



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. OConnell, 2014 ONCA 881

DATE: 20141209

DOCKET: C57277

Strathy C.J.O., Tulloch and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Timothy OConnell

Appellant

Erika Chozik, for the appellant

Michael Bernstein, for the respondent

Heard: December 1, 2014

On appeal from the conviction entered on May 21, 2013 by
    Justice James A. Ramsay of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant was charged with assault causing bodily harm to his
    nephew. The trial lasted one day. Both the complainant and the appellant
    testified. After hearing submissions from the appellants trial counsel, the
    trial judge took a brief recess. When he returned, he delivered brief reasons convicting
    the appellant. The following day he sentenced him to a fine of $2,000.

[2]

The appellant advances the following grounds of appeal: (a) the trial
    judge misapprehended material parts of the evidence and made factual findings
    and drew inferences from the facts that were not supported by the evidence; (b)
    he misapprehended the law of self-defence and held the appellant to an
    unreasonable standard; and (c) the reasons were inadequate and did not come to
    grips with the evidence or with credibility issues. He says that collectively
    these errors resulted in a verdict that was unreasonable and a miscarriage of
    justice.

[3]

The circumstances were as follows. There had been bad blood between
    the 48 year old appellant and the complainant, his 29 year old nephew. A
    dispute over the complainants car blocking the appellants resulted in a
    physical confrontation in the driveway. There was a tussle and the complainant fell
    to the ground. The appellant admitted that as the complainant was trying to get
    up, he kicked him twice in the head. He stood back for a moment and then kicked
    the complainant three more times, in the body. The complainant had no memory of
    the events after he fell to the ground.

[4]

The trial judge was unable to conclude who was the first to use force,
    but found that the appellant quickly got the better of the complainant and put
    him down on the ground. At that point, the trial judge found, it should have
    been all over. What happened next, the kicking, was purely the product of the
    accused persons anger and desire to inflict punishment on his rather
    difficult nephew.

[5]

The trial judge concluded:

I find that he kicked him twice in the face, that he caused the
    bodily harm in question, that the dental injuries were not the product of the fall,
    and that it was not necessary for the accused to kick his nephew to prevent an
    assault or to protect himself or anyone else from harm. It was not reasonable
    for him to think that it was necessary, and he did not think that it was
    necessary.

[6]

The appellant says the trial judge failed to consider his evidence that
    the kicks were administered to prevent the continuation of the attack and that
    this belief, even if mistaken, was reasonable:
R. v. Baxter
(1975)
, 27 C.C.C. (2d) 96 (Ont. C.A.), at
    p. 111.

[7]

We disagree. The evidence relied upon was that the complainant started
    to get up, so the appellant kicked him in the head. The appellant said he did
    not want the complainant coming after him because he was furious. After this,
    when he was moving away, he thought the complainant was reaching out, so he
    kicked him in the arm, the shoulder and the leg. These observations were hardly
    evidence that a renewal of the confrontation was imminent. Based on the two kicks
    to the head, followed by three kicks to the body, the trial judge was entitled
    to find, as he did, that the purpose of the kicks was punishment, rather than
    self-defence and that the appellant did not subjectively believe that they were
    necessary to defend himself.

[8]

The trial judge was also entitled to find that the serious injuries to
    the complainants mouth and teeth were caused by the kicks to the head, rather
    than by the complainants fall to the ground in the initial struggle. While the
    complainant conceded that it was a possibility that he hit his mouth in the
    fall, he had no memory of hitting the ground or of the kicks, but said that he
    did not fall face first. The trial judge was entitled to reject the evidence
    of the complainants grandmother that she saw him fall on his face. His
    conclusion that the complainants injuries were caused by the kicks and not by
    the fall was available to him on the evidence and he did not misapprehend the
    evidence.

[9]

The appellant says the trial judge held him to an overly exacting
    standard and should have considered the events as one transaction. In our view,
    the trial judge was entitled to find that once the complainant had been taken
    to the ground and the appellant remained on his feet, the dispute should have
    been at an end and the application of bodily harm was not necessary to prevent
    a renewal of the fighting.

[10]

The
    trial judge was not required to engage in a detailed review of the evidence or
    the law:
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3. Although
    concise, his reasons demonstrate that he captured the substance of the case and
    disclose his reasoning process. He did not accept the appellants evidence
    about why he kicked the complainant in the head and that evidence did not give
    rise to reasonable doubt when viewed together with all the evidence.

[11]

This
    appeal was argued together with
R. v. Bengy
(C57571)
and Modeste
(C55821)

and
R. v. Rogers
(C51859),
    dealing with the retrospectivity of the
Citizens Arrest and Self-defence
    Act
, S.C. 2012, c. 9.
Unlike those cases, in which the convictions preceded the coming into force of
    the legislation, the trial here occurred after the legislation came into
    effect. Counsel for the appellant fairly conceded that the amendment of the
    legislation would have had no impact on the outcome in this case, even if it
    were found to be applicable to an offence preceding the effective date of the
    new provision. We do not therefore find it necessary to address the issue of
    whether the amendment could or should have been applied at the appellants
    trial.

[12]

For
    these reasons, the appeal is dismissed.

G.R. Strathy C.J.O.

M.H. Tulloch J.A.

C.W. Hourigan J.A.


