





CITATION: R. v. Rowe, 2011 ONCA
      2





DATE: 20110105



DOCKET: C49955



COURT OF APPEAL FOR ONTARIO



Rosenberg, Goudge and Blair JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Joacquin Rowe



Appellant



Joseph Wilkinson, for the appellant



Andreea Baiasu, for the respondent



Heard: December 22, 2010



On appeal from the conviction entered on March 19, 2008 and
          the sentence imposed on June 20, 2008 by Justice Omatsu of the Ontario Court
          of Justice.



ENDORSEMENT



[1]

The appellant appeals his conviction for aggravated assault. His ground
    of appeal is that the trial judges reasons for conviction indicate that she
    rejected his claim of self defence under s. 37 of the
Criminal Code
solely and exclusively because of the extent of the injuries suffered by the
    complainant. Despite Mr. Wilkinsons able argument, we do not agree. We do not
    read her reasons that way.

[2]

The incident giving rise to the charge took place in a holding cell at
    Old City Hall in Toronto. The appellant and complainant were being held there
    with several other inmates.

[3]

The incident was captured on the security video, which the trial judge
    watched a number of times during the trial and which we have also viewed. It
    showed the complainant asleep on a bench in the cell. The appellant put a long
    white sock over his right hand, approached the complainant, leaned over and
    made some contact with the complainant. As a result, the complainant woke up,
    stood up and took several steps towards the appellant with his arms outstretched.
    The appellant backed off a little, then punched the complainant once in the
    face. The complainant fell to the floor, motionless, with bloody running down
    his face. The appellant moved away, took off his sock and removed his
    sweatshirt.

[4]

The complainants injuries were serious. His nose, forehead and eye were
    damaged and he needs reconstructive surgery.

[5]

In this court, the appellant concedes that in view of the trial judges
    finding that he provoked the assault by the victimm he must rely on s. 37. The
    question the trial judge addressed was whether the appellant used more force
    than necessary to prevent the assault constituted by the complainants
    advancing towards him with his arms outstretched.

[6]

In conducting this proportionality analysis, the trial judge took into
    account the way the punch was struck as shown in the video. She also took into
    account the serious injuries the complainant suffered, which she found were
    caused by the punch. These considerations allowed her to determine the force
    used by the appellant and to conclude that it was excessive in the
    circumstances. Her ultimate focus was on the force used by the appellant and
    not exclusively on the injuries suffered by the complainant. She did not commit
    the error argued by the appellant.

[7]

The appeal must be dismissed.

M. Rosenberg J.A.

S. T. Goudge J.A.

R. A. Blair J.A.


