Court File and Parties
Court File No.: 9073/24
Date: 2025-06-11
Ontario Superior Court of Justice
Between:
His Majesty the King, Respondent
and
Sarah Bannon, Appellant
Appearances:
Robert Skeggs, for the Respondent
Robert Nanni, for the Appellant
Heard: June 3, 2025
Judge: Gareau J.
Reasons on Appeal
Introduction
[1] This is an appeal by the offender, Sarah Bannon. On January 24, 2024, the appellant was found guilty of assault causing bodily harm by Madam Justice Melanie Dunn presiding in the Ontario Court of Justice. This finding of guilt was made after a trial.
[2] The appellant proceeded on the supplementary notice of appeal dated September 17, 2024. In that document the appellant lists the grounds for appeal as follows:
- That the trial judge’s reasons are insufficient because they fail to advert to, engage with and resolve the defence of self-defence; and
- That the trial judge erred in assessing credibility.
[3] The appeal was argued on June 3, 2025. At the conclusion of argument, the court made the following endorsement:
Appeal argued. For written reasons to follow, this appeal is allowed on the ground of insufficiency of reasons by the trial judge on the issue of self-defence. The conviction is set aside, and a new trial is ordered in the Ontario Court of Justice.
[4] These are my reasons for allowing the appeal.
Agreed Facts
[5] On July 14, 2022, the appellant was watching their seven-year-old son, nine-year-old daughter, and two dogs. They were at a rental home of their husband, Amish Kumar Patel.
[6] An investment company called Core Development had purchased Mr. Patel’s home, among others, and was having these homes inspected. The complainant, Donald Dell, was retained to inspect these homes. These homes were managed by Rachelle Shephard, at RWC Management. By July 2022, Ms. Shephard had been in this property management role for about three months.
[7] In July 2022, Ms. Shephard was tasked with printing pre-prepared “Notices of Intention to Enter” and placing those notices in about 120 different mailboxes. She delivered half on July 11 and half on July 12. She agreed this task was “[q]uite a lot” for one person. She “remember[ed] going to several places”, but she could not “specifically say” that she went to Mr. Patel’s home. She assumed she delivered all the notices since she did not have any left in her car, but she agreed it was possible that Mr. Patel’s notice did not print properly, or that there was some “human error”.
[8] Mr. Patel testified that he checked his mailbox every day, but he did not receive any notice that his home would be inspected. Yet on the afternoon of July 14, Mr. Dell attended Mr. Patel’s home with Owen French, a student employed by Core Development, to conduct a home inspection.
[9] In January 2022, Mr. Dell conducted an interior home inspection by himself (during which he may have had a brief exchange with the appellant, perhaps while he was wearing a mask). On July 14, he and Mr. French arrived to conduct an exterior home inspection. They knocked on the door, but no one answered. They made their way into the backyard through the side gate. The appellant then entered the backyard “very irate, screaming and yelling”, asking “what the F” the men were “doing there”. Mr. Dell tried to de-escalate the situation, but the appellant persisted: “it was surreal the, the just anger out of her.” This was generally corroborated by Mr. French.
[10] By this point, Mr. French had already left the backyard because he was scared of dogs: “I’m not the most comfortable with dogs. So again, that was my reasoning for kind of like leaving when this initially happened...”. Mr. French did not see the ensuing events.
[11] Mr. Dell said that he was trying to leave the backyard, but the appellant would not let him leave. Instead, the appellant grabbed his arm and shoved their phone within two inches of his face. He agreed that he “swept it away” from his face, after which the appellant “tackled” him to the ground with his arm behind his back. The appellant was straddling him, “just beating the living crap out of” him with both hands. He said he could not fight back, nor would he have fought back, because he was “raised up never to hit a woman.” But he did “manage to get her off” once, when he pushed the appellant with his feet and “screamed for Owen.” Mr. French did not report hearing this. The whole time, the appellant was screaming that in fact he was hitting the appellant, rather than the other way around, but he maintained that he “never once laid a finger on her.”
[12] The assault stopped. The appellant yelled they were calling the police to have him charged. Police arrived. An ambulance took Mr. Dell to the hospital.
[13] The appellant was at Mr. Patel’s home watching their two young children and two dogs. The appellant saw a man walking in front of the house, so they called their husband, Mr. Patel, and asked if he was expecting anyone. He told the appellant to check out what was happening. The appellant went to the basement and out the side door. No one was there, but they saw a truck they did not recognize, and the side gate was open. They believed someone was in the backyard.
[14] Mr. Patel testified that the appellant sounded panicked. While on the phone, he could hear the appellant’s voice and a male voice (later identified as Mr. Dell). Mr. Patel heard Mr. Dell rudely ask who the appellant was, to which the appellant responded, “Who the fuck are you?”, to which Mr. Dell replied, “I’m an inspector. I can do whatever I want.” Mr. Patel heard the appellant say that they did not receive a notice of inspection and that they were going to record Mr. Dell. Mr. Patel then heard a tumbling noise, and the phone cut off.
[15] The appellant acknowledged being afraid and confused, yelling profanities, and asking the two men to identify themselves. The appellant hung up on their husband and went to record the situation.
[16] The appellant explained that their reaction to Mr. Dell’s violence was a response triggered by having been sexually assaulted as a child by their brother, and as an adult in their workplace.
[17] On July 14, Mr. Dell was x-rayed and sent home with painkillers. On July 26, he was x-rayed again; he had a fractured humeral head and a dislocated shoulder. He said he had “never” had an issue with his shoulders and had “first hurt” his shoulder on July 14. Yet he acknowledged that two different doctors said he had or may have had a “previous injury” to his “humeral head”. While he first said he was put in an immobilization sling, he later acknowledged specifically ”requesting” one, “above and beyond” what was provided by the hospital, despite receiving medical advice about the risk of further injury from using an immobilization sling. He rejected the suggestion that more extensive injuries were caused by intervening events between the first set of x-rays on July 14 and the second sets of x-rays 12 days later.
[18] Also on July 14, Constable Krmpotich spoke to the appellant. He did not take a formal statement, had no notes about whether the appellant was injured, and did not remember asking them about any injuries. He had concluded that Mr. Dell was hurt based on physical observations.
[19] The next day, on July 15, Cst. Krmpotich attended Mr. Dell’s home to take his statement, photograph his injuries, and give him victim information papers. Afterward – without taking a formal statement from the appellant – he arrested the appellant for assault causing bodily harm. He did not know whether the appellant was injured; his notes were silent on this. He had only known about Mr. Dell’s injuries because he had observed them the day before.
[20] The appellant testified to several injuries: a sprained finger, scratched ankles, bruises from the neck down. These injuries were corroborated by Mr. Patel and by photos tendered in evidence.
[21] Cst. Krmpotich acknowledged that there are situations where an aggressor gets hurt but they are nonetheless the aggressor. He said that it “cross[ed] his mind” that Mr. Dell was the aggressor. He said he needed an extra day to consider who to charge, but he also said that he had all the information needed to arrest the appellant on July 14. He agreed that he never conducted a full investigation, and that he never interviewed the appellant. He stated, “My observations, I would say guided me in a certain direction. And then information I received later confirmed the observations that I had made.”
The Issue of Self-Defence at Trial
[22] It is undeniable that whether the appellant acted in self-defence was the major issue at the trial of this matter.
[23] At trial, defence counsel explained why all three statutory requirements for self-defence were satisfied in this case. Defence counsel concluded: “there’s really no alternative but to acquit them of this charge because on this day they acted in self-defence.” The trial judge did not ask any questions.
[24] At trial, the Crown stated that “this entire incident can actually be easily explained” as “an extreme overreaction. This was not a reaction that satisfies, at all, the defence of self-defence.” The Crown went through the history of self-defence and the Supreme Court’s decision in Khill, urging the trial judge to reject an air of reality to self-defence. The Crown ended its submissions by stating that, “if there even is an air of reality to this self-defence argument, the appellant’s evidence was exaggerated and untruthful: ‘the criteria of s. 34 are not satisfied. This defence must fail.’”
[25] The defence then replied to some of the Crown’s arguments about the appellant’s evidence and about particular components of the self-defence test outlined in s. 34 of the Criminal Code.
[26] In paragraph 25 of their factum the appellant acknowledges that the trial judge largely rejected the appellant’s evidence, finding that the appellant was the aggressor, “immediately, and the only aggressor.”
[27] In her reasons for judgment, Justice Dunn specifically acknowledged all the witnesses who gave evidence and that “the ultimate burden of persuasion rests on the Crown and, as always, on the venerable criminal standard. If I am left with a reasonable doubt an acquittal must follow. If, on the other hand, I am satisfied beyond a reasonable doubt that Bannon assaulted the complainant causing bodily harm, the conviction must follow.”
[28] In her reasons, the learned trial judge goes on to review the evidence that she heard at the trial and, in particular, the evidence of the complainant and the accused. At page 13 of the reasons, the trial judge states that “credibility is the main issue in this trial and calls for the application of the W.(D.) principles.” The trial judge goes on to state the three prongs of W.(D.). The trial judge goes on in her reasons to discuss the distinction between credibility and reliability in assessing the testimony of a witness.
[29] Starting at page 16 of her reasons and continuing to page 18, the trial judge makes the following comments about the evidence:
I accept Bannon’s evidence regarding the trauma previously suffered. I do have concerns over Bannon’s evidence given with respect to the altercation, the breaking of the gate, and the attempted entry into the home whether that is a credibility issue or perhaps a reliability related to the trauma outlined in Bannon’s evidence I am unsure. In cross-examination Bannon added details when confronted with what appears to be implausibilities with Bannon’s version of events. When asked how Mr. Dell could have grabbed a hold of Bannon with both hands if holding an iPad, Bannon then added that he threw the iPad before doing so after already going over these events without that fact in their evidence. Bannon would not agree that Bannon was standing close to Mr. Dell when holding the phone and gave evidence that Mr. Dell lunged toward Bannon when grabbing and throwing the phone. I do not accept that this occurred. I accept the evidence of Mr. Dell.
I do not accept that Mr. Dell or Mr. French broke the gate to the backyard. Bannon testified that the gate was not used and did not answer the question about when Bannon last used the gate. Mr. Patel, too, testified the gate was not used and made no mention in his testimony of a padlock or a broken gate.
I do not accept Bannon’s evidence that Mr. Dell or Mr. French were trying to get into the residence wiggling the side doorknob. This was a fact offered by Bannon after being cross-examined on why a so-frightened Bannon would not stay in the residence and call out to the men instead of going outside where they were.
I find it would be implausible that Mr. Dell, having suffered the shoulder injury he did from the fall to the ground, that he could have used both arms as described by Bannon. I accept Mr. Dell’s evidence that his arm was incapacitated.
Bannon testified and was adamant that despite asking Mr. Dell who he was that he refused to say. I accept the evidence of Mr. Dell, Mr. French, and Mr. Patel that Bannon was told by Mr. Dell that he was an inspector.
Considering the evidence that I accept, I find that Bannon was the aggressor, immediately, and the only aggressor. Bannon approached yelling and swearing and put a phone into Mr. Dell’s face that he swiped away. Mr. Dell attempted to leave the backyard and Bannon then flipped him over, body-slammed him, and caused the shoulder injury from the body slam. Bannon then began punching Mr. Dell. Mr. Dell kicked her off and when he called out to Mr. French the assault stopped.
I find Sarah Bannon guilty.
[30] Although the issue of self-defence was the central issue at the trial and the primary defence advanced by the accused, there is no mention of self-defence or analysis of self-defence in the reasons of the trial judge.
The First Ground of Appeal – Sufficiency of Reasons
[31] The appellant argues that there is no mention in the trial judge’s decision of self-defence and no analysis of self-defence under section 34 of the Criminal Code of Canada or the applicable jurisprudence. It is argued by the appellant that the trial judge’s reasons focus entirely on credibility and ignore the issue of self-defence. It is the position of the appellant that if a person was to read the reasons of the trial judge, that they would be left with the impression that self-defence was not an issue raised at the trial. The position of the appellant is that the trial judge’s reasons do not explain how she handled the issue of self-defence; why she rejected the defence of self-defence, and therefore prevent meaningful appellate review, thereby being insufficient.
[32] The Crown suggests that a plain reading of the trial judge’s reasons shows that she was very alive to the issue of self-defence and that she rejected it. As stated in paragraph 8 of the Crown’s factum, “the trial judge provided detailed reasons as to why she ultimately rejected the exculpatory version of events proffered by the appellant. Having done so – having not accepted the appellant’s exculpatory version of events at all – there was zero need to further address their additional version that their actions were taken in self-defence. No evidence of ‘self-defence’ remained to consider.”
[33] It is the position of the Crown that given the findings made by the trial judge on the issue of credibility and in determining what happened in the altercation between the complainant and the accused, that any further analysis of whether or not the appellant’s actions were “reasonable” such that they might have been protected by virtue of the Criminal Code as unnecessary. As the Crown states in paragraph 46 of its factum, “The trial judge very clearly rejected the argument that the appellant’s actions were done for either defence of property or defence of self. The appellant was the aggressor, immediately, and the only aggressor. No path for any argument related to self-defence remained. The appellant’s exculpatory versions and exculpatory explanations was categorically rejected by the court.”
[34] It is well settled law that reasons for judgment must allow meaningful appellate review. The court must explain the what (what is in issue) and the why (why they decided that issue as they did). As noted in paragraph 29 of the recent Ontario Court of Appeal case of R. v. Polemidiotis, 174 OR (3d):
Reasons for judgment will be insufficient where they prevent meaningful appellate review. An appellate court must take a functional and contextual approach to reviewing a trial judge’s reasons. The issue on appeal is whether the reasons for judgment, read as a whole and in light of the live issues at trial, explain what the trial judge decided and why in a manner that permits effective appellate review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 25, 28; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 69; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 52-53.
[35] The court goes on further at para. 30 of the Polemidiotis decision to state:
Trial judges are not required to address in their reasons all issues raised or all evidence presented at trial. However, the reasons must demonstrate that the trial judge understood and grappled with the critical issues, including contradictory evidence: R.E.M., at paras. 55-57.
[36] In paragraph 26 of its factum the appellant refers to cases which reached the conclusion that,
The trial judge’s reasons were plainly insufficient. They did not address the only live issue: whether the appellant acted in self-defence. This gap in the reasons cannot be filled by looking at ‘the evidence, the submissions of counsel and a history of how the trial unfolded. Indeed, the reasons are so deficient that they foreclose meaningful appellate review. A new trial must follow’.
[37] In the case at bar, the learned trial judge’s reasons do not refer at all to the issue of self-defence despite the fact that this was the primary issue at trial as indicated in the submissions made to the court by both defence and Crown counsel after the evidence was heard. The reasons of the trial judge do not refer to the case law on self-defence or refer to the air of reality test or indicate or even mention the burden of proof shifting to the Crown after the air of reality test was met by the accused. There is absolutely no mention in the judge’s reasons of section 34 of the Criminal Code or any mention whether this section of the Code was considered by the court or applied by the court. That section sets out factors that the court “shall consider” by virtue of the wording of section 34 in assessing self-defence. The trial judge does not mention that section in her reasons and therefore a court on review is left in a state of uncertainty as to whether the trial judge applied section 34 of the Criminal Code in arriving at the conclusion that the appellant was guilty.
[38] There is no indication in the trial judge’s reasons whether she considered or applied the burdens in assessing the defence of self-defence. There is no indication in her reasons that she considered that the low threshold for establishing an air of reality to the defence was established by the accused or whether, if an air of reality was established, whether the Crown met its onus to disprove self-defence beyond a reasonable doubt. The reviewing court on appeal is left unaware of whether the trial judge applied these tests and the shift of burden or proof because there is absolutely no mention of this in the reasons of the trial judge.
[39] The trial judge gives no indication in her reasons for judgment that she properly applied the burden of proof and the relevant legal framework as set out in section 34 of the Criminal Code of Canada, and her failure to do so, in my view, cries out for appellate intervention. An appellate court is left in a state of uncertainty as to what the trial judge decided on the issue of self-defence and why the trial judge reached that decision and as such this does not permit effective appellate review.
[40] I do not agree with the position of the Crown that the answers to these questions can be found in a complete reading of the trial judge’s reasons. Under the new regime for self-defence as set out in section 34 of the Criminal Code the fact that the accused is found to be the “aggressor” in an altercation does not preclude the defence of self-defence from being established. The Crown suggest that the court had to determine what happened and that the trial judge did as evidenced by her reasons. In my view, part of determining what happened is a determination of whether the accused acted in self-defence in her interaction with the complainant. Unfortunately, this is not dealt with at all by the trial judge in deciding what happened between the accused and the complainant on the day in question.
[41] The appellate court on review is incapable of considering whether the trial judge was correct or in error on the issue of self-defence because this is not explained in her reasons for judgment. An appellate court cannot determine whether or not self-defence would have been established because the issue of self-defence is not covered off in the reasons of the trial judge. Without an answer to the questions as to whether the trial judge considered the issue of self-defence and, if so, why she concluded as she did on that issue, appellate review is incapable of being done and as a result the trial judge’s reasons are insufficient. The credibility findings made by the trial judge does not alleviate or render unnecessary consideration and analysis of the defence of self-defence raised by the appellant. The fact that the trial judge found the appellant to be the “aggressor” does not close the self-defence argument or eliminate the need for a consideration and analysis on the issue of self-defence.
[42] For the aforegoing reasons, I conclude that the trial judge’s reasons are insufficient on the issue of self-defence and that a new trial must be ordered. Having reached that decision, it is not necessary for the court to comment on the appellant’s second ground of appeal.
[43] The conviction of the appellant is set aside, and a new trial is ordered in the Ontario Court of Justice.
Marc Gareau
Released: June 11, 2025