Court File and Parties

COURT FILE NO.: CR-0187-16 DATE: October 24, 2018

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN, Respondent – and – RYAN LUCKESE, Appellant

Counsel: Paul Layefsky, for the Respondent Jessica Sickinger, for the Appellant

Reasons for Decision

Appeal of the conviction of The Honourable Mr. Justice G. Griffin of the Ontario Court of Justice, dated February 3, 2016

JOHNSTON J.

[1] The appellant, Ryan Luckese, appeals his conviction of assault with a weapon by Justice Griffin in the Ontario Court of Justice at Picton, Ontario, on February 3, 2016. The appellant initially appealed all convictions; now he limits his argument as aforesaid.

[2] The grounds for the appeal are twofold. First, the trial judge erred by failing to address the issue of ‘consent’ in convicting Mr. Luckese. The appellant argues that there was undisputed evidence that the complainant, Chris Ostrom, wanted to fight and did consent to fight the accused, notwithstanding the accused had an axe in his hand.

[3] Second, and in the alternative, the appellant argues the trial judge erred in his rejection of the defence of self-defence. According to the argument, the disbelief of the accused’s testimony was irrelevant. Further, given the evidence at trial, the only reasonable conclusion is that the Crown did not prove beyond a reasonable doubt that self-defence did not apply and therefore the appeal should be allowed and an acquittal entered.

[4] For the reasons that follow, I dismiss the appeal. The trial judge is presumed to know the law of consent and self-defence and the requirement that the Crown prove beyond a reasonable doubt that the complainant did not consent to the fight and that the accused did not act in self-defence. I find that the trial judge in fact did turn his mind to both issues and provided brief reasons for his findings. The trial judge’s findings of fact are entitled to deference and are sustainable on the evidence.

Standard of Review

[5] I adopt the reasons of Abrams J. in R v. Milles [2017] O.J. 4950 at paragraphs 3 to 6:

[3] The standard of review requires that an appellant court should not interfere merely because it would have reached a different result and should only interfered with if the trial judge made a finding that is unsupported by the evidence or that is unreasonable and would have affected the result: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

[4] The application of a legal standard to the facts of a case is a question of law and subject to review for correctness: R. v. Shepherd, 2009 SCC 35, para 20.

[5] The weighing and examination of the evidence is only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusions: R. v. Burns, [1994] S.C.J. No. 30 (SCC).

[6] The standard of review on a summary conviction appeal requires that deference be given for findings of credibility and findings of fact: R. v. Gagnon, 2006 SCC 17 paras. 10 and 19.

Analysis

[6] Upon review of the appellant’s argument, the trial transcript and the trial judge’s reasons, I find that the trial judge did consider whether the complainant consented. The trial judge considered and accepted the evidence of Mr. Ostrum and Mr. Vanniejehuis. He rejected the appellant’s evidence. It is implicit in his reasons that the trial judge did not find Ostrum consented to fight. At page 110, starting at line 5 of his Reasons for Decision, the trial judge stated:

With respect to the threat to Chris Ostrom, I’m also satisfied beyond any reasonable doubt based upon Justin’s evidence and Chris’s evidence that he threatened to put the axe in his head. And he didn’t have to do that, there was no need for any of that. They would have argued and bickered but it was the introduction of the fact that he had an axe and he was going to put the axe in the head of Mr. Ostrom that caused all of this unfortunate occurrence to unfold.

Although, I am satisfied that at some point it would appear that between the two of them, something was going to happened at some point. But on this day, it was holding the axe and threatening to put the axe in the man’s head that caused things to unfold in the way they did. I am satisfied beyond any reasonable doubt that he threatened Mr. Ostrom to put the axe in his head.

[7] Further, the trial judge stated at page 112 that he found as a fact, based on Ostrom’s evidence, that the complainant received a threat from the accused that the accused would put an axe through his head and “he (Ostrom) got out of the vehicle to take away the axe from the man that was threatening him and when he went to take the axe away from the man who threatened him, he was struck by Ryan.”

[8] It is clear from the Reasons that the trial judge considered, but did not accept that Ostrom consented to a fight. To the contrary, the complainant took actions to protect himself after he was threatened. The trial judge made these findings at page 108 line 20.

Now, one would have thought that Chris would say, ‘I don’t want an axe in my head so I’m going to get out of here.’ But he says, ‘I’m not going to risk having a guy put an axe in my head. He’s very nearby. He’s threatening to put an axe in my head. I’m taking the axe off the guy’. He said, ‘That’s what I did. And when I went to take the axe off the guy, I was struck by the axe.’ And he has on his- and he showed the striking where it was a defensive type gesture. It hit his knuckle and it also slid off and then the axe went into another part of his body and we see the photographs and the bruising where the axe cut him and went off his body…

[9] It was open to the trial judge on the evidence before him to come to the conclusion he did, namely, that Ostrom did not consent to a fight. See evidence of Ostrom p. 65 lines 30 to 32, p. 66 lines 1-5.

Self-Defence

[10] I disagree with the appellant that the trial judge failed to consider whether he acted in self-defence when he struck the complainant with an axe. Of course, the Crown has the onus of proof that the actions of the appellant were not in self-defence. It is clear from the evidence that Section 34 of the Criminal Code did not arise.

[11] Pursuant to Section 34 (1) (a) of the Criminal Code, the accused must reasonably believe that force or threat of force is being used against him or someone else. Second, the subjective purpose for responding to the threat must be to protect oneself. The appellant argues that “There is no question that Mr. Luckese had a reasonable belief that force was going to be used against him in light of what Mr. Ostrom said to him and his actions in leaving the truck and running directly at Mr. Luckese. It is equally clear that Mr. Luckese responded to Mr. Ostrom’s attack by using the axe to protect himself.”

[12] The trial judge made specific findings of fact that Ostrom was threatened first with the axe (the appellant does not appeal this conviction), the appellant held the axe out in front of him like he was about to strike someone (Evidence of Vanniejehuis, p. 11 lines 10 -21) and only then did Ostrom get out of his vehicle to protect himself and finally, during the struggle the appellant was told to drop the axe. These specific findings of fact clearly indicate that the appellant did not have reasonable belief that force was going to be used against him before he struck Ostrom with the axe.

[13] The trial judge demonstrated he considered and understood Section 34 of the Criminal Code when in his exchange during Crown counsel’s submissions at page 6 and 7, he said:

… If I say, ‘I’m going to put an axe in your head……….you get out to disarm me of the axe… and I swing the axe at you while your disarming me… can I logically say I was defending myself from you?’

[14] The trial judge was entitled on the evidence to make the findings of fact that he did.

[15] Accordingly, the conviction is upheld and the appeal is dismissed.

The Honourable Mr. Justice J. M. Johnston Released: October 24, 2018