Court File and Parties

COURT FILE NO.: CR-17-40000131-00AP DATE: 20190116 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – GILBERTO MONTOYA Appellant

Counsel: S. Clarke, for the Respondent J. Couse, for the Appellant

HEARD: January 14, 2019.

Reasons for Decision

On appeal from the convictions entered by the Honourable Justice L. Pringle of the Ontario Court of Justice on November 6, 2017.

SCHRECK J.:

[1] Gilberto Montoya appeals his convictions for assault with a weapon, assault causing bodily harm and failing to comply with a recognizance. At his trial, there was no issue that the appellant and the complainant had been involved in an altercation during which the appellant, who was bound by a recognizance at the time requiring him to keep the peace and be of good behaviour, struck the complainant with his belt, causing injuries to his face. The sole issue for the trial judge to determine was whether the Crown had proven beyond a reasonable doubt that the appellant had not been acting in self-defence.

[2] The appellant submits that the trial judge made various errors in assessing his defence of self-defence. The following reasons explain why I do not agree and would dismiss the appeal.

I. The Trial Judge’s Reasons

[3] The trial judge found that the appellant was not acting in self-defence for the following reasons (at pp. 11-12):

Were Mr. Montaya’s actions carried out in self-defence after Mr. Delgado broke his nose? Was it reasonable considering the factors as set out in s. 34(2) of the Criminal Code?

In the circumstances, I accept that Mr. Montoya might have felt threatened when he got up. In the end result, however, I cannot see Mr. Montoya’s response in taking off his belt and using the buckle as a weapon was at all proportionate or reasonable in the circumstances. Mr. Delgado was unarmed throughout. According to Mr. Ruperto, he was not acting in concert with anyone else at the scene, while Mr. Montoya had his friend there, Carlos. Mr. Montoya agreed that Mr. Delgado had stopped punching him when he told him to get up. He agreed that he had sufficient time to take his belt off as he lay on the ground, and he was not struck again. Then when he stood up, instead of moving away, or asking someone at the scene for help, Mr. Montoya used the buckle on the end of his belt as a weapon to strike out at Mr. Delgado twice. The buckle was a large metal circle, obviously capable of causing significant damage, and it did cause significant injury.

II. Grounds of Appeal

A. Overview

[4] In oral argument, the appellant submitted that the trial judge erred in three ways: (1) in finding that the appellant was acting in concert with somebody else; (2) by failing to consider some of the factors set out in s. 34(2) of the Criminal Code; and (3) by applying an unrealistically stringent proportionality test.

B. Did the Trial Judge Find That the Appellant Was Acting In Concert?

[5] This alleged error is based on the portion of the trial judge’s reasons reproduced above where she stated: “According to Mr. Ruperto, he was not acting in concert with anyone else at the scene, while Mr. Montoya had his friend there, Carlos.” The appellant submits that there was no evidentiary basis for a finding that the appellant was acting in concert. I agree. However, in my view, the trial judge made no such finding. She simply noted that the appellant’s friend was present, which was relevant to her later finding that he could have asked for help instead of striking the complainant with his belt buckle. No witness had testified that the appellant was acting in concert with anybody else. Earlier in her reasons (at p. 9), the trial judge noted that Mr. Ruperto, whom she found to be credible, had testified that “no one else was fighting beyond Mr. Montoya and Mr. Delgado.” I would not give effect to this ground of appeal.

C. Did the Trial Judge Fail to Consider Factors Enumerated in s. 34(2)?

[6] Counsel for the appellant submits that the trial judge failed to consider the factors described in s. 34(2) (f) and (f.1), which provide as follows:

34.(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

[7] The appellant submits that these subsections required the trial judge to consider an earlier altercation between the appellant and the complainant that took place earlier in the day at a mall. Both the appellant and the complainant testified that the appellant began to walk away after that altercation and that as he did so, the complainant kicked him in the “bum”. The appellant submits that this incident was relevant to whether it was reasonable for the appellant to strike the complainant rather than move away from him, as the trial judge suggested.

[8] While I agree that the earlier incident was relevant, I am not persuaded that the trial judge failed to consider it. The appellant’s trial counsel had relied on this evidence in his submissions. The trial judge expressly averted to the earlier incident, including the kick to the “bum”, earlier in her reasons when summarizing the evidence of the complainant and the appellant (at pp. 4 and 6). Moreover, she expressly stated that she had considered the factors enumerated in s. 34(2). While it might have been preferable if the trial judge had explicitly stated that she had considered this evidence, there is no obligation on a trial judge to “set out every finding or conclusion in the process of arriving at the verdict”: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 18-20.

D. Did the Trial Judge Apply an Unrealistically Stringent Proportionality test?

[9] The appellant submits that he was not required to “weigh to a nicety” the amount of force required in the circumstances and the trial judge’s conclusion that his response was not reasonable means that she must have applied an unrealistically stringent proportionality test.

[10] The appellant is correct that in considering the defence of self-defence, courts must be “alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection”: R. v. Cunha, 2016 ONCA 491, 337 C.C.C. (3d) 7, at para. 7; R. v. Mohamed, 2014 ONCA 442, 310 C.C.C. (3d) 123, at para. 29; R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.), at p. 111. However, there is no reason to suppose that the trial judge, who is presumed to know the law, was not aware of this well-established principle.

[11] What the appellant is really arguing is that the verdict was unreasonable. To succeed in such an argument, he must establish that the verdict was one that no properly instructed jury, acting judicially, could reasonable have rendered: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 24, 36-42. He has failed to do so. In my view, it was open to the trial judge on this record to come to the conclusions that she did.

III. Disposition

[12] The appeal is dismissed.

Justice P.A. Schreck

Released: January 16, 2019.

COURT FILE NO.: CR-17-40000131-00AP DATE: 20190116 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – GILBERTO MONTOYA REASONS FOR DECISION P.A. Schreck J. Released: January 16, 2019