



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Foster, 2019 ONCA 282

DATE: 20190409

DOCKET: C64306

Doherty, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Foster

Appellant

Paul Calarco, for the appellant

Andrew Cappell, for the respondent

Heard and released orally: April 3, 2019

On appeal from the conviction entered by Justice Mary E.
    Misener of the Ontario Court of Justice, dated March 28, 2017 and the sentence
    imposed on September 25, 2017.

REASONS FOR DECISION

[1]

The appellant was convicted of aggravated assault and
    possession of various drugs. He received a sentence of two years, less a day on
    the aggravated assault conviction and short sentences on the drug charges. The
    sentences on the drug charges were concurrent to the sentence on the aggravated
    assault charge. In total, the appellant received a sentence of two years, less
    a day, followed by two years probation.

[2]

The appellant appeals conviction and sentence. The
    conviction appeal is limited to the conviction on the aggravated assault
    charge.

[3]

The aggravated assault charge arose out of an altercation between the
    appellant and John Lavery, during which the appellant slashed Mr. Lavery with
    an X-Acto knife, causing serious injury. The appellant, who testified, advanced
    a self-defence claim.

[4]

In her reasons, the trial judge summarized her findings and conclusions
    as follows:

I accept his testimony that there was a
    confrontation between Mr. Foster and Mr. Lavery that night. Mr. Foster
    approached Mr. Lavery in an attempt to be amicable, offering his hand to shake
    and suggesting that they let bygones be bygones. Mr. Lavery would not accept.
    Within a matter of seconds the two men were involved in a heated verbal
    confrontation. One of them pushed the other in what would have been a
    consensual fight. Mr. Foster became enraged, reached into his pocket, pulled
    out the blade and slashed Mr. Lavery in an act of aggression.

The Conviction
    Appeal

Ground #1  The Crowns cross-examination of
    the appellant

[5]

We agree with counsel for the appellant that the
    Crown improperly cross-examined the appellant on the contents of a statement
    allegedly made to the police by the appellants girlfriend. She was present
    during, and involved to some extent in the altercation that led to the charges.

[6]

We also agree with the Crowns submission that
    the improper questioning did not result in any prejudice to the appellants
    defence. We come to that conclusion for several reasons.

[7]

First, there was no objection to any of the
    questions asked by the Crown, presumably because counsel for the appellant had
    indicated before his client testified that he intended to call the girlfriend
    as a defence witness. Presumably, everyone involved, including the trial judge,
    assumed when the Crown was cross-examining the appellant that the girlfriend
    would be testifying and giving
viva voce
evidence about her involvement
    in the altercation. Had she done so, her evidence would have been admissible
    for and against the appellant. It would have been appropriate for the trial
    judge to compare her trial evidence with that of the appellant in arriving at
    her findings of fact.

[8]

Second, this was a judge-alone trial. The risks
    associated with this kind of improper questioning, particularly the risk that
    the content of the questions would be taken as having some evidentiary value,
    is significantly diminished in a judge- alone trial. The trial judges reasons
    contain only one brief reference to the girlfriends statement. In that
    reference, the trial judge did not misuse the statement by taking its contents
    as evidence of the truth, but instead referred to the cross-examination on the
    statements to make the point that the appellants testimony on various matters
    shifted as he was questioned in cross-examination.

[9]

Third, a review of the transcript demonstrates
    that the cross-examination on the girlfriends alleged statement was not particularly
    effective from the Crowns perspective. The appellant handled those questions
    premised on the alleged contents of the statement effectively.

[10]

The appellant also argues that he was improperly
    cross-examined on his character or propensity for violence, especially when
    drinking. We do not accept this submission. The appellant put his character on
    these matters in issue during examination-in-chief. He testified that he
    generally dealt with confrontation by becoming frightened and running away. The
    Crown was entitled to cross-examine on that assertion. We also note that there
    was no objection to this question and this part of the Crowns
    cross-examination appeared to play no role in the trial judges assessment of
    the appellants evidence.

[11]

This is not one of those cases in which the
    questioning of the appellant was so improper that it can be said that the
    integrity of the criminal process was undermined regardless of the impact on
    the particular accused.

[12]

To succeed on this ground of appeal, the
    appellant had to show prejudice flowing from the improper questioning. He has
    failed to do so.

Ground #2  The splitting of the Crowns case

[13]

The Crown did not call the appellants
    girlfriend as part of its case. As indicated above, defence counsel had told
    the trial judge he intended to call the girlfriend as part of the defence case.
    Ultimately, however, he chose not to call her.

[14]

The Crown then called the girlfriend in reply.
    There was no objection taken by counsel for the defence. Part way through the
    examination-in-chief, the defence did object on the basis that the Crown was
    improperly splitting its case.

[15]

After hearing argument, the trial judge agreed
    with defence counsel and ruled that the girlfriend could not testify in reply.
    Defence counsel specifically told the trial judge that the defence was not seeking
    a mistrial and was entirely satisfied that the trial judge would ignore the
    girlfriends evidence. The trial continued. The trial judge made no reference
    to the girlfriends evidence in her reasons for judgment.

[16]

The Crown should not have been allowed to call
    the girlfriend in reply. However, like defence counsel at trial, we are
    confident that the trial judge was capable of and did ignore the girlfriends
    evidence. The reasons for judgment confirm that assessment. This ground of
    appeal must fail.

Ground #3  The self-instruction on the
    defence of self-defence

[17]

The trial judge, at para. 19 of her reasons,
    correctly identified the three elements of self-defence under s. 34 of the
Criminal
    Code
. Ultimately, after a review of the evidence and a
    reasoned assessment of that evidence, the trial judge concluded that the
    appellant became enraged in the course of an altercation with Mr. Lavery and
    slashed him with the X-Acto blade in an act of aggression. Acts of aggression
    are the antithesis of acts taken for a defensive purpose, one of the elements
    of a s. 34 defence.

[18]

The appellant submits that the trial judge
    failed to consider the appellants subjective perceptions at the time he
    slashed Mr. Lavery. With respect, a finding that the appellant had become enraged
    is a finding of the appellants subjective state of mind. That finding belies
    the appellants claim that he acted in fear, or based on a perceived need to
    protect himself or his girlfriend. The trial judge made no error in her
    consideration of the defence of self-defence.

[19]

The conviction appeal is dismissed.

the sentence
    appeal

[20]

The appellant also seeks leave to appeal, and if
    leave is granted, appeals sentence. He argues that his concurrent sentences for
    the drug offences were unwarranted. In our view, this issue is secondary to the
    determination of the overall fitness of the sentence and we would not interfere
    with the sentence on that basis.

[21]

In terms of the aggravated assault count, we
    agree with the trial judges assessment of the seriousness of the offence and
    the injuries suffered by the victim. Denunciation and deterrence are important
    objectives in sentences for aggravated assault. However, these goals could have
    been achieved with a much shorter sentence.

[22]

The assault was not premeditated and was found
    by the trial judge to be, at first, a consensual fight. The appellant is a
    first offender. He has a unique and compellingly sympathetic background. By the
    time he was sentenced, the appellant had taken significant steps to address the
    life challenges that he has faced, including substance abuse and relatedly the
    ongoing psychological impact of his mothers death which happened when he was
    just four years old.

[23]

The appellant has insight into his offending. As
    the trial judge recognized, the appellant has made very important strides in
    his own rehabilitation, and he has a loving and supportive partner and
    extended family and friends who support his efforts at dealing with his
    substance abuse and psychological issues.

[24]

There is no doubt that the appellants conduct
    requires substantial incarceration. However, in the circumstances, we think the
    protection of society is best achieved by a sentence that both reflects the
    seriousness of the crime imposed by imposing a significant jail sentence, but
    also facilitates the appellants continued rehabilitation.

[25]

In our view, the sentence of two years, less a
    day imposed was grossly excessive. We would reduce the sentence to one of 12
    months imprisonment.

[26]

In the circumstances, it is not necessary to
    address the application to admit fresh evidence.

[27]

On consent, we would also vacate the victim
    surcharge imposed in light of the subsequent jurisprudence, holding that the
    relevant provisions are unconstitutional.

[28]

In the result, we reduce the sentence on the
    aggravated assault charge to 12 months imprisonment, and delete the victim
    surcharge.  All other aspects of the appellants sentence remain as imposed.

Doherty J.A.

S.E. Pepall J.A.

G.T. Trotter J.A.


