COURT FILE NO.: AP-18-146 DATE: 20190423

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty The Queen Peter Léger, for the Crown

• and -

Derek Crespy Shawn M. Philbert, for the Appellant

HEARD: April 16, 2019

REASONS FOR JUDGMENT

Sproat J.

I. Introduction

[1] Derek Crespy (“Crespy”) appeals his conviction for assault and the sentence imposed of 45 days imprisonment.

II. Overview of the Evidence at Trial

[2] Crespy was convicted of having assaulted Matthew Decorso (“Decorso”) on November 20, 2016. There were four witnesses who testified as to the altercation which took place at the Blue Mountain Resort, at approximately 2:00 a.m., at a shuttle bus stop, being:

a) Crespy b) Decorso – who was an acquaintance of Crespy c) David Brown (“Brown”) – a tennis coach at Blue Mountain, a friend of Decorso, and an acquaintance of Crespy d) Anthony Tome (“Tome”) – a shuttle bus driver

[3] In addition P.C. Pyatt testified to taking a statement from Decorso on November 20, 2016 and observing minor lacerations to his face and a swollen right eye.

[4] That evening Crespy had consumed alcohol to the point he described himself as “drunk, stumbling and not feeling well”. Decorso testified that he had consumed approximately 5 beer and 2 martinis. Brown had 3 – 5 drinks.

[5] Brown testified that he has worked for the Blue Mountain Resort for 12 years. On the evening of November 19, 2016 he happened to meet Crespy at the Kaytoo bar at Blue Mountain and had a couple of drinks with him. At approximately 1:30 a.m. there was an “issue” between Crespy and two individuals at the bar and Crespy was irritated. Crespy went outside and “tried to have a fight with them” and Brown accompanied him outside. Brown said as an employee he could not be associated with any fight so he told Crespy to forget about it and he invited Crespy to his condominium at Blue Mountain to “chill out”. Crespy agreed and they went to the shuttle/taxi stand to get a shuttle to Brown’s residence.

[6] Crespy testified he did not have drinks at Kaytoo and was not involved in any earlier dispute while there. Crespy testified that on the way to the shuttle/taxi stand he heard someone call him by name. While this person turned out to be Brown he did not recognize him. Crespy said unknown persons “escorted” him to the shuttle/taxi stand and instructed him to get in the van. He did not know if it was a resort shuttle or a taxi.

[7] Crespy testified that he got out of the shuttle because someone said he was at “the destination”. When he got out he was unfamiliar with the location and “very uncomfortable about the entire situation”. He, therefore, tried to get back on the shuttle bus but was being held from behind. He broke free and walked away. He did not kick anyone. He took a taxi home.

[8] Given the consumption of alcohol, and the sudden altercation I will describe, it as not surprising that the witnesses were inconsistent on certain points. The Crown witnesses were, however, consistent on the essence of what happened:

a) Decorso testified that he opened the sliding door of the shuttle bus and as he was getting out Crespy punched him in the face. He ended up on the ground where Crespy kicked him in the head. b) Brown was chatting with Tome, whom he knew, when he heard a commotion. He got out of the van and saw Decorso on the ground and then saw Crespy kick Decorso in the face. c) Tome saw a man (who the trial judge concluded was Crespy) unprovoked, push another man to the ground and then twice make a kicking motion towards him. He did not see the kicks land.

[9] In contrast, the evidence of Crespy was highly improbable:

a) He denied the evidence of Brown that they happened to meet at a Blue Mountain bar and had drinks together earlier in the evening and that Crespy was involved in a confrontation at that time. He denied the evidence of Brown that to help Crespy avoid any further confrontation Brown invited him to his condominium for drinks, Crespy accepted and they headed to the shuttle stop for that purpose. b) He was so drunk he got in a resort shuttle van believing it was going to take him to his home in Collingwood. c) He was so drunk he got out of the van when he heard he was at his destination and then became uncomfortable when he did not recognize the surroundings and realized he was not at home. d) The altercation began when he tried to get back in the van and was blocked and restrained. e) Immediately thereafter he was sober enough to simply walk to a convenience store and call a cab to take him home.

III. Reasons of the Trial Judge for Conviction

[10] The evidence was heard on March 21, 2018 and Morneau J. provided written reasons on April 19, 2018. Morneau J. correctly stated various legal principles that informed her reasons.

[11] In assessing the credibility and reliability of the evidence, Morneau J. made reference to the following:

a) Crespy was evasive when asked the simple question whether he knew who Decorso was. b) Crespy’s evidence regarding the two men he said he walked to the shuttle stop with was inconsistent. c) Tome was independent and saw a person he called the “aggressor” kicking at a man on the ground. Tome’s evidence on the main point, that a man was on the ground being kicked, was consistent with Decorso and Brown. d) She rejected the evidence of Crespy that he did not recognize Brown that evening attributing that evidence to Crespy being in a state of extreme drunkenness or attempting to mislead the Court. This made perfect sense given that she accepted Brown’s evidence that he and Crespy had two drinks together that evening and Crespy accepted an invitation to go to his condominium for more drinks.

[12] Morneau J.’s findings of fact included that:

a) Crespy, unprovoked, punched Decorso in the face while in the shuttle van; b) Crespy kicked Decorso in the head while he lay on the ground.

III. The Issues

[13] The Appellant identifies the issues as follows:

a) One – Did the Learned Trial Judge err in finding that Mr. Crespy assaulted Mr. Decorso? b) Two – Did the Learned Trial Judge err in finding that there was no air of reality with respect to Mr. Crespy’s claim of self defence? c) Three – Did the Learned Trial Judge err in her credibility assessment? d) Four – Did the Learned Trial Judge err in relying on Mr. Decorso’s photographs as proof of the injuries that he alleged to have suffered? e) Five – Did the Learned Trial Judge’s interjections and comments demonstrate a reasonable apprehension of bias against Mr. Crespy? f) Six – Did the Learned Trial Judge err in sentencing Mr. Crespy to 45 days imprisonment?

V. Analysis

Issue One – Did the Learned Trial Judge err in finding that Mr. Crespy assaulted Mr. Decorso?

Issue Two – Did the Learned trial Judge err in finding that there was no air of reality with respect to Mr. Crespy’s claim of self defence?

Issue Three – Did the Learned Trial Judge err in her credibility assessment?

[14] These issues all simply invite me to re-weigh the evidence and come to a different conclusion.

[15] There was no suggestion that the trial judge incorrectly stated any of the applicable legal principles.

[16] There was an abundance of evidence that supported her conclusion that Decorso, Brown and Tome were credible witnesses:

a) Tome was completely independent and saw a kicking motion toward Decorso, which supported the evidence of Decorso and Brown that Crespy kicked him in the head. b) Tome described Brown’s role as trying to defuse the situation. Brown was probably less impaired than either Decorso or Crespy. c) P.C. Pyatt was completely independent and observed Decorso’s injuries.

[17] Crespy submits that the trial judge should have found Decorso and Brown not credible because they were inconsistent on points such as whether they took the shuttle together earlier in the evening, and where they sat in the shuttle, and whether Brown restrained Crespy after the kick. Deference is owed to the trial judge on matters such as this.

[18] Crespy also submits that Decorso and Brown were inconsistent as to whether Decorso was punched while in the van. This is not correct. Decorso said he was punched and Brown said he heard a commotion behind him which could certainly be the result of a punch and Crespy pushing Decorso out of the van.

[19] Crespy submitted that since the trial judge concluded that alcohol affected his ability to recall this would explain why he did not recognize Brown that evening. This, however, ignores the fact that the trial judge accepted Brown’s evidence that he sat and had drinks with Crespy that evening; he dissuaded Crespy from getting into an earlier fight; and Crespy accepted his invitation to return to Brown’s condominium.

[20] These are all examples of the fact that the thrust of the Appellant’s argument was that I should re-weigh the evidence. That is not the function of an appellate court.

[21] The trial judge did err in stating that Crespy testified that he had been punched. Her conclusion that this was a fabrication obviously factored into her evaluation of Crespy’s credibility. Having said that, there were a multitude of compelling reasons why the trial judge concluded that Crespy was not credible so that this error could not have affected the result.

[22] The trial judge did not refer to every piece of evidence and argument, nor was she obliged to. She was entitled to accept some, none or all of the evidence of any witness. She was entitled to attribute arguable inconsistencies to the difficulty honest witnesses may have in recollecting sudden events. She was entitled to make the findings of fact she did which were well grounded in the evidence. Given the findings of an unprovoked assault there was clearly no air of reality to self-defence.

Issue Four – Did the Learned Trial Judge err in relying on Mr. Decorso’s photographs as proof of the injuries that he alleged to have suffered?

[23] This was raised in Crespy’s factum but not in oral argument. In any event, this is something of a red herring. P.C. Pyatt and Brown observed Decorso’s injuries so the iPhone photos added little to the Crown case. In any event, having found that Decorso was a credible witness the trial judge was certainly entitled to infer that the discrepancy between the photos, two of which depicted a left eye injury and four of what depicted a right eye injury, occurred for a reason related to the camera technology and not because Decorso was fabricating evidence.

Issue Five – Did the Learned Trial Judge’s interjections and comments demonstrate a reasonable apprehension of bias against Mr. Crespy?

[24] Mr. Philbert did not address this in his oral argument in any event. In my view, the interjections by the trial judge during the defence trial and sentencing submissions do not approach the point at which anyone could infer a reasonable apprehension of bias on her part. This argument has no merit.

Issue Six - Did the Learned Trial Judge err in sentencing Mr. Crespy to 45 days imprisonment?

[25] I see no error in principle in the sentencing decision. Morneau J. recognized that Crespy had a positive pre-sentence report and that to his credit he had completed six hours of counselling with a psychologist whose opinion was that he was a low risk to re-offend. There were positive letters of reference related to his community activity. Morneau J. accepted that Crespy’s conduct was out of character. Morneau J. recognized that she was required to exercise restraint in sentencing a first offender.

[26] Morneau J. also recognized the obvious aggravating factors that this was an unprovoked assault on Decorso who had done nothing at all to provoke it. Morneau J. stated she might have considered a conditional discharge if this had been a single punch. She, however, came to the conclusion that a period of incarceration was required, stating:

Given the gravity of this offence, I am of the view that kicking someone in the head is an extremely serious and violent offence. Notwithstanding that Mr. Crespy has led an exemplary life to this point and continued to lead an exemplary life after this incident which occurred in November of 2016, I am of the view that a real jail term is required to send a message to Mr. Crespy but, more significantly, to the public at large that we will not condone this kind of violence in our society. I have taken into consideration the efforts Mr. Crespy has made since he was charged, particularly attending and obtaining counselling. I am of the view that in all the circumstances that a fit sentence is a period of custody of 45 days in custody.

[27] There was no error in principle. The sentence is within a reasonable range. The sentence appeal must, therefore, be dismissed.

VI. CONCLUSION

[28] The appeal against conviction and the appeal against sentence are both dismissed.

Sproat J.

Released: April 23, 2019