



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Whiteley, 2017 ONCA 804

DATE: 20171023

DOCKET: C61795

Doherty, LaForme and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Whiteley

Applicant (Appellant)

Eva Taché-Green, for the applicant (appellant)

Nancy Dennison, for the respondent

Heard:  October 16, 2017

On appeal from the conviction of Justice T. Cleary of the Ontario
    Court of Justice, dated December 22, 2014, and on appeal from the sentence
    imposed on February 13, 2015.

REASONS FOR DECISION

[1]

The appellant and Shawn Downey had a fight in the appellants small
    one-room apartment.  During the altercation, the appellant was pushed into the
    closet area by Mr. Downey and perhaps two others.  As he was being struck by Mr.
    Downey, the appellant picked up a metal object from the floor of the closet and
    struck Mr. Downey with it many times.  Several of the blows hit Mr. Downey in
    the head and face.  He suffered very serious injuries.

[2]

The appellant was charged with aggravated assault and other related offences. 
    The trial judge convicted on the aggravated assault charge and entered stays on
    the other counts.  He imposed a sentence of four years, 10 months in addition
    to credit of 14 months for presentence custody, resulting in an effective
    sentence of six years.

[3]

The appellant appealed his conviction and, if leave be granted, his sentence. 
    At the end of oral argument, the court dismissed the conviction appeal, granted
    leave to appeal sentence, and varied the sentence to time served.  These are
    the reasons for our disposition.

The Conviction Appeal

[4]

The appellant testified that he struck Mr. Downey in self-defence.  He gave
    evidence about his prior relationship with Mr. Downey and the events in the
    hours and minutes immediately before the altercation.  It was the defence
    position that in all the circumstances, it was reasonable for a person in the
    appellants position to be afraid of Mr. Downey and to believe that significant
    force was required to neutralize the threat posed to the appellant by Mr.
    Downey.

[5]

The trial judge accepted that the appellant had initially acted in
    self-defence.  He further held, however, that the appellant went too far in the
    course of the altercation.  The trial judge said:

There is no inference that I can make nor any direct evidence
    that he [the appellant] was being struck in such a way or such force was being
    used against him when Mr. Downey was on his knees as to require the repeated
    striking with the metal object.  Even taking Mr. Downeys testimony at face
    value that he does not back down and he was holding on to this person, it is
    clear that he was on his knees when struck more than once with the door
    closer.
It is only reasonable to infer that he was of very minimal
    physical danger to Mr. Whiteley.  Mr. Whiteley simply got carried away.
[Emphasis added.]

[6]

Much of the oral argument focused on whether the trial judge had made a
    finding as to the point in the altercation when the appellants blows could no
    longer be justified in self-defence.  Counsel for the appellant submitted there
    was no clear finding on this issue.  She further argued that on the appellants
    evidence, which she stressed was not rejected by the trial judge, the
    altercation had to be looked at as a single ongoing event.  In her submission,
    it was unreasonable to make different assessments of the availability of
    self-defence as the altercation progressed.

[7]

Crown counsel acknowledges that the reasons are somewhat unclear.  She
    submits, however, that the reasons are best understood as a finding that while
    the first or second blow with the metal object may have been justified in
    self-defence, the many that followed could not be justified.  Crown counsel
    submits that this finding is readily available on the evidence.  She points out
    that the trial judge properly instructed himself on the law of self-defence, in
    particular the objective/subjective assessment required in determining the
    reasonableness of the appellants conduct in the circumstances.

[8]

We agree with the Crown that the trial judge concluded that some of the
    blows landed with the metal object could not be justified in self-defence. 
    That conclusion does not turn on an assessment of the appellants credibility,
    but rather on the totality of the evidence, which included the appellants
    testimony and his description of the relevant events in his statement.  On that
    evidence, the trial judge concluded that the appellant continued to use deadly
    force after, on a reasonable assessment of the circumstances as perceived by
    the appellant, the use of that degree of force was no longer necessary as the
    appellant was not in any imminent danger.  On that analysis, which was open to
    the trial judge on the evidence, the self-defence claim failed.

[9]

The appellant also argued that the trial judge failed to consider separately
    his claim that he was defending his property.  Mr. Downey was no doubt a
    trespasser and defence of property under s. 35 was in play.  However, in our
    view, in the circumstances of this case, that defence added nothing to the defence
    available to the appellant under s. 34.  The trial judges failure to give
    separate consideration to the defence of property argument did not prejudice
    the appellant.

The Sentence Appeal

[10]

The
    trial judge imposed an effective sentence of six years.  He gave the appellant
    credit for 14 months presentence custody, yielding a net sentence of four
    years, 10 months.

[11]

The
    appellant makes two submissions on his sentence appeal.  First, he submits that
    the trial judge erred in his calculation of credit for presentence custody.  Had
    the appellant received the 1.5:1 credit for his presentence custody, he would
    have been entitled to a total credit of 17 months.  The trial judge reduced the
    17 months to 14 months on the basis that the appellants criminal record could
    result in the appellant not being released at the two-thirds point of his
    sentence.  The appellant submits that while he has a significant record, it
    comes nowhere near the kind of record that would justify an assumption that the
    appellant would not be released after two-thirds of his sentence had been
    served.

[12]

There is merit to this submission.  However, as we would give effect to
    the second submission made by the appellant, we need not decide whether the
    trial judge erred in failing to give full 1.5:1 credit for the appellants
    presentence custody.

[13]

Counsels
    second argument goes to the fitness of the length of the jail term imposed by
    the trial judge.  Counsel submits that the trial judge failed to consider the
    central mitigating fact in this case.  Counsel argues that, on the trial
    judges findings, the appellant was justified in using significant force to
    defend himself against Mr. Downey, even to the point of striking him with the
    metal bar.  Counsel contends that sentences imposed on accused persons who are
    justified in acting in self-defence, but go beyond the limits of the defence,
    are inevitably significantly lower than sentences imposed on accused whose
    assaultive conduct is not justified in any way.  He submits that the lower
    sentences reflect the lower level of culpability applicable to offenders who
    are found to have initially acted in self-defence.  Counsel points to the
    reasons in
R. v. Smith
, [1999] O.J. No. 2766, where Durno J. said, at
    para. 7:

The final mitigating factor is critical in determining an
    appropriate sentence in this case.  This case is one of excessive force in
    self-defence during an incident in which Mr. McShane [the victim] engaged in
    repulsive racist behaviour and was the initiator of physical aggression.

[14]

In
    this case, Mr. Downey was the aggressor, at least until the appellant had
    struck him with the metal object.  Mr. Downey was a trespasser and over several
    hours had intimidated the appellant and ignored the appellants requests that
    he leave the appellants home.

[15]

Mr.
    Downeys role in the altercation and the fact that the appellant was justified
    in using significant force against Mr. Downey, should have been treated as significant
    mitigating factors on sentence.  The trial judge made no reference to either.  Instead,
    he referred to the mitigating factors as very minimal.  The trial judges
    failure to recognize the dominant mitigating factors constitutes an error in
    principle, justifying appellate intervention.

[16]

The
    trial judge did refer to the appellants criminal record, which is extensive
    and was to a degree an aggravating feature.  We note, however, that there has
    been only one entry in the record since 2002.  The appellant was convicted of
    criminal harassment in 2012 and received a four-month sentence.  The trial
    judge made no references to this significant gap.

[17]

Having
    regard to the circumstances of the altercation between the appellant and Mr.
    Downey, the serious injuries suffered by Mr. Downey, and the appellants antecedents,
    three years would have been an appropriate sentence.

[18]

The
    appellant has been in custody for about two and one-half years since he was
    sentenced.  In our view, he has served enough time for this offence.

Conclusion

[19]

As
    indicated at the end of oral argument, the conviction appeal is dismissed, leave
    to appeal sentence is granted and the sentence is varied to time served.

Doherty J.A.

H.S. LaForme J.A.

David M. Paciocco
    J.A.


