OSHAWA COURT FILE NO.: CR-18-14756
DATE: 20200923
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
MICHAEL THERIAULT Applicant
COUNSEL:
Peter Scrutton and Linda Shin, for the Crown
Alan D. Gold, Michael Lacy, Laura Metcalfe, Deepa Negandhi and Marcela Ahumada, for Michael Theriault
HEARD: September 14, 2020
RULING ON APPLICATION TO RE-OPEN TRIAL
DI LUCA J.:
[1] Michael Theriault was tried before me without a jury on charges of aggravated assault and attempt obstruct justice. The trial was hard-fought with no stone left unturned.
[2] On June 24, 2020, Michael Theriault was acquitted of aggravated assault but found guilty of the lesser and included offence of assault. He was also acquitted of attempt obstruct justice.
[3] On August 11, 2020, counsel filed an application to re-open the trial and vacate the finding of guilt on the assault charge. In this application, counsel raised, for the first time, an argument relating to the court’s jurisdiction to find Mr. Theriault guilty of the lesser and included offence of assault.
[4] In short, counsel now argues that there is no lesser and included offence of assault available on a charge of aggravated assault. This argument has two branches. First, Mr. Gold relies on a new interpretation of the offence of aggravated assault as it is worded in section 268 of the Criminal Code. According to Mr. Gold, this interpretation de jure forecloses the availability of assault being a lesser and included offence. Second, Mr. Gold argues that a combination of factors, including the procedural history, admissions made at the outset of trial and the evidence presented, nonetheless, create a de facto scenario wherein no lesser and included offence of assault is available.
[5] I heard argument on the application on September 14, 2020, and indicated at that time that the application was dismissed with reasons to follow. These are those reasons.
[6] I will address the application as follows. First, I will review the test for re-opening a completed trial and assess whether it is appropriate for the court to do so in this case. Second, I will assess the statutory interpretation argument advanced by Mr. Gold. Last, I will assess whether the particular procedural, factual and legal matrix of this case, nonetheless, forecloses a finding of guilt for the lesser and included offence of assault.
The Legal Test for Re-Opening a Trial
[7] The parties agree that in a judge-alone trial, a judge retains a discretion to re-open a case any time before the sentence is finally imposed, see: R. v. Lessard (1976), 1976 1417 (ON CA), 30 C.C.C. (2d) 70 (Ont. C.A.) and R. v. Griffiths, 2013 ONCA 510 at para. 12.
[8] The discretion to re-open a trial following a finding of guilt should only be exercised in exceptional circumstances where it is “clearly” called for. It is a very rare occurrence: see R. v. Chan, 2019 ONSC 783 at para. 26, reversed at 2020 ONCA 333, though not on this issue.
[9] In this case, the re-opening is not based on fresh evidence or a change in law occasioned by developing appellate jurisprudence. Rather, it is based on a new legal argument that was not raised during closing submissions despite there having been ample opportunity to do so.
[10] As indicated at the outset, this was a hard-fought trial with no stone left unturned. All counsel advanced their positions forcefully and in detail. I received the benefit of lengthy written legal and factual submissions which relied on the transcripts of trial evidence as well as extensive case law. The written arguments were supplemented by helpful oral submissions that reviewed the highlights of the written submissions and addressed questions I raised. The colloquy with Crown counsel included a question directly on the issue of whether a simple assault finding might result if I was left in reasonable doubt about causation but convinced beyond a reasonable doubt that Mr. Miller was struck with the metal pipe while at the front door of the Silverthorn residence and thereafter on the driveway. In response, the Crown indicated that a finding of guilt for simple assault would follow. The defence immediately commenced its reply and made no comment whatsoever on the Crown’s submission in this regard. Following submissions, I reserved my decision. The COVID pandemic intervened and the delivery of the reasons was delayed by several months. The reasons for judgment were delivered on June 24, 2020, and it was not until August 11, 2020 that counsel first raised the new legal argument.
[11] Viewed against this context, I decline to exercise my discretion to re-open the trial for two reasons. First, defence counsel is essentially asking me to review my own decision for correctness on a legal issue. They argue that I erred in law by convicting Mr. Theriault of a lesser and included offence that was not available on the charge or facts of this case. Whether I so erred is an issue that the Court of Appeal is best positioned to determine. Second, the principle of finality militates strongly against re-opening a trial in the present circumstances. To permit otherwise would invite counsel to bring successive legal arguments in the event that their primary argument fails to win the day. As the Court of Appeal notes in R. v. Kowall (1996), 1996 411 (ON CA), 108 C.C.C. (3d) 481 (Ont. C.A.) at para. 40, “[a] trial is not some kind of preliminary inquiry allowing parties to recast their case depending upon the reasons for judgment”.
[12] While this conclusion is sufficient to dispose of the application, I will nonetheless briefly address the substance of the arguments.
[13] The keystone to Mr. Gold’s argument that the court lacked jurisdiction to find Michael Theriault guilty of the lesser and included offence of assault, is premised on a novel interpretation of the offence of aggravated assault found in section 268 of the Criminal Code.
[14] In the initial written material Mr. Gold advanced what I will call the de facto version of this argument, which is based primarily on the submission that the defence admission that Mr. Miller’s eye injury amounts to a “wounding”, “maiming” or “disfiguring” within the meaning of section 268 of the Code, effectively constrains the Crown to proving that the eye wound was occasioned unlawfully. The failure to do so, results in an acquittal. In other words, given the factual and legal matrix of this particular case, there is no de facto lesser and included offence.
[15] In reply written submissions and during argument of the motion, Mr. Gold went further and advanced a de jure version of this argument which posits that on a proper reading of section 268 of the Criminal Code, there are no lesser and included offences regardless of the facts.
[16] I will briefly address these two arguments, starting with the de jure proposition.
[17] Section 268 of the Criminal Code provides:
268(1) Everyone commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.
[18] According to Mr. Gold, careful attention must be paid to the language of the section. Unlike the offence of assault causing bodily harm, the language of the aggravated assault provision does not suggest that the offence is comprised of an assault coupled with a resultant requisite degree of harm.
[19] Instead, according to Mr. Gold, the offence of aggravated assault is statutorily delineated as a wounding, maiming, disfiguring or endangering of life. Properly understood, the actus reus of the offence is the very act of wounding, maiming, disfiguring, etc., and not simply an assault which results in one of the four defined types of injury. Where the Crown fails to prove that the act of wounding, maiming, and/or disfiguring was unlawfully committed, the prosecution fails. There are no lesser and included assault-based offences.
[20] This argument has no merit. It is contrary to the long and well settled understanding that the Criminal Code creates a hierarchy of assault-based offences that build on each other, starting with assault, progressing to assault causing bodily harm and then to aggravated assault. The same hierarchy of offences is found in relation to the offences of sexual assault, sexual assault cause bodily harm and aggravated sexual assault.[^1] This hierarchy of assault offences is also reflected in various model jury instructions used across the country, see for example Watt’s Specimen Jury Instructions (Criminal), Final 268 – Aggravated Assault and the Canadian Judicial Council’s Model Jury Instructions on Aggravated Assault.
[21] A simple assault is the starting point for each of the assault-based offences. The Criminal Code defines an assault as an intentional non-consensual touching of another person, see section 265(1) of the Code. Section 265 (2) of the Code states that the definition of “assault” applies to “all forms of assault…”, which presumably includes aggravated assault.
[22] The offences themselves are described as forms of assault starting with assault, assault causing bodily harm and aggravated assault. The use of the word “assault” in the language of each offence title is some evidence that Parliament intended an “assault” to form part of each offence. This can be contrasted with the offence of unlawfully causing bodily harm found in section 269 of the Code.
[23] The offences harmoniously build on each other. An assault does not require any infliction of harm, merely the intentional non-consensual application of force. An assault causing bodily harm is an assault that results in a requisite degree of bodily harm. An aggravated assault is an assault that results in more serious forms of bodily harm. The mens rea component for each offence level requires an intentional application of non-consensual force. Where the charge is assault cause bodily harm or aggravated assault, the intent remains the same for the assault and the Crown need only prove that the resultant injury was an objectively foreseeable consequence. The injury itself does not need to have been intentionally inflicted; see R. v. L.(S.R.) (1992), 1992 2836 (ON CA), 76 C.C.C. (3d) 502 (Ont. C.A.), R. v. Leclerc (1991), 1991 7389 (ON CA), 4 O.R. (3d) 788 at p. 792, R. v. Nurse (1993), 1993 14691 (ON CA), 83 C.C.C. (3d) 546 (Ont. C.A.) and R. v. De Freitas (1999), 1999 14071 (MB CA), 132 C.C.C.(3d) 333 (Man. C.A.). See also Halsbury’s Law of Canada – Criminal Offences and Defences (2020 Reissue) by Alan D. Gold at HCR 284, HCR 285 and HCR 286.
[24] Section 662 of the Criminal Code authorizes convictions for included offences where, inter alia, the elements of the included offence are necessarily included elements of the offence charged, see R. v. G.R., 2005 SCC 45 at para. 25 and 29. An assault is always an included offence in aggravated assault, see R. v. Rocchetta, 2016 ONCA 577, at para. 38. In other words, a person cannot as a matter of law commit an aggravated assault without at least committing an assault.[^2]
[25] Mr. Gold’s argument advances an interpretation of aggravated assault that would result in a fundamental change to the hierarchy of assault-based offences. Indeed, on his interpretation, the offence of aggravated assault would be a stand alone offence with no lesser and included offences.[^3] Moreover, this interpretation would require the Crown to prosecute in separate counts any other assaultive conduct arising out of the same transaction as an alleged aggravated assault. Lastly, Mr. Gold’s interpretation leaves the issue of mens rea unclear. The mens rea has never required an intentional infliction of a wound, maiming, disfiguring, etc.
[26] Ultimately, I see no reason to depart from the settled understanding of the offence of aggravated assault, which situates the offence consistently and cohesively within a scheme of offences against the person.
[27] I turn next briefly to the de facto argument. In this regard, Mr. Gold argues that once the defence admitted that Mr. Miller’s injuries constituted “wounding”, “maiming” or “disfiguring”, the only issue for the court to determine was whether those injuries were the result of an assault committed without any justification or excuse. As such, the simple assault that Michael Theriault was found guilty of committing later in the altercation was not a lesser and included offence of the specific aggravated assault that was charged and was the subject of the trial. Boiled down to its essence, the argument is that Michael Theriault was found guilty of an offence that fell outside the transaction contemplated by the indictment, the procedural history and the admissions.
[28] This argument is also without merit. The count in the indictment was not particularized in any fashion. It simply alleged an aggravated assault. The transaction that sat at the core of the Crown’s case was a beating of Mr. Miller by Michael and Christian Theriault. The beating was comprised of many individual blows delivered by both accused. The beating started when Mr. Miller ran in-between the homes and ended once police arrived and found Mr. Miller on the ground. The issue the court had to determine was whether some, none or all of the blows during this incident amounted to unlawful assaults and if so, whether it was proven beyond a reasonable doubt that the injuries Mr. Miller suffered were caused by these assaults.
[29] The Crown advanced more than one theory of liability which depended on the availability of various factual findings. The Crown in no way restricted the actus reus of the offence to the blow or blows that caused Mr. Miller’s eye injury. Moreover, the defence admission that the eye injuries suffered by Mr. Miller amount to “wounding”, “maiming or “disfiguring”, did not effectively create a particular that the Crown was bound to prove. To find otherwise would, as the Crown argues, permit admissions to become weaponized as stealth particulars.
[30] The fact that the Crown had, prior to trial, chosen not to proceed on a charge of assault with a weapon which had been before the court during the preliminary inquiry, did not restrict the nature of the transaction that the Crown was alleging at trial. The case was presented, and on the basis that it involved an allegation of a number of assaultive incidents occurring within a single ongoing transaction.
[31] Lastly, there can be no suggestion of prejudice to the defence in this regard. I am satisfied that various alleged assaults and the ultimately proven assault were all part of the same transaction which was vigorously defended in all regards, see R. v. Rocchetta, supra, at paras. 44 and 54 and R. v. Hulan (1969), 1969 306 (ON CA), 2 O.R. 283 (C.A.).
[32] The application to re-open the trial and vacate the verdict is dismissed.
Justice J. Di Luca
Released: September 23, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MICHAEL THERIAULT Applicant
RULING ON APPLICATION TO RE-OPEN TRIAL
Justice J. Di Luca
Released: September 23, 2020
[^1]: The offence of aggravated sexual assault as set out in s. 273 of the Code provides “Everyone commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant”. The addition of the phrase “in committing a sexual assault” does not change the nature of the offence. Rather, it serves simply to require a linkage between the wound, maiming, disfiguring or endangering life and the sexual assault committed as opposed to any other assault that may have occurred.
[^2]: Though assault cause bodily harm is not invariably a lesser and included offence of aggravated assault, for example where the aggravated assault is alleged to involve “endangering life”: see, R. v. Sweeney, 2003 MBCA 46 at paras. 7-10.
[^3]: Interestingly, on Mr. Gold’s interpretation, the offence of aggravated sexual assault would include the lesser and included offences of sexual assault causing bodily harm and sexual assault in view of the addition of the phrase “in committing a sexual assault”.