Court of Appeal for Ontario

Date: 20230526 Docket: C67579

Doherty, Gillese and Zarnett JJ.A.

Between

His Majesty the King Respondent

and

Terrence Rivard Appellant

Counsel: Michael Peterson, for the appellant Caitlin Sharawy, for the respondent

Heard: May 19, 2023

On appeal from the conviction entered on by Justice J. De Filippis of the Ontario Court of Justice, dated June 28, 2019, and the sentence imposed on September 20, 2019.

Reasons for Decision

[1] The appellant was charged with assaulting Timothy Brozeau with a weapon and an aggravated assault on Daniel Shaver. Both complainants testified. The appellant also testified.

[2] The trial judge acquitted on the assault with a weapon charge involving Mr. Brozeau, but convicted on the aggravated assault charge involving Mr. Shaver. He sentenced the appellant to 6 years.

[3] The appellant appeals conviction and sentence.

[4] Mr. Brozeau and Mr. Shaver were friends. They confronted the appellant at his residence, believing that the appellant had slashed the tires on Mr. Brozeau’s vehicle in retaliation for Mr. Brozeau dating the appellant’s former girlfriend. When the appellant came out of his residence he had a machete. Mr. Brozeau and Mr. Shaver were unarmed. In the confrontation which ensued, the appellant struck Mr. Shaver with the machete, partially severing his right hand.

[5] The appellant relied on the defence of self-defence. On his version of events, he was threatened and attacked by the two complainants. Mr. Brozeau struck him on the head with a shovel. According to the appellant, he struggled for possession of the machete with one of the complainants (Mr. Shaver). The appellant testified that his hand was on the blade of the machete and Mr. Shaver’s hand was on the handle. The appellant had no recollection of swinging the machete at Mr. Shaver. The appellant testified that he cut his hand during the struggle when he grabbed the blade of the machete being held by Mr. Shaver.

[6] The trial judge accepted the self-defence argument as applied to Mr. Brozeau, who had struck the appellant on the head with the shovel. The trial judge, however, rejected the argument as applied to Mr. Shaver who, on the trial judge’s findings, was running from the appellant when he fell, allowing the appellant to catch up to him. The appellant struck Mr. Shaver across the arm with the machete, all but severing his hand.

[7] The evidence is set out in more detail in the trial judge’s reasons.

Grounds of Appeal from Conviction

A. Did the learned trial judge improperly assess the credibility and reliability of Mr. Brozeau and Mr. Shaver?

[8] The trial judge reviewed the evidence of the witnesses. He recognized that there were differences in their evidence and he also recognized that there were problems with the credibility of some aspects of the complainants’ evidence. However, on the essential factual matters, the trial judge made findings of fact that were supported by evidence independent of the evidence of both the complainants and the appellant. The trial judge concluded the unchallenged independent evidence, particularly the bloodstain evidence, and the evidence of the nature of the injury, were inconsistent with the appellant’s version of those events (see reasons, at paras. 38-42).

[9] The trial judge’s reasons fully reveal the basis upon which he made his findings of fact. The trial judge was not obliged to identify each and every difference in the complainants’ testimony, or each and every difference between the appellant’s evidence and the evidence of the complainants. It is particularly unrealistic to expect the trial judge to address inconsistencies in the evidence that were not raised in argument by counsel in submissions at trial. Many of the alleged inconsistencies relied on in this court were not raised at trial.

[10] On the issues that matter, the appellant’s evidence was belied by the independent evidence, while the complainants’ evidence was largely confirmed. The trial judge relied heavily on this independent evidence in his credibility and reliability assessments.

[11] We must reject this ground of appeal.

B. Did the learned trial judge fail to explain his reasons for conviction?

[12] With respect, this submission comes down to an argument on the merits of the appellant’s self-defence claim made largely without regard to the trial judge’s findings of fact. On those findings, Mr. Shaver was fleeing from the appellant immediately after the confrontation during which the appellant had swung the machete at Mr. Brozeau (in self-defence on the trial judge’s findings). The appellant gave chase. Mr. Shaver fell to the ground. The appellant caught up to Mr. Shaver as he was lying on the ground, or perhaps just as he was getting up. The appellant raised the machete in the air and struck Mr. Shaver with sufficient force to almost sever his hand from his arm.

[13] The trial judge accurately set out the components of a s. 34 self-defence claim. He concluded that, when the appellant struck Mr. Shaver with the machete as Mr. Shaver was on the ground, the appellant did not reasonably fear for his safety and did not believe he needed to defend himself. The trial judge further concluded that striking Mr. Shaver while he was on the ground was not reasonable in the circumstances. In light of the trial judge’s factual findings, these conclusions are self-evident.

[14] Although not strictly necessary to decide this ground of appeal, the Crown makes the valid point that, in assessing the merits of the self-defence claim, it is worth bearing in mind that the appellant never actually testified that he struck Mr. Shaver in self-defence. On his evidence, he did not know how Mr. Shaver came to suffer the very serious injury inflicted on him.

Sentence Appeal

[15] We cannot say the trial judge erred in imposing a 6-year sentence. The appellant has a significant criminal record, including a conviction for manslaughter and a later conviction for aggravated assault. The crime was a very serious one and has had a permanent and devastating impact on the victim. We would not interfere with the sentence imposed.

[16] The conviction appeal is dismissed. Leave to appeal sentence is granted and the appeal is dismissed.

“Doherty J.A.”

“E.E. Gillese J.A.”

“B. Zarnett J.A.”