COURT FILE NO.: 19-50000085-AP DATE: 20200505

SUPERIOR COURT OF JUSTICE - ONTARIO

SUMMARY CONVICTION APPEAL – TORONTO REGION

RE: HER MAJESTY THE QUEEN (Respondent) v. JUAN CARLOS BEATO CASTILLO (Appellant)

BEFORE: Justice N. J. Spies

COUNSEL: Eva Janta, for the Appellant Helen Song, for the Respondent

DATE HEARD: April 24, 2020

E N D O R S E M E N T

Introduction

[1] On September 23, 2018, the Appellant, Juan Carlos Beato Castillo, attended a concert at a banquet hall with his cousin Joel Torres (“Joel”). A mutual friend, Jose Lorencio (“Jose”), was also at the concert with his new girlfriend, Meghan McEvoy. During the concert, a fight broke out between Jose and Maiker Cruz Estella, the complainant. There was no dispute at the trial that both Joel and the Appellant got involved in the fight as well, and that security guards intervened to break it up. The Appellant’s position was that he was acting in self defence of his cousin Joel and his friend Jose.

[2] On September 27, 2019, after a two-day trial on September 5, 2019 and September 19, 2019, S. Merenda J. of the Ontario Court of Justice gave oral reasons and convicted the Appellant of assault pursuant to s. 266 of the Criminal Code, R.S.C., 1985, c. C-46. After hearing sentencing submissions, Merenda J. suspended the passing of sentence and placed the Appellant on probation for two years with several conditions, including 75 community service hours and ancillary orders.

[3] The Appellant appeals from his conviction of assault and the sentence. He seeks an order allowing the appeal, quashing the conviction and substituting an acquittal. In the alternative, the Appellant asks that a new trial be ordered. In the further alternative, he asks that leave to appeal the sentence be granted and that the suspended sentence be substituted with a conditional discharge.

[4] The appeal was heard by teleconference on consent. The Appellant was not present for the hearing of the appeal.

The Issues

[5] The Appellant raises the following grounds of appeal against the conviction and sentence:

(i) the trial judge erred in failing to perform any form of W.D. analysis in his reasons for judgment and thereby failed to give sufficient weight to inconsistencies in the Crown witnesses’ evidence and other routes to an acquittal other than believing the accused;

(ii) the trial judge’s reasons were insufficient, especially with respect to the issue of self-defence as a result of the lack of W.D. analysis; and,

(iii) the trial judge erred in failing to impose a conditional discharge instead of a conviction and imposing a suspended sentence.

[6] Ms. Song, for the Crown, submitted that while Merenda J. did not refer expressly to W.D. in his decision, there is no requirement for busy trial judges to recite the test in W.D. It is her position that he properly applied the test to his findings of fact and concluded that the Crown met its burden of proof by proving beyond a reasonable doubt that the Appellant did not act in lawful self defence of another. It is the position of Ms. Song that Merenda J.’s reasons were sufficient to advise the Appellant as to why he was found guilty, provide public accountability and permit effective appellate review.

The Evidence at Trial

Maiker Cruz-Estella

[7] The complainant testified that at one point during the evening Ms. McEvoy came over to his table to say hello and that she also brought him a drink. He was standing near her when Jose began the fight by punching him from behind, unprovoked. He testified that “I have it understood” that the fight began because of jealousy as Jose was going out with his ex-wife, Ms. McEvoy, who was also at the concert. He did not explain how he knew this because he also testified that he did not speak to Jose before the fight and Jose did not say anything before he hit him. The way the complainant worded his evidence suggests that someone else told him this.

[8] In any event, the complainant testified that after Jose hit him, he pushed Jose and they began to fight. He further testified that while he was fighting with Jose, he slipped onto the floor and he and Jose were on the floor fighting at which point Joel, whom he did not know, and the Appellant entered the fight. The complainant testified that Joel and the Appellant hit and kicked him in his face, head and sides, and bit his back and that he was getting blows from both sides. Jose had the upper hand in the fight because he was being helped by these other two guys. The complainant testified that he was punching back in self defence. He further testified that Jose threw a full bottle of liquor at him which cut his face above his left eye and then broke when it hit the floor. He admitted that he did not tell police this. He also testified that security took a chair away from the Appellant that the Appellant, was going to throw at him. The Appellant submits that this was not corroborated by the other Crown witness; the security guard Marvin Molina, nor was it supported by the video of the fight. The video, however, only shows a brief portion of the fight-just over 20 seconds and Mr. Molina, the security guard, did testify that when the fight was brought to his attention, he turned around and saw a chair being thrown – although he did not say by whom.

[9] In cross-examination, the complainant agreed that at times during the fight, he and Jose were on the floor punching each other. He also agreed in cross-examination that he could not say how many times he was hit by Joel as compared to the Appellant because his focus was on Jose. He also admitted that he had worked as a security guard in Cuba. He denied ever holding a broken bottle.

[10] The complainant was taken by ambulance to the hospital. Photographs of his injuries were admitted during his evidence and show a black eye with a cut requiring two stitches over the eye as well as several bite marks and red marks all over his head and body. The complainant testified that he suffered from a concussion and has ongoing issues with his left eye as a result of the fight.

Marvin Molina

[11] Mr. Molina was a security guard working at the banquet hall on the night of the incident. He testified a patron drew his attention to a fight in progress. He did not see the beginning of the fight and all he could see was punches before he got to the fight. He testified that as he approached, the fight got worse with chairs being thrown. Mr. Molina testified that he was the first security officer who got to the fight. He saw multiple people pushing and moving and he had to try to distinguish who the culprits were. He saw three males, including the Appellant, punching and kicking the complainant and the complainant was defending himself by punching and kicking and pushing to keep the three males away. Mr. Molina testified that when he arrived, the complainant was on and off the floor as he was being punched – he would get up and a punch would put him back on the ground. Mr. Molina testified that he also saw bottles being thrown in the air. He said that the three males were not stopping “for anything”, not even when security officers were holding them back. Mr. Molina first pushed Joel off the complainant and then was able to grab the complainant, pull him out of the fight and take him to the washroom. He testified that he did not see any weapons being used, but he did see broken glass and bottles around.

[12] As I will come to, the Appellant submits that Mr. Molina’s evidence was inconsistent in a material respect. I deal with that evidence below.

The Appellant’s Evidence

[13] The Appellant testified at the trial. He was 35 years old at the time of trial. He was born in Santo Domingo in the Dominican Republic but has been a Canadian citizen since he was 12 years old. He testified that he did not see the beginning of the fight, but he heard the fight and saw that it involved the complainant and his cousin.

[14] Having read all of the Appellant’s evidence, I am not entirely clear on the sequence of events. As I understand it, it seems that the Appellant did not see the first part of the fight between the complainant and Jose. The Appellant testified that he ran towards the fight and, at first, he saw that the complainant and his cousin Joel were both standing up and that the complainant was in the process of throwing a punch. He testified that he could see that they had been fighting “for a while”. The Appellant testified that he pushed the complainant who fell “above” a chair and that his cousin fell onto a chair and that the complainant jumped on top. However, the Appellant also said that he saw the complainant on top of his cousin Joel, hitting his cousin and that is when he went in and pushed the complainant.

[15] According to the Appellant, when the complainant got up, the complainant was wielding a broken beer bottle which he used to cut the Appellant. Jose then came and “took” the complainant away – grabbed him and they kept on fighting “for a long time.”

[16] According to the Appellant, the security guards came and tried to separate the “two guys fighting” (I presume a reference to the complainant and Jose), and they grabbed him-the Appellant. The Appellant testified that he saw the complainant fall on top of Jose and that the complainant was punching Jose in the face, ribs and chest while Jose was trying to protect himself. According to the Appellant, when he was grabbed by security, the complainant was still punching Jose, which he thought was unjust. All he wanted to do was defend Jose so he got out of the grasp of the security guard and went back to pushing the complainant because he would not let go of Jose. The Appellant testified that when the complainant did not let go of Jose, he took the initiative and hit the complainant two or three times on the chest, on his right side, on his ribs and tried to grab his arms to get him to let go of Jose. He denied ever hitting the complainant in the face or in the head or with an object, and he denied seeing anyone else hit him with an object. According to the Appellant, although he started by defending his cousin Joel, in the end, “we both were defending Jose, ‘cause I think if Michael had gone on, he would have injured him seriously”. The Appellant testified that security was grabbing him the whole time and he was trying to defend Jose.

[17] In cross-examination, the Appellant testified that he saw the complainant hit his cousin Joel and that is when he intervened and then Jose intervened as well by grabbing the complainant. Jose and the complainant fell with the complainant on top of Jose and then the Appellant said that he and Joel both tried to get the complainant off Jose but he was like a pit-bull and wouldn’t let go so that is when the Appellant hit the complainant. Presumably this is after security arrived and was trying to restrain the Appellant and Joel.

[18] The Appellant testified that while he received some training as a security guard, it was just writing and watching videos, not physical training, and, in any event, he never finished the course. He admitted he was not acting like a security guard at the time – he was just trying to defend his friend. When questioned by the court, as to whether he ever pulled Jose or Joel away he testified he did not touch Joel although he admitted he saw him hit the complainant five times. He also said and that he was unable to grab Jose as he was under the complainant. However later he told the trial judge that Jose was the one who caused the complainant’s eye injury. At no point was he ever asked if he wanted to punish the complainant. He was consistent throughout his testimony that he wanted to defend his cousin at first and his friend thereafter and that all three of them were involved in the fight with the complainant.

[19] At the police station it was observed that the Appellant had a laceration on his right forearm and three above his left elbow.

Meghan McEvoy

[20] Ms. McEvoy, the ex-wife of the complainant, attended the concert with Jose and two girlfriends. At the time of the concert, she was waiting for her divorce from the complainant to be finalized. She testified that the complainant said hello to her at the bar and that was the extent of their interactions. She felt uncomfortable because their relationship ended on bad terms. There was no objection to her evidence that there had been domestic abuse in their relationship.

[21] According to Ms. McEvoy, the complainant approached her table and tried to talk to her, and she ignored him. In cross-examination, she explained that she did not ask the complainant to go away when he tried to talk to her; she just tried to ignore him. She denied bringing the complainant a drink or introducing him to her friends. Shortly after that, a fight broke out behind her between the complainant and Jose. She testified that she saw the Appellant try to separate the complainant and Jose by trying to push the complainant or help fight. She testified she was taken to the washroom by her friends during the fight and afterwards she couldn’t find Jose. She found the complainant being taken out to an ambulance and was asked by him to help translate because he had no one. She went with him until people came to relieve her. She testified that she was willing to go to the hospital with the complainant because she wanted her divorce finalized and was afraid he may have sabotaged it.

The Trial Judge's Reasons for Convicting

[22] The trial judge accurately summarized the Appellant’s position as follows:

The accused says that after having a bottle thrown at him and seeing … his friend, Jose on the …floor of the dance hall, who was…not getting the better of the fight, in other words, he saw Cruz [the complainant] was attacking Jose, he felt it was his duty as a member of the public to defend himself and Jose, as Jose was getting the worst of this fight and, as a result, the accused attacked the complainant for self-defence.

[23] In the ten-page oral decision, Merenda J. made the following findings of fact:

• The current boyfriend of the victim’s ex-wife [Jose] attacked the complainant from behind.
• Ms. McEvoy had consumed copious amounts of alcohol and for the most part her evidence was unreliable. The trial judge also stated that he detected a certain animus towards the complainant on her part.
• The complainant and Jose were struggling on the floor.
• For the most part, the complainant received the bulk of the injuries and the more serious injuries.
• The quality of the video is “very poor”.
• There’s “no doubt in my mind” that the accused attacked the complaint because the complainant was fighting with Jose – “but I don’t feel that he did it because it was necessary”.
• The accused attacked the complainant out of a sense of loyalty and duty to Jose. There was “no reason for him to hit Cruz [the complainant] in the manner that he did”; there was no reason for Joel, Jose or the accused to hit the complainant in the manner that they did.
• Jose, Joel and the accused were acting in concert for the sole purpose of “punishing” the complainant. “Each of them must have known, and it was clear that the three of them together were brutalizing this young man who was on the floor. The size differences existed between the accused and the complainant. There was a weight difference, as well”.
• This was “not a fair fight. It was totally unreasonable for three individuals to be attacking the complainant simply because they were assisting one another”.
• It was “Jose who initially attacked the complainant and then the other two joined in to pummel the complainant unnecessarily”.
• The accused was not personally threatened.
• The way the accused did things was unreasonable. He made no effort to pull off his cousin Joel or his friend Jose who he said was on the bottom. He made no attempt to separate the two of them.
• Considering the factors in s. 34, there were three people “whose aim is to hurt the complainant”. The accused was helping to inflict “punishment on the complainant when he should not have been doing so”.
• Security was in the process of trying to quell things but that was not the accused’s purpose. He was there to “inflict punishment on the complainant because the complainant had become involved in an altercation with Jose”.
• The trial judge did accept the accused’s evidence that he hit the complainant two or three times, but he did not accept the accused’s evidence that the complainant was hitting Jose and that he wanted to defend his friend.
• Mr. Molina said three people were punching the complainant and one of those was the Appellant. The complainant was trying to defend himself from these three attackers. In less than a minute it got worse and the three individuals who were attacking the complaint were not stopping and had to be pulled back and the three kept punching the complainant.
• There was no defending necessary of Jose. He didn’t need any protection, and the acts committed by the accused were not reasonable in the circumstances.
• There were other means available to respond and one of them was separating the two of them, pulling one away from the other or simply allowing security to do their job.
• I am satisfied beyond a reasonable doubt that at no time did the complainant brandish any bottle.
• The complainant was smaller than the accused and the three people that set upon him were much bigger in their totality and much stronger than he was.
• I am satisfied that the complainant was acting in self-defence.
• The accused’s helping of Jose was not done in self-defence - it was done forcefully with the intent to hurt the complainant and cause injury.
• The pummeling that the accused engaged in was not reasonable and became even more unreasonable as he and his two cohorts pummeled the complainant.

The Law - The Sufficiency of Reasons

[24] Much has been said by the Supreme Court of Canada on the sufficiency of reasons and the law on this topic is settled. Counsel for the Crown provided a number of authorities on the point. Counsel for the Appellant, Ms. Janta, did not, concentrating instead on essentially rearguing the case. That, of course, is not what is permitted on an appeal.

[25] In R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, the Supreme Court of Canada provided extensive guidance on how courts of appeal should approach the adequacy of reasons in a criminal case. The court reviewed the relevant cases and summarized the approach at para. 35 as follows:

[35] In summary, the cases confirm:

(1) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (references omitted).

(2) The basis for the trial judge’s verdict must be “intelligible”, or capable of being made out. In other words, a logical connection between the verdict and the basis for the verdict must be apparent. A detailed description of the judge’s process in arriving at the verdict is unnecessary.

(3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to the evidence, the submissions of counsel and the history of the trial to determine the “live” issues as they emerged during the trial.

This summary is not exhaustive, and courts of appeal might wish to refer themselves to para. 55 of Sheppard for a more comprehensive list of the key principles.

[26] In addition, the Crown referred to the following passages from R.E.M.:

39 In Sheppard, Binnie J. affirmed the need to look at the record: “Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene” (para. 46). In point 2 of his summary (at para. 55), he stated: “Reasons for judgment may be important to clarify the basis for the conviction but, on the other hand, the basis may be clear from the record”.

43 … what is required is that the reasons, read in the context of the record and the submissions on the live issues in the case, show that the judge has seized the substance of the matter. Provided this is done, detailed recitations of evidence or the law are not required.

45 … it is generally reasonable to infer that the trial judge understands the basic principles of criminal law at issue in the trial. Indeed, for this reason it has repeatedly been held that “[t]rial judges are presumed to know the law with which they work day in and day out”: R. v. Burns, [1994] 1 S.C.R. 656, at p. 664, where the Court rejected the notion of a positive duty on trial judges to demonstrate that they have appreciated every aspect of the relevant evidence. The trial judge is not required to recite pages of “boilerplate” or review well-settled authorities in detail, and failure to do so is not an error of law. …

53 … To justify appellate intervention, the Court makes clear, there must be a functional failing in the reasons. More precisely, the reasons, read in the context of the evidentiary record and the live issues on which the trial focused, must fail to disclose an intelligible basis for the verdict, capable of permitting meaningful appellate review.

56 … The trial judge should not be found to have erred in law for failing to describe every consideration leading to a finding of credibility, or to the conclusion of guilt or innocence. Nor should error of law be found because the trial judge has failed to reconcile every frailty in the evidence or allude to every relevant principle of law. Reasonable inferences need not be spelled out. For example if, in a case that turns on credibility, a trial judge explains that he or she has rejected the accused’s evidence, but fails to state that he or she has a reasonable doubt, this does not constitute an error of law; in such a case the conviction itself raises an inference that the accused’s evidence failed to raise a reasonable doubt. [Emphasis added]

[27] The settled law was reviewed again in R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, a decision of the Supreme Court dealing with the sufficiency of reasons in a criminal case. In that case, Karakatsanis J. summarized the law with respect to this issue and concluded that “[t]he core question in determining whether the trial judge’s reasons are sufficient is the following: Do the reasons, read in context, show why the judge decided as he did on the counts in question?” [Emphasis added, at para. 15].

[28] Many cases have also considered what is required in the reasons of a trial judge when the principles in R. v. W.D., [1991] 1 S.C.R. 742 are in play. In R. v. CLY., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 7, the Supreme Court of Canada stated that the three steps in W.D. need not be religiously followed or articulated because the W.D. procedure was not meant to be followed “word for word as some magic incantation”. The key is whether the correct burden and standard of proof were applied, not what words were used in applying them. At para. 8, the court continued that the verdict should not be based on a choice between the accused’s and Crown’s evidence, but on whether, based on the whole of the evidence, the trial judge is left with a reasonable doubt as to the accused’s guilt.

[29] At para. 9 of CLY, the court referred to its decision in R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, where, at para. 29, Deschamps J. for the majority stated that: “[t]rial judges deliver oral judgments every day and often limit their reasons to the essential points. It would be wrong to require them to explain in detail the process they followed to reach a verdict. They need only give reasons that the parties can understand and that permit appellate review. Charron J., dissenting in part, echoed this flexibility:

I agree with Deschamps J. that a ritual incantation is not required in every case. The trial judge did not have to repeat the formula set out in W. (D.) to demonstrate that she had relied on correct legal principles in assessing the accused's credibility. Moreover, she is presumed to know those principles. Thus, when a trial judge states that he or she “rejects” an accused's testimony, it can generally be concluded that the testimony failed to raise a reasonable doubt in the judge’s mind. [para. 59, emphasis added]

[30] Finally, at para. 11 of CLY, the court referred to R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at pp. 203-5, cautioning appellate judges not to dissect, parse, or microscopically examine the reasons of a trial judge, and stated that the following passages by Doherty J.A. are particularly apt reminders in this case:

A trial judge’s reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road-map to direct lay jurors on their journey toward a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion. They are not intended to be, and should not be read as a verbalization of the entire process engaged in by the trial judge in reaching a verdict. [p. 204]

... Where a phrase in a trial judge’s reasons is open to two interpretations, the one which is consistent with the trial judge’s presumed knowledge of the applicable law must be preferred over one which suggests an erroneous application of the law. [Citations omitted]

[31] I am also mindful of the fact that, particularly in the criminal Provincial Courts, trial judges face long lists and as the court noted in Burns, at para. 18, “to require trial judges charged with heavy caseloads of criminal cases to deal in their reasons with every aspect of every case would slow the system of justice immeasurably.”

The First Ground of Appeal

Did the trial judge err in failing to perform any form of W.D. analysis in his reasons for judgment and thereby fail to give sufficient weight to inconsistencies in the Crown witnesses’ evidence and other routes to an acquittal other than believing the accused?

[32] Ms. Janta concedes that it was not necessary for the trial judge to expressly refer to W.D. in his oral reasons. It is her position, however, that the trial judge did not conduct a W.D. analysis of the evidence and that his reasons indicate that his rejection of the Appellant's testimony resulted in the either/or proposition contemplated by the court in W.D. itself. She argues that the trial judge repeated several times: “I don’t believe the accused” when referring to the Crown’s burden, which implies that by not believing the accused, the Crown had met its burden as it was the only other option available to the trial judge.

[33] As I understand the argument, it is the Appellant’s position, in essence, that the trial judge simply chose between the two competing versions of what occurred and thereby ignored the third alternative; that although the accused’s evidence may not be believed, it may still raise a reasonable doubt. In addition, it is argued that the trial judge failed to give sufficient weight to inconsistencies in the evidence of Mr. Molina and the complainant.

[34] The Appellant asserts that Mr. Molina was inconsistent in his testimony about whether the complainant was punching someone who was prone on the floor. It is the position of the Appellant that Mr. Molina denied it at first, then said he did not recall, then after watching the video that briefly shows some of the fight he agreed it looked like the complainant was punching someone in a downwards motion, which would put that person on the floor. It is the Appellant’s position that at the end of cross-examination, Mr. Molina agreed that he recalled there was such a person on the floor and that Mr. Molina went back on that statement in re-examination.

[35] The Appellant submits that this inconsistency in the evidence of Mr. Molina was not minor and went to very core of the self-defence issue including whether or not Jose was lying on the ground under the complainant. Ms. Janta submits that the reasons for judgment seem to accept that since the trial judge found that Mr. Molina had “no intention to mislead me” this had some sort of neutralizing effect on the inconsistencies despite that the “passage of time, obviously, could have had some effect on, on their evidence”.

[36] It is the Crown’s position that the trial judge was entitled to make his own findings and if he found the inconsistency in the evidence of Mr. Molina to be minor, this Court should not re-evaluate that. It is submitted in any event that Mr. Molina saw that the complainant was injured with blood on him and that all three people were clearly throwing punches and kicking the complainant while he was on the ground trying to guard himself, and that Mr. Molina’s testimony on this point was consistent in cross-examination. Further, the Crown points out that Mr. Molina disagreed that the video of the incident shows the complainant raining blows down on the other two individuals – he answered: “nah, I wouldn’t say that in that perspective”.

[37] Having reviewed the evidence of Mr. Molina, I would say, first of all, that the trial judge’s statement that Mr. Molina had no intention to mislead him is unassailable as Mr. Molina was the only independent witness. I appreciate that this is different than a consideration of the reliability of his evidence but with respect the alleged inconsistency, I have read the transcript of the evidence of Mr. Molina and reviewed the video and I can understand why the trial judge viewed the inconsistency as minor in the context of all of Mr. Molina’s evidence that was consistent: namely, there were three people attacking the complainant who was trying to defend himself. Mr. Molina did testify in his evidence in chief that when he arrived, the complainant was on and off the floor as he was being punched, which would put him back on the ground. Further, while Mr. Molina admitted in cross-examination that he saw the complainant striking the three men, his evidence that the complainant was acting in self defence was consistent throughout.

[38] As for the inconsistencies in the complainant’s evidence, the Appellant argues that the trial judge should have considered the conflict between the evidence of Ms. McEvoy and the complainant on whether she offered him a drink and her evidence that the complainant came to her table. The submission of the Appellant that the trial judge should have accepted the evidence of Ms.Evoy and rejected the evidence of the complainant on these points, thus undermining his credibility, presumes that the trial judge found Ms. McEvoy to be reliable. He did not because of the copious amounts of alcohol she had consumed. In my view, his conclusion that the evidence of Ms. McEvoy was unreliable is unassailable. In any event, the caselaw is clear that the trial judge should not be found to have erred in law for failing to describe every consideration leading to a finding of credibility: R.E.M., at para. 56.

[39] Finally, as I will come to when I discuss the second ground of appeal, I do not accept the Appellant’s submission that the trial judge erred in any way in applying the W.D. principles in this case. He did not simply prefer the evidence of the Crown witnesses to that of the Defence witnesses. The credibility issues of the Crown witnesses raised by the Appellant do not detract from the thrust of their evidence. From a commonsense vantage point, the findings made by the trial judge are logical and reasonable. Most of the findings of fact made arose from uncontroverted facts.

The Second Ground of Appeal

Were the trial judge’s reasons insufficient, especially with respect to the issue of self-defence as a result of a lack of W.D. analysis?

[40] It is the position of the Appellant that his credibility was a central issue that the trial judge needed to grapple with, and that the credibility and reliability of the other witnesses, especially those of the Crown, were crucial to the decision as well. The Appellant needed to answer this case by explaining his state of mind in respect of entering and remaining in the fight. Having done so in his testimony, it is submitted that it was essential that the trial judge understand how to apply the credibility findings he made in respect of the Appellant’s testimony to the standard of proof on the Crown, namely to prove the case beyond a reasonable doubt and to negate the elements of self-defence. However, because the Appellant argues that no W.D. analysis was done, he submits that this was the equivalent of a jury non-direction amounting to misdirection, and therefore a reversible error requiring a new trial.

[41] As I understand the Appellant’s position, as a case involving credibility, the reasons for judgment on self-defence are insufficient and the trial judge erred in seeing this case as a credibility contest – an “either/or proposition” that eliminated the “third alternative” in the W.D. analysis; namely, that without believing the accused, after considering the accused’s evidence in the context of the evidence as a whole, he may still have had a reasonable doubt as to his guilt.

[42] I do not accept these submissions. First of all, as Charron J. stated Boucher, at para. 59, when a trial judge states that he “rejects” an accused's testimony, it can generally be concluded that the testimony failed to raise a reasonable doubt in the judge’s mind. Furthermore, although the trial judge’s reasons do not resolve the credibility conflict in the evidence according to the three-step formula set out in W.D., taken as a whole, the reasons are faithful to the substance of W.D. Simply put, it is clear from the reasons as a whole that the trial judge did not simply choose between two competing versions of what occurred. The trial judge’s reasons very clearly show at pp. 275 and 277, in the final paragraph of the judgment, that he considered whether or not the Crown had proven on all of the evidence that the Appellant had not acted lawfully in self defence of another beyond a reasonable doubt. In addition, the trial judge stated at p. 277: “I must be satisfied beyond a reasonable doubt that the Crown has negatived any claim of self-defence”. In fact, as I will come to, much of the trial judge’s reasons in finding the Appellant guilty were based on uncontroverted evidence. It was based on those uncontroverted facts that he did not believe the Appellant as to his reason for joining the fight and found that the Appellant’s actions were unreasonable. Furthermore, there is no doubt that the oral reasons, read in context, show what the trial judge decided and how and why he decided as he did.

[43] The trial judge considered s. 34 of the Criminal Code and whether or not the Crown had proven beyond a reasonable doubt that the Appellant believed “on reasonable grounds” that force was being used against another person [Joel and Jose] and that the Appellant intervened for “the purpose of defending or protecting themselves or the other person for that use of force and that he acted reasonably in the circumstances”. There is no dispute that the Appellant was not personally threatened and so the trial judge’s decision turned largely on the Appellant’s purpose in intervening and whether what he did was reasonable. The trial judge accepted that the Appellant only hit the complainant two or three times but his key findings that he did not do so for the purpose of defending Joel or Jose was based on the following findings, many of which are not disputed by the Appellant:

a) The Appellant is bigger than the complainant and, more importantly, the Appellant, his cousin Joel and his friend Jose were “much bigger in their totality and much stronger” than the complainant was. There is no dispute about this finding.

b) The way the Appellant did things was unreasonable because there were other means available to respond and one of them was separating the two of them, pulling one away from the other or simply allowing security to do their job. The trial judge based this finding on the fact that the Appellant admitted that he made no effort to pull off his cousin Joel and that because he said Jose was on the bottom - he made no attempt to pull him out. It is true that the trial judge did not refer to the Appellant’s evidence that he and Joel tried to pull the complainant off Jose and were unable to, but I expect he did not believe that.

c) The complainant was acting in self-defence. I note that this finding is supported by the evidence of the complainant and Mr. Molina and the fact that the trial judge found that for the most part, the complainant received the bulk of the injuries and the more serious injuries. I note that this fact is not in dispute. Furthermore, given the other findings of the trial judge about the fact that there were three men attacking the complainant, this is a reasonable conclusion notwithstanding that the complainant was striking back in self-defence.

d) The trial judge said that he was satisfied beyond a reasonable doubt that at no time did the complainant brandish any bottle. This was disputed by the Appellant, but he did not suggest that this is why he intervened in the fight, so it is not a material finding.

e) This was “not a fair fight. It was totally unreasonable for three individuals to be attacking the complainant simply because they were assisting one another”. The pummeling that the accused engaged in was not reasonable and became even more unreasonable as he and his two cohorts pummeled the complainant. I note there is no dispute that the Appellant, Joel and Jose where hitting the complainant.

f) The trial judge had “no doubt in my mind” that the accused attacked the complaint out of a sense of loyalty and duty to Jose because the complainant was fighting with Jose. There was “no reason” for him to hit the complainant “in the manner that he did”. There was no defending necessary of Jose he didn't need any protection, and the acts committed by the accused were not reasonable in the circumstances.

g) Considering the factors in s. 34, there were three people who were acting in concert for the sole purpose of “punishing” or to “hurt the complainant”. The accused was helping to inflict the “punishment on the complainant when he should not have been doing so”. The accused’s helping of Jose was not done in self-defence, it was done forcefully with the intent to hurt the complainant and cause injury.

h) The trial judge accepted Mr. Molina’s evidence that three people were punching the complainant and one of those was the Appellant. The complainant was trying to defend himself from these three attackers. In less than a minute it got worse and the three individuals who were attacking the complaint were not stopping and had to be pulled back and the three kept punching the complainant. I note that this finding is supported by the evidence of the Appellant who testified that when he was grabbed by security, the complainant was still punching Jose which he thought was unjust and so he admitted that he got out of the grasp of the security guard, went back to pushing the complainant because he would not let Jose go, and then hit the complainant two or three times.

[44] In my view, in light of the factual findings made by the trial judge, it is hardly surprising that he rejected the evidence of the Appellant that he acted in the manner in which he did to defend Joel and Jose or that his actions were reasonable. The admission of the Appellant that he did not try to separate the complainant from Joel, the fact that he was larger than the complainant, and the fact that the three of them together were obviously much larger and stronger than the complainant – what the trial judge described as an unfair fight – was evidence the trial judge used to conclude that he could not believe the Appellant as to why he intervened and that the Appellant could not claim that he was acting in self defence.

[45] The trial judge stated in his reasons that he considered all the evidence and he found that the Crown had proven the assault beyond a reasonable doubt. He reiterated that he had considered all of the circumstances, reminded himself that the onus is always on the Crown to prove each and every element of the offence beyond a reasonable doubt without the onus ever shifting. The trial judge then went on state that he was satisfied beyond a reasonable doubt that the Crown had negatived any claim of self defence by the Appellant and finally that having considered all of the evidence he was still not left in any doubt about the Appellant’s guilt.

[46] In my view, how the trial judge came to his conclusion to reject the Appellant’s evidence and find that in all the circumstances and upon considering all the evidence the Crown had proven beyond a reasonable doubt that he was not acting in lawful self defence, is very clear. The trial judge explained the reasons for his conclusions in a way that meets the requirements of cases such as R.E.M. and Vuradin – the reasons clearly explain the ‘what’ and the ‘why' of what the trial judge decided. A trial judge is not required to reiterate and explain every step of the W.D. test. In this case, the trial judge’s reasons showed why a finding of guilt was made beyond a reasonable doubt and also why the evidence as a whole did not raise a reasonable doubt without explicitly referring to W.D.

[47] In my view, the reasons of the trial judge are sufficient, and explain why the Appellant was convicted. The reasons provide public accountability and permit effective appellate review.

The Third Ground of Appeal

Did the trial judge err in failing to impose a conditional discharge instead of a conviction and imposing a suspended sentence?

The Sentencing Hearing

[48] The sentencing hearing proceeded after the trial judge delivered his oral reasons. The Crown requested a suspended sentence and probation for one year with 50 community service hours, anger management, a weapons prohibition order and a DNA order. The violent nature of the attack on a smaller individual was cited as the main reason for this request.

[49] When counsel for the Appellant advised the trial judge that he was seeking a conditional sentence, the trial judge reacted by stating that he must be living in the “dinosaur age”. Counsel on behalf of the Appellant submitted that he had no criminal record and was a hard worker and steadily employed. When he submitted that it was important to differentiate Mr. Castillo’s specific actions against the complainant as compared to the other two aggressors in this matter, that there was no evidence that the Appellant inflicted any of the lasting injuries and that the onus was on the Crown to prove aggravating factors beyond a reasonable doubt, the trial judge observed that: “[Mr. Castillo] shows no remorse. He obviously thinks it’s okay to be … beating people to …help them.”

[50] Counsel for the Appellant also submitted that with alcohol flowing, people tend to make mistakes and act outside their usual character. The only basis for the Appellant’s request that was specific to whether or not a criminal record would adversely impact the Appellant (any more than a criminal record would, in any case) was that he has family in the United States, who he visits regularly, and counsel asked that he not be constrained from travel to the United States, which would be a problem if he was given a criminal record. There were no submissions made by the Appellant to show that a criminal record consisting of a probation order would jeopardize his employment or restrict his ability to travel to other countries.

[51] The Appellant addressed the trial judge. He stated that he regretted being involved “to help or to defend my cousin” at which point the trial judge interrupted to state that he was not defending anyone. The Appellant continued by stating that he believed that that was what he was doing at the time and that it was not his intention to “punish” the complainant. Although the trial judge made no further comment in his reasons for sentence, in my view, the Appellant demonstrated no insight into his actions given he continued to assert that he was acting in self defence. While it was his right to do so, it also meant that he would not get the benefit of a finding of remorse.

The Trial Judge’s Reasons for Sentence

[52] The trial judge immediately gave oral reasons for his sentencing decision. He stated that these “situations are potential powder-kegs waiting to happen”; it was Mr. Castillo “and the other two who acted in concert to punish him [the complainant], presumably, because Jose was your friend and this was his ex-wife and he wouldn’t have known who it was that was hitting him and you had no reason to get involved, at all”; that by getting involved, Mr. Castillo exacerbated the situation; and, “look what’s happened to the complainant and his injuries”. The trial judge stated that he thought that a period of incarceration would be appropriate “because of the violence that was perpetrated or inflicted on Mr. Cruz. You’re bigger than he is, with two other guys, trying to make me believe that he was a, a devil in disguise. I don’t buy that”.

[53] For these reasons the trial judge concluded this was not a proper case for either an absolute or a conditional discharge and that “it would be contrary to the public interest to grant the discharge in these circumstances, particularly because of the violence that was involved by you and others acting towards the same goal of hurting the complainant where self-defence did not apply”. Given the position of the Crown, the trial judge decided to suspend the passing of sentence and placed Mr. Castillo on probation for a period of two years along with the ancillary orders requested by the Crown.

Standard of Appellate Review of Sentence

[54] The cases provided by the Appellant with respect to how I should approach the sentence appeal are not of assistance as they are decisions from the Ontario Court of Appeal from the 1990s and have been surpassed by more recent authorities from the Supreme Court of Canada. The Crown provided the decision of the Supreme Court in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, where the court stated, at para. 11, that except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit. An error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor will justify appellant intervention only where it appears from the trial judge’s decision that such an error had an impact on the sentence: Lacasse, at para. 44.

[55] A very high threshold applies to appellate courts when determining whether they should intervene after reviewing the fitness of a sentence; courts have used a variety of expressions to describe this threshold such as “demonstrably unfit,” “clearly unreasonable,” “clearly excessive or inadequate,” or representing a “substantial and marked departure.” The inquiry must be focused on the fundamental principle of proportionality, determined both 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: Lacasse, at para. 52.

[56] The Appellant submits that the trial judge erred in principle by failing to consider the Appellant’s lack of a criminal record, failing to consider the Appellant’s lesser participation, as seen on the video, and taking into account facts not in evidence. It is the position of the Appellant that the trial judge erred in failing to impose a conditional discharge instead of a conviction and imposing a suspended sentence.

[57] The Appellant submits that the objectives of sentencing first-time offenders are different than sentencing offenders who are well acquainted with the justice system and that the courts have found that objectives in sentencing first-time offenders can be met through the discharge provisions even in cases of assault convictions. Two cases are relied upon to illustrate the point.

[58] The first is R. v. Mattison, 2011 ONCJ 98, 93 W.C.B. (2d) 297, where the court found that a conditional discharge was appropriate on a guilty plea even where a first offender and her husband took her teenage son to fight another 15-year-old boy. She punched the complainant and held him so her son could punch him. The assault in this case was spontaneous, brief in duration, largely an instinctual reaction to protect her son and occurred at a time when she and her family were living under a significant amount of stress. The offender was of previous good character and the court found that a criminal conviction could impact her ability to work and travel. She was granted a conditional discharge despite the circumstances of the offence being described as disturbing, troublesome and worthy of condemnation.

[59] The second case is R. v. Barlett (2008), 76 W.C.B. (2d) 428 (Ont. S.C.) where the appellate court held that a conditional discharge was appropriate after a trial on an assault charge. The accused was convicted of biting her former husband’s girlfriend during a child access visit. The trial judge refused to grant a conditional discharge on account of the lack of a guilty plea and need for deterrence for violence during custody situations. The appellate court considered a conditional discharge appropriate as the appellant had no criminal record, was of previous good character and the bite did not involve bodily harm. The absence of a guilty plea was not enough to disentitle her to a discharge. A conviction would have negatively impacted her employment prospects.

[60] I do not find these cases to be of assistance. They are simply two examples of when a conditional discharge was imposed despite the offence being an assault. Certainly, granting a conditional discharge is not prohibited in a case involving an assault provided the two conditions required by s. 730 have been met. Each case is quite different from the circumstances of the case at bar. The fact the Appellant did not plead guilty was not the reason the trial judge decided against a conditional discharge. Furthermore, there was no suggestion that a criminal record would impact negatively on the Appellant’s employment as a construction worker.

[61] The Appellant argues that the trial judge did not make any comment on the fact that the Appellant had no criminal record or on his previous lack of involvement with the justice system. This is true but there is no reason to think the trial judge was not aware of this as counsel for the Appellant made that submission immediately before the trial judge gave his reasons for the sentence. The trial judge did not comment on the fact that the Appellant had expressed no remorse but that would have been a proper factor for him to take into account and he certainly expressed a concern about that during the course of submissions by counsel for the Appellant.

[62] The Appellant also submits that he was one of three individuals involved in the fight with the complainant and that it is clear from the video that not all of them participated to the same extent. The essence of this submission as I understand it is that the complainant’s injuries cannot be attributed solely, or even mostly to the Appellant, and that the trial judge conflated the actions of the three individuals and held the Appellant to account for the actions of both Joel and Jose as opposed to his actions alone, as demonstrated by the statement in his reasons that “it would be contrary to the public interest to grant the discharge in these circumstances, particularly because of the violence that was involved by you and others acting towards the same goal of hurting the complainant where self-defence did not apply”.

[63] I do not accept this submission. The trial judge asked the Appellant at the end of his evidence who he believed caused the complainant’s injuries and the Appellant said that it was both Jose and Joel. What was important to the trial judge however was his finding that the Appellant, Jose and Joel were all attacking the complainant at the same time. He also rejected the Appellant’s evidence that he was doing so to defend Jose and Joel. His finding then, that the Appellant was acting in concert with the other two towards the same goal of hurting the complainant, is consistent with these findings of fact. The trial judge did not suggest in his reasons that he believed the Appellant to have caused any particular injury, only that the complainant was injured as a result of the violence inflicted upon him.

[64] Finally, the Appellant submits that the trial judge attributed a motive to the Appellant that he joined in the fight in order to “punish” the complainant, which the trial judge repeated several times in his reasons for judgment and again in his reasons for sentence, and that the trial judge was taking into account facts not in evidence and attributing a malicious motive to the Appellant beyond joining in on the fight. It is submitted that neither the complainant nor any of the other witnesses suggested that there was a desire to punish as a reason for the Appellant’s actions, and that there was no suggestion that the Appellant even knew the connection the complainant had to Jose or Ms. McEvoy until after the fight.

[65] It is true that the trial judge used the word “punish” a number of times in his oral reasons and he stated it again in his reasons for sentence. Although that might be, as the Crown admitted, a poor choice of words and he might have used a different word, the dictionary meaning of the word “punish” does not include, as the Appellant suggests, a meaning that suggests the trial judge was ascribing a malicious motive to the Appellant in the sense that he knew about any reason why Jose and the complainant were fighting. As the trial judge stated later in his reasons, he found that the goal of the actions of the Appellant and the other two men was to “hurt” the complainant. It is clear that he was using the word “punish” in that sense. Having rejected the defence of self-defence, in my view it was obvious that the Appellant having an intention to hurt the complainant was a reasonable conclusion for the trial judge to make.

[66] A conditional discharge can be imposed pursuant to s. 730(1) of the Criminal Code, if the sentencing judge considers it to be in the best interest of the defendant and not contrary to the public interest.

[67] As in every case, a conditional discharge would be in the best interest of the Appellant who has no criminal record at 35 years of age. The only impact on the Appellant of a criminal record was the suggestion that he would not be able to visit family in the United States. That may be true but there was no evidence, as there often is, that a criminal record would impact the Appellant’s employment.

[68] In imposing sentence, the trial judge was clearly concerned about the fact that this fight occurred in a bar, during a concert, which the trial judge described as a potential powder-keg, which I presume is a reference to the fact that this fight occurred in a crowded venue with the free flowing consumption of alcohol and upset patrons because the fight stopped the band from playing. In fact, Mr. Molina testified that others were getting involved in the fight beyond the Appellant, Jose and Joel. The trial judge referred again to the fact the fight was not fair in that the Appellant was bigger than the complainant, that he had no reason to get involved, that in doing so he “exacerbated the situation” and to the complainant’s injuries. For these reasons the trial judge concluded this is not a proper case for a conditional discharge and he found that it would be contrary to the public interest to grant the discharge in these circumstances, “particularly because of the violence that was involved by you and others acting towards the same goal of hurting the complainant where self-defence did not apply”.

[69] The Ontario Court of Appeal has held that cases involving violence and resulting in injury require general deterrence to be of paramount concern notwithstanding considerations personal to the accused: see R. v. Wood (1975), 24 C.C.C. (2d) 79 and R. v. Huh, 2015 ONCA 356, 335 O.A.C. 394. In R. v. Wood the court stated:

In cases of violence resulting in injury, the requirement of general deterrence to the public militates, in almost every case, against the grant of a conditional discharge, notwithstanding considerations personal to the accused. (emphasis mine, at para. 4)

[70] In my view, it was not unreasonable for the trial judge to be concerned about the location of the offence, the violent nature of the assault and the fact that the complainant suffered some injuries from it. While a suspended sentence and probation was ordered, there was surprise at the fact that the Crown was not asking for a custodial sentence. In cases in which general and/or specific deterrence and denunciation must be emphasized, the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law-abiding society: Lacasse, at para. 6.

[71] In my view, given the facts as found by the trial judge, the sentence that he imposed on the Appellant was not demonstrably unfit. His conclusion that a discharge would be contrary to the public interest was reasonable.

Disposition

[72] For these reasons, the appeal is dismissed.

“Spies J”

SPIES J. DATE: May 5, 2020