Court of Appeal for Ontario

Date: 20240507 Docket: COA-23-CR-0869

Judges: MacPherson, Copeland and Gomery JJ.A.

Between:

His Majesty the King Respondent

and

Joshua Gauthier Appellant

Counsel: Donald R. Orazietti, for the appellant Alex Alvaro, for the respondent

Heard: May 2, 2024

On appeal from the conviction entered on November 25, 2022, with reasons at 2022 ONSC 6430 and from the sentence imposed on May 29, 2023, with reasons reported at 2023 ONSC 2762 by Justice Edward E. Gareau of the Superior Court of Justice.

Reasons for Decision

[1] In the summer of 2019 in Sault Ste. Marie, two teams played a soccer game in a recreational league. Adam Erickson played on the Jiggerz FC team and the appellant, Joshua Gauthier, played on the BDO team. About twenty minutes into the match Mr. Erickson and the appellant were competing for the ball. The appellant struck Mr. Erickson with his right hand. The appellant received a red card and was ejected from the game by the referee. Mr. Erickson was badly injured – he suffered a fractured orbital bone and a laceration above his right eye that required 18 stitches to close.

[2] The appellant was charged with aggravated assault contrary to s. 268 of the Criminal Code. The defence conceded that the fracture of the appellant’s orbital bone constituted a “wound”, one of the factual components of the definition of aggravated assault in s. 268. Thus, as the trial judge determined, the wounding element of the offence was not an issue. It was also not seriously contested that the appellant struck Mr. Erickson in the face with a closed fist.

[3] The trial judge accordingly found that: “The real issue in the case at bar is the mens rea, namely, did Joshua Gauthier intentionally apply force to Adam Erickson – did he intend on hitting him in the face with his fist?”

[4] The trial judge answered this question in the affirmative and moved on to consider the accused’s second argument, namely that the punch was made in self‑defence. He found that there was no air of reality to self-defence and further found that:

Applying section 34 (1) and (2) of the Criminal Code of Canada this court cannot find that the accused acted in self-defence. Gauthier’s actions cannot be found to be reasonable in the circumstances. Gauthier was taller and heavier than Erickson. Gauthier had other options available to him. He could have kicked the ball out of bounds to stop the play or made a plea to the referee to call an infraction, or called for a substitute to be removed from the game. Gauthier’s response in striking Erickson was not reasonable considering the factors set out in section 34(2) of the Criminal Code of Canada and was certainly not a proportionate response to being kicked in the back of the legs and being shoved in the shoulder area.

[5] The trial judge imposed a 12 month conditional sentence on the appellant. The conditions related to place of residence, supervision and non-contact with Mr. Erickson. The conditional sentence was to be followed by 24 months of probation with terms relating to supervision by a probation officer, programs and counselling, and continuation of non-contact with Mr. Erickson.

[6] The appellant appeals the conviction and the sentence.

Conviction Appeal

[7] The appellant advances three arguments on the conviction appeal.

[8] First, the appellant contends that the trial judge erred by not accepting the defence of reflex action – i.e., the appellant’s punch to Mr. Erickson’s face flowed immediately from Mr. Erickson’s kick to the back of the appellant’s leg and push of his shoulder.

[9] We do not accept this submission. The appellant’s punch may well have been sudden; however, there was nothing involuntary about it. Based on the evidence of all of the witnesses, it is obvious that this conclusion of the trial judge was entirely reasonable:

In his evidence, Joshua Gauthier suggests that “it was involuntary for me to have my hands go in the direction of Mr. Erickson”. This statement is contrary to the totality of the evidence. The preponderance of the evidence from the witnesses who testified has Gauthier turning around and striking Erickson in the face. There does not seem anything involuntary about it and on the evidence, it cannot be said that the actions of Gauthier in striking Erickson were accidental or not purposeful.

I find on considering the totality of the evidence that Gauthier’s strike to the face of Erickson was done in retaliation, it was not a reflexive action as contemplated by R. v. Wolfe. As such, it was done intentionally.

[10] This court’s decision in R. v. Wolfe (1974), 20 C.C.C. (2d) 382 (Ont. C.A.) is distinguishable. In Wolfe, the trial judge had made a finding of fact that the accused’s conduct was “a reflex action”. In this case, the trial judge rejected that characterization of the appellant’s act.

[11] Second, the appellant asserts that the trial judge erred by not applying the defence of self-defence. Relying on R. v. Maki, [1970] 3 O.R. 780 (Prov. Ct.), a famous case dealing with a stick assault during a National Hockey League game, the appellant says that the trial judge in this case should have found that the appellant’s blow to Mr. Erickson’s face was an act of self-defence.

[12] We disagree. Just before the appellant’s punch to Mr. Erickson’s face, both men were competing to control the ball, the back of the appellant’s leg was kicked, and Mr. Erickson shoved the appellant. The trial judge did not make a specific finding as to whether Mr. Erickson’s conduct exceeded the physical contact agreed to in a soccer game. Whether it did or not, it should not have provoked the appellant’s unusual and violent response.

[13] We see no error in the trial judge’s conclusion that there was no air of reality to self-defence. None of the witnesses, including the appellant himself, testified that he acted in self-defence. On the second branch of the analysis, there was accordingly no air of reality to the theory that the appellant’s purpose in punching Mr. Erickson was to defend himself, rather than frustration or retaliation. And there was no air of reality that a punch to the face was reasonable responsive force.

[14] Lastly, the appellant argues that the injuries to Mr. Erickson should have been found to be bodily harm and not wounding.

[15] We disagree. Quite apart from counsel’s concession below, there is no question that the injuries to Mr. Erickson constituted wounding. “To wound” means “to injure someone in a way that breaks or cuts or pierces or tears the skin or some part of the person’s body. It must be more than something trifling, fleeting or minor, such as a scratch”: R. v. Brown, 2021 ONCA 687, at paras. 23-26. A broken bone and a laceration requiring 18 stitches clearly meet this definition.

Sentence Appeal

[16] The appellant seeks to have his sentence reduced from a 12 month conditional sentence to a sentence of one year probation with “such conditions as this Honourable Court may deem appropriate”. Counsel points to the appellant’s lack of a criminal record until this offence, almost four years on bail, steady employment, family role and community activity.

[17] We acknowledge all of the good attributes relating to the appellant. The trial judge also recognized there were many mitigating factors. However, given the stated goal of general deterrence, the sentence imposed by the trial judge was entirely fair and we see no error in his reasons.

Disposition

[18] The appeal is dismissed.

“J.C. MacPherson J.A.”

“J. Copeland J.A.”

“S. Gomery J.A.”