CORNWALL COURT FILE NO.: 11-109AP/11-114AP

DATE: 2013/01/16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

CALE DEROCHIE and

SCOTT SMELKO

Appellants

Jennifer M. Burke, for the Respondent

David Anber, for the Appellant, Cale Derochie

Gary Chayko, for the Appellant, Scott Smelko

HEARD: October 31, 2012

REASONS ON APPEAL

m. linhares de sousa j.

INTRODUCTION

[1] The two Appellants in this matter, Cale Derochie and Scott Smelko, appeal from their conviction of the offence of Assault Causing Bodily Harm (s. 267(b) Criminal Code of Canada) made by trial judge, the Honourable Justice McPhee of the Ontario Court of Justice whose reasons were released on August 22, 2011, after two days of trial in Cornwall, Ontario.

[2] Mr. Derochie was also convicted of a second companion offence, namely, being in breach of probation (s. 733.1(1)).

[3] Both Appellants were sentenced on November 28, 2011. Mr. Derochie received a custodial sentence which was stayed with conditions of release on January 13, 2012, by Pelletier J.

[4] Mr. Smelko received a one month conditional sentence. Neither Appellant appeals on the sentence received upon their convictions.

GROUNDS FOR APPEAL AND POSITION OF THE APPELLANTS

[5] Counsel for the two Appellants submit and rely on some common grounds of their appeals which are the following. They submit that the verdict of the trial judge is an unreasonable one and not supported by the evidence presented at trial. They submit that the trial judge erred in law in not giving effect to the legal Crown onus of proof beyond a reasonable doubt. They submit that the trial judge erred in law in finding that the identification of their clients, beyond a reasonable doubt, was made out in the face of the issues raised in the evidence relating to the identification of perpetrators of the assault and the number of perpetrators observed participating in the assault against Mr. Waring. They submit that the trial judge gave insufficient reasons dealing with the issue of identification in view of the issues raised by counsel about the identification evidence, such as, the equivocation of the principal eyewitness, Mr. Brunet, the insufficiency of identification evidence, the absence of an in-court identification, the fact that the principal eyewitnesses were all in the same car together observing the events in question thus possibly tainting their evidence, and the absence of any corroborating real evidence of participation in the events in question such as body scratches and blood on hands. They submit that the trial judge erred in law in his use and reliance of post-offence conduct in coming to his conclusion to convict the Appellants.

[6] Counsel for Mr. Smelko also submits that the trial judge erred in not considering, with respect to his client, the defence of self-defence, in view of the fact that the trial judge concluded that the complainant, Mr. Waring, initiated the altercation that led to his ultimate assault.

[7] Mr. Chayko, counsel for Mr. Smelko, also raised in his Appeal Book that the trial judge erred in failing to address the law according to W. (D). But he did not specifically deal with this ground in his oral arguments. I will deal with this issue below.

POSITION FOR COUNSEL FOR THE CROWN

[8] Counsel for the Crown contests the appeal on all grounds raised by the Appellants’ counsel. Her position was that the trial judge made no error in law or finding of fact in view of the evidence presented at trial. Counsel for the Crown made extensive reference to the transcript of the trial evidence in support of her position.

REASONS FOR JUDGMENT GIVEN BY TRIAL JUDGE AND HIS ASSESSMENT OF THE WITNESSES

[9] The trial judge had the benefit of hearing some eight witnesses. There were also some admissions filed in the form of the “wilsay” statement of Constable Sauve, a certified copy of Cale Derochie’s probation order and an agreed statement of facts in relation to Dr. Jacobson relating to the nature of the complainant’s injuries in the assault.

[10] It was not disputed that Mr. Waring suffered bodily harm as a result of being assaulted on the day in question. Based on the medical evidence relating to Mr. Waring’s injuries, the trial judge found that Mr. Waring was “severely beaten” (p. 5 of the Reasons for Judgment) and that the “injuries he ultimately suffered were significant including a lacerated liver, blackened eyes and broken nose” (p. 5 of the Reasons for Judgment). The injury to Mr. Waring’s liver supported, the trial judge found, a finding that Mr. Waring received kicks to his torso during the assault. Mr. Waring was hospitalized for several days (p. 6 of the Reasons for Judgment). The trial judge also found that Mr. Waring did not consent to being attacked as he was (p. 15 Reasons for Judgment).

[11] By way of narrative, the trial judge’s findings of what led up to the incident did not appear to be disputed. As the trial judge found, the complainant, Mr. Waring and his companion, Ms. Mitchell found themselves in the McDonald’s “drive-thru” line behind a car occupied by four males and one female. Apparently, Mr. Waring became impatient with how long the car in front of him was taking to complete its order. There may have been words exchanged. There is no question, and the trial judge so found on the evidence before him, that all of the principal players to the assault, including Mr. Waring, had been drinking and were under the influence of alcohol. Mr. Waring’s companion, Ms. Mitchell was found by the trial judge to be “grossly intoxicated.” The police evidence relating to the arrest of the Appellants also confirmed that there was a strong odour of alcohol emanating from all of the four males in the car attempting to exit the McDonald’s parking lot which he blocked and stopped upon arriving on the scene.

[12] The trial judge found that Mr. Waring, unwisely, after leaving the “drive-thru” line stopped his vehicle and decided to confront the four males in the car in front of him, which car had also been parked after leaving the “drive-thru.”

[13] This confrontation was observed by three independent eyewitnesses from a vehicle which was parked some three parking spaces from the vehicle from which had exited the four males that Mr. Waring now confronted. These three independent eyewitnesses were Mr. Brunet, Mr. Roth and Mr. Zulinski. It was Mr. Brunet who called the police from his car using his cell phone as he observed the assault play itself out.

[14] The trial judge found that “Mr. Waring was the individual who initiated the ultimate confrontation which led to his beating on the south side of the parking lot at McDonald’s” (p. 4 of the Reasons for Judgment).

[15] The trial judge went on to conclude, based on the evidence of the three independent witnesses, and primarily on the testimony of Mr. Brunet for reasons given by him, that after initiating the ultimate confrontation with the four males who had exited the vehicle, Mr. Waring was quickly “overpowered” and “subdued.” The trial judge found that all four of the males who had exited the vehicle were observed to be punching Mr. Waring. Mr. Waring was punched multiple times. One of the four males, later identified as Mr. Gallai, found by the trial judge to be the individual who was “seen as the principal actor in this dispute …, it was he above the others who … inflicted the most damage on Mr. Waring”, (p. 4 of the Reasons for Judgment) put Mr. Waring in a choke hold from behind while the other three males continued to punch him. Mr. Waring tried to fight back but without success. The trial judge found that all four males were observed punching Mr. Waring and that they knew that he was overpowered. The trial judge further found that shortly after Mr. Gallai put Mr. Waring in a choke hold, Mr. Waring fell to the ground and was semi-conscious. The trial judge found that again based on the eyewitness evidence of Mr. Brunet, Mr. Roth and Mr. Zulinski, the four males continued to punch and some of them also kicked Mr. Waring while he was on the ground. The trial judge could not conclude if the two Appellants had actually kicked Mr. Waring while he was on the ground.

[16] The trial judge found that one of the four males, the only male in the group with blonde hair, identified as the Appellant, Mr. Smelko, did “at one point” attempt to stop Mr. Gallai from inflicting more harm on Mr. Waring while he lay on the ground unconscious.

[17] Based on the evidence of the three independent witnesses, the trial judge found, that after the assault on Mr. Waring, the four males re-entered the vehicle from which they had exited and attempted to leave the McDonald’s parking lot, with Mr. Gallai driving, before their vehicle was stopped and blocked by Officer Wells minutes after the assault.

[18] Officer Wells who was on duty in the area, arrived at the McDonald’s parking lot minutes after the incident was reported to the police. Upon arriving he stopped and blocked a vehicle from leaving the McDonald’s parking lot.

[19] In the vehicle blocked by Officer Wells were four males and one female. There was nothing to implicate the female in the assault. The Appellants were two of those males in the vehicle stopped by Officer Wells, Jason Gallai and Scott Cousineau were the two others. These latter two individuals are not parties to this appeal.

[20] Officer Wells arrested the Appellants after stopping the vehicle and after they were identified as individuals participating in the assault of Mr. Waring. The independent eyewitnesses identified the male occupants of the vehicle stopped by Officer Wells as the four males who they had observed assaulting Mr. Waring.

[21] The trial judge found that none of these three independent eyewitnesses could say what accused did what during the assault. They also provided very minimal descriptions of the four males assaulting Mr. Waring, such as hair colour and items of clothing.

[22] In his Reasons for Judgment, the trial judge specifically dealt with all of the eyewitnesses to the assault who were called by the Crown and their evidence. The trial judge acknowledged the problematic fact that most of the principal witnesses to the events, including Mr. Waring and his passenger, Ms. Mitchell, were under the influence of alcohol. The trial judge, for the reasons given by him, concluded that Mr. Waring was not a reliable or credible witness with respect to how the altercation began and to how it unfolded before the police arrived. The fact that Mr. Waring was unconscious for part of the assault also led him to this conclusion. The extent and nature of Mr. Waring’s injuries and the eyewitness accounts of the incident, however, led the trial judge to conclude that Mr. Waring, despite his initial aggression, was quickly overtaken by the four males he confronted and beaten. His conclusion was that he was assaulted by all four males which he confronted.

[23] The trial judge made reference to the testimony of Ms. Mitchell which described Mr. Waring as essentially being “jumped on by the boys” collectively and kicked while he was on the ground. While Ms. Mitchell, by her own admission was “grossly intoxicated” that day, the trial judge accepted her evidence as credible because it was corroborated, or in the words of the trial judge, “consistent with the other independent evidence; consistent with the injuries sustained” (p. 11 of the Reasons for Judgment).

[24] In his assessment of the three independent eyewitnesses, Mr. Roth, Mr. Zulinski and Mr. Brunet, he acknowledged and recognized the strengths and weaknesses of that evidence. Of these three eyewitnesses, two of them, Mr. Roth and Mr. Zulinski, by their own admissions and by the testimony of Mr. Brunet, were also under the influence of alcohol, although as the trial judge found, “better than usual” and not “intoxicated to the point of “oblivion”. The trial judge concluded with respect to Mr. Zulinski and Mr. Roth as witnesses, that their evidence could be considered if supported by other reliable evidence, which the trial judge found in the evidence of Mr. Brunet.

[25] The evidence supported and the trial judge so found that Mr. Brunet was the only eyewitness to the incident who was not under the influence of alcohol. Mr. Brunet before finding himself as a witness to the assault with his two friends in his car at the MacDonald’s parking lot, where they had gone to get some food, had just finished work before picking up his two friends who had been drinking at a bar. There is no question that the trial judge found Mr. Brunet, despite differences in the evidence from that of his two friends, to be both a reliable and credible witness. About him and Mr. Zulinski the trial judge had the following to say:

… but I will say this about Brunet and Zielinski, they were very good witnesses. They were persuasive, frank, credible, independent and did not “guild the lily” or exaggerate their evidence. They were not trying to adopt a stance in favour of the victim or the boys. They were simply, in my view, telling me what they saw to the best of their ability. I was very much persuaded to a particular point of view by the nature of the evidence as they gave it (p. 12 of the Reasons for Judgment).

[26] According to the evidence of Mr. Brunet, as the trial judge found, once Mr. Waring confronted the four males who exited the vehicle, he was quickly overpowered and just getting a beaten. The trial judge found, after examining all of the evidence, that Mr. Brunet’s evidence was that all four males participated in the assault on Mr. Waring. Mr. Brunet also observed the blonde male, identified as Mr. Smelko, attempt to stop the assault at one point but that he, Mr. Smelko, also participated in the assault on Mr. Waring in the beginning.

[27] The trial judge concluded that based on the evidence of Mr. Brunet and Mr. Zulinski and also the evidence of the other witnesses, as corroborated by Mr. Brunet and Mr. Zulinski, the group of four males stopped and arrested by the police, minutes after the assault, among whom were the two Appellants, once confronted by Mr. Waring, participated in overpowering him, knew that he was overpowered, and actively participated in punching him. Mr. Waring was also found to have been kicked while he lay unconscious on the ground.

[28] The trial judge concluded, based on the above evidence, that the two Appellants could be found beyond a reasonable doubt to have participated in the assault of Mr. Waring. He found them guilty of being parties to the assault, aiding and abetting each other in the beating of Mr. Waring “as articulated in s. 21 of the Criminal Code.” In the words of the trial judge:

They could only have known that this was a one-sided fight at the earliest point of the physical altercation. As I indicated and I emphasized, his injuries are consistent with that of being assaulted by a group (p. 16 of the Reasons for Judgment).

STANDARD OF REVIEW

[29] The question of the standard of review to be applied by this Court to this appeal was not dealt with by either defence counsel in any substantial way. Section 686 of the Criminal Code establishes the standard of review to be applied in this appeal and the powers of the court on appeal. Briefly and among other things, s. 686 states that the verdict of the trial judge should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, or on the ground of a wrong decision on a question of law or on any ground that there was a miscarriage of justice. Both defence counsel submit that the trial judge erred in a decision on a question of law and in his findings of fact based on the evidence before him.

[30] With respect to the question of evidentiary findings and whether a verdict can be considered unreasonable on the basis of the evidence, the Supreme Court of Canada established the test to be applied by appellate courts in the following way in its decision in R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. at para. 36:

The test for the appellate court determining whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannot be supported by the evidence has been unequivocally expressed in Yebes as follows:

[C]urial review is invited whenever a jury goes beyond a reasonable standard….[T]he test is ‘whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered.’ (Yebes, supra, at p. 185 (quoting Corbett v. The Queen, 1973 CanLII 199 (SCC), [1975] 2 S.C.R. 275, at p. 282, per Pigeon J.).)

That formulation of the test imports both an objective assessment and, to some extent, a subjective one. It requires the appeal court to determine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyse and, within the limits of appellate disadvantage, weigh the evidence. This latter process is usually understood as referring to a subjective exercise, requiring the appeal court to examine the weight of the evidence, rather than its bare sufficiency. The test is therefore mixed, and it is more helpful to articulate what the application of [page 406] that test entails, than to characterize it as either an objective or a subjective test.

[31] In its decision in R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at para. 25, the Supreme Court of Canada decided that the appellate court “must not merely substitute its view for that of the jury”. In order to apply the test of determining “whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered”, the Court of appeal “must re-examine and to some extent reweigh and consider the effect of the evidence.”

[32] With respect to findings of credibility, which question has also been made a ground of appeal by both counsel, such findings of the trial judge deserve deference, absent palpable and overriding error. (See R. v. Bradley, 2008 ONCA 179; [2008] O. J. No. 955 (C.A.) paras. 30 and 31 and R. v. Kumar, 2008 CarswellOnt 2585 (S.C.J.); [2008] O. J. No. 1792, (S.C.J.) para. 30).

ANALYSIS OF THE APPELLANTS’ GROUNDS OF APPEAL

(a) ISSUE OF IDENTIFICATION

[33] Both Appellants submit that the trial judge did not give effect to the legal onus of proof beyond a reasonable doubt with respect to the issue of their identification as active participants in the assault against Mr. Waring and that insufficient reasons were given by the trial judge on the question of identification, especially in light of the defence submissions on that question at trial.

[34] After examining all of the evidence from the full transcript of the trial and the reasons given by the trial judge I am not persuaded that this ground of appeal has any merit. It is true that descriptive identification evidence of the four assailants was not rich and plentiful. It was restricted to hair colour, skin colour and generic clothing descriptions which could not necessarily distinguish one assailant from the other, with the exception of Mr. Smelko’s blonde hair and perhaps Mr. Gallai’s features. It is clear from the trial judge’s Reasons for Judgment that the identification of the Appellants as participants in or parties to the assault was based primarily on the eyewitness evidence of the three independent witnesses, Mr. Roth, Mr. Zulinski and Mr. Brunet. These eyewitnesses observed all four males exit their vehicle when Mr. Waring confronted them, actively engage in the assault of Mr. Waring and then subsequently, all re-enter the same vehicle to attempt to exit the parking lot. Minutes later the four males are stopped and arrested by the police from that same escaping vehicle. They are identified by the independent eyewitnesses to the police as the four males who had participated actively in the assault. There was police evidence to show that the only occupants of the blocked vehicles were four males and one female who was not implicated in the assault and hence not arrested. It was not disputed evidence that two of the male occupants of the stopped vehicle and arrested by the police were the two Appellants. There were no other individuals in the stopped vehicle. Given this series of events and the very short duration of time from the assault, attempted flight of the assailants’ vehicle, arrival of the police, identification and arrest there was evidence before the trial judge on which he could conclude beyond a reasonable doubt, as he did, that the two Appellants were participants in the assault on Mr. Waring.

[35] I now consider the question of the identification of both Appellants as having actively participated in the assault against Mr. Waring. Counsel for Mr. Derochie submits that there was no evidence on which a properly instructed trier of fact could have been satisfied beyond a reasonable doubt that Mr. Derochie himself had done anything to participate in the assault on Mr. Waring. Counsel for Mr. Derochie concedes that it was clear from the evidence that more than one individual participated in the assault but that the evidence did not reasonably support the conclusion that four, as opposed to three or two individuals were involved in committing the assault. That being the case then, there had to be specific evidence, establishing beyond a reasonable doubt what Mr. Derochie himself did to participate in the assault in order for the judge’s verdict to be reasonable.

[36] Counsel for Mr. Smelko, on behalf of his client makes the same argument as that of counsel for Mr. Derochie. Both counsel submit that the evidence before the trial judge cannot support the finding, beyond a reasonable doubt, that all four males participated in the assault on Mr. Waring as opposed to a lesser number. They particularly rely on what they called some equivocation in the testimony of Mr. Brunet in his cross-examination and about his answers given to a private investigator, hired by Mr. Smelko’s lawyer prior to the trial relating to the number of males he observed punching or beating Mr. Waring.

[37] The trial judge did not ignore this evidence. He was fully alive to its potential legal implications. He dealt with it in the following way at pp. 13 and 14 of his Reasons for Judgment:

Importantly, in trying to take at least Gallai off Warring, he (Smelko realized that in all probability, Warring was down and out and things were getting out of control. And that stands to his credit in my determination. Brunet, of course, became equivocal in his cross-examination by Mr. Chayko, because he, being Brunet, had an interaction with a private investigator at the event that was retained by Mr. Chayko on behalf of Mr. Smelko.

The interaction between the private investigator and Brunet wasn’t completely played out before me and the court was left with a reserve of questions as to the nature of the completeness of that interaction, but on the evidence that I heard in cross-examination, led Brunet to allow that his description of Smelko’s initial involvement, may not have been as clear in his mind as he thought it was. But then as his evidence evolved in cross-examination and as he was re-examined, he concluded in the end that all four were involved in this assault. I think that’s the reality of the evidence of Brunet, that the boys got involved in an altercation, they assaulted Warring, and he became incapacitated.

Clearly Gallai went too far at that point in time and Smelko intervened to stop the continuation of the assault. Of course there, as well, as further and sudden attempt to flee the scene, as Gallai was driving the motor vehicle. It’s clear that all boys had been drinking.

The officers descried all as having a strong smell of alcohol on their breath. There’ no doubt in my mind, that the over consumption of alcohol led to this fracas in the first place on the part of all of the accused persons and Mr. Warring himself. I’ll leave that by saying that the evidence supports the finding that Smelko became a peacemaker at a critical point in this sad beating of Warring and by his actions may have prevented a further calamity than the one that we’re facing here.

Let there be no mistake, Mr. Warring was provocative and he was no doubt profane. Whatever happened on the north side of McDonald’s got him to behave as he did and initiating the contact with the boys became for all intents and purposes, the precipitating event. He sadly became, in my view, the victim of a criminal assault.

The evidence shows the group of boys overpowered Warring. In my view, they all at the very least punched Warring. I am less certain about whether or not “they” as the two individuals before me kicked him. And I am reluctant to conclude that beyond a reasonable doubt. Clearly, in my view they’re all seen punching Warring. It’s clear in my view that all knew that he was overpowered and essentially being ganged up upon. And in my view, they all knew that it had gone too far and were gratuitously hitting him.

[38] Mr. Brunet testified that when he was interviewed by Mr. Chayko’s private investigator he felt like the investigator was “leading me a bit” and that “most of the questions were to kind of get him [Smelko] out of trouble as opposed to get details on what happened” and he kept turning the tape recorder on and off. (See pp. 43 and 44 of the transcript of the Proceedings at Trial, Volume II).

[39] The trial judge also had before him the evidence of Mr. Waring that he specifically remembered the “blonde” male punching him. While it is clear that the judge would not have accepted this evidence alone as definitive for the reasons given by him about Mr. Waring’s evidence as a whole, he did accept it in coming to his conclusion if and when corroborated by the evidence of the other eyewitnesses whose evidence he accepted. Like a jury, a trial judge may accept all, only some or none of the evidence of a witness. In particular, the trial judge found Mr. Waring’s testimony on this point to be corroborated by the testimony of Mr. Brunet who testified that all four males in the vehicle participated in the assault on Mr. Waring. The trial judge also had the evidence of both Mr. Zulinski and Mr. Roth that all four males in the vehicle participated in the assault on Mr. Waring to their observation. All four males were observed punching Mr. Waring as he was surrounded by them.

[40] There is no question that trial judges must be cognizant to the frailties of eyewitnesses’ identification evidence, not just from the point of view of credibility but also from the point of view of the reliability of eyewitness evidence. As the Ontario Court of Appeal in R. v. Goran, 2008 ONCA 195, [2008] O.J. No. 1069 stated:

The extensive case law arising out of the review of convictions based on eyewitness identification reveals that the concerns about the reasonableness of such verdicts are particularly high where the person identified is a stranger to the witness, the circumstances of the identification, pre-trial identification processes are flawed and where there is not other evidence tending to confirm or support the identification evidence.”

See also R. v. F. A., 2004 CanLII 32118 (ON CA), [2004] O.J. No. 119.

[41] In my view, the trial judge did not err in law nor in his assessment of the evidence and findings of fact relating to the question of the identification of the two Appellants as parties to the assault on Mr. Waring. On the contrary, a full and fair reading of the trial record shows that the trial judge could reasonably conclude, beyond a reasonable doubt, that Mr. Derochie and Mr. Smelko were two of a group of four males who, when confronted by Mr. Waring, assaulted him, overpowered him and inflicted serious damage on him.

[42] There is no question that the events of this incident happened quickly. The three principal independent eyewitnesses, Mr. Brunet, Mr. Zulinski and Mr. Roth, were strangers to the assailants. However, they were well placed to observe the assault. Based on all of the evidence presented at trial, the trial judge could reasonably conclude that they were consistent in the number of males they witnessed hitting Mr. Waring and how he was quickly overpowered by the group of assailants and fell to the ground. Their evidence corroborated the evidence of Mr. Waring which might otherwise have been discounted completely by the trial judge. The evidence relating to the extent and nature of Mr. Waring’s injuries was consistent with the independent eyewitness accounts of how the assault was carried out by the four males observed participating in the assault.

[43] The independent eyewitnesses never lost sight of the assailants, in that they observed them exit their vehicle, interact with Mr. Waring until he lay unconscious on the ground, re-enter their vehicle at the end of the assault and attempt to flee in their vehicle before being stopped by the police. The quick police response and arrest of the males in the fleeing vehicle and their equally quick identification by the principal independent eyewitnesses to the police as the four males who minutes before they had observed assaulting Mr. Waring reasonably supports the trial judge’s conclusion and finding that the two Appellants participated as parties to the assault on Mr. Waring by punching him.

[44] I cannot find that the absence of in court identification of Mr. Derochie in any way detracts from the persuasiveness and weight of the identification evidence as a whole which was before the trial judge. In court identification per se is often fraught with frailties and is usually given little if any weight. I see no reason why its absence should be given any weight in the circumstances of this case. Nor does the fact of the absence of any other extrinsic evidence against Mr. Derochie such as any obvious injuries on Mr. Derochie. The trial judge found that it was Mr. Gallai who was the principal actor in this incident and who caused the most injury to Mr. Waring.

[45] I fail to see why the trial judge should have considered whether the independent eyewitnesses’ evidence was tainted because they were all in the same car together as the assault was taking place, in the absence of any evidence to the contrary. In my view, he thoroughly considered the reliability and credibility of all of the witnesses that testified at trial.

[46] In order for the trial judge to find the Appellants parties to the offence it is not necessary to determine what each of them specifically did to Mr. Waring during the assault “with exact precision who did what, when, where and how…” (p. 4, of the Reasons for Judgment), something which the trial judge found to be generally impossible to do in offences of this kind.

[47] I agree with counsel for the Crown when she states that for the purposes of a section 21(1)(a) conviction, as a party to an offence, credible and reliable evidence of common participation is sufficient. (See R. v Wood, 1989 CanLII 7193 (ON CA), [1989] 51 C.C.C. (3d) 201; [1989] O.J. No. 1162) (C.A.). The trial judge had such evidence of the participation of the two Appellants in the assault of Mr. Waring in the testimonies of the independent eyewitnesses. In choosing to accept that evidence, particularly that of Mr. Brunet and Mr. Zulinski, I cannot find that the trial judge made any palpable and overriding error in his finding of credibility.

[48] In a recent decision of R. v. Cyr, 2012 ONCA 919, Watt J. stated the following concerning the judicial instruction in W. (D.):

49 Second, the suggested instruction in W. (D.) is not a sacrosanct or sacred formula as the decision itself points out: R. v. W. (D.), [1991] 1 S.C.R. No. 742, at p. 758; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. No. 716, at paras. 20 and 23; R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at paras. 82-84. Failure to parrot the precise language of the W. (D.) formula is not fatal, provided the charge, read as a whole, makes it clear that the jury could not have laboured under any misapprehension about the placement of the controlling burden, and the substance of the standard of proof that governed their deliberations: W. (D.), at p. 758; Simon, at para. 82.

50 Third, the W. (D.) instruction, or its functional equivalent, is not limited to an accused's testimony or statement admitted at trial, rather it extends to other exculpatory evidence that emerges during trial proceedings: R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at paras. 113-114.

51 Fourth, the purpose of the W. (D.) instruction or its functional equivalent is to ensure that the jury understands how to apply the burden of proof to the issue of credibility. The jury must be cautioned that a trial is not a contest of credibility between witnesses, a matter of choosing sides as it were, and that the jurors do not have to accept the defence evidence in full to find the accused not guilty: Van, at para. 23; W. (D.), at p. 757; and R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. No. 152, at para. 9.

52 Fifth, a trial judge is not required to relate his or her reasonable doubt instruction to specific items of evidence, whether consistent with the defence or the Crown's theory of the case: R. v. M.R. (2005), 2005 CanLII 5845 (ON CA), 195 C.C.C. (3d) 26 (Ont. C.A.), at paras. 45-46.

53 Finally, the failure to expressly relate a W. (D.) or equivalent instruction to a particular item of evidence is not fatal, provided that the charge, taken as a whole, makes it clear to the jury that they are to apply the presumption of innocence and the burden of proof to all the evidence adduced at trial: Van, at paras. 22-23; B.D., at para. 120; and R. v. Lifchus, [1997] 3 S.C.R. No. 320, at para. 40.

[49] The two Appellants elected to call no evidence. Nonetheless the trial judge was obligated to consider the principles of W. (D.) in relation to all of the evidence including any exculpatory evidence that emerges during the trial proceedings. For the reasons given above, I cannot conclude that the trial judge erred in his application of the burden of proof to the issue of credibility or to any other specific item of evidence.

INSUFFICIENT REASONS

[50] In my view, the trial judge substantially and sufficiently gave reasons for his findings of fact, credibility and why he chose to rely on the evidence of some witnesses and not others. He addressed the conflicts found in the evidence of witnesses. He explained his reliance on the evidence of some witnesses. He explained why he chose not to rely on the evidence or on some of the evidence of other witnesses, such as Mr. Roth, Mr. Waring and Ms. Mitchell because they were under the influence of alcohol. He also dealt with the apparent equivocations of witnesses he did rely on, such as the testimony of Mr. Brunet, and concluded that he could still rely on that evidence on the totality of the evidence to determine that the Appellants were active participants in the assault on Mr. Waring.

[51] I find that the trial judge’s reasons for conviction are plentiful, clear and “respond to the case’s live issues” (see R. v. Dinardo, 2008 SCC 24; [2008] 1 S.C.R. 788 at para. 25) even though he might not have specifically mentioned each and every defence submission on the questions of identification, credibility and reliability of witnesses. In the final analysis, I cannot find that the trial judge’s reasons are so deficient that they foreclose meaningful appellate review in accordance with the clear legal test established in the Supreme Court decisions of R. v. Sheppard, 2002 SCC 26; [2002] S.C.J. No. 30, at para. 30.

USE OF POST-OFFENCE CONDUCT BY THE TRIAL JUDGE

[52] Both defence counsel submit that the trial judge erred in law in his use and reliance of post-offence conduct in coming to his conclusion to convict the two Appellants. Counsel for Mr. Derochie submits his client was a mere passenger in the car driven by the assailant, Mr. Gallai, recognized by the trial judge as the “principal actor” in the events, fleeing the scene of the assault before being stopped by the police. Counsel for Mr. Derochie further submits that while Mr. Gallai may have had his own motives for leaving the scene, it was completely reasonable for his client to resume his place as a passenger among his friends. Counsel for Mr. Derochie submits that any “moral” obligation his client should have considered to stay and render assistance to Mr. Waring is not material to the consideration of a person’s guilt in an assault. With this latter statement I agree.

[53] In his Reasons for Judgment the trial judge addressed the question of post-offence conduct, raised by crown counsel at trial. The trial judge made brief reference to and indicated that he was cognizant of recent jurisprudence dealing with post-offence conduct. He made no specific reference to the principles enunciated in the jurisprudence referred to by him and which would guide him in his decision. A trial judge is not obligated to do so and is presumed to know the law. However, for greater clarity in the review of the trial judge’s use of post-offence conduct in coming to his decision concerning the guilt of the Appellants I note that the jurisprudence establishes the following concerning a trial judge’s use of post-offence conduct, either by way of self-direction or in directions to juries.

[54] In R. v. Cornelius, 2011 ONCA 551; [2011] O.J. No. 3609, Rosenberg J., at paras. 18-19, inclusive, adopted the principles enunciated in White v. Her Majesty The Queen, 2011 SCC 13, [2011] 1 S.C.R. 433 in the following way:

[18] The most recent decision from the Supreme Court of Canada on the directions to be given to the jury in cases where there is evidence of post-offence conduct is R. v. White (2011), 2011 SCC 13, 267 C.C.C. (3d) 453. While there were three sets of reasons, the main issue dividing the members of the court was the application of the law to the particular set of facts. As I read the decision, there was little dispute as to the legal principles. The point that principally divided the members of the court was the use to be made of demeanour evidence as potentially giving rise to an inference of consciousness of guilt. That issue does not arise in this case.

[19] The principles relevant to this case were set out by Binnie J., writing for himself and McLachlin and Fish JJ. While he was in dissent, Binnie J.’s analysis of the legal principles was adopted by Charron J. writing for herself and Deschamps J. For the purposes of this case, the important points are set out in paragraphs 137 to 140 of the reasons of Binnie J. Charron J. expressed her agreement with those principles at paragraphs 105 and 107 of her reasons. I would summarize the applicable principles as follows:

1. It is not the case that anything done by an accused after the offence is subject to a special warning.

2. “The general rule is now, as in the past, that it is for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct put in evidence against the accused is related to the commission of the crime before them rather than to something else, and if so, how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury's exclusive fact-finding role”: para. 137.

3. However, there may be cases where a warning is required because jurors may attach more weight to the post-offence conduct than is warranted. “This risk exists with respect to some types of post-offence conduct relied upon by the Crown and in those cases it only makes sense for the judges to alert the jurors to what the courts have collectively learned over the years, especially when that learning may for some jurors be counter-intuitive”: para. 138.

4. However, the bulk of so-called post-offence conduct “will simply flow into the record as an unremarkable part of the narrative”: para. 140.

5. Like all other circumstantial evidence, evidence of post-offence conduct will be relevant and admissible depending on whether it has some tendency “as a matter of logic, common sense, and human experience... to help resolve the issues in the case”: para. 140.

[55] In R. v. White, Rothstein J. said the following about post-offence conduct at paras. 38-39, inclusive:

[38] As with all other evidence, the relevance or probative value of post-offence conduct “will depend on the facts of each case” (White (1998), at para. 26). I agree with Binnie J. that there is no general rule applying to post-offence conduct: relevance must be assessed on a case-by-case basis.

[39] In some cases, an item of evidence may be probative of one live issue, but not of another. For example, flight per se may be relevant in determining the identity of the assailant, but may not be relevant in determining the accused’s level of culpability as between murder and manslaughter. In such a case, the rules of evidence remain unchanged: the evidence is left with the jury, for it to weigh with respect to the issue of identity; the jury is precluded from considering the same evidence with respect to determining the mens rea for murder as opposed to manslaughter, by way of a limiting instruction to the effect that this evidence is not probative of this particular live issue. That judges must sometimes give limiting instructions as to appropriate and inappropriate inferences to be drawn from the evidence is merely an application of the rule of relevance tailored to different live issues in a single case.

[56] Charron J. in the same decision, at paras. 105 to 107 inclusive, enunciated the following principles concerning post-offence conduct:

[105] I agree with Binnie J. that evidence of post-offence conduct is not subject to any special rule. As Binnie J. stresses, it is definitely wrong to suggest that evidence of anything said or done by an accused after the commission of an offence gives rise to special rules of admissibility, or that it is subject to special warnings as to what use may be made of it by the trier of fact. As he aptly puts it:

The general rule is now, as in the past, that it is for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct put in evidence against the accused is related to the commission of the crime before them rather than to something else, and if so, how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury’s exclusive fact-finding role. [para. 137]

[106] I also agree with Binnie J. that judicial experience has taught us that in some cases jurors have found certain types of evidence more persuasive than warranted, thus making it necessary in appropriate cases to caution the jury accordingly. As he notes, eyewitness identification and jailhouse confessions to police informants are examples that readily come to mind. Likewise, some evidence of post-offence conduct may seem quite suggestive of guilt though, in reality, the conduct is essentially equivocal in nature. For example, evidence that an accused lied to the police about the offence in question may lead jurors to leap too quickly to infer guilt without considering other reasons why he or she may have lied. A special caution may therefore be required. In some situations, the probative value of the evidence may be slight and far outweighed by its prejudicial effect, in which case it may be best to remove it from the jury’s consideration altogether. My colleague Rothstein J. explains how these general principles call for a case-by-case assessment.

[107] Further, I agree with Binnie J. that inferences drawn by a witness, based on his or her observation of the accused’s demeanour, may well call for a special caution or be subject to an exclusion order in accordance with these principles. By way of example, Binnie J. recalls the infamous prosecutions of Susan Nelles and Guy Paul Morin for crimes they did not commit. He rightly notes that the case against each was built in part on inferences of guilt drawn from equivocal post-offence conduct. For example, one witness testified that Ms. Nelles had a “very strange expression on her face and no sign at all of grief” following the death of the fourth baby (R. v. Nelles, (1982), 1982 CanLII 3803 (ON CJ), 16 C.C.C. (3d) 97 (Ont. Prov. Ct. (Crim. Div.)), at p. 124). In the case of Guy Paul Morin, police witnesses drew a negative inference of guilt, for example, from the fact that Mr. Morin came out to greet them rather than wait for them to reach his door. In his report on the wrongful conviction of Mr. Morin, Commissioner Kaufman found that this was an innocuous event which only became “coloured” by the officers’ own perceptions of Mr. Morin (the Honourable Fred Kaufman, The Commission on Proceedings Involving Guy Paul Morin: Report (1998), at p. 786).

[57] In his Reasons for Judgment, the trial judge addressed the question of post-offence conduct a number of times. At p. 7 he stated:

Ironically, that delay [caused by Mr. Gallai continuing to assault Mr. Waring while he lay semi-conscious or almost unconscious on the ground] resulted in all accused persons being nabbed as they attempted to flee the scene in the Gallai motor vehicle. For unbeknownst to them, the police were on route in the person of Cst. Wells, and he blocked their escape from the parking lot. It’s clear, beyond any doubt, that all four boys involved and the female passenger who was not involved were leaving the scene, Gallai at the wheel, when Cst. Wells stopped them. That, of course, as Ms. Burke points out, is a factor that the court ought to take into consideration but in all of the circumstances, I see it as more part of the narrative of the event than as pointed evidence that would lead to assisting the court in determining the guilt or otherwise of Mr. Smelko and Mr. Derochie. The fact that they fled the scene, of course, doesn’t help their cause. What is also troubling, as I indicated, it is not only the failure to stay and assist the obviously weakened Mr. Warring, but aiding each other in their attempt to avoid apprehension by the authorities.

[58] At p. 8 after referring to the case of R. v. White, the trial judge stated:

… As I indicated, I don’t see it as necessary to read at length from that decision. I think it’s more important to point out that the court has considered that, but on balance, sees the flight from the scene as being a factor to consider but not a matter of great import in determining the result in this particular trial.

[59] Finally, at p. 16 the trial judge stated, after concluding that all four males, two of which were the Appellants, participated in the assault on Mr. Waring:

I will say, as well, that any doubt about their collective responsibility is surely eroded by the flight from the scene. When one views the law in relations to parties to the offence, as articulated in s. 21 of the Criminal Code, they clearly were aiding at abetting each other in the beating of Mr. Warring. They could only have known that this was a one-sided fight at the earliest point of the physical altercation. As I indicated and I emphasize, his injuries are consistent with that of being assaulted by a group.

[60] Counsel for Mr. Derochie submitted that this latter statement of the trial judge, demonstrating such an error in law, that if it does not justify an acquittal of his client at least would justify an order for a new trial.

[61] In examining the trial judge’s comments about post-offence conduct, in the context of the circumstances and evidence of this case, as the appellate decisions directs trial judges to do, I can find no error in law in the trial judge’s use of post-offence as reflected in his statements found on pp. 7 and 8 of his decision and in the context of the whole of his reasons.

[62] With respect to the trial judge’s comments found on p.16, taken alone and in isolation they may indeed raise an issue about the trial judge’s use of post-offence conduct as proof of criminal responsibility. After all, as defence counsel for Mr. Derochie submits, his client may simply have joined the other assailants in the fleeing car because he did not want to miss his ride with his friends or to be with his friends. However, those words of the trial judge cannot be taken in isolation. They must be reviewed in the context of his other comments about post-offence conduct. More importantly, they must be reviewed in the context of the overwhelming evidence before the trial judge relating to the identification of the two Appellants and the independent eyewitnesses’ evidence relating to their observations of the active participation of the two Appellants in the assault of Mr. Waring; and finally, in the context of the nature of Mr. Waring’ injuries as being consistent “with a man being beaten by several, or at least more than one individual.” (See p. 10 of the trial judge’s Reasons for Judgment).

[63] For this reason, in the above context or evidence of this case, I cannot find that the trial judge erred in law in his consideration of post-offence conduct. Furthermore, assuming for the moment that defence counsel’s submission on this point were to be accepted, which I do not accept, in the final analysis and in the context of the evidence as a whole which was before the trial judge, I cannot but be “of the opinion that no substantial wrong or miscarriage of justice has occurred” in this case as is provided by s. 686(1)(b)(iii).

ISSUE OF SELF-DEFENCE

[64] There is no question that the trial judge found that Mr. Waring initiated the confrontation with the four males, two of which were the Appellants. Counsel for Mr. Smelko submits that the trial judge erred in law in failing to consider the “obvious issue of self defence to Mr. Warring’s aggression.” Defence counsel for Mr. Smelko argued orally and in his Factum (third page from the last) that, “[i]n the face of an assault on the group it was incumbent on the trial judge to address the issue whether each person who was assaulted had the right to use no more force than necessary to repel the assault.”

[65] In the circumstances of this case and on the facts as found by the trial judge as to how the altercation between Mr. Waring and the four males, one of whom was Mr. Smelko played itself out, as observed by the independent eyewitnesses, I am not persuaded that this ground of appeal has any merit.

[66] The evidence presented at this trial reasonably supports the trial judge’s finding that, while Mr. Waring unwisely initiated the confrontation with the four males and while the evidence was unclear as to who made the first physical contact, there is no question that Mr. Waring was quickly overpowered (“rendered defenceless and injured” p. 10 of the Reasons for Judgment) by the choke hold by Mr. Gallai and fell to the ground. Furthermore, based on the evidence of the independent eyewitnesses, the trial judge could reasonably find, as he did at p. 15 of his Reasons for Judgment, that even after Mr. Waring was overpowered, all four males were observed to be punching Mr. Waring. The trial judge stated:

It’s clear in my view that all knew that he was overpowered [as was obvious to the independent eyewitnesses] and essentially being ganged up upon. And in my view, they all knew that it had gone too far and were gratuitously hitting him.

[67] I agree with the submissions of both Crown counsel and defence counsel that a trial judge ought to consider and make reference to the defence of self-defence in a case where the evidence establishes that an accused may have been provoked into responding to an individual initiating an aggression. However, as established in R. v. Lecky 2001 CanLII 6026 (ON CA), [2001], 157 C.C.C. (3d) 351 (Ont. C.A.), that is only the case where on all of the facts of the case, there is an “air of reality” to the defence.

[68] Based on the evidence presented at trial and the findings of the trial judge as to how the incident in question occurred, any defence of self-defence which may have potentially arisen from the evidence of Mr. Waring’s initial confrontation with the four males quickly lost its “air of reality” in the face of the evidence that led to the trial judge’s finding that Mr. Smelko was an active participant in the group assault of the overpowered Mr. Waring and that Mr. Smelko must have known that Mr. Waring was defenceless and overpowered. For this reason, that ground of appeal is also rejected.

[69] For all of the above reasons the appeals brought by both Appellants to set aside their convictions and to enter acquittals, or alternatively to order a new trial, are dismissed.

M. Linhares de Sousa J.

Released: January 16, 2013

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

CALE DEROCHIE and

SCOTT SMELKO

Appellants

REASONS ON APPEAL

M. Linhares de Sousa J.

Released: January 16, 2013