BARRIE COURT FILE NO.: CR-18-00000005-00AP

DATE: 20190923

CORRECTED DATE: September 24, 2019

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

OMAR OUAIDA Appellant

COUNSEL: C. Ross and D. Chronopoulos, for the Crown/Respondent G. Pickard, Counsel for the Appellant

HEARD: September 9, 2019

Corrected Decision: The text of the original Reasons for Decision was corrected on September 24, 2019 and the description of the correction is appended

REASONS FOR DECISION

On appeal from the decisions of The Hon. Mr. Justice C. R. Harris Dated December 11, 2017 and January 5, 2018

McCARTHY, J.:

[1] On appeal from the decisions of the Honourable Justice C.R. Harris (“the trial judge”) of the Ontario Court of Justice dated December 11, 2017 and January 5, 2018.

Background

[2] Following a trial lasting several days, the Appellant was convicted of three counts of assault against Theo Roberto (“the Complainant”) under s. 266 of the Criminal Code. The events giving rise to the charges and convictions took place on February 8 and 9, 2014. The trial judge handed down a sentence of four months imprisonment (less credit for time served), a two-year weapons prohibition and two years probation.

The Appeal

[3] The Appellant appeals against both conviction and sentence. The Appellant contends that the trial judge committed the following errors:

a) He failed to consider the issue of consent;

b) He failed to consider the defence of self defence;

c) He failed to consider the defence of defence of property;

d) He failed to properly apply the law as set out in R. v. Scopelliti, 1981 CanLII 1787 (ON CA), [1981] O.J. No. 3157 (ONCA) (“Scopelliti”); and

e) In respect of the sentence, he erred in ruling that the offences constituted “domestic violence”, thereby serving as an aggravating factor.

The Position of the Crown

[4] The Crown argues that there is no basis to interfere with the conclusions reached by the trial judge. The trial judge carefully considered the totality of the evidence; he assessed the credibility and reliability of the evidence of both the Complainant and the Appellant and applied the appropriate procedure for considering reasonable doubt as directed by the Supreme Court of Canada in R v W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

[5] The trial judge’s findings of facts are entitled to deference. The conviction was reasonable and does not constitute a miscarriage of justice.

[6] The suggestion that consent was provided to the assault by the actions of the Complainant is nonsensical in light of the evidence adduced at trial.

[7] The Appellant, who was represented by counsel, did not raise the defences of self defence or defence of property at trial. It would be entirely inappropriate to expect a trial judge to consider defences which were neither raised at trial nor in closing submissions.

[8] In any event, there is no air of reality to the defence of self defence. Nor was there any basis upon which the defence of property defence could have been raised or advanced at trial.

[9] In respect of the alleged misapplication of the law as set out in Scopelliti, the Crown points out that both the Appellant and the Complainant had prior convictions with accompanying pardons. The parties advised the court that neither side would be relying on the previous convictions. The court expressly acknowledged this joint position and proceeded to convict the Appellant without regard to that evidence. When the trial judge did refer to the Appellant not “being afraid in a Scopelliti way” he did so in dicta only after having found the Appellant guilty on all counts. Having already rejected almost the entirety of the Appellant’s evidence and having found him guilty without regard to Scopelliti considerations (it being agreed by both the parties that these should not weigh on the court’s decision), the trial judge’s brief reference to Scopelliti was merely to emphasize his disbelief in the Appellant’s alleged fear of the Complainant.

[10] Finally, the trial judge had evidence upon which he could fairly conclude that the Appellant and the Complainant were involved in an “on-again/off-again” relationship, which was enough to constitute a domestic relationship. The Appellant was residing at the Complainant’s home at the time of the assaults. He himself acknowledged that he moved into the Complainant’s home for the purposes of furthering their relationship. The Appellant took the position that the pair had reunited. The trial judge alluded to the blunt and highly suggestive remark made by the Appellant in response to a question about sex between the parties: “I wouldn’t have moved there just to go to school.”

The Law in Scopelliti

[11] Where self-defence is raised, evidence of both previous assaults by a complainant on the accused and previous acts of violence by that complainant towards third parties (that are known to the accused) are admissible to show the accused’s reasonable apprehension of violence from the complainant. Where self-defence is raised, evidence of the complainant’s character (i.e. disposition) for violence is admissible to show the probability of the deceased having been the aggressor and to support the accused’s evidence that he was attacked by the complainant: see Scopelliti at para 30.

Analysis

Consideration of Defenses

[12] During submissions, Mr. Pickard on behalf of the Appellant candidly admitted that the potential defences available to assault under the Criminal Code of defence of person (s. 34) and defence of property (s. 35) were not argued or raised before the trial judge.

[13] On that basis alone, I am prepared to dismiss that aspect of the appeal. It strikes me as bordering on outrageous that a trial judge’s failure to deal with a defence that was not raised at trial by a represented accused could served as grounds for appeal.

[14] First, one must assume that defence counsel, having received disclosure, participated in the trial, heard the evidence and who must have been reasonably conversant with Criminal Code and common law defences, would invoke those defences if the circumstances or the evidence warranted it at trial. This is not a case of an unrepresented defendant; nor has there been an application for a declaration that the Appellant was improperly represented.

[15] Second, to not raise a defence either at trial or at the very least in closing submissions would leave the Crown in the impossible position of having to guess what potential defences to address in closing submissions. These two defences are affirmative defences; the burden rests on the defence not only to raise them but also to prove them to the court. While the trial judge is the ultimate gate-keeper and is responsible for the proper conduct of a trial, one can only assume that when a potential defence is not raised or argued by the accused, it is because that particular defence is inapplicable, cannot be proven, or the defence has simply chosen not to advance if for reasons of its own.

[16] Third, it would be entirely inappropriate for the trial judge to have addressed defences in his reasons when those defences were not the subject of submissions from counsel for the parties concerned.

[17] I am not prepared to embark on an analysis of the evidence to determine whether a similarly placed trial judge, having turned his or her mind to the two defences, would have, on the evidence before him or her, determined that the defences were made out. That is not the function of an appellate court.

The Issue of Consent

[18] On the issue of consent (which the Appellant asserts could only apply to the first assault of February 8), while it is true that an essential element of the offence of assault is that a complainant did not consent to the assault, on the entirety of the evidence, I am satisfied that there is simply no basis upon which the trial judge could have concluded that the Complainant provided her consent to the first assault.

[19] I agree with the Crown’s submissions that there was nothing in the Complainant’s spilling of snack food on the Appellant’s laptop or even his person which would amount to an assault of any kind; and certainly not an assault which would even approach consent to the violence rained down upon the Complainant by the Appellant in the seconds following the snacks spilling incident. At most, the actions of the Complainant were childish, petty, irritating and perhaps even provocative; by no stretch of rational imagination can these actions amount to consent to a violent, physical assault.

The Application of Scopelitti

[20] On the issue of the application of the law as set out in Scopelitti, I agree with the Crown that the parties clearly agreed that the previous convictions of the respective parties were not for the consideration of the court. The submissions of Crown and Defence counsel are clear in that regard. They are found at page 162 of the transcript of proceedings dated October 24, 26 and 2017. The trial judge’s recognition that he was to adjudicate without regard to that evidence is equally clear; there being no prior acts of violence for the court to consider, the Scopelliti analysis would be unnecessary. In my view, the trial judge’s reference to Scopelitti at the tail end of his decision was simply to emphasize his rejection of the Appellant’s suggestion that he harboured some measure of fear for his safety arising from the Complainant’s previous conviction.

[21] It is also evident that the trial judge alluded to Scopelitti as an afterthought, immediately after he had concluded his reasons for entering convictions on all counts. He did so as a means of emphasizing his disbelief of the entirety of the Appellant’s testimony surrounding the assaults. I find that this constituted dicta.

[22] As well, it is instructive to recall that the court in Scopelitti stated, at para. 30:

... where self-defence is raised, evidence of the deceased’s character (i.e. disposition) for violence is admissible to show the probability of the deceased having been the aggressor and to support the accused’s evidence that he was attacked by the deceased.” [Emphasis added.]

[23] In the case at bar, the defence of self-defence was never raised before the trial judge. Evidence of the Complainant’s disposition was irrelevant and therefore inadmissible as it could not be used in support of a defence that was never raised. The trial judge need not have even referred to Scopelitti. That he did so in the absence of a raised in defence and only in dicta does not constitute a reversible error.

[24] Finally, the reasons of the trial judge, read as a whole, make it clear that he assessed the entirety of the evidence surrounding the three assaults, did so within the W(D) framework and largely, if not entirely, rejected the Appellant’s evidence, finding instead that in respect of the three “incidents” involving the complainant, it was the Appellant who was the aggressor.

Aggravating Factors in Sentencing

[25] On the issue of sentence, I am not satisfied that the trial judge erred in concluding that these assaults constituted domestic violence and therefore an aggravating factor in sentencing. There was evidence upon which the trial judge could make the finding that the relationship existed on the wide spectrum of domestic relationships. Indeed, the Appellant testified that his moving in with the Complainant prior to the assaults was with the intention of reunification. Clearly the pair had been involved with each other in the past; and the relationship was described in the evidence as “on-again, off-again”. While the trial judge rejected the Appellant’s version of events as it pertained to the assaults, he was entitled to accept it or give it weight for the purposes of understanding the nature of the relationship.

[26] The trial judge did not overstate the nature of the relationship: at page 50 of his reasons, he recognized that this relationship was not one of husband and wife. Rather, “…it was a couple at the time, and at various times, living under her roof.” The fact that the Complainant had transferred ownership of the truck into the Appellant’s name and that the Appellant required several vehicles to move his belongings out of the residence would tend to support a finding that the pair were living in some form of a domestic relationship. Moreover, the fact of the three assaults taking place at a residence over a period of two days would tend to reinforce the domestic nature of the relationship. The trial judge was justified in finding that the domestic setting of the assaults was an aggravating factor in sentencing.

Disposition

[27] For the above reasons, I would dismiss the appeal in respect of both conviction and sentence. The Conditions of Release dated February 5, 2018 are hereby cancelled and the Appellant shall have 7 days to surrender to Ontario Provincial Police officers at the Huronia West Detachment, 1000 River Rd W., Wasaga Beach, Ontario, failing which a warrant shall issue for his arrest.

McCARTHY J.

Released: September 24, 2019

September 24, 2019 – Correction:

1. Para. 27 now reads: For the above reasons, I would dismiss the appeal in respect of both conviction and sentence. The Conditions of Release dated February 5, 2018 are hereby cancelled and the Appellant shall have 7 days to surrender to Ontario Provincial Police officers at the Huronia West Detachment, 1000 River Rd W., Wasaga Beach, Ontario, failing which a warrant shall issue for his arrest.