Court File and Parties

CITATION: R. v. Campbell, 2016 ONSC 1865

COURT FILE NO.: 1/15

DATE: 20160315

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Her Majesty the Queen v. Michael Campbell

BEFORE: K.L. Campbell J.

COUNSEL: Thaddeus J. Ofiara, for the Crown, respondent

Heather Pringle, for the accused, appellant

HEARD: December 18, 2015

REASONS FOR DECISION

[Summary Conviction Appeal]

A. Overview

[1] The appellant, Michael Campbell, was tried by the Honourable Mr. Justice M. Zuker of the Ontario Court of Justice and ultimately found guilty on a single charge of assault causing bodily harm against the complainant, Kael Williams. The offence was alleged to have taken place in Toronto on the night of Friday, September 21, 2012.

[2] At approximately 11:00 p.m., the complainant and four of his friends attended the McDonald’s Restaurant at the intersection of Runnymede Road and Bloor Street West. The appellant was also outside the McDonald’s. Two of the appellant’s friends were in the vicinity, across the street. The appellant was drunk. The complainant had also been drinking earlier in the evening. A dispute arose between the complainant and the appellant. The appellant had approached two of the complainant’s friends, Tyler Binns and Margel Juarez, and was leaning in on them and “invading their personal space.” The complainant approached, physically inserted his arm between the appellant and his friends, and profanely told the appellant, in clear and unequivocal terms, to leave. This led to some pushing and shoving, and matters quickly escalated into a fight.

[3] The trial judge heard, essentially, two different versions of the relevant events. According to the Crown’s three civilian witnesses (i.e. the complainant, Mr. Binns and Ms. Juarez), the complainant was attacked by the appellant and one or two of his nearby friends, and repeatedly punched and kicked. By the time this one-sided altercation was over and the parties were separated, the complainant had suffered serious bodily harm (i.e. a concussion, broken nose, split lip, swelling to his face, and various cuts, scrapes and abrasions). The appellant, on the other hand, essentially testified that as he was talking to Ms. Juarez, he was approached by the complainant and two of his friends. The complainant told him to leave and then punched him in the face. He punched the complainant back. At that point, he was pushed to the ground, where he started wrestling with the complainant while the complainant’s two friends hit him from behind. Eventually, bystanders intervened and the fight ended. By the time it was over, the appellant had suffered bruising to his ribs and his face was in pain, but there were no visible injuries.

[4] In his reasons for judgment at the conclusion of the case, the trial judge found the appellant guilty of the offence of assault causing bodily harm. Essentially, the trial judge rejected the testimony of the appellant, and found that the Crown had established the alleged guilt of the appellant beyond a reasonable doubt based upon the testimony of the various Crown witnesses. The trial judge rejected the defence’s suggestion that this was simply a two punch consensual fight and wrestling match between the complainant and the appellant. Rather, the trial judge accepted the Crown’s evidence that the appellant, and his two friends, Mr. Holden Adams and an unnamed “third party,” were all involved in this “melee,” and that the appellant was a party to this one-sided group assault of the complainant.

[5] In the result, the appellant was given a conditional discharge and placed on probation for a period of two years.

[6] The appellant now appeals against the finding of guilt made by the trial judge. The appellant contends that the trial judge erred in that he: (1) failed to provide legally adequate reasons explaining why the appellant was guilty; (2) failed to apply the principles articulated in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at pp. 757-758; and (3) failed to properly assess the key issues of credibility and reliability in the case. I disagree. As there is no sound basis justifying appellate interference with the verdict reached by the trial judge in this case, the appeal must be dismissed.

B. The Details of the Evidence

1. The Testimony of the Complainant – Kael Williams

[7] The complainant testified that the dispute started when he saw the appellant invading the personal space of two of his friends, Mr. Binns and Ms. Juarez. The complainant inserted himself physically between his friends and the appellant and told the appellant to “get the fuck out of here.” According to the complainant, when this happened, the appellant’s friend, Holden Adams, pushed him to the ground. At this point, both the appellant and Mr. Adams started to beat him and kick him in the face numerous times. Initially, he tried to get up to defend himself, but he was not able to get to his feet. From the ground, he flailed with his hands trying to keep the two men away from him. The complainant briefly “blacked out” at one point, but did not fully “lose consciousness.”

2. The Testimony of Tyler Binns

[8] Tyler Binns testified that he and his girlfriend, Ms. Juarez, where outside the McDonald’s when they were approached by the appellant. The appellant was drunk and was talking “gibberish.” They could not understand what he was saying to them, but he started “leaning” on them while talking to them. Mr. Binns indicated that he did not like it when the appellant started to “lean into” his girlfriend.

[9] It was at that point that the complainant came over, put his arm between the appellant and Ms. Juarez, and told the appellant to “get the fuck out of here.” According to Mr. Binns, when the appellant did not leave, the complainant pushed the appellant backward. The appellant then pushed him back.

[10] Mr. Binns testified that the appellant then called his friend, Mr. Holden, from across the street. Mr. Holden ran across the street, approached the complainant from behind and punched him in the back of the head, knocking him to the ground. The appellant and Mr. Holden then started kicking the complainant “in the face … in the stomach, everywhere.” The complainant was pinned down and could not fight back, but was just “flailing” his arms to protect himself. Then the complainant and the appellant were struggling together on the ground.

[11] Mr. Binns then jumped in to intervene, “pulling people off” the complainant. He also threw a few punches at the appellant. At one point, according to Mr. Binns, there was a third man engaged in beating the complainant. Eventually, other bystanders also intervened and the altercation ended.

3. The Testimony of Margel Juaez

[12] Margel Juarez testified that when she and her friends went to the McDonald’s, she and her boyfriend stayed outside. She testified that she may have had one beer that night, but she was “very in control.” They were approached by the appellant, who started talking to them, and then started leaning in closer to them and leaning on them. She described the appellant as leaning on her shoulder with his elbow, so their faces were “really close.” It was uncomfortable. He was slurring his words and seemed to be “under the influence.”

[13] According to Ms. Juarez, the complainant approached them, put his arm between them, and told the appellant to leave. Shortly thereafter, he may have told the appellant to “get the fuck out of here,” but she did not specifically recall this exchange. In any event, the argument between the two men escalated pretty quickly and the appellant and the complainant “became aggressive towards each other.” There may have been shoving between the men. It was very possible that the complainant threw a punch at the appellant.

[14] The appellant then called out to Mr. Holden who was across the street. Mr. Holden approached the complainant from behind and punched him somewhere on his upper body. At that point, the appellant and Mr. Holden “took turns” beating on the complainant. A third man, who had also been across the street, came over and participated in the beating of the complainant. Ms. Juarez testified that, while the complainant was on the ground on his knees, Mr. Holden and the third man held him down while the appellant kicked him in the stomach and once in the face. When the kicking was finished, the appellant began wrestling with the complainant on the ground. During the fight, the complainant was trying to defend himself, and was throwing punches too.

[15] At that point, Mr. Binns intervened and tried to stop the fight. She also saw Mr. Binns throwing punches. Ms. Juarez testified that both she and Mr. Binns were trying to pull the men out of the fight.

4. The Testimony of the Appellant

[16] The appellant testified in his own defence. He was 20 years old at the time of the events in question. He worked in the “roof-top advertising” business, and had no prior criminal record. He testified that by the time he arrived at the McDonald’s he had consumed eight or nine beers and was “drunk.” Nevertheless, the appellant claimed to have a “very good memory of the whole night.”

[17] The appellant testified that he started to talk to a girl, but was approached by three guys. The complainant, who was one of the three guys, told him to “get the fuck out of here,” and then immediately punched him in the face for no reason. The appellant punched him back, also in the face. According to the appellant, at that point, one of the three men pushed him from behind. He fell to the ground. As he was falling, he grabbed the complainant, and they both fell to the ground. People then started hitting him from behind from all directions. Someone ripped off his shirt. He and the complainant were “rolling around on the ground for a bit,” and then their struggling was broken up by some strangers, who pulled them off each other. That was the end of the fight.

[18] The appellant testified that he suffered painful bruising to his ribs, and his face was in pain, but it did not “really show anything” that was “visible,” as he was only hit once in his face.

[19] The appellant denied that he, or anyone else, kicked the complainant in the face. The appellant explained that he could not have kicked the complainant as he was on the ground at the time. The appellant testified that he remained on the ground struggling with the complainant after he was pushed to the ground. He did not regain his feet at any point during the fight. The appellant denied hitting the complainant while they were wrestling on the ground. The only time he struck the complainant was at the very outset of their fight, while they were both still standing, right after the complainant punched him first. The appellant agreed that, therefore, any injuries suffered by the complainant must have come from his first (and only) punch, or from the complainant’s own friends. The appellant testified that at no point did the complainant ever lose consciousness.

[20] According to the appellant, his friends, Holden Adams and Hayden Condran, were both at the bar across the street during the fight. They did not arrive on the scene until after the fight was over. The appellant denied that Mr. Adams came across the street and punched the complainant, knocking him to the ground. Indeed, the appellant denied that Mr. Adams was in any way physically involved with the complainant. According to the appellant, he was alone against the complainant and the complainant’s friends during the fight. The appellant’s friends did not arrive until the fighting was over and had been “broken up.”

[21] The appellant testified that after the fight, but before the police arrived on the scene, he “took some shots” from a “mickey” bottle of liquor provided by his friend Mr. Adams. The appellant explained that he was “very stressed out” at the time, and his friend was trying to get him to “calm down.” This additional drinking made the appellant “much more intoxicated” and he began “making a fool of [himself]” when the police arrived. He started saying “stupid stuff” to them at the back of the police car. The appellant admitted that, when the police arrived on the scene, he told them that he had “been good all night,” and “never touched anyone all night.” He offered to “pay” the police officers for something he could not recall, and he invited them to a barbeque at his house.

C. The Reasons for Judgment at Trial

[22] At the conclusion of a trial that spanned two days, the trial judge delivered oral reasons for judgment, finding the appellant guilty.

[23] During his detailed and accurate review of the evidence, the trial judge noted that while the Crown witnesses “may have consumed various amounts of alcohol” that night, there was “no evidence that they were drunk to the extent” admitted by the appellant. The trial judge also noted that while he had heard the “different perceptions” of the altercation from the various witnesses, the “most objective person” who gave evidence during the trial “may well have been Ms. Juarez.” She was not in any way involved in the ensuing “melee.” In his review of the evidence, the trial judge also fully and accurately summarized the contrasting testimony of the appellant.

[24] After reviewing the evidence, and the general positions of the parties, the trial judge drew the following factual conclusions. First, the trial judge concluded that he was satisfied that this was not a “one person, one punch fight” between the complainant and the appellant. Defence counsel had argued that, as the appellant had testified, this altercation was essentially a “two punch fight,” with the complainant and the appellant each exchanging a single blow, which then turned into a wrestling match on the ground. The trial judge clearly rejected this perspective. Second, the trial judge expressly rejected the testimony of the appellant that at no time were his friends involved in the assault on the complainant. Indeed, the trial judge concluded that Mr. Houlden came across the street and got involved in the “melee.” More specifically, the trial judge concluded that, in fact, in addition to the appellant, both Mr. Holden and a “third person” were involved in the assault on the complainant. After the initial shoving between the complainant and the appellant, as explained by Ms. Juarez, the complainant was also assaulted by both Mr. Holden and the “third party.”

[25] In the result, the trial judge concluded that he was satisfied that the appellant “was a party to the assault” on the complainant, and that the Crown had “proven its case beyond a reasonable doubt.” In response to a question by defence counsel at the conclusion of his reasons for judgment, the trial judge confirmed that the appellant was a “party” to the assault, and that Mr. Holden was the “principal” offender.

D. Analysis

1. The Adequacy of the Reasons for Judgment

[26] I reject the appellant’s argument that the reasons for judgment provided by the trial judge are legally inadequate. Viewed from a functional and context-specific approach, and read in their entirety against the evidentiary background of the case, the submissions of counsel, and the live issues in this case, the reasons for judgment delivered by Zuker J. sufficiently explain why the appellant was convicted of this offence, provide public accountability for the verdict, and permit effective appellate review of the decision. See R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 24-28, 46-52, 55; R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903, at para. 31; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at paras. 12-16, 19; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at paras. 19-23; R. v. R.E.M., [2008] 3 S.C.R. 3, 2008 SCC 51, at paras. 15-57; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 24-35; R. v. A.J.S., 2011 ONCA 566, 106 O.R. (3d) 586, at paras. 12-13; R. v. T.S., 2012 ONCA 289, 284 C.C.C. (3d) 394, at paras. 45-46, 75-80; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 9-15, 19; R. v. F.C., 2015 ONCA 191, [2015] O.J. No. 1437, at paras. 27-36.

[27] The trial judge clearly rejected the defence position that either: (1) the appellant and the complainant were engaged in a consensual one-punch fight per each combatant which then evolved into a wrestling bout on the ground; or (2) the appellant was acting in self-defence and responding proportionally to the aggressive actions of the complainant. Instead, the trial judge accepted the Crown’s position that once the altercation began, the complainant was, essentially, violently attacked by three men – the appellant and his two friends. In participating in this uneven and one-sided attack on the complainant, the appellant was not acting in self-defence, nor was he engaged in a consensual physical encounter with the complainant. In reaching these conclusions, the trial judge rejected the exculpatory testimony of the accused, accepted the critical testimony of the Crown witnesses, and was satisfied of the appellant’s guilt beyond a reasonable doubt. On the basis of the trial record in this case, the trial judge was entitled to reach all of these reasonable conclusions. Further, the trial judge was not obliged to provide greater details in his reasons for judgment explaining these conclusions. Once the trial judge had determined that this offence involved the beating of the complainant by three men, including the appellant, the defences of “consent fight” and/or “self-defence” could not possibly succeed.

2. The Application of the Principles Articulated in R. v. W.(D.)

[28] In R. v. W.(D.) the Supreme Court of Canada explained, at pp. 757-758, that in jury trials, in cases where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue and, ideally, should instruct the jury that: (1) if they believe the evidence of the accused, they must acquit; (2) even if they do not believe the testimony of the accused, they must acquit if they are left with a reasonable doubt by that testimony; and (3) even if they are not left with any reasonable doubt by the evidence of the accused, they may only find the accused guilty if, on the basis of the evidence which they do accept, they are convinced beyond a reasonable doubt of the accused’s guilt. However, the Supreme Court made it clear, at p. 758, that “the failure to use such language is not fatal if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply.”

[29] Subsequent jurisprudence has consistently confirmed that this three-pronged formula, suggested as the ideal model for jury instructions, must not be viewed as a “sacrosanct formula” or “ritual incantation” that must be employed by trial judges in delivering reasons for judgment. On appeal, the issue is always whether the trial judge erred in his or her application of the correct burden of proof upon the Crown to establish the alleged guilt of the accused beyond a reasonable doubt. See R. v. S.(W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at p. 533; R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, at para. 19; R. v. Minuskin (2003), 2003 CanLII 11604 (ON CA), 68 O.R. (3d) 577, 181 C.C.C. (3d) 542 (C.A.), at paras. 21-22; R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, at paras. 29, 59; R. v. Dinardo, at para. 23; R. v. Y.(C.L.), 2008 SCC 2, [2008] 2 S.C.R. 5, at paras. 4-12; R. v. S.(J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152, at paras. 8-13; R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466, at paras. 50-51; R. v. Smits, 2012 ONCA 524, 36 M.V.R. (6th) 217, at para. 39.

[30] In the present case, the trial judge expressly referred to the principles outlined in W.(D.). More particularly, near the outset of his reasons, the trial judge observed that where credibility is an important issue, the test is whether the Crown has proven its case beyond a “reasonable doubt.” The trial judge then correctly commented that “as we all know, it is not a choice between the evidence adduced by the Crown, [and] the evidence adduced by [the appellant],” but rather is “whether based on all the evidence there is there is a reasonable doubt with respect to the accused’s guilt.” The trial judge noted that he was “talking about the W.D. formulation and some of the considerations under W.D.” Subsequently, the trial judge noted that defence counsel had relied upon the decision in W.D. in making his closing arguments. At the conclusion of his reasons for judgment, the trial expressly concluded that he was satisfied that the Crown had proven its case “beyond a reasonable doubt.”

[31] Accordingly, it is readily apparent that the trial judge was well-aware of the principles articulated by the Supreme Court of Canada in R. v. W.(D.), and sought to apply them in the present case. Further, trial judges are presumed to know the law, especially fundamental principles of the criminal law such as the presumption of innocence and the burden of proof on the Crown to establish the alleged guilt of the accused beyond a reasonable doubt. See R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656, at pp. 664-665; R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (C.A.), at paras. 27-31. I am not satisfied that the trial judge erred in his understanding or application of the burden of proof to establish the alleged guilt of the appellant beyond a reasonable doubt. See also R. v. Vuradin, at paras. 20-28; R. v. Hogg, 2014 SCC 18, 309 C.C.C. (3d) 178; reversing 2013 PECA 11, 300 C.C.C. (3d) 435.

3. Reasonable Doubt – Credibility – Reliability

[32] The appellant argued that the trial judge did not properly assess the credibility and reliability of the various witnesses. I disagree. In my opinion, the trial judge was entitled to draw the conclusions he did regarding the credibility and reliability of the witnesses in this case.

[33] More specifically, the trial judge was entitled to conclude that Ms. Juarez provided a truthful and reliable account of the relevant events, and accept her testimony. Her evidence was largely supported by the testimony of Mr. Binns and, to a lesser extent, by the testimony of the complainant. The fact that Ms. Juarez and Mr. Binns were involved with each other romantically, were both friends of the complainant, and had predictably discussed the events of the evening together, did not prevent the trial judge from accepting her evidence. Ms. Juarez saw the relevant events from start to finish. She was not in any way involved in the altercation itself, and was ideally positioned to make accurate observations of the events. She had consumed only one beer that night and was not intoxicated. In short, the trial judge was entitled to conclude that Ms. Juarez was the “most objective” witness.

[34] The trial judge was also entitled to reject the testimony of the appellant as incredible and unreliable. The appellant admitted that, on the evening in question, he was “pretty intoxicated” and “drunk.” Further, his exculpatory evidence stood in stark contrast to the evidence of the other witnesses to the events. He described a short two-person, two-punch fight that ended in a wrestling match on the ground. The civilian witnesses called by the Crown, however, described an unfair, multi-person attack on the complainant. The trial judge was not bound to accept the testimony of the appellant, or harbour a reasonable doubt as to his guilt as a result of his exculpatory evidence.

[35] In short, applying the governing standard of appellate review, the verdict reached by the trial judge that the appellant was guilty of assault causing bodily harm was a reasonable verdict. See R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 185; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36, 40; R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 28; R. v. Tomlinson, 2014 ONCA 158, 307 C.C.C. (3d) 36, at para. 175; R. v. Wills, 2014 ONCA 178, 308 C.C.C. (3d) 109, at para. 29, affirmed, 2014 SCC 73, [2014] 3 S.C.R. 612; R. v. Magno, 2015 ONCA 111, 321 C.C.C. (3d) 554, at paras. 71-74; R. v. Dodd, 2015 ONCA 286, 322 C.C.C. (3d) 429, at paras. 55-60.

[36] In assessing the verdict reached by the trial judge, based upon his assessment of the credibility of the various witnesses, it is important to recall that assessing the credibility of any witness is not a precise science or a purely intellectual exercise. Rather, it is a difficult and delicate task, often defying clear and comprehensive verbalization, especially given the “complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.” See R. v. Gagnon, at para. 20; R. v. Dinardo, at para. 26; R. v. R.E.M., at para. 49; R. v. Wadforth, at para. 66; R. v. W.H., at paras. 39-40; R. v. Mesaros, 2014 ONSC 3445, [2014] O.J. No. 2710, at para. 21. I can see no proper basis to interfere with the conclusions reached by the trial judge concerning the credibility of the witnesses in this case.

E. Conclusion

[37] In the result, the appeal against conviction must be dismissed. An order shall issue accordingly.

Kenneth L. Campbell J.

Released: March 15, 2016

CITATION: R. v. Campbell, 2016 ONSC 1865

COURT FILE NO.: 1/15

DATE: 20160315

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• and -

MICHAEL CAMPBELL

REASONS FOR DECISION

[Summary Conviction Appeal]

K.L. Campbell J.

Released: March 15, 2016