COURT FILE NO.: CR-16-50000024-00AP DATE: 20170217

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – YOUKHANA MOSHI

Darren Hogan, for the Crown, Respondent Dorothy E. Charach, for Youkhana Moshi, Appellant

HEARD: February 14, 2017

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

[1] On February 15 2015 Michael McFarlane was getting into an elevator. He was with his girlfriend and two children. The elevator was at his girlfriend’s apartment building. The building was at 260 Islington Avenue in Toronto. Mr. Moshi’s mother was getting off the elevator. There was an altercation. Mr. McFarlane took out his phone to record the altercation. Mr. Moshi rushed over to the elevator and yelled words to the effect of “nobody touch my mom”. He pulled something out of his pocket. He grabbed Mr. McFarlane by the throat and held the object to Mr. McFarlane. Mr. Moshi then backed off.

[2] Mr. McFarlane called the police to report the incident. Mr. Moshi was charged with assault with a weapon (a knife) and possession of knife for a purpose dangerous to the public peace. He was tried before Justice Cole of the Ontario Court of Justice. The trial took less than one day. The only witnesses were Mr. McFarlane and his girlfriend. Mr. Moshi did not testify.

[3] The defence position was that Mr. Moshi had acted in self-defence or the defence of another person, namely his mother. There was an extensive discussion between defence counsel and Justice Cole as to whether there was any objective basis for the application of self-defence.

[4] At the end of submissions Justice Cole convicted Mr. Moshi of the lesser and included offence of assault and possession of a weapon dangerous to the public peace. He sentenced Mr. Moshi to a four-month conditional sentence in light of five days pre-trial custody, and two years’ probation.

[5] Mr. Moshi appeals. Ms. Charach, on his behalf, argues that the trial judge failed to provide adequate reasons; and that the trial judge failed to properly apply the self-defence provisions of the Criminal Code.

[6] I respectfully disagree. Although Ms. Charach broke the argument down into two issues, in my view they are inter-related. The trial judge properly applied the self-defence provisions of the Criminal Code, which is clear because the reasons for conviction are apparent from the record. Meaningful appellate review is possible.

The Trial Judge’s Reasons

[7] The trial judge’s reasons were very short. He said the following:

I do have some doubt that there was a knife involved, so I’m acquitting you of that charge. But I have no doubt, whatsoever, that you had whatever you had, for a purpose dangerous to the public peace. That you were not justified in so doing; that your response was disproportionate and that makes you criminally liable and I find you guilty of possession of a weapon dangerous charge. Any record?

[8] At that point there was an exchange between the trial judge, Mr. Wilton (defence counsel), and Mr. Gayne (Crown counsel):

MR. GAYNE: The lesser included offence of simple assault, Your Honour.

MR. WILTON: Well, I think it’s articulated in the information that it’s a knife. So, I don’t think that, that can happen.

MR. GAYNE: Your Honour, I’m not sure that my friend appreciates that assault is necessarily an included – assault is necessarily an included offence of count 1. It doesn’t matter that the weapon’s been particularized as a knife. In my respectful submission, Your Honour’s…

THE COURT: I think I agree, Mr. Wilton.

MR. WILTON: Agree with me or Mr. Gayne?

THE COURT: Mr. Gayne.

MR. WILTON: Can I see the information please.

THE COURT: Sure.

MR. WILTON: Well, without the benefit of having done research, on the spot, Your Honour. It’s particularized as – I understand the assault is the lesser included offence but it’s particularized that it’s a weapon and it says with a knife, namely a knife. So, you know, unless they’ve made an application to alter the indictment before filing submissions, I, I don’t think it, it stands. I, I think an acquittal on that and an acquittal on the entire charge and doesn’t get an assault on it.

THE COURT: I disagree. I think there is evidence of assault. You’ll be found guilty of that as well.

Position of the Parties

[9] Ms. Charach argues that these short reasons are simply not illuminating. They do not demonstrate how the trial judge got to where he did. They prevent meaningful appellate review: R. v. Sheppard, [2002] 1 SC.R. 689.

[10] Crown counsel, Mr. Hogan, argues that these short reasons must be read in the overall context of the case, including the lengthy submissions. Mr. Hogan pointed out those passages that demonstrated the trial judge’s path to conviction. He argued that when set against the whole of the record, the trial judge’s reasons for conviction are obvious: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639 at para. 12; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 16.

[11] I respectfully agree with the Crown. The trial judge’s path to conviction was clear from the whole of the evidence, especially the submissions. When the entirety of the transcript is read, the trial judge’s path to conviction is understandable. It is possible to undertake meaningful appellate review.

[12] It is necessary to give some factual background.

The Background

[13] Mr. McFarlane, the complainant, testified that he was with his girlfriend, Dyana Mulik and two children at 5:58 pm on February 15 2015. As Ms. Mulik was getting into the elevator, a woman was getting out. The woman was rambling, saying something like “push, push” or “get out of the way” or words to that effect. He did not know who she was, but later learned that she was Mr. Moshi’s mother. Ms. Mulik did not say anything. Mr. McFarlane was trying to calm Mr. Moshi’s mother down. She was plainly agitated. He pulled out his phone to try and film the incident. The apartment surveillance video shows Mr. McFarlane, Ms. Mulik, and the children entering the elevator. Mr. Moshi’s mother came out shortly after. She then turned around. The video shows her trying to slap Mr. McFarlane’s phone away. So does cell phone video. At 5:58:37 the accused entered the lobby. That can be seen on both videos. Mr. McFarlane had seen him around the building. Mr. McFarlane testified that Mr. Moshi said “don’t touch my mother.” Mr. Moshi grabbed his throat. He pulled out a knife and tried to stab Mr. McFarlane in the neck, although in cross-examination he stated that he the object never touched his neck. He could not see the handle but said that he saw six inches of blade. Mr. Moshi said “Yo, dawg, just take your kids and go home. Take your kids and go home.” He believed that the situation was defused when Mr. Moshi saw the kids in the elevator. He denied that anyone touched Mr. Moshi’s mother. He believed that she was unstable. He went upstairs to his girlfriend’s apartment and called the police.

[14] Dyana Mulik, the complainant’s girlfriend, was the other Crown witness. She testified that when the elevator door opened she got in and said “excuse me” to Mr. Moshi’s mother. She did not recall if they touched, but Mr. Moshi’s mother started screaming, saying things like “don’t touch me”. Her son then came out of nowhere and put a knife to Mr. McFarlane’s throat. She started screaming – which can be heard on the cell phone video. She stated that neither she nor Mr. McFarlane did anything or said anything indicating that they were going to attack Mr. Mosher’s mother. She testified that the knife had a blade of something like six inches, although she indicated that it might have been three inches after seeing some comparisons. She believed that the incident ended when Mr. Moshi saw the children, but she also testified that she thought that perhaps he wanted to help his mother.

Analysis

[15] In my view, when the exchanges between counsel are read in context it is clear that the trial judge understood the requirements of the defence of self-defence as set out in s. 34(1) of the Criminal Code:

34 (1) A person is not guilty of an offence if (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (c) the act committed is reasonable in the circumstances.

[16] Once self-defence is raised by an accused (and there is an air of reality to the defence) the Crown bears the burden of proving beyond a reasonable doubt that:

He or she believed on reasonable grounds that force or the threat of force was being used against him or her (or against another person);

He or she committed the act for the purpose of defending or protecting himself or herself (or another person) from the use of force (or the threat of force);

The action taken by the accused person was reasonable in the circumstances.

[17] See: Canadian Judicial Council Model Jury Instructions on Self-Defense: www.nji-inm.ca.

[18] Thus, the trial judge was required to assess first whether the accused believed on reasonable grounds that his mother was threatened. The trial judge demonstrated that he understood that requirement and rejected it. He also understood the evidentiary issue: Mr. Moshi did not testify and the trial judge made it clear that he was not required to in order to raise self-defence. His thinking is demonstrated in this passage:

THE COURT: Fair enough. But what do you say to Mr. Gayne’s point and to what the video shows that for some seconds, she was some feet removed from the elevator door, that no one came out of the elevator to engage with her in any threatening or assaultive manner?

MR. WILTON: Right.

THE COURT: We haven’t heard from the accused. We haven’t heard from his mother so we don’t know their versions of this, but that’s fine. But where do you say that there is some subjective belief that he reasonable [sic] felt that it was necessary to take the steps he did?

[19] That exchange came after Crown counsel first made submissions. The trial judge put to Crown counsel that defence would likely argue two things: that there was no knife; and that Mr. Moshi was acting in defence of his mother from what he perceived was an assault. Crown counsel’s position was that there was no evidence that Mr. Moshi had a subjective basis to believe that his mother was under assault. The following exchange occurred (I excerpt the key points):

MR. GAYNE (CROWN COUNSEL): … And so there was clearly, from the get-go, absolutely no subjective basis to believe that his mother required him to take any defensive steps towards his mother… there’s absolutely no…

THE COURT: In other words even if there was an assault on his mother, that that assault had ended at the time he came into the lobby and there were no subjective grounds to believe that his mother was about to be assaulted again.

MR. GAYNE: Absolutely not… there’s no evidence that he was aware that she was ever, in fact, assaulted in the elevator…

THE COURT: Except, except her statement about don’t push me. If he overheard that.

[20] In submissions, Mr. Moshi’s counsel indeed argued the knife issue. He also argued that Mr. Moshi acted in self-defence. He noted that it could be inferred that Mr. Moshi heard his mother yelling “don’t touch me” and might well have perceived an attack on her – which is why he said “don’t touch my mom”. He stated:

MR. WILTON: All he does is he has to believe, and, and it is a subjective and an objective test, but has to have some believe that there’s a potential threat to his mom. That’s all he has to believe. And so when the court hears that’s what he’s saying, ‘don’t touch my mom’, that shows his state of mind, Your Honour….

THE COURT: Yeah, but you’ve said it, you say it quite rightly…

MR. WILTON: Yeah.

THE COURT: … that is both the subject of an objective test.

MR. WILTON: Mm-hmm.

THE COURT: it’s not purely subjective. It’s not purely what he believes.

[21] The reference to “both the subjective of an objective test” is likely a transcription error or a mis-statement: the trial judge undoubtedly said or meant to say “subjective and objective test”. In other words, the trial judge demonstrated his understanding of the first part of the defence of self defence. He also accepted that Mr. Moshi’s state of mind was such that he believed his mother was under assault or the threat of assault. The trial judge did not, however, accept that his belief was reasonable:

THE COURT: … what he, what’s he done is he believes, apparently, that his mother is under some threat, but he does that, it seems to me, the objective evidence shows, that he really didn’t take any time to examine the situation at all. For example, what he could have done, when he came into the lobby, was to have taken his mom away from the elevator and then said, okay, what’s going on here. He doesn’t do that.

[22] Ms. Charach argues that this passage demonstrates that the trial judge implied that the duty to retreat still exists in Canadian law as an element of self-defence. The duty to retreat existed under the former self-defence provisions of the Criminal Code. That duty no longer exists.

[23] Respectfully, I do not read the trial judge’s comment that way. The trial judge was illustrating the lack of an objective basis for Mr. Moshi’s subjective grounds.

[24] It is true that the trial judge noted that he was not as familiar with the new self-defence provisions as the old. That said, throughout the submissions the trial judge, highly experienced and knowledgeable in criminal law, demonstrated that he well understood the legal requirements for self-defence. His comment was nothing more than a throw-away line during the course of respectful dialogue between the bench and the lawyers.

[25] The trial judge then continued, indicating that he did not accept that there were objective grounds for Mr. Moshi’s belief:

THE COURT: … What he does is, the second he comes into the lobby, he basically says, don’t mess with my mom. Takes out whatever it is he’s got in his pocket and assaults Mr. McFarlane. How is that self-defence…

MR. WILTON: Well…

THE COURT: … on any objective standard?

MR. WILTON: It’s – my submission is its defence of others…

THE COURT: Then where is there some sort of objective belief? I know Justice Martin said in Baxter, many years ago, when you are personally assaulted you don’t need to measure your response to a nicety, that was Justice…

MR. WILTON: Yes.

THE COURT: … Martin’s phrase and it’s a very important one. And I think my understanding of the law is when you’re protecting someone under your – or when you’re preventing somebody from being assaulted who’s under your protection, you don’t need to measure your response to a nicety.

MR. WILTON: Yes, that’s right.

THE COURT: But you have to have some reason to basis for going and assaulting the person in the first place, and what I’m having difficulty with is he may have believed he did but I don’t see on some objective standard that he did, frankly.

[26] At that point, Mr. Wilton continued his argument with no significant interjections from the trial judge. The trial judge then gave his reasons for judgment.

[27] The trial judge was referencing the following passage from R. v. Baxter ((1975), 27 C.C.C. (2d) 96, at p. 111 that:

…in deciding whether the force used by the accused was more than was necessary in self-defence under both s. 34(1) and (2), the jury must bear in mind that a person defending himself against an attack, reasonably apprehended, cannot be expected to weigh to a nicety the exact measure of necessary defensive action.

[28] Baxter is still good law under the new self-defence provisions: R. v. Mohamed, 2014 ONCA 442; R. v. Cunha, 2016 ONCA 491.

[29] Thus, the record shows that the trial judge accepted that Mr. Moshi had a subjective belief (part of the first requirement for the defence of self-defence) that his mother was under threat (the second requirement). That was a reasonable evidentiary inference given that Mr. Moshi charged in yelling words to the effect of “don’t touch my mother”. The trial judge, however, clearly articulated that he did not accept that there were objective grounds to support Mr. Moshi’s subjective belief. Nobody in the courtroom listening to the exchange between the trial judge and counsel, followed by the trial judge’s reasons at the immediate conclusion of submissions, could have misunderstood what the judge decided and how he decided it.

[30] Ms. Charach further points out that in his reasons, the trial judge mentioned the concept of proportionality. She argues that if the trial judge had engaged in a proper analysis then he would not even have had to consider proportionality.

[31] Ms. Charach’s argument has merit. Once the trial judge found that the first and second elements of the defence of self-defence did not apply, the question of proportionality did not even arise. That is because it is only a factor on the third element, whether the act was reasonable in the circumstances.

[32] Respectfully, however, I must ultimately disagree with that submission as well. Due regard must be had for the fact that this was an oral judgment delivered from the bench in the busy and high-pressure atmosphere of the Ontario Court of Justice. Trial judges are not held to a standard of perfection, especially not under those circumstances. This was a short trial with a relatively small amount of evidence. I agree with Mr. Hogan that these comments were mere surplusage; I read them as simply completing the analysis and nothing more.

[33] Furthermore, self-defence is not exactly a new concept in law, even if the Criminal Code provisions are rather new. A trial judge is not required to “expound on “matters that are well settled, uncontroversial, or understood and accepted by the parties. This applies to both the law and the evidence”: R.E.M. at para. 19. In that case, the Supreme Court favourably commented on Doherty J.A.’s comment in R. v. Morrissey (1995), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 at para. 28:

Where a case turns on the application of well-settled legal principles to facts as found after a consideration of conflicting evidence, the trial judge is not required to expound upon those legal principles to demonstrate to the parties, much less to the Court of Appeal, that he or she was aware of and applied those principles

[34] This case is manifestly one where there was little disagreement about the evidence and the legal principles were uncomplicated. Once the trial judge found that the elements of the defence of self-defence did not apply, a conviction was inevitable.

Disposition

[35] The appeal is dismissed.

R.F. Goldstein J. Released: February 17, 2017