Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2023-09-22 Docket: COA-22-CR-0331

Between: His Majesty the King, Respondent and Ross Jacko, Appellant

Coram: Doherty, Rouleau and Zarnett JJ.A.

Counsel: Bryan Badali, for the appellant Raoof Zamanifar, for the respondent

Heard and released orally: September 18, 2023

On appeal from: the conviction entered on May 17, 2022 and the sentence imposed on July 19, 2022 by Justice Jenny Restoule-Mallozzi of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was charged with assault causing bodily harm. At trial, he claimed he acted in self-defence. The trial judge rejected the defence and convicted the appellant. He appeals, alleging legal errors in the application of the self-defence provisions in s. 34 of the Criminal Code and a failure to give adequate reasons. Initially, the appellant also appealed sentence, but he has abandoned his sentence appeal.

[2] The assault occurred at or near the door to unit 11 in a rooming house in Sudbury. The complainant went to the door looking for a woman who had called him asking for a ride. Ms. Cayer lived in unit 11. Her boyfriend, the appellant, was with her.

[3] The complainant knocked on the door and spoke to Ms. Cayer through the door. He indicated he was looking for his friend who had called him asking for a ride. Ms. Cayer told the complainant that his friend was not in the unit.

[4] The appellant became involved in the conversation and it quickly became somewhat heated. According to the appellant, the complainant threatened to “scar them up”. The complainant denied making any kind of threat.

[5] The appellant and Ms. Cayer could see the complainant out in the hallway standing at the door through a video camera Ms. Cayer had installed. He did not appear to have any weapon in his possession.

[6] After a few moments, the appellant became angry with the complainant as they argued through the door. The appellant opened the door. By this time, he had armed himself with a metal bar.

[7] The complainant testified that the appellant ran at him holding an object in his hand and yelling he would kill the complainant. The appellant chased the complainant down the hall towards the stairs, continuing to yell he would kill him. The appellant struck the complainant across the face with the object. The complainant exited the building and spoke to a passing police officer. He was bleeding and drove himself to the hospital. The appellant received five stitches to close the wound on his face.

[8] According to the appellant, he opened the door to unit 11 to show the complainant that his friend was not inside. When he opened the door, he could not see the complainant. Suddenly, the complainant appeared and was swinging a weapon, which the appellant described as a “small machete”, at the appellant. The appellant swung at the complainant with the bar he had in his hand. They swung at each other as they moved down the hall.

[9] The trial judge rejected the self-defence claim. She concluded the Crown had proved beyond a reasonable doubt that the appellant did not reasonably believe that force, or the threat of force, was being used against him when he armed himself with the bar, opened the door, and confronted the complainant. The trial judge further concluded the Crown had proved beyond a reasonable doubt that the appellant did not assault the complainant for the purpose of defending himself. Finally, the trial judge was satisfied the Crown had proved beyond a reasonable doubt that the appellant’s assaultive conduct was not reasonable in the circumstances.

[10] The trial was brief and the evidence straightforward.

[11] The trial judge was satisfied that the appellant did not assault the complainant for the purpose of defending himself or Ms. Cayer. Instead, the appellant became very angry during the shouting exchange with the complainant, armed himself with a weapon before opening the door to confront the complainant and forced him to leave. He did not swing the bar at the complainant in response to the complainant swinging a weapon at him. The trial judge was satisfied the complainant did not use, or threaten to use, a weapon during the confrontation at the doorway. The trial judge said:

Mr. Jacko was able to see [the complainant] from the baby monitor, including his size, height, and what he was wearing. Mr. Jacko and [the complainant] had never met one another. Mr. Jacko opened the apartment door with a weapon and swung at [the complainant]. This was excessive as Mr. Jacko stated there was no immediate physical harm and there was no indication there would be violence.

[12] We see no error in the trial judge’s examination of the self-defence claim, or her consideration of the elements of self-defence as laid out in s. 34(1) of the Criminal Code. The trial judge was required to examine the entire encounter between the appellant and the complainant as it unfolded on the evidence. The trial judge found as facts that the appellant was the aggressor from the moment he opened the door, armed with a weapon, and was intent upon confronting the complainant and making him leave the hallway. The appellant did exactly that.

[13] The appellant submits that the trial judge did not make a specific finding about whether the complainant swung at the appellant after the appellant opened the door and confronted the complainant. On a fair reading of the reasons as a whole, we are satisfied that the trial judge did accept the complainant’s evidence on this point. He was entitled to do so.

[14] The reasons of the trial judge were adequate. The verdict turned on the trial judge’s determination of the appellant’s purpose when he armed himself, opened the door, and confronted the complainant. Had the Crown proved he was the aggressor, looking to remove an irritating person from the doorway, or was he defending himself and his girlfriend from the use or threat of the use of force by the complainant?

[15] On the appellant’s own evidence, he was very angry when he opened the door. On his own evidence, he armed himself with a weapon before he opened the door. On his own evidence, he was looking to confront the complainant when he opened the door. The appellant could see the complainant on the video standing in the hall. No weapon was visible. The trial judge accepted the complainant’s evidence that he did not have a weapon. On these findings, the basis for the appellant’s conviction is clear. The Crown had proved he was the aggressor and confronted the complainant with a view to removing him from the hallway. The assault on the complainant occurred in that factual context.

[16] In reaching her conclusion, the trial judge looked at the interaction between the appellant and the complainant as a single event, beginning with the exchange of words through the door, and ending with the assault in the hallway. The trial judge was entitled to view the evidence in that way.

[17] The conviction appeal is dismissed and the sentence appeal is dismissed as abandoned.

“Doherty J.A.”

“Paul Rouleau J.A.”

“B. Zarnett J.A.”