Her Majesty the Queen v. Theon Lincoln, 2015 ONSC 1655

R. v. Lincoln, 2015 ONSC 1655

COURT FILE NO.: CR-13-4000014300-AP

DATE: 20150320

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

BETWEEN:

HER MAJESTY THE QUEEN

– and –

THEON LINCOLN

Appellant

Kim Walker, for the Respondent

Delmar Doucette, for the Appellant

HEARD: December 8, 2014

REASONS FOR JUDGMENT

[On appeal from the judgment of Justice C. Vaillancourt of the Ontario Court of Justice dated September 13, 2013]

B. P. O’MARRA, j

1On Christmas Day 2010 the appellant struck Cody Field over the head with a golf club. As a result Field was hospitalized and required 13 stitches to close his wound. He has a permanent deformity in his skull as a result of the injuries.

2The appellant was convicted of assault causing bodily harm contrary to s. 267 (b) of the Criminal Code. The sole issue at trial was self defence. He appeals his conviction on the basis that the trial judge erred in his application of the second and third elements of the W. (D.) analysis. Specifically he submits:

1. that the trial judge misapprehended the relevance of the Crown's evidence to self defence; and

2. that the trial judge failed to consider consciousness of guilt based on the evidence of certain Crown witnesses.

SUMMARY OF THE EVIDENCE

3On Christmas Day 2010, the Smith family hosted a large social gathering at their home that included family and friends and several children. The people in attendance included the appellant and his father Alex Lincoln. A situation arose in the course of the evening that resulted in the appellant and his father being asked to leave the premises. They returned later and in the course of the events that followed the appellant struck Cody Field over the head with a golf club and caused bodily harm to him.

THE EVIDENCE OF ROOSEVELT WRIGHT

4Mr. Wright was 38 years old on the day in question. He was at the social gathering at the Smith residence with several members of his family, including his brothers-in-law Troy and Tory Smith. Mr. Wright was aware that at some point in the evening there had been an incident in the house that included some scuffling and pushing between the appellant, his father Alex, Mr. Wright's father-in-law and his brothers-in-law. The appellant and his father were asked to leave the premises.

5About 15 minutes after they left, Alex Lincoln knocked at the door and indicated he wanted to talk to Mr. Wright. Mr. Wright stepped outside to talk to Alex Lincoln. Mr. Wright observed the appellant standing near the end of the driveway by the fence. As Cody Field, Troy Smith and Tory Smith approached the end of the driveway, Mr. Wright heard the appellant say something to Cody Field and Mr. Field responding, "Why are you here? Leave." Mr. Wright saw that the appellant had a golf club in his hand and began "swinging [it] like a wild man at Cody, repeatedly hitting him over the head." The appellant was swinging the club "in a violent manner to hurt somebody." Cody Field was covering Mr. Wright's one-and-a-half year old son with his body. Cody Field kept screaming, "What are you doing? There are kids out here." Alex Lincoln ran to the driver's side of his vehicle and produced another golf club. He came up and "actually started to swing, which then started to hit Tory." Tory Smith covered up Mr. Wright's daughter. Neither Cody Field nor Troy Smith had a weapon. The appellant continued to hit Mr. Field when he was on the ground. Alex Lincoln and the appellant were chased away. They jumped into their vehicle. No one in the Smith family owned golf clubs and Mr. Wright did not see any golf clubs before the incident.

6Mr. Wright had not consumed alcohol in the course of the evening preceding these events.

THE EVIDENCE OF CODY FIELD

721-year-old Cody Field was at the party and had consumed alcohol during the day. He had been at another party before arriving at the Smith residence. He was aware that there had been a scuffle and that the appellant and his father had been asked to leave the party.

8About two hours later, the appellant and his father showed up back at the house at the end of the driveway with golf clubs in their hands. Mr. Field was helping Troy Smith carry gifts to a car. The appellant's father went up to the house to speak to Mr. Wright. In the middle of the driveway, Cody Field, Tory Smith and Troy Smith had a conversation with the appellant as to why they had returned after they had been asked to leave. Cody Field had a plastic drink glass in his hand. The appellant did not have a golf club in his hands. Mr. Field looked towards the fence near the driveway and saw a golf club perched on the fence. He tried to grab the golf club to make sure the appellant did not reach it and said to Troy, "He has a golf club." The appellant immediately grabbed the golf club and started swinging. At the same time, the appellant's father ran back down the driveway and took a golf club from his vehicle. There were children on the driveway and the appellant did not seem to care where he was swinging. The appellant hit Mr. Field over and over again repeatedly on his head and then he hit Tory Smith a couple of times. Cory Field saw one of the Smith nephews running down the driveway, so he covered the child with his body to make sure he did not get hit. While he was doing that the appellant kept hitting Mr. Field on the back of his head until the golf club broke. The appellant stopped swinging his club and Mr. Field was left on the ground bleeding.

9As a result of this incident, Mr. Field required 13 staples in his head. He also has a permanent, life-long deformity in his skull.

THE EVIDENCE OF TORIEON (TORY) SMITH

10Mr. Smith was aware that there had been an earlier incident in the house. He had come downstairs and heard his father telling a stranger to leave. About 30 to 45 minutes later, the appellant and his father had returned. Tory Smith went outside at the same time as some of the children were leaving the party. He walked to the end of the driveway and saw that two men were swinging golf clubs. He told them to stop because there were kids there. Mr. Smith was hit in the face with a golf club, felt severe pain and dropped to the ground. As a result of being hit he received a split upper lip.

THE EVIDENCE OF TROY SMITH

1125-year-old Troy Smith was at his mother's home for Christmas dinner that day. He testified that he heard a commotion, went outside and saw his friend Cody Field lying on the driveway. He also saw that his brother Troy was kneeling on the ground and bleeding from the face area. He said that he did not see how the injuries had occurred. Mr. Smith had been drinking preceding these events.

THE EVIDENCE OF APRIEL SMITH

1234-year-old Apriel Smith brought her family to her mother's house to celebrate Christmas Day. She was aware that at some point the appellant and his father Alex were asked to leave. The two men appeared to be upset but they did leave. Later she was packing up to go home and asked her brothers to assist her with taking the gifts her children had received out to her car. When she opened the door she noticed that Alex Lincoln was standing outside and was asking to speak to Roosevelt Wright. She noticed that the appellant was standing at the end of the driveway. Her brothers assisted her in bringing the presents to the car. Her children were in the car when she heard someone say, "You came back with a golf club." Ms. Smith turned around and saw the appellant hit Cody Field with a golf club, which caused him to fall to the ground. She saw the appellant and Alex Lincoln swinging golf clubs repeatedly. She observed her brother Tory Smith get hit with a golf club and also fall to the ground. She helped Tory Smith walk back up the driveway to the house. Neither Mr. Smith nor Mr. Cody Field had weapons that she observed.

EVIDENCE OF THE APPELLANT

13The 22-year-old appellant had planned to meet his father and other members of his family at the Smith residence on Christmas Day. After the appellant and his father were asked to leave the party, his father wanted to return to discuss the matter with Roosevelt Wright. The appellant and his father returned to the Smith residence. Alex Lincoln went to the door and the appellant stayed in the car. While his father was speaking with Roosevelt Wright at the front door, the appellant got out of his car and leaned against it. He said that four guys came down the driveway towards the car and were putting something in front of the car in the driveway. Cody Field looked at the appellant and asked what he was doing there, but the appellant did not respond. Then the other three males looked at him and said that the appellant was "dissing," which means disrespecting.

14Three of the men walked towards the appellant and the appellant told them not to come any closer. He was stepping back. Tory Smith put his hands in his pockets and the appellant was concerned that he might have a knife. He then noted that the other men also had their hands in their pockets and he was concerned that they were also armed. The appellant said he saw a silver pipe against the fence and he grabbed it. At that point, Cody Field was charging toward it because he said it was a golf club. Tory Smith was also charging toward the appellant with a pipe-like object in his hand. The appellant continued to tell them not to come any closer. He then swung the silver pipe ("golf club") to hit Tory Smith, but Cody Field stumbled in front of him and got hit in the head. Then Tory Smith tried to charge after the appellant and the appellant hit Tory in the face with the club.

15The appellant thought he was going to lose his life before he struck the two men with the golf club. He then ran past Tory with the golf club and shouted to his father. Alex Lincoln turned around, ran past the appellant and grabbed Tory because he was creeping up behind the appellant. Alex Lincoln did not have a weapon in his hand. He said to the appellant, "Let's go." The house owner came out and was swinging a rake stick and hit the car as the appellant and his father drove away. The appellant testified that he hit Cody Field and Tory Smith once each and that the golf club had not broken as of the time he left the area.

16The trial judge made the following important findings of fact that were supported by the evidence:

1. The appellant and his father knew they were not welcome to return after they were asked to leave the party.

2. The appellant returned to confront the individuals from the prior incident in the house. He was armed with a golf club to exact some form of retribution.

3. Cody Field and the Smith brothers did not possess or use any weapons before or during the incident, nor did they reach into their pockets.

4. The appellant could have avoided any further conflict by not returning to the scene.

5. When the appellant picked up the golf club there was no threat to him.

6. Even if he was outnumbered there was no aggression towards him and he had an easy retreat to his car.

MISAPPREHENSION OF RELEVANT CROWN EVIDENCE

17The appellant submits that the trial judge erred in his application of the second and third elements of the W. (D.) analysis by failing to consider that the evidence of the Crown witnesses raise a reasonable doubt with respect to self defence.

18Where there is an air of reality to self defence the Crown must prove beyond a reasonable doubt that it does not apply in order to prove the offence. see R. v. Mulder (1978), 40 C.C.C. (2d) I, 1978 CanLII 2496 (ON CA), [1978] O.J. No. 515 (Ont. C.A.). The appellant submits that while the trial judge was entitled to reject the evidence of the appellant, he failed to properly apply the second and third steps of W. (D.) in determining the issue of self defence. Particularly, the appellant argues that there was sufficient evidence in the Crown's case to raise a reasonable doubt as to self defence, including Cody Field's evidence that he "went for" the golf club in the absence of any provocation by the appellant and that he did so in the course of a confrontation during which the appellant was outnumbered three to one.

19The trial judge specifically referred to the applicable section of the Criminal Code dealing with self defence and related it to his findings. see Criminal Code, R.S.C. 1985, c C-46, s. 34(1)(2); Reasons for Judgment, at pp. 12 and 13.

20The trial judge found that the appellant's evidence lacked any air of reality. He further found that the incident involving the appellant took place while the guests were packing up and leaving and "were not predisposed to armed battle with vulnerable children in their midst:" see: Reasons for Judgment, at pp. 9-10. Further, the trial judge accepted that the appellant continuously swung the golf club, even after Cody Field was on the ground covering Mr. Wright's child with his body.

21Appellate courts are subject to a stringent standard for reviewing the trial judge's reasons for material misapprehension of evidence. In this case, the reasons for judgment do not support the appellant's submission that the trial judge misapprehended material evidence. see R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.

22The appellant submits that Mr. Field's intention in reaching for the golf club is not relevant to self defence. Rather, the trial judge was required to assess the effect of Mr. Field's action on the appellant's state of mind. The trial judge did so. He considered the appellant's state of mind in light of the entirety of the evidence and found that there was no reasonable ground for the appellant to believe that force would be used against him. Specifically, the trial judge found that the appellant had brought the golf club and had kept it nearby to use if necessary. He also found that at the time the appellant picked up the golf club, he was not facing any aggression by Mr. Field or the Smith brothers. Further, the trial judge found that none of the men were armed and that there was no knife or baton in play. Rather, the appellant struck Cody Field repeatedly when he could simply have retreated to his car. These factual findings underpinning the trial judge's determination of the issue of self defence are entitled to substantial deference on appeal.

ALLEGED CONSCIOUSNESS OF GUILT AND CROWN WITNESSES

23The appellant submits that Tory and Troy Smith lied at trial regarding their presence at the foot of the driveway with Field and their participation in the events. From that, he submits the trial judge could have inferred consciousness of guilt as initial aggressors against the appellant. The appellant maintains that the Smith brothers' concoction of their testimonies is relevant to both their credibility as well as the appellant's feeling that his life was at risk. He asserts the failure to consider consciousness of guilt relates to the second and third stages of the W. (D) analysis.

24The trial judge did not find that Troy and Tory Smith lied at trial. He found that any inconsistencies in the Crown witnesses' evidence reflected the various points of view of the individuals in relation to the same event. He indicated he could place no weight on Tory Smith's evidence in part due to his alcohol consumption that evening.

25Consciousness of guilt is an inference that may be drawn from circumstantial evidence. In an appropriate case such an inference could be relevant in the context of self defence. This is a permissible inference that depends on the evidence accepted by the Court. In this case, the trial judge examined the whole of the Crown's evidence and, save for the testimony of Troy Smith, found that the Crown witnesses were credible. The trial judge's brief general comment with respect to the credibility of the Crown witnesses cannot be viewed in isolation, but must be read in the context of the reasons as a whole. The trial judge was alive to the central issues. His reasons are responsive to those issues and the parties' submissions and allow effective appellate review of his findings. see: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 11 and 55; R. v. Sheppard, 2002 SCC 26 [2002] 1 S.C.R. 869, at para. 28; and R. v. Walker, 2008 SCC 34 [2008] 2 S.C.R. 245, at para. 20.

RESULT

26Accordingly, the appeal from conviction is dismissed.