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SENTENCING - Assault - Particular sanctions - Seriousness of offence - Effect on victim

Friday, August 27, 2021 @ 5:27 AM  


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Appeal by the accused from conviction for assault and from sentence of nine months’ imprisonment imposed. The appellant, an off-duty police officer, and his brother caught Miller, a black man, stealing from a truck. Miller fled but was caught by the appellant. A violent struggle ensued during which the appellant was wielding a metal pipe. Miller sustained a permanent eye injury. The trial judge accepted the medical evidence that the eye injury was most likely caused by a punch, and not a strike with a metal pipe. The appellant was charged with aggravated assault. The trial judge acquitted him on this charge because he found that the brothers could have been attempting to execute a lawful arrest and acting in self-defence. Miller and the brothers advanced very different versions of events concerning the incident. The trial judge made extensive findings of credibility and fact. While the trial judge accepted portions of the brothers’ testimony, he rejected significant aspects of their evidence. The trial judge found Miller also presented significant credibility problems. Ultimately, the trial judge did not decide with certainty where the metal pipe came from or who first wielded the pipe. Given the credibility issues with Miller, the trial judge was unable to accept that he never had the pipe in his hands and found it was a reasonable possibility that he wielded the pipe at some point during the initial encounter. The trial judge found that when the appellant struck Miller with the pipe at the front door of a residence that Miller attempted to enter after he had left the altercation, the appellant was neither acting in self-defence nor attempting to effect a lawful arrest. As such, he committed an unlawful assault as the eye injury was not caused by the metal pipe.

HELD: Appeals dismissed. The assault conviction was not unreasonable due to the trial judge’s treatment of Miller’s evidence. The trial judge’s credibility assessment of Miller was entitled to considerable deference. His reasons disclosed no error. The trial judge looked for and found confirmatory evidence before he relied on aspects of Miller’s account of events. The trial judge’s substantial rejection of most of Miller’s evidence showed that he did not excuse the frailties in Miller’s evidence but accepted only his evidence about what happened in front of the residence towards the end of the incident, which he viewed as sufficiently corroborated. While Miller might have been justifiably arrested for his conduct, his actions did not justify the severe beating he received. The trial judge was correct to consider the social context of anti-Black racism, and its effect on Miller’s actions and how he was treated on the night in question. The trial judge’s finding that the appellant struck Miller in the face with the pipe in front of the residence was supported by the evidence. The trial judge did not fail to address whether the appellant’s conduct at the time of the alleged assault constituted a lawful use of force in an attempt to arrest Miller. Assault simpliciter was an included offence of aggravated assault in this case. The sentence imposed was not demonstrably unfit. The trial judge did not err in finding that the appellant used significant force when striking Miller in the face or in aggravating the sentence based on the appellant’s use of the weapon even though he was not tried nor convicted of assault with a weapon. The use of a weapon was proven beyond a reasonable doubt and clearly formed part of the circumstances of this case. In sentencing the appellant, the trial judge considered the self-defence context of the incident as a mitigating factor. Although the Crown did not prove that this was a racially motivated crime beyond a reasonable doubt, the racial context within which this offence took place was a relevant consideration. The trial judge’s treatment of this larger context in sentencing was laudable and set a model for future cases of this nature. Sentence: Nine months’ imprisonment.

R. v. Theriault, [2021] O.J. No. 3920, Ontario Court of Appeal, M.H. Tulloch, L.B. Roberts and G.T. Trotter JJ.A., July 19, 2021. Digest No. TLD-August232021010