Court of Appeal for Ontario

Date: 2025-07-08
Docket: COA-23-CR-0131
Coram: Michael Tulloch, Julie Dawe, Renee Pomerance

Between:
His Majesty the King (Respondent)
and
Hunter Smith (Appellant)

Appearances:
Ricardo Golec and Cole Schirk, for the appellant
Manasvin Goswami, for the respondent

Heard: 2025-07-03

On appeal from the conviction entered on January 24, 2023 and the sentence imposed on February 15, 2023 by Justice Ramez Khawly of the Ontario Court of Justice.

Reasons for Decision

Overview

[1] This is an appeal from a conviction for aggravated assault following a nightclub incident in Toronto, where the complainant, Jasmine Williams, sustained significant head and facial injuries after being struck with a glass bottle. The appellant, Hunter Smith, was found at trial to have been the assailant and sentenced to a five-month custodial term.

[2] The appellant raises three grounds of appeal: (1) that the trial judge misapprehended the evidence; (2) that the trial judge failed to consider all relevant evidence; and (3) that the sentencing decision reflected an unreasonable exercise of discretion.

[3] For the reasons that follow, we would dismiss the appeal.

Background

[4] On July 21, 2019, a group of women attended a nightclub in Toronto after participating in a semi-professional basketball game. They were adjacent to a VIP section where an altercation ensued between one of the women, Najma Malaq, and a man in the VIP area who shoved her. Jasmine Williams intervened. Shortly thereafter, she was struck in the head with a bottle by a different man in the VIP area.

[5] The injury was serious, requiring stitches and resulting in a permanent facial scar. Eyewitnesses described the assailant as a white male and did not recall seeing any other white males in the group involved in the altercation. A security guard who went to the VIP area shortly after the assault saw a white man with a cut hand, and gave him a towel to help stop the bleeding. It was undisputed that the appellant, a white male, was located shortly thereafter outside the club with a cut hand and bloody towel.

[6] The trial judge found that the evidence circumstantially established that the appellant was the man who hit the victim with the bottle, and convicted him of aggravated assault.

Misapprehension of the Evidence

[7] The appellant argues that the trial judge misapprehended the evidence by failing to consider the possibility that the black man who initially shoved Najma may have later been misidentified by several of the eyewitnesses, and that this error undermined the conviction.

[8] This submission is without merit. As held in R. v. Sinclair, 2011 SCC 40, paras. 53, 56, a misapprehension must be clear, material, and dispositive. This was not. The appellant did not challenge the identification of the black man at trial, nor was this theory advanced in closing submissions. Moreover, while the eyewitnesses gave descriptions of the assailant’s appearance, none purported to positively identify him at trial as the appellant. Thus, the trial judge’s reasons focused appropriately on the circumstantial evidence regarding the identity of the white male assailant, which was the central issue. The race and actions of the black man were not material to the finding that the appellant committed the assault, nor did it matter whether some of the eyewitnesses might have later misidentified this other man.

[9] Furthermore, the appellant argues for the first time on appeal that the evidence suggested that there was another white male who was ejected from the club shortly after the assault, who might also have been in the VIP section at the time of the assault. He points to discrepancies in the witness descriptions of the assailant to suggest they were describing someone else. This is not borne out on the record. For one, an alternative suspect defence was not raised or advanced at trial and there is no evidence to support that finding. As well, the trial judge appropriately considered the discrepancies in the eyewitness testimony and scrutinized the frailties in their identification. It was open to him to find that they were still “ad idem on certain identifiers of the assailant” that matched the appellant, and find that the independent evidence supported the inference that the appellant was the assailant: R. v. Layne, 2024 ONCA 435, para. 40; R. v. Carroo, 2010 ONCA 143, para. 37. We see no error in this finding.

Failure to Consider All the Evidence

[10] The appellant contends that the trial judge failed to consider the frailties of eyewitness evidence, including the risks of tainting and environmental factors in the nightclub.

[11] The record demonstrates otherwise. The trial judge expressly considered these factors: dim lighting, alcohol consumption, crowding, and stress-induced adrenaline. He reviewed the descriptions provided by the eyewitnesses and acknowledged inconsistencies among them.

[12] He discounted later identifications made outside the club due to concerns of potential tainting, stating during the defence’s closing submissions that he was “not placing any weight” on them. Instead, he relied on consistent physical descriptors and confirmatory evidence, including the appellant’s injury and presence in the VIP booth shortly after the assault.

[13] The trial judge conducted a thorough and cautious analysis. There is no basis for finding that he failed to consider any relevant evidence.

Cross-Racial Identification

[14] The appellant further contends that the trial judge should have addressed the risk of cross-racial misidentification.

[15] We agree that it would have been preferable for the trial judge to self-instruct on this risk and consider it. In oral argument, he suggested that the defence needed to adduce social science evidence before he could do so. This was incorrect because cross-racial misidentification is a well-recognized danger which is the subject of judicial notice and does not require expert evidence: see, e.g., R. v. Bailey, 2016 ONCA 516, para. 49; R. v. B.M., pp. 29-30, 35; R. v. McIntosh, p. 105, leave to appeal refused, [1997] S.C.C.A. No. 610. Failure to grapple with it can be a reversible error if it poses a serious danger in the circumstances of the case: R. v. Bao, 2019 ONCA 458, para. 23.

[16] But this risk was not a serious danger in the circumstances of this case so the trial judge’s failure to consider it was not fatal. This was not a case where the eyewitnesses were purporting to positively identify the appellant as the assailant, rather than simply providing descriptions of what the assailant had looked like. The defence did not articulate any case-specific factors which increased the risk and, as the Crown submits, it did not impact the accuracy of the witnesses’ descriptions of the assailant’s skin colour, height, and clothing on which the trial judge relied. Further, as we explained, the trial judge carefully examined all the other relevant factors, as in R. v. Lewis, 2022 ONCA 282, paras. 26-32.

Sentencing Discretion

[17] The appellant further submits that the trial judge erred in declining to impose a conditional sentence, giving insufficient weight to rehabilitation and excessive weight to denunciation and deterrence.

[18] The sentencing reasons do not support this argument. The trial judge acknowledged the appellant’s rehabilitative steps, including abstinence from alcohol, positive character references, and entrepreneurial efforts. He accepted that these were “substantial efforts” to change his life trajectory.

[19] However, the trial judge also considered:

• the gravity of the offence, involving a bottle smashed on the complainant’s head;
• the enduring physical and psychological harm to the victim;
• the appellant’s prior conviction for a similar alcohol-fueled assault in a bar; and
• the need to denounce unprovoked violence in public establishments.

[20] The trial judge was entitled to conclude that these factors required an actual custodial sentence in the circumstances of this case: R. v. Proulx, 2000 SCC 5, paras. 81, 114.

[21] The five-month custodial sentence imposed was significantly below the Crown’s 12-month recommendation and reflected the appellant’s mitigating factors. There is no error in principle, and the sentence is not demonstrably unfit.

Conclusion

[22] The trial judge’s findings on the conviction were supported by the evidence and his reasoning discloses no legal or factual error warranting appellate intervention. Accordingly, the conviction appeal is dismissed.

[23] With respect to the sentence appeal, while leave to appeal sentence is granted, the sentence appeal is dismissed.

“Michael Tulloch C.J.O.”
“Julie Dawe J.A.”
“Renee Pomerance J.A.”