CITATION: R. v. Gerrard, 2017 ONSC 575
COURT FILE NO.: CR-16-70000086-00AP
DATE: 20170124
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
LAWRENCE GERRARD
Danielle Carbonneau, for the Crown
Toomas Ounapuu, for Lawrence Gerrard
HEARD: January 19, 2017
S.A.Q. Akhtar J.
[1] On appeal from the conviction and sentence imposed by Justice John Moore of the Ontario Court of Justice on 18 August 2016.
Overview
[2] On 1 September 2015, Suzanne Coulson visited the appellant, her former domestic partner of 14 years, at his residence at 439 Pape Avenue in Toronto. After consuming alcohol and becoming intoxicated, they got into an argument and a shoving match occurred. At some point, the appellant kicked the complainant in the shin and she called the police. A visit to the hospital disclosed that she had bruising but no bone damage.
[3] During the course of her very short testimony, Ms. Coulson indicated that with respect to their altercation, she had delivered the first blows and had told the police that “it’s as much my fault as his.”
[4] Ms. Coulson was the sole witness in the trial as the appellant did not testify. After hearing very short submissions, the judge convicted the appellant and sentenced him to pay a $50 fine, and placed him on a common law peace bond for 12 months.
[5] The appellant appeals both the conviction and sentence on the following grounds:
(1) The judge failed to provide adequate reasons in convicting the appellant.
(2) The judge failed to consider the defence of self-defence.
(3) The judge failed to consider the intoxication of the victim.
(4) The sentence was excessive.
The Judge’s Duty to Give Reasons
[6] After the Supreme Court of Canada’s decision in the seminal cases of R. v. Sheppard, 2002 SCC 26 and R. v. R.E.M., 2008 SCC 51, a trial court must provide reasons for its decision that explain the result of a case and permit meaningful appellate review.
[7] On appellate review, the courts are to take a functional, substantive approach to the sufficiency of reasons, reading them as a whole in the context of the evidence, arguments, and the trial. The basis for the trial judge’s verdict must be capable of being made out and a detailed description of the judge’s process in arriving at the verdict is unnecessary. In order to determine whether the verdict is so capable, the court looks not only to the evidence but the submissions of counsel to determine the live issues as they emerged during the trial. The party that lost is entitled to know “why” they lost and the reasons must provide for meaningful review: R.E.M., at para. 35; R. v. Newton, 2006 O.J. No. 1008 (C.A.), at para. 3; R. v. T.S., 2012 ONCA 289, at paras. 45–46.
[8] This trial could not be characterised as anything but short. The sole witness’s evidence comprised seven pages; and counsel’s submissions were each confined to a single paragraph.
[9] The judge’s oral reasons matched the brevity of the rest of the trial. In convicting the appellant, his total commentary was as follows:
Well she’s acknowledged the consensual altercation between the two of them that started verbal and then turned physical; she said there was pushing and shoving and he kicked her. I’m not so sure you’re consenting to being kicked simply because you push somebody; there is no defence. What else can I do but find him guilty. He is guilty of the assault.
[10] The appellant argues these reasons to be wholly inadequate and simply a bare assertion that the victim was kicked without any analysis of the issues in the case. The Crown, on the other hand, argues that the reasons, coupled with the evidence and submissions of counsel, indicate why the judge came to the conclusion that he did and the reason that he convicted the accused.
[11] The problem for the Crown in this case is that not only are the trial judge’s reasons bereft of any explanation as to why he concluded the Crown had proven its case beyond a reasonable doubt, his reasons actually appear to indicate the reverse.
[12] It was for the Crown to disprove self-defence or consent beyond a reasonable doubt, not for the appellant to prove it: R. v. Cinous, 2002 SCC 29, at para. 39; R. v. Hope, 2016 ONCA 623, at para. 87. The fact that the trial judge was “not so sure” that Ms. Coulson consented to being kicked by pushing the appellant is the reverse of the standard required to convict. In other words, the judge had to be satisfied that he was sure that Ms. Coulson had not consented before finding the Crown had satisfied its burden beyond a reasonable doubt.
[13] Moreover, the judge’s question of “what else can I do but find him guilty?” because there was no defence gives the appearance that the trial judge reversed the burden of proof by intimating that he had no choice but to find the appellant guilty because no defence evidence had been called. This statement ignores the fact that through Ms. Coulson’s own evidence, intoxication and self-defence were live issues. If the judge rejected those issues as having no impact on his finding of guilt, he should have explained why that was the case.
[14] Finally, the trial judge gave no reasons for rejecting Ms. Coulson’s own testimony that she may have been the aggressor in the incident by delivering the first blow. I reject the Crown’s submission that in order for the defence of self-defence to apply the appellant had to call supporting evidence. The defence arose through the evidence of the Crown’s witness when testifying in chief. The Crown argues that Ms. Coulson’s testimony was ambiguous and could equally be construed as meaning that she had started the verbal altercation. I do not read her evidence in this way. However, if the trial judge did take this view, it was incumbent upon him to at least explain so in his reasons.
[15] There was nothing by way of analysis or reasons to inform the appellant why he lost and was found guilty.
[16] Accordingly, the appeal is allowed, the conviction is quashed, and a new trial is ordered. In light of my reasons, there is no need to consider the sentence appeal.
S.A.Q. Akhtar J.
Released: 24 January 2017
CITATION: R. v. Gerrard, 2017 ONSC 575
COURT FILE NO.: CR-16-70000086-00AP
DATE: 20170124
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
LAWRENCE GERRARD
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.