reasons in Barnes, at p. 125, where the same court held that:

In considering the validity of a charge – whether it is or is not duplicitous or multifarious or whether it does or does not “apply to a single transaction” – the wording, scope, and nature of the charge (and its particulars, if any) are what must be tested. Thus, so long as evidence is directed to the continuing offence contained in the charge, the validity of that charge is not affected by the fact, on the one hand, that two or more acts or occurrences falling within the ambit of the charge are proved or, on the other hand, that some of the acts or occurrences alleged are not proved. [Emphasis added.]

[61] It is clear that where assaults occur in the course of a single transaction, a charge of aggravated assault can encompass the actus reus of more than one instance of non-consensual application of force by the accused, including a lesser and included offence of assault. I do not read Taylor to suggest otherwise.

[62] In this case, the indictment is not particularized except by indicating that an aggravated assault took place on the day in question.

[63] The transaction that sat at the core of the Crown’s case was a beating of the complainant on the day in question. The trial judge found as a fact that there was a consistent and sustained attack on the complainant over a short period. The Crown took the position from the outset that the attacks on the complainant were connected and occurred in the course of a single transaction.

[64] The only issue at trial was whether some, all or none of the blows during this transaction on the day in question amounted to unlawful assaults and if so, whether it was proven beyond a reasonable doubt that the injuries the complainant suffered were caused by these assaults.

[65] In my view therefore, there is no serious issue as to whether simple assault is a lesser and included offence of aggravated assault in this charge, as the assault is part of the same transaction.

[66] For these reasons, I find that, as with the first two grounds of appeal, this final ground of appeal also does not meet the “not frivolous” threshold.

(2) Is detention not necessary in the public interest?

[67] The applicant argues that his continued detention is not necessary in the public interest, given the strong grounds of appeal raised in his application for leave to appeal and the likelihood that he will serve a substantial portion of his sentence prior to any determination of the application.

[68] I am not satisfied, however, that his detention is not necessary in the public interest.

[69] The meaning of “public interest” in the context of post-conviction bail applications was described by Arbour J.A., for a five-judge panel, in R. v. Farinacci (1993), 109 D.L.R. (4th) 97 (Ont. C.A.), at p. 118:

The concerns reflecting public interest, as expressed in the case-law, relate both to the protection and safety of the public and to the need to maintain a balance between the competing dictates of enforceability and reviewability. It is the need to maintain that balance which is expressed by reference to the public image of the criminal law, or the public confidence in the administration of justice. [Emphasis added.]

[70] The parties agree that there is no public safety concern with releasing the applicant, but dispute whether, in balancing the enforceability and reviewability interests, the applicant’s release would undermine public confidence in the administration of justice. The court in Oland, at para. 29, underscored that “[r]arely does [the public confidence] component play a role, much less a central role, in the decision to grant or deny bail pending appeal.”

[71] As noted by Doherty J.A. in R. v. Drabinsky, 2011 ONCA 647, 276 C.C.C. (3d) 277, at para. 11: “At this stage of the proceedings [where conviction and sentence have been affirmed without further right of appeal], the principle that trial judgments should be enforced is very much in play while the operation of the reviewability principle is contingent upon the granting of leave to appeal”: see also Boussoulas, at para. 22. The seriousness of the offence and the strengths of the grounds of appeal are among the most important factors in assessing reviewability and enforceability: Oland, at paras. 37-46.

[72] If reviewability is not considered, a successful appeal could be rendered fruitless. This is particularly true in cases such as this, where the custodial sentence is nine months. Taking into account earned remission, the applicant can reasonably be expected to be released from custody at the latest after serving two thirds of his sentence, i.e. six months. Moreover, he will be eligible for parole after serving just one third of the sentence, i.e. three months. If his leave application is determined in three to six months, the applicant may have served most of his time before the leave application is determined.

[73] On the other hand, it is also important to consider the enforceability interest and the finality principle – especially after an accused person has been found guilty and an appeal has been heard and dismissed, bearing in mind that leave to appeal is granted sparingly.

[74] In my view, in the circumstances of this case, the applicant has not established on balance that the reviewability interest outweighs the enforceability interest.

[75] First, the grounds for the application for leave to appeal have little chance of success. As the court noted in Oland, at para. 44, at the public interest stage of the analysis, “a more pointed assessment of the strength of an appeal” is required and the court will consider “if the grounds of appeal clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion.” For the reasons discussed above, the grounds of appeal raised in the application for leave do not clearly surpass the “not frivolous” threshold.

[76] Second, the offence is serious. As the trial judge observed in his sentencing reasons, the assault was gratuitous and violent. The applicant struck the acutely vulnerable complainant with a metal pipe while he was seriously injured and posed no threat. Moreover, the offence caused emotional suffering to the complainant, his family and the community at large.

[77] Finally, while it is true that the applicant may serve much of his sentence before the application for leave is determined, the public interest requires that the enforceability principle be given paramountcy given the stage of this proceeding; the fact that the applicant was an off-duty police officer and the complainant was seriously injured by him while retreating; and the trial judge’s finding that the applicant bears a high degree of moral responsibility, such that the community has a strong interest in enforceability.

[78] For these reasons, I conclude that the applicant should be detained pending the determination of his application for leave to appeal to the Supreme Court of Canada.

[79] If, however, the applicant does receive leave to appeal, that changed circumstance may well call for a reassessment of his bail status.

CONCLUSION

[80] For these reasons, the application for bail pending appeal is refused without prejudice to a further application should leave to appeal to the Supreme Court be granted.