CITATION: R. v. Violo, 2016 ONSC 1383
COURT FILE NO.: 135/14
DATE: 20160317
Summary Conviction Appeal
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
DYLAN VIOLO
Appellant
Robert Wright, for the Respondent
William Thompson, for the Appellant
HEARD: January 21, 2016
McWatt J.:
REASONS FOR JUDGMENT
[1] William Pav and Dylan Violo were tried together on charges of Assault with a Weapon and Asault Causing Bodily Harm. The trial judge directed a verdict of acquittal with respect to the Assault with Weapon charge against the appellant, but convicted him of Assault Causing Bodily Harm. He appeals that conviction.
[2] The appellant raises three grounds of appeal.
[3] First, that the verdict was unreasonable because the reasoning process followed by the trial judge in rejecting his exculpatory statement was illogical and unsupported by the evidence.
[4] Second, the trial Judge’s reasons were inadequate. He failed to resolve a significant conflict in the evidence between the Crown and police witnesses about whether the police had assaulted the appellant. If resolved in favour of the police, this issue would have undermined the complainant’s credibility.
[5] Finally, the trial judge erred in holding that the appellant’s version of events did not afford a defence.
[6] I will deal, first, with the second and third grounds of the appeal.
[7] In R. v. Dinardo, 2008 SCC 24, [2008] S.C.J. No. 24 at para. 26 and 29, Charron J. held that where a case turns largely on the determination of credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. A failure to sufficiently articulate how credibility concerns were resolved by a judge may constitute reversible error.
[8] Reasons, however, do not have to be “so detailed that they allow an appeal court to retry the entire case on appeal” R. v. Dinardo, supra at para. [30]].
[9] While resolving the credibility issue between the complainant, Mr. Kau, and P.C. Dorrington, about whether the officer took Mr. Kau by the throat when taking control of him, may have played into the trial judge’s finding about the complainant’s credibility, this was a peripheral issue. It did not deal with the central issue in the trial, which was whether the appellant had assaulted Mr. Kau.
[10] The trial judge did review the evidence of the Crown and the officers on this alleged assault. Without finding as a fact that Mr. Kau was or was not assaulted as Mr. Kau alleged, the trial judge did find the complainant credible on the issue of whether the appellant had committed the assault alleged on the information he was trying. He was not obliged to do more.
[11] With respect to the third ground alleged by the appellant, the trial judge rejected Mr. Violo’s statement to police (led by the Crown) in his reasons for convicting him.
[12] The case turned on whether the appellant held Mr. Kau to help him out of an attack from others or whether Mr. Violo was holding the complainant in order to help the attackers. After rejecting the appellant’s position that he was helping the complainant and breaking up the fight, the trial judge wrote “In any event, there is no defence in law of being a peacemaker that would justify the grabbing of another person without consent. Any contact with Mr. Kau without his consent was tantamount ot an assault.”
[13] In the context of the submissions made and the Reasons for Judgment, this statement is superfluous and does not require appellant intervention. The trial judge set out clearly why he was rejecting the appellant’s evidence that he was helping the complainant and trying to break up the attack. He did so by assessing all of the evidence in the trial. His impugned statement could not be interpreted as the judge believing the appellant, but still finding him guilty because there was no defence.
[14] The first ground of the appeal should also be dismissed.
[15] The appellant has alleged four errors in the trial judge’s apprehension of the evidence which resulted in his rejecting the appellant’s statement and finding it did not raise a reasonable doubt.
[16] The trial judge was aware that, with respect to the circumstantial evidence in this trial, he had to be satisfied, not only that the evidence was consistent with the appellant having committed the offence, but also that the evidence was inconsistent with any other rational conclusion.
[17] First, the appellant alleges the trial judge engaged in speculative and illogical reasoning to reject the appellant’s statement. In fact, the trial judge used logic, common sense and human experience to assess the appellant’s statement on all of the evidence in the trial. He found that the appellant was minimizing his involvement because he had assisted in the assault – as testified to by the complainant. This finding was logically derived from the trial judge finding the appellant mischaracterized the attack as a fight when all the other evidence showed it was a swarming. The trial judge found that the appellant’s claim he was helping the victim during a swarming made no sense. He did not believe the appellant’s statement that he tried to stop the attack as a result – even though he portrayed himself as a peacemaker in his video statement.
[18] Also, the location of the blood on the appellant’s clothes was not consistent with his statement that he was helping the victim up by the arm.
[19] Second, the appellant alleges the trial judge misapprehended the complainant’s evidence as to whether or not Mr. Viola was helping him. The complainant’s evidence was that the appellant grabbed both his arms from behind and held them. He could not move his arms and in that position was punched in the face. In cross-examination, he testified that at first he thought perhaps the appellant was someone breaking up the incident, but the appellant held his arms and allowed him to be knocked down. The complainant denied specific suggestions by defence counsel that the appellant was breaking up a fight or pulling him off the ground.
[20] The trial judge did not misapprehend the evidence on this point.
[21] Third, the trial judge’s finding that the appellant was motivated by anger was a logical inference from all the evidence. The appellant was in the group that swarmed the complainant and his friend. There was evidence the group shouted threats and racially motivated epithets before they attacked. Mr. Viola’s friend’s girlfriend was struck in the face just before the group attacked and he was present for it.
[22] That finding, of the appellant’s state of mind, was one of the reasons the trial judge rejected the appellant’s exculpatory statement.
[23] Finally, the trial judge used the blood evidence on both sleeves and the front of the appellant’s jacket and T-shirt plus the blood on Mr. Pav’s right hand and sweater cuffs, and Ms. Sorn’s jacket hem and left sleeve to reject the appellant’s statement. The trial judge also had evidence that neither police nor paramedics had seen blood or noticed the stab wound on the complainant when they first had contact with him until the complainant himself realized he had been stabbed some time after the incident.
[24] The trial judge drew a reasonable inference that the appellant had been in close contact with the complainant when he was being struck by Mr. Pav as he would not have got blood on the inside of his jacket collar and on a T-shirt inside a winter jacket if he were only helping Mr. Kau get back on his feet in the way he described in his statement.
[25] The trail judge also found that the appellant was, on one hand, partially admitting his involvement in the assault while, on the other hand, also minimizing his involvement in it when he told the police he was near the complainant during the entire incident. This was a finding he was free to make after listening to and watching all the evidence in the trial.
[26] The trial judge did not misapprehend the evidence in rejecting the appellant’s statement and finding it did not raise a reasonable doubt.
[27] For these reasons, the appeal is dismissed.
McWatt J.
Released: March 17, 2016
CITATION: R. v. Violo, 2016 ONSC 1383
COURT FILE NO.: 135/14
DATE: 20160317
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
DYLAN VIOLO
Appellant
REASONS FOR JUDGMENT
McWatt J.
Released: March 17, 2016