



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McDonald, 2015 ONCA 791

DATE: 20151120

DOCKET: C58157

Laskin, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mackenzie McDonald

Appellant

John Hale, for the appellant

Michael Perlin, for the respondent

Heard: October 29, 2015

On appeal from the conviction entered by Justice Gary W.
    Tranmer of the Superior Court of Justice, sitting with a jury, on October 24,
    2013, and from the sentence imposed on January 14, 2014.

Pardu J.A.:

[1]

The appellant was charged with and convicted of aggravated assault. The
    charge stemmed from a confrontation between the appellant and Darren Gibson.
    The appellant was waiting in line at a restaurant when Gibson tried to cut in
    line. A physical confrontation, which lasted about 20 seconds, ensued. It ended
    badly for Gibson. He passed out from the pressure of a headlock applied by the
    appellant, and hit his head hard, on the tile floor.

[2]

The appellant was tried and convicted of the charge in 2010. On appeal,
    this court set aside his conviction because the trial judge did not leave open
    the defence that the confrontation between the appellant and Gibson was a
    consensual fight. A retrial occurred where the appellant was convicted once
    again.

[3]

The appellant advances two arguments before this court. First, the trial
    judges instructions to the jury on the issue of consent were inadequate, and
    effectively took the defence away from him. Second, the trial judge erred in
    refusing to stay the proceedings because of the delay caused by the appellate
    process following the appellants first trial.

A.

The confrontation

[4]

On September 28, 2008, around two oclock in the morning, the appellant
    was standing in line at a crowded Subway restaurant. Gibson walked into the restaurant,
    stood in the line briefly, and then attempted to bypass it. Both the appellant
    and Gibson had been drinking that night.

[5]

There was evidence at trial that, before a fight broke out between the
    two, the appellant put his arm on Gibsons shoulder and complained to Gibson about
    his bypassing the line. Gibson may then have grabbed the appellant by the arm,
    and the two pushed and pulled each other by the arms.

[6]

At some point, the appellant put Gibson in a headlock, and Gibson put
    his arms around the appellants hips. The appellant testified that he tried to
    swing Gibson around and out of the restaurant. Gibson lost consciousness and then
    hit his head on the tile floor. There was a dispute at trial about whether the
    appellant simply released Gibson, or pushed him with some force.

[7]

Parts of the interaction were recorded on a cell phone. However, as
    conceded by the Crown on appeal, the video did not clearly prove or preclude
    any of the versions of events described at trial.

B.

Ground #1: Instructions on COnsent

[8]

The trial judge correctly instructed the jury that consent was not a
    defence if the appellant intended to cause serious bodily harm.

[9]

The impugned jury instructions are as follows:

Consent, or for that matter the absence of consent, is a state
    of mind  Mr. Gibsons state of mind. Consent refers to Mr. Gibsons state of
    mind toward [the appellants] conduct, at the time of that conduct. It is Mr.
    Gibsons actual state of mind, not [the appellants] or anybody [elses] state
    of mind, that is [the] focus of this question.

Consent involves freedom of choice, and knowledge. It is the
    voluntary agreement of Mr. Gibson to the force that [the appellant]
    intentionally applied. A voluntary agreement is one made by a person who is
    free to choose, to agree or disagree, of his own free will.
For an agreement to be voluntary, Mr. Gibson must know what is
    going to happen  what [the appellant] is going to do.
Mr. Gibson does
    not have to know every detail of [the appellants] conduct, but must know of
    its essential nature, and freely decide to let [the appellant] do it. [Emphasis
    added.]

[10]

At
    trial, the appellant objected to the charge on the ground that it effectively
    took the defence away from the jury. He maintains that challenge before this
    court. The appellant submits that these instructions effectively removed the
    defence of consent because the jury was instructed that it had to determine
    whether Gibson consented to everything the appellant did. No one in these
    circumstances would have consented to a headlock rendering them unconscious, or
    sustaining serious head injuries.

[11]

The
    Crown points out that the charge was consistent with a model charge on this
    issue, and submits that the jury would not have believed it was necessary to
    find that the appellant needed to agree to being strangled or dropped on his
    head for consent to exist.

[12]

The
    trial judges instructions on the law and his review of the evidence were
    accurate. However, the jury needed more help relating the evidence to the law
    in a way that was less abstract. In this case, the instructions on the law and
    the review of the evidence were contained in such separate silos that
    significant misunderstanding was possible.

[13]

Several
    scenarios were possible on this evidence:

·

Gibson did not consent to any form of physical contact.

·

Gibson consented to some pushing and shoving, but the appellants
    actions went beyond the scope of Gibsons consent.

·

Gibson consented to the fight, and the headlock and force intentionally
    applied by the appellant was within the scope of the force consented to by
    Gibson.

[14]

The
    trial judge should have related the evidence to the law of consent in a way
    that brought home to the jury the relationship between the law and the evidence
    by discussing, in concrete terms, potential scenarios available on the
    evidence.

[15]

Where
    parties consent to a physical confrontation, it may be impossible to predict
    the exact manoeuvres each will perform. The jury instruction here, that Gibson
    must have known what the appellant was going to do in order to consent to the
    confrontation, could have, in the absence of guidance from the trial judge
    relating the facts to the law, unfairly restricted the defence of consent. This
    was not a case of a knife or shotgun pulled out in the course of a consensual
    fistfight, where the injuring force was obviously outside the scope of any
    consent.

[16]

As
    Doherty J.A. pointed out in
R. v. Rowe
, 2011 ONCA 753, 281 C.C.C. (3d)
    42, at para. 62, the model instructions are not a one-size-fits-all product;
    at best, they provide the basic building blocks for finals and other
    instructions. As noted at para. 66:

jury instructions must be shaped by trial judges and reviewed
    by appellate courts having regard to the purpose those instructions are
    intended to serve. A proper jury instruction is one that fully and fairly arms
    a jury with the information it needs to reach a fair and proper verdict in the
    circumstances of the particular case. Trial judges cannot simply cut and paste
    their charges together using the model instructions in
Watts Manual
. Nor
    can appellate courts review the adequacy of jury instructions without regard to
    the positions taken at trial and the circumstances of the particular case.

[17]

The
    key question is whether the positions of the Crown and the defence were fairly
    put to the jury. As Watt J.A. observed in
R. v. P.J.B.
, 2012 ONCA 730,
    298 O.A.C. 267, at paras. 44 and 49:

The responsibility of the trial judge to relate the evidence to
    the issues raised by the defence involves two components. The first is a
review
of the evidence. The second is a
relation
of the evidence to the
    position of the defence. Except in rare cases, where it would be unnecessary to
    do so, a trial judge must review the substantial parts of the evidence and give
    the jury the position of the defence so that the jury appreciates the value and
    effect of that evidence. Typically, trial judges review the evidence in the
    context of the various issues and indicate what parts of the evidence support
    the positions of the respective parties on those issues. Judicial
review
of the evidence refreshes the jurors memory of the evidence given. Judicial
relation
of the evidence to the issues improves jurors understanding of the particular
    aspects of the evidence that bear on their decision on each essential issue in
    the case.



Jury charges do not take place in isolation, but in the context
    of the trial as a whole. Appellate review of the adequacy of jury charges must
    acknowledge this reality, especially where the complaint is about the extent to
    which the trial judge has reviewed the evidence in final instructions.
    Appellate review on this issue includes consideration of the complexity and
    volume of the evidence adduced at trial, the extent of its review by counsel in
    their closing addresses, the length of trial proceedings, the issues to be
    resolved by the jury, the effect of a more complete and balanced review of the
    evidence, and whether counsel objected to the charge on the ground advanced on
    appeal. The test is one of fairness. Provided the evidence is left to the jury
    in a way that will permit the jurors to fully appreciate the issues raised and
    the defences advanced, the charge will be adequate. [Citations omitted.]

[18]

The
    Crowns position was that Gibson did not consent to any form of physical
    interaction. The defence position was that the appellant had no intention of
    hurting anyone, and that he thought Gibson wanted to fight, based on his
    grabbing the appellants arm. The appellants position was that he found himself
    very suddenly in a struggle with a complete stranger who was quite strong and
    would not let go of him.

[19]

The
    positions of the Crown and defence were put to the jury. However, because of
    the failure to relate the evidence to the law on consent, the jury may have
    thought that unless Gibson specifically consented to everything the appellant
    did and all that happened, consent was not a defence.

[20]

Accordingly,
    the conviction must be set aside and a new trial ordered.

C.

Ground #2: Delay Caused by appellate process

[21]

The
    appellant also submits that unreasonable delay resulted from the Crowns
    unsuccessful attempt to obtain leave to appeal the earlier decision of this
    court setting aside his first conviction.

[22]

This
    courts first decision in this matter was rendered on June 6, 2012. Leave was
    refused on December 13, 2012. The new trial commenced on October 14, 2013. The
    appellant concedes that the delay between leave being refused and the
    commencement of the new trial was within acceptable limits.

[23]

This
    question was conclusively answered by the Supreme Court of Canada in
R. v.
    Potvin
, [1993] 2 S.C.R. 880. At p. 909, Sopinka J. stated that s. 11(b)
    applies to the pre-trial period and the trial process but not to appellate
    proceedings.

[24]

I
    would accordingly reject the appellants argument that the time spent by the
    Crown seeking leave to appeal violated his rights guaranteed by s. 11(b) of the
Charter
.

D.

Disposition

[25]

For
    these reasons, the conviction is set aside and a new trial ordered.

Released: (M.T.) November
    20, 2015

G.
    Pardu J.A.

I
    agree John Laskin J.A.

I
    agree M. Tulloch J.A.


