COURT FILE NO.: 17-1318 DATE: 2018/11/06
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN A. Lawson, for the Crown
- and -
MARC LEBLANC Appellant D. Baker, for the Appellant
HEARD: October 29, 2018
Ellies J.
REASONS FOR DECISION
[1] The accused appeals his convictions on charges of assault and assault causing bodily harm and the sentence imposed upon him by the trial judge of 18 months incarceration, less 90 days pre-sentence custody.
[2] With respect to the conviction, he argues that the reasons of the trial judge are inadequate to explain the result. Alternatively, he argues that the result is unreasonable.
[3] With respect to the sentence appeal, he argues that the sentence – the maximum allowable under Criminal Code for a summary conviction – is excessive.
[4] For the following reasons, the appeal is dismissed.
EVIDENCE
[5] The only witness called by the Crown at trial was the complainant. He testified that he was badly addicted to drugs, both at the time of the trial and at the time of the offences of which the accused was convicted. The offences came to light on the 22nd of July, 2017 when the complainant came into contact with the police for other reasons. At the time, he was showing obvious signs of having been assaulted and the police inquired as to what had happened. As a result of what he told them, the accused was charged with four offences, including the two with respect to which this appeal relates.
[6] At trial, the complainant testified that he had been assaulted on numerous occasions by the accused. Two of those occasions formed the basis of the Crown’s case. One was an assault that the complainant said took place at a residence located at Fisher and McIntyre streets in North Bay. The other took place at a residence located at King and Cassells streets, also in North Bay. This appeal centres on the evidence about the assault at King and Cassells, the one that resulted in the conviction for assault causing bodily harm.
[7] The complainant testified that the assault took place at the residence of James Rockburn, which he described as a “drug house”. He testified that on that occasion, he was sitting on a bed, doing drugs with several other people. The accused came suddenly into the room and hit the complainant approximately 20 times in the face, knocking him out before he even fell off the bed. After the complainant fell off the bed, the accused kept hitting him and stomping on him. The complaint testified that the accused then cut him with a knife, leaving a scar on his forehead.
[8] The complainant testified that the assault at the Rockburn residence was witnessed by a number of people. Two of them were called by the defence: Mick Labrosse and Kevin Squires (also referred to by counsel and the trial judge as “Grigsby-Squires”). Both witnesses denied seeing the accused assault the complainant.
[9] Notwithstanding the evidence of the two defence witnesses that contradicted that of the complainant, the trial judge convicted the accused of assault with respect to the first offence and assault causing bodily harm with respect to the second. He imposed the maximum sentence permitted under s. 267 of the Criminal Code, namely 18 months incarceration, less 90 days presentence custody.
ISSUES
[10] This appeal raises three issues:
(1) Are the trial judge’s reasons adequate? (2) If so, is the conviction reasonable? (3) If so, is the sentence excessive?
ANALYSIS
Are the reasons sufficient?
[11] A trial judge’s reasons must perform three functions. They must: (1) explain why the accused was convicted, (2) provide public accountability, and (3) permit meaningful appellate review: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 15. Generally speaking, they will fulfill all three purposes if they fulfill the last one. As Doherty J.A. wrote in R. v. J.J.R.D., 218 O.A.C. 37, 215 C.C.C. (3d) 252, at para. 2, “The real question where an appeal is based on the alleged inadequacy of the reasons is whether those reasons permit effective appellate review of the verdict.”
[12] In J.J.R.D., Doherty J.A. reviewed the jurisprudence with respect to the adequacy of reasons in criminal cases and highlighted the importance of context. At para. 32, he wrote:
The circumstances of the particular case will determine the adequacy of the reasons for judgment and the effect, in any, of the inadequacy of reasons or the outcome of the appeal. Reasons must be examined in the context of the entire proceeding, especially the nature of the evidence heard and the arguments advanced.
[13] The appellant submits that the reasons of the trial judge in this case are not adequate. I disagree. As I hope to demonstrate in the next part of my analysis, the reasons of the trial judge in this case are sufficient to permit effective appellate review.
Are the reasons for conviction adequate?
[14] The accused argues that the trial judge’s reasons are inadequate to explain how he convicted in the face of the evidence of the defence witnesses. He relies on one passage in particular from the trial judge’s reasons. At p. 14 of the transcript, the trial judge stated:
Basically turning to step two [of the analysis in R. v. D. (W.), [1991] 1 S.C.R. 742], I am not left in any reasonable doubt by the evidence of either Mr. Grigsby-Squires or Mr. Labrosse. Both I don’t think were there in their minds. They didn’t see anything, they didn’t hear anything, they merely contradicted Mr. Dupuis’ evidence that they were there. That goes back to earlier in my review and analysis of their evidence that I gave long before I went into the W.D. analysis. [Emphasis added.]
[1] The appellant argues that this passage lacks sufficient clarity to allow him to understand the reason for the trial judge’s decision. In particular, he focuses on the sentence I have underlined. I agree that the sentence lacks clarity. Taken together with the sentence that follows, it is capable of meaning three different things:
(1) that the defence witnesses were not, in fact, there at the time of the second assault ("I don't think were there”); (2) that the defences witnesses were there, but (sincerely) do not believe they were there ("in their minds"); or (3) that the defence witnesses were there, but are lying about it. ("They didn't see anything, they didn't hear anything, they merely contradicted Mr. Dupuis.")
[2] The appellant argues that the lack of clarity in this part of the trial judge's reasons prevents him from knowing why he was not left with a reasonable doubt by the evidence of the defence witnesses. That is true, if one considers the sentence only. However, I believe that the answer to that question becomes obvious when one examines the trial judge's reasons as a whole.
[3] Before I do that, however, it is important to point out one thing: it was not necessary for the trial judge to reject the evidence of the defence witnesses in order to be satisfied beyond a reasonable doubt about the guilt of the accused. This was not a case, for example, of an accused testifying and denying that he ever committed the offences. The defence witnesses were not saying that the offence did not happen, only that they did not see it. Therefore, the trial judge was not required to reject their evidence in order to convict. It was enough if he accepted the core of the complainant's evidence about the essential elements of the offences beyond a reasonable doubt. If so, it was then open to the trial judge to convict on the basis that the complainant was mistaken either as to the date of the “Rockburn residence assault” or as to who was present at the time.
[4] It is readily apparent from the trial judge's reasons that he accepted the core evidence of the complainant, Seirge Dupuis, as to who assaulted him, and how. At p. 14 of his reasons, he makes that clear and sets out why:
I do believe the evidence of Seirge Dupuis. For all of his frailties, which I mentioned before, certainly his timelines were fluid to say the least, he was not vengeful as alleged by the defence, nor was he inconsistent. He didn’t deviate from his narrative as to what occurred on the two occasions that he spoke about. He gained nothing from making those allegations. He was very clear that he was a very reluctant complainant. He did get a little hot in lecturing Mr. Leblanc as the trial went on, but at no point was the indicative of fabrication or lying for the purposes of providing evidence. In short, I believed his evidence.
[5] The trial judge's reference to fluid timelines was a reference to the uncertainty shown by the complainant with respect to when the offences occurred. It was common ground that the complainant came into contact with the police on July 22, 2017 and that the photos of his injuries were taken on that date. Early in his examination-in-chief, the complainant testified that the assault at the Rockburn residence occurred “around June” of 2017. In addition, however, the complainant also testified during his examination-in-chief that the police photos were taken "a few weeks after" he was assaulted (transcript, p. 25, l. 15). He also said that he was assu "maybe two weeks before" the photos were taken (transcript, p. 26, l. 4). On that evidence, the photos would have been taken in July, not June.
[6] The complainant gave other conflicting evidence about the dates of the offences, as well. Earlier in his evidence, he testified that the assault at Fisher and McIntyre streets had taken place in August or September (p. 10, l. 15). Later, he said that that assault had occurred before the Rockburn residence assault by perhaps a few weeks to a month (p. 30, ll. 1-23). That would place the Rockburn residence assault in July, August or September.
[7] Notwithstanding this weakness in the complainant's evidence, the trial judge was entitled to accept the evidence of the complainant as to how he was assaulted and by whom. A judge is entitled to accept some, all or none of a witness's evidence. What matters for the purposes of this appeal is that the trial judge was alive to the conflicting evidence. The record makes it clear that he was.
[8] Both Labrosse and Squires admitted to being drug addicts and having criminal records. Labrosse testified that he had known the complainant for about five or six months, that he knew the accused and that he had known Rockburn since he was 12 years old. He was asked whether he had ever been at the Rockburn residence when both the accused and the complainant were present. He testified that he “couldn’t really recall”, but that he imagined that he would have been, although he could not recall any specific time. He testified that he had “probably” had an opportunity to observe the accused and the complainant interacting and that he had never witnessed a physical altercation between them.
[9] With respect to the evidence of Labrosse, the trial judge said, at pp. 9-10:
Mick Labrosse’s testimony was that the accused and Mr. Dupuis were “probably together at Rockburn’s” and that there was never a physical altercation and further that nothing stood out in relation to the accused and the complainant’s relationship. He was called as a witness to deny the evidence of Mr. Dupuis, or contradict the evidence of Mr. Dupuis, [that] he, Mick Labrosse, was present at Rockburn’s when Mr. Dupuis was assaulted by the accused and that he did nothing to help Mr. Dupuis along with a few other people that were present. His evidence does not necessarily make that of Mr. Dupuis unreliable. There are two other explanations that immediately come to mind. One, that Mr. Dupuis in his drug addled state may have thought that Mr. Labrosse was present on the occasion when he was assaulted by Marc Leblanc and two, that Mr. Labrosse was not present when it occurred conveniently so the defence could testify that nothing happened.
[10] As the appellant concedes, with respect to the conflict between Labrosse's evidence and that of the complainant, the trial judge advanced two possibilities in this part of his reasons: either the complainant was mistaken about Labrosse's presence during the second assault, or Labrosse was lying about it. Both possibilities were open to him on the evidence.
[11] With respect to the evidence of Squires, however, the possibilities were more limited.
[12] Squires testified that he was not present at the time that the complainant said he was. He explained that he was in custody during the month of June, having been arrested on April 28, 2017 and released on June 30. Following Squires' testimony, the defence sought to introduce documents supporting his evidence about the dates upon which he was incarcerated. The trial judge held that it would serve no purpose, most likely because the trial judge had been the one who had sentenced Squires on June 20, 2017 to additional time in jail. At p. 83 of the trial transcript, the trial judge said:
So I don't know what purpose it's going to serve [introducing the documents], I take Mr. Squires at his word that he knows exactly when he went in and how long he was there.
[13] With respect to the evidence of Squires, the trial judge said, at p. 10 of his reasons:
Kevin Grigsby-Squires in his testimony indicated that he had known the complainant for close to 20 years and that he was a roommate of James Rockburn at the crack house at Cassells and King Street. He too admitted to a longstanding addiction and that he was incarcerated at the time of the trial and became aware of the complainant’s evidence involving him from Marc Leblanc as they were both residents of the same range at the North Bay District Jail. His evidence was that nothing happened as he never saw the complainant and the accused together at his house. This may very well be explained by the fact that from April 28th to June 30th of last year he was incarcerated and thus not available to witness the assault.
[14] It is clear from these excerpts that the trial judge concluded that Squires was both truthful and accurate when he testified that he was in custody at the time that the complainant said he witnessed the second assault. Thus, it was not open to the trial judge to find that Squires was either mistaken or lying about his evidence if the assault occurred in June, as the complainant seemed to say in one part of his testimony.
[15] Based on the trial judge's reasons, I believe that he accepted the complainant's evidence that the offences occurred in June. After explaining why he believed the complainant, as set out in the excerpt above, the trial judge went on to say:
I believed his evidence that he was assaulted by Mr. Leblanc firstly at Nat and Tim's place at Fisher and McIntyre Streets in the month of June and secondly at Rockburn's crack house at Cassells and King Streets in North Bay later in June.
[16] If my conclusion is correct, then it is implicit that the trial judge found that the complainant was mistaken as to the presence of the defence witnesses at the time of the second offence, or at least of Squires. For that reason, I interpret the sentence, "Both I don't think were there in their minds", as meaning that neither defence witness was, in fact, present when the second offence occurred. There was nothing unreasonable in this conclusion. As the trial judge said with respect to Labrosse's evidence, the complainant was under the influence of drugs on both occasions.
[17] Because the trial judge's conclusions were not unreasonable on the record before him, the appeal against conviction must fail.
Is the Sentence Excessive?
[18] Sentencing is a highly discretionary judicial function. A sentence will only be interfered with on appeal if it is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 51. As the Supreme Court stated in Lacasse, at para. 53, a court reviewing a sentence:
… must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, which provides that a sentence must be "proportionate to the gravity of the offence and the degree of responsibility of the offender". A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2 (a) and (b) of the Criminal Code.
[19] Although he raised the issue in his notice of appeal, the appellant did not address the fitness of his sentence at all in his factum, beyond suggesting that is was "excessive, unfit and did not adhere to the principle of proportionality". I have not been provided with any cases on sentencing by the appellant. I do not even have a transcript of the sentencing hearing. The only thing I have is a copy of the accused's record, submitted as an exhibit during the hearing of the appeal.
[20] That record reveals that the accused has numerous prior convictions for offences of violence, including assault, assault causing bodily harm, assault with a weapon, and aggravated assault. As recently as September 2015, the appellant was sentenced to two years in custody on an assault charge.
[21] The circumstances in which the accused committed the two offences in this case were particularly aggravating. On both occasions, he took advantage of the effects of drug use, both short-term and long-term, on the complainant. The complainant was no threat to the accused on either occasion. Instead, he was just an easy target.
[22] The assault at the Rockburn residence was particularly brutal. It left the complainant with injuries that were clearly visible after a number of weeks.
[23] In these circumstances, the appellant has failed to satisfy me that the sentence he received was demonstrably unfit.
CONCLUSION
[24] The trial judge's reasons are adequate in that they permit effective appellate review.
[25] Properly interpreted, the reasons reveal that the trial judge accepted the evidence of the complainant as to how he was assaulted, and by whom. His reasons explain why he did that. His conclusion was reasonable, based on the evidence.
[26] It was not necessary for the trial judge to reject the evidence of either of the defence witnesses in order to accept the evidence of the complainant as to the core elements of the offences. It is implicit in the reasons of the trial judge that he did not accept the evidence of the complainant as to the presence of the defence witnesses at the time of the second assault. This finding was also available to him on the evidence.
[27] For these reasons, the appeal is dismissed.
Ellies J.