Ontario Superior Court of Justice

Court File No.: CR-21-9667-AP
Date: 2025-06-20
Heard at Ottawa: January 13, 2025

Between:
His Majesty the King, Respondent
and
Justin Williams, Appellant

Appearances:
J. Wright, for the Respondent
D. Nugent, for the Appellant

Before:
Robyn M. Ryan Bell

Reasons for Decision – Summary Conviction Appeal

On appeal from the decision of Justice P.L. Bellefontaine (written reasons for judgment dated June 9, 2023)

Introduction

[1] Mr. Williams appeals his conviction for assault. He alleges the trial judge erred in (1) making unreasonable findings of fact or credibility, and (2) misapprehending the appellant’s evidence. The appellant further contends that the curative proviso in s. 686(1)(b)(iii) of the Criminal Code does not apply in the circumstances of this case.

[2] For the following reasons, the appeal is dismissed.

Background

[3] The appellant and the complainant were both residents of a rooming house in Ottawa. While the appellant and the complainant initially enjoyed a good relationship, over time, the complainant became insulting toward the appellant. The appellant testified that the complainant would repeatedly shout or loudly whisper insults such as “big stupid ginger”, referring to the appellant’s red hair, “faggot”, referring to the appellant being gay, and “googly eyed pedophile”, referring to the appellant’s glasses and suggesting a sexual interest in young children. Ultimately, the complainant’s insulting behaviour toward the appellant led to two incidents between the appellant and the complainant on April 22 and 23, 2021.

[4] At trial, the Crown asserted the appellant initiated unprovoked assaults on the complainant without the complainant’s consent on the evening of April 22, which continued the following day.

[5] The appellant contended the complainant intentionally goaded the appellant into assaulting the complainant – thereby consenting to the assault. With respect to the April 23 “follow up”, the appellant asserted that his assaultive behaviour was in response to the complainant “sucker punching” him when the appellant’s attention was distracted by the arrival of the superintendent. The appellant argued the complainant’s conduct justified the appellant’s response in self-defence. The appellant acknowledged that on April 22, he grabbed and pushed the complainant. The appellant acknowledged that on April 23, he grabbed the complainant, punched him two or three times in the head, and bit his arm.

Decision at Trial

[6] At trial, the issues were the credibility and reliability of the witnesses (the appellant and the complainant), self-defence, and consent.

[7] The trial judge found the complainant was not a reliable witness, and concluded that the complainant’s evidence was “sufficiently problematic that other than when it is supported by [the appellant] it cannot be used as a basis for making findings of fact in favour of the Crown”: Reasons, at para. 12.

[8] The trial judge was satisfied beyond a reasonable doubt that the appellant grabbed the complainant first on both April 22 and 23, and that the appellant did not, at the time, believe force was being used or threatened to be used against him: Reasons, at paras. 19-20.

[9] The trial judge rejected the appellant’s argument that he acted in self-defence. The trial judge found the catalyst for both assaults was the complainant’s insults and non-violent behaviours. The trial judge further found the appellant’s actions in punching and biting the complainant were not reasonable in the circumstances. Having initiated the assault, the appellant could not rely on a responding punch from the complainant to “open the door to an unnecessary punching and biting to extricate himself from the altercation he created”: Reasons, at para. 26.

[10] The trial judge was satisfied beyond a reasonable doubt that the Crown had proven the complainant did not consent to the assault: Reasons, at para. 27.

[11] The trial judge concluded:

Considering this matter in its entirety and on the basis of [the appellant’s] inculpatory admissions which I accept and his unrejected evidence that I am prepared to [accept] for the purposes of my decision, I am satisfied beyond a reasonable doubt and find that [the appellant] lost his temper as a result of the frustrations and insults caused by [the complainant] and grabbed him without consent and that the Crown has disproven self-defence that would justify him to have gone on to punch and bite [the complainant] without his consent: Reasons, at para. 28.

Issues

[12] The appellant advances two grounds of appeal:

1. The trial judge made unreasonable findings of fact or credibility; and
2. The trial judge misapprehended the appellant’s evidence.

Analysis

[13] Respectfully, neither ground of appeal is made out. At its core, the appeal invites this court to reweigh the evidence and to substitute its own view of the appellant’s credibility. These are factual determinations that are outside the proper scope of appellate review absent legal error or palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, paras. 22-25; R. v. Kruk, 2024 SCC 7, para. 3.

1. The trial judge did not make unreasonable findings of fact or credibility

[14] The appellant argues the trial judge made two unreasonable findings of fact. First, the appellant argues the trial judge’s “reluctance to accept that being called a pedophile would be offensive to the [appellant] even if his boyfriend Dylan had been sexually assaulted as a child” is unreasonable. The appellant contends that in questioning the appellant’s sincerity and, by extension, his credibility, the trial judge held the appellant’s evidence to “an impossibly high standard.”

[15] I do not accept this characterization. It is important to note that the trial judge found the catalyst for both assaults was the complainant’s insulting behaviour toward the appellant. The trial judge expressly did not reject the appellant’s evidence that he was the victim of significant intentional irritating conduct and insults, including homophobic insults. The trial judge also did not reject the appellant’s evidence that the altercation was to some extent protracted by the complainant hanging on to the appellant: Reasons, at para. 25.

[16] The trial judge’s observation that it did not make sense to him that the appellant would be especially upset at being called a pedophile because his boyfriend had been abused by his mother was made in the context of the trial judge’s detailed reasons explaining why, apart from the appellant’s inculpatory admissions, the trial judge did not accept some of the appellant’s evidence. The trial judge found the appellant’s evidence with respect to being “fish-hooked” could not reasonably be true because the appellant did not mention it as part of his detailed narrative in cross-examination and he did not describe any pain associated with being fish-hooked. The trial judge found the extent of the complainant’s insults toward the appellant to be “flamboyantly exaggerated.”

[17] The trial judge found aspects of the appellant’s evidence illogical. It was in this specific context that the trial judge made the impugned observation, but this was not the only example provided by the trial judge as to why he found aspects of the appellant’s evidence illogical. The trial judge found it would be unlikely that the appellant – younger and much heavier than the complainant, with years of training in judo – would not have quickly extricated himself from the complainant’s grasp: Reasons, at para. 24.

[18] The trial judge observed that it did not make much sense that the complainant would have intentionally held on to make the appellant “look bad” in front of the superintendent, particularly in the context of the appellant’s evidence that the complainant had been warned by the superintendent and the owner not to bother the appellant. The trial judge also found the appellant exaggerated aspects of his evidence about the extent of the complainant’s provocation to support the appellant’s justification for losing his temper and assaulting the complainant: Reasons, at para. 25.

[19] It was open to the trial judge to accept some, none, or all of the appellant’s evidence. All these findings were open to the trial judge on the record before him. I find no palpable and overriding error by the trial judge in his findings of fact and credibility on this point.

[20] Second, the appellant argues that it was unreasonable for the trial judge to find the complainant did not consent to the physical altercation with the appellant.

[21] I disagree. The trial judge provided comprehensive reasons for his finding that the complainant did not consent to the physical altercation. The trial judge explained:

• it would be surprising for the “relatively small and significantly older” complainant to have consented to being assaulted by the appellant or to have intentionally instigated an assault on himself;
• the complainant denied that he consented to the assaults and was not cross-examined on this point;
• the appellant agreed that the complainant did not consent to the assault that occurred on April 22;
• the appellant’s interpretation that the complainant was smiling and smirking to put on a show for the superintendent to try to gain sympathy and that “it was like he wanted to be assaulted” was speculative, and did not raise a reasonable doubt that the complainant consented to the assault; and
• there was no credible evidence from the appellant that he believed a consensual fight was occurring: Reasons, at para. 27.

[22] I find no palpable and overriding error in the trial judge’s finding that the complainant did not consent. The trial judge’s finding was well-supported by the record.

[23] Accordingly, I reject this ground of appeal.

2. The trial judge did not misapprehend the appellant’s evidence

[24] As set out in the appellant’s factum:

It is submitted that the complainant not only reacted to being grabbed on the 23rd of April 2021, but consented to and escalated the altercation with an uppercut to the [appellant’s] chin and a fish hook to the [appellant’s] inner mouth. The complainant subsequently prolonged the altercation by refusing to let go of the [appellant] when both parties were struggling on the floor, the [appellant] having “peed himself.” It is submitted that the complainant through his words and actions demonstrated that he was not just a willing participant in the initial altercation but enthusiastically escalated and prolonged the altercation to the point that the [appellant], fearing injury to himself and experiencing escalating violence was justified in hitting and biting the complainant in self-defense.

[25] Respectfully, the appellant advances the same position on appeal as that argued and rejected at trial, and invites this court to reweigh the evidence. The appellant has failed to demonstrate any legal error or any palpable and overriding error that would justify the intervention of this court.

[26] As discussed, the trial judge provided detailed reasons for his finding that the complainant did not consent to the physical altercation with the appellant. The trial judge rejected the appellant’s evidence about being fish-hooked by the complainant because the appellant did not mention it as part of his detailed narrative in cross-examination and he did not describe any pain associated with being fish-hooked.

[27] The trial judge found the appellant’s actions in punching and biting the complainant were not reasonable in the circumstances. The trial judge explained that, having initiated the assault, it was not open to the appellant to rely on the sucker punch from the complainant to “open the door” to unnecessary punching and biting to extricate himself from the altercation he created. The trial judge observed that given his size and judo training, and with his “feet available for tremendous leverage”, the appellant could have easily stood up to break the complainant’s grip and walked away. The trial judge found the Crown had met “the heavy burden on them” to disprove self-defence: Reasons, at para. 26.

[28] All these findings were open to the trial judge on the record. I therefore reject this ground of appeal.

Conclusion

[29] Both grounds of appeal are rejected. It is therefore not necessary for me to consider the curative proviso. The appeal is dismissed.

Released: June 20, 2025
Robyn M. Ryan Bell