CITATION: R. v. Jackson, 2016 ONSC 5504
COURT FILE NO.: CR15-0150
DATE: 20160831
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
DAVID JACKSON
Appellant
John O’Halloran, for Her Majesty the Queen
David Anber, for the Appellant
HEARD: 30 August 2016, at Brockville
On Appeal from the decision of Justice R.T. Knott, Ontario Court of Justice,
at Brockville, dated July 13, 2015
REASONS FOR DECISION
MEW J.
[1] On 13 July 2015, David Jackson was found guilty of assault causing bodily harm and of breach of recognisance by Knott J of the Ontario Court of Justice. He appeals those convictions and requests that an acquittal should be entered or, in the alternative, a new trial ordered.
[2] The convictions arise from an altercation which occurred on 6 February 2015 between Mr. Jackson and the complainant, Bradley Jackson, (no relation) in a parking lot located in Gananoque.
[3] Three principal grounds of appeal are advanced, namely that the trial judge:
a) erred in his determination of the mens rea for assault causing bodily harm and the defence of consent;
b) incorrectly failed to give effect to Mr. Jackson’s defence of self-defence; and
c) improperly took into account Mr. Jackson’s “propensity for violence” arising from his criminal record when assessing the evidence.
[4] The Crown opposes each of these grounds, but submits that in the event that a finding is made that the trial judge erred in law in his handling of the “consent fight” issue, but finds that the trial judge’s assessment of the evidence, the credibility of the witnesses, and the application of the law, was otherwise correct and made without bias, the court should engage its power, pursuant to s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, Chap. C-46 (as amended), to deny the appeal on the ground that, in the totality of this matter, no substantial wrong or miscarriage of justice has occurred.
[5] The trial judge’s findings of fact are not disputed. Accordingly, the appeal turns on the judge’s application of the law to those facts.
Background Facts
[6] Briefly stated, the incident occurred when the complainant and his son, who were returning home from a coffee shop, saw Mr. Jackson in his car which was parked in a parking lot, and went over to advise Mr. Jackson that he, the complainant, was not happy with the way that Mr. Jackson had been speaking to the complainant’s fiancée.
[7] The trial judge found that the complainant “initiated the confrontation”. Mr. Jackson reacted by jumping out of his car and escalating the argument. The trial judge observed that:
The accused perceived [the complainant’s] admonishment as a future threat and chose to challenge [the complainant] right there in the parking lot.
[8] Mr. Jackson, who acknowledged having mixed martial arts training, admits that he delivered a single punch on the complainant’s face, knocking him to the ground, which resulted in a wound on the complainant’s face.
Consent
[9] There is no doubt that Mr. Jackson struck the complainant, causing him bodily harm. The issue raised on appeal is whether the complainant was struck in the course of a physical altercation in which he was a consenting participant.
[10] To be found guilty of assault causing bodily harm pursuant to section 267 (b) of the Criminal Code of Canada, the prosecution must prove each of the following elements beyond a reasonable doubt:
a) that Mr. Jackson applied force to the complainant;
b) that the complainant did not consent to the force that Mr. Jackson applied;
c) that Mr. Jackson knew that the complainant did not consent to the force that Mr. Jackson applied; and
d) that the force Mr. Jackson applied caused the complainant bodily harm.
[11] On the issue of consent, the trial judge stated:
A party cannot consent to the infliction of bodily harm. So even though [the complainant] may have initiated the confrontation with the accused by telling the accused not to speak to his fiancée in that matter [sic], the nature of the injuries to [the complainant] means that this cannot be a consent fight.
[12] Mr. Jackson argues that this statement of legal principle by the trial judge is incorrect. The Crown acknowledges that the trial judge’s pronouncement that “the nature of the injuries to [the complainant] means that this cannot be a consent fight” is “perhaps an oversimplification of the state of the law”.
[13] I agree with the submission advanced on behalf of Mr. Jackson that just because bodily harm is caused does not mean that the complainant could not have consented.
[14] But the law is also clear that one cannot consent to the intentional infliction of bodily harm (which in this context means any hurt or injury that interferes with a complainant’s health or comfort in more than a brief, fleeting or minor way): R v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 S.C.R. 714
[15] The trial judge found the complainant acted in a provocative manner and, indeed, that he shoved Mr. Jackson to get him out of his face and took at least one swing at Mr. Jackson that “may have made minor contact with [him]”.
[16] Indeed, the trial judge made the general observation “I think the complainant and his son underestimated their involvement in this matter but I have not been convinced that he threatened the accused”.
[17] The appellant testified at trial that:
“[W]hen [the complainant] started getting up in my face he pushed me and then he went to hit me. And then it was when he went to hit me that he actually connected and that was when I just – I’d had enough. I’m not gonna sit there and be assaulted by no man, especially when he’s got his twenty-year-old son with him too”.
[18] The appellant argues that there was a solid evidentiary basis upon which a finding could have been made that the complainant should be regarded as having consented to the altercation. However, because the trial judge misstated the law, the appellant submits that the judge deprived himself of the opportunity to conduct a proper evaluation of the evidence and, hence, a proper analysis of the issue of consent.
[19] I agree. In applying his findings of fact to the requisite elements of the offence of assault causing bodily harm, the trial judge was distracted by the seriousness of the injury to the complainant. As a result, the trial judge applied incorrect principles to his assessment of whether or not there had been consent. Had he done so, he might well have found that the complainant had consented to a fight. It would, of course, have still been open to the trial judge to go on to find that any consent on the complainant’s part was vitiated by the apparently well-aimed and powerful punch by Mr. Jackson which brought the brief altercation to an abrupt end. In other words that the appellant intentionally inflicted bodily harm on the complainant.
[20] In my opinion, the trial judge made an error of law which would justify setting aside his decision and ordering a new trial.
Has a Substantial Wrong or Miscarriage of Justice Occurred
[21] Despite my opinion that there are grounds for ordering a new trial, I need not do so if I am of the opinion that, the trial judge’s error of law notwithstanding, no substantial wrong or miscarriage of justice has occurred.
[22] Section 686 of the Criminal Code provides:
(1) On the hearing of an appeal against a conviction … the court of appeal
(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, or
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground there was a miscarriage of justice;
(b) may dismiss the appeal where
(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred…
[23] Accordingly, even though I am of the opinion the trial judge erred in his handling of the “consent fight” issue, the appeal will fail if I am of the opinion that no substantial wrong or miscarriage of justice has occurred as a result.
[24] The Crown submits that the trial judge’s error was independent of his findings of fact. Setting to one side the other grounds of appeal, it is argued that there would be no miscarriage of justice if the factual findings made by the trial judge support his finding that the complainant suffered bodily harm as a result of being assaulted by Mr. Jackson.
[25] Although the Crown acknowledges that the complainant initiated the altercation, the Crown rejects any characterisation that the complainant chose to be an active participant in the physical portion of that altercation. The complainant’s initial provocation of Mr. Jackson may have been unwise, but his behaviour could not on any reasonable basis have been said to have threatened Mr. Jackson.
[26] To the extent that there was any physical engagement on the part of the complainant, the Crown argues that it constituted an instinctive reaction to push Mr. Jackson away as Mr. Jackson attempted to “get in the face” of the complainant. Furthermore, Mr. Jackson could have exited the altercation a number of times over the course of the transaction, yet he failed to do so.
[27] Ultimately, according to the Crown, it would be reasonably foreseeable that a mixed martial arts style punch, delivered upward, by someone standing 6’4” tall, who had been trained in mixed martial arts as a child, and who had, in his own evidence, aimed for the back of his target’s head, hoping his face was in the middle of that, would actually result in bodily harm to an older, smaller person. Any consent which, upon a proper application of the applicable legal principles, might have been found to have been given by the complainant would have been vitiated by this conduct of Mr. Jackson.
[28] The curative provision in s. 686(1)(b)(iii) of the Criminal Code was recently considered by the Court of Appeal in R. v. Perkins, 2016 ONCA 588. That case involved exculpatory statements made by an accused which had been erroneously excluded at trial. Although that is not the nature of the error under review in this case, Roberts J.A. provides a useful summary of the principles surrounding the application of the curative proviso in paragraphs 23 – 32 of the Court of Appeal’s decision.
[29] In summary, the use of the curative provision is reserved for “rare and exceptional cases” where (1) the error is harmless or trivial and could not possibly have affected the verdict, or (2) the evidence is so overwhelming that, notwithstanding that the error is not minor, the trier of fact would inevitably convict.
[30] Even in the case of a minor or trivial error, tracing the effect of the error on the outcome is necessarily a somewhat speculative exercise, and any doubt as to the impact of the error must be resolved against the Crown: R. v Perkins, at para 26; R. v Sarrazin, 2010 ONCA 577 at para 71.
[31] In the event of a more serious error, although an appellate court may examine and weigh the evidence to a limited extent in order to determine whether the Crown’s case was so overwhelming that a conviction was inevitable, the appellate court faces “the difficult task of evaluating the strength of the Crown’s case retroactively, without the benefit of hearing the witnesses’ testimony and in and experiencing the trial as it unfolded”; R. v Perkins, at paras 28-29; R. v. Van, 2009 SCC 22 at para. 36. As in the case of a minor or trivial error, any doubt concerning the strength of the Crown’s case should be resolved to the benefit of the accused person.
[32] The Crown argued that the Court of Appeal’s cautious approach to the application of the proviso is particularly applicable if the error of law is the improper exclusion of evidence that might be exculpatory: R. v Perkins, at paras 31-32; R. v. Perlett (2006), 2006 CanLII 29983 (ON CA), 82 O.R. (3d) 89 (C.A.). As the present case does not involve the exclusion of evidence – indeed, all of the trial judge’s findings of fact are accepted by the appellant – the principles articulated in Perkins would not preclude this court from upholding the conviction.
[33] I do not accept that this is a case where it can be said with confidence that no miscarriage of justice would result from upholding the conviction.
[34] In my opinion there is a real likelihood that the judge’s assessment of the evidence was compromised by his application of the law. Having concluded that “the nature of the injuries to [the complainant] means that this cannot be a consent fight”, there must be a possibility that he did not conduct as rigorous an evaluation of other aspects of the events leading up to the alleged assault as he might otherwise have done.
[35] This is not, accordingly, a situation where the case against the appellant is “overwhelming” such that a conviction was inevitable, the error notwithstanding.
[36] The appellant’s conviction should be set aside. A new trial is ordered.
[37] In light of this disposition, it is not necessary for me to consider the other grounds of appeal advanced on behalf of Mr. Jackson.
Graeme Mew J.
Released: 31 August 2016
CITATION: R. v. Jackson, 2016 ONSC 5504
COURT FILE NO.: CR15-0150
DATE: 20160831
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
DAVID JACKSON
Appellant
REASONS FOR DECISION
On Appeal from the decision of Justice R.T. Knott, Ontario Court of Justice,
at Brockville, dated July 13, 2015
Mew J.
Released: 31 August 2016