



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Charron, 2017 ONCA 513

DATE: 20170620

DOCKET: C63010

MacPherson, Blair and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Charron

Appellant

Anthony Moustacalis, for the Appellant

Scott Latimer, for the Respondent

Heard: June 16, 2017

On appeal from the conviction entered on May 14, 2015 and
    the sentence imposed on June 15, 2015 by Justice Jon-Jo Douglas of the Ontario
    Court of Justice.

By the Court:


[1]

Following an altercation during which he repeatedly kicked and punched
    the complainant and threatened to rip [the complainants] throat out, Mr.
    Charron was convicted of theft, robbery, uttering a threat, breach of recognizance
    and choking to overcome resistance.  He was sentenced to a term of imprisonment
    for 30 months less two months credit for pre-trial custody (based on 55 days
    of pre-trial custody, rounded up to two months, on a 1 for 1 basis).

[2]

He appeals from his convictions, and seeks leave to appeal from the
    sentence imposed.

[3]

The appellant argues that the trial judges verdicts were unreasonable
    on all counts on which he was convicted.  He also asserts that the trial judge
    misapplied the burden of proof and failed to consider his defence of
    self-defence properly.  With respect to sentence, he submits that the trial
    judge erred in failing to award him enhanced credit for pre-trial custody.

[4]

We would not give effect to these grounds of appeal.

Factual Background

[5]

During the evening of December 15, 2014, the complainant was socializing
    inside a Tim Hortons outlet in Barrie.  He had left his bicycle outside.  The
    bicycle was stolen.

[6]

When he discovered the bicycle at a nearby McDonalds restaurant, the
    complainant approached the lone patron inside the McDonalds  the appellant 
    and asked whether he had stolen the bike.  The appellant responded yes or
    yeah, okay bud.  At this point, the complainant left the McDonalds, took his
    bike and returned to the Tim Hortons.

[7]

Shortly after, however, the complainant returned to the McDonalds, as
    the appellant was leaving.  The complainant, still standing astride his
    bicycle, again confronted the appellant about stealing his bike.  It was at
    this point that the altercation occurred.

[8]

The appellant grabbed the complainant by the throat and choked him.  The
    complainant fell to the ground, on top of his bike.  Eyewitnesses observed the
    appellant severely kicking and punching the complainant as he lay on the
    ground. The complainant testified that the appellant demanded his wallet during
    the beating.

[9]

One eyewitness overheard the complainant say Take it, just take it.
    Another took a picture of the assault as it was ongoing.

[10]

The
    complainant suffered a concussion, multiple abrasions, and emotional trauma as
    a result of the attack.

[11]

At
    the time of the altercation the appellant was on bail and subject to a curfew. 
    He was outside of his residence past the curfew.  Although he said that he had
    a note from his surety (his mother) permitting him to be out  which would have
    put him in compliance with his bail condition  he had no such note with him
    and the trial judge ultimately found that no such note existed for that night.

[12]

The
    appellant testified.  He denied stealing the bicycle.  He said that he was
    defending himself and struck the first blow because the complainant rode up to
    him on the bike, stopped millimeters from his face, and demanded the
    appellants bag of fast food.  The appellant admitted that he said he would
    rip [the complainants] throat out, but said that he did so in order to ward
    off an assault from the complainants posse  a group of people that he said
    was approaching him, but which none of the witnesses observed.

The Trial Judges Decision

[13]

The
    trial judge rejected the appellants evidence, as he was entitled to do. 
    Applying the principles enunciated in
R. v. W.(D).
, [1991] 1 S.C.R. 742,
    he found as well that neither the appellants testimony nor the balance of the
    evidence raised a reasonable doubt in his mind.  He was satisfied that the
    Crown had proved the appellants guilt beyond a reasonable doubt.

[14]

In
    arriving at his verdicts, the trial judge carefully examined the evidence
    presented by the defence  the testimony of the appellant and that of his
    mother  together with the evidence tendered by the Crown.  In addition to the
    testimony of the complainant, the Crowns evidence consisted of the testimony
    of a McDonalds patron (who witnessed most of the assault), a McDonalds
    employee (who witnessed most of the assault and who took the picture of it that
    was made an exhibit), and that of the arresting officer.  He accepted the
    essential elements of the eyewitness testimony and of the complainants
    testimony, finding the complainant to be a candid and forthright witness who
    did not, in any sense, exaggerate the accuseds conduct.   He found that the
    appellant was not a credible witness, rejecting his evidence that his conduct
    that evening was affected by an overconsumption of either his anxiety
    medications or alcohol, that he was only being sarcastic when he admitted to
    stealing the bike, that the complainant was the physical aggressor, and that
    the complainants posse was threatening him.  The trial judge ultimately
    concluded that he could not rely on the testimony of the appellants mother.

[15]

In
    the end, the trial judge found the appellant guilty on all counts except one. 
    With respect to sentence, the trial judge concluded that a penitentiary sentence
    was warranted given the severity of the appellants violence, his criminal
    record and his probation officers conclusion that the appellants behaviour
    has escalated in a deteriorating and violent pattern and that community
    supervision orders over the years have made little impact on [the appellants]
    ability to change. The trial judge sentenced the appellant to 30 months
    imprisonment, less two months of pre-trial custody credited on a 1 for 1 basis.

The Conviction Appeal

[16]

An unreasonable verdict is one that no properly instructed jury,
    acting judicially, could reasonably have rendered:
R. v. Biniaris
,
    2000 SCC 15, at paras. 24, 36-42.

[17]

None
    of the verdicts here falls into that category.  The trial judge considered all
    relevant legal principles, including those set out in
R. v. W. (D.)
and the principles regarding the defence of self-defence.  He made no error in
    his assessment of the evidence, in our view, and there was evidence on each
    count that, once accepted, supported the conviction on that count.  We will
    deal with each briefly.

Count
    One (Theft Under $5000)

[18]

With
    respect to count one, the trial judge effectively found the appellant guilty
    by circumstances and his own admission.

[19]

The
    appellant argues, however, that his statement yes or yeah, okay bud when
    asked if he had stolen the bike, was equivocal at best (the appellant said he
    was just being sarcastic; the complainant said the statement was made in a rude
    but not sarcastic fashion) and could not form the basis for a reasonable
    verdict.  We disagree.

[20]

The
    trial judge resolved the equivocation by rejecting the appellants testimony
    and accepting that of the complainant.  Regarding the statement as an admission
    in those circumstances was not an error and, together with the other evidence
    respecting the circumstances of the theft, was sufficient to ground the
    conviction.

Counts
    Two and Three (Assault with Intent to Steal, Robbery; Uttering Threats)

[21]

The
    trial judge accepted the evidence that the appellant had demanded the
    complainant give him his wallet during the altercation.  He found that the
    appellant had used language reasonably interpreted as a threat to both kill and
    do serious bodily harm, noting that his finding in this regard was consistent
    with the appellants admission that he had said I will rip your throat out to
    the complainant. This evidence formed the basis for the convictions on counts
    two and three.

[22]

The
    appellant submits, however, that the trial judge failed to consider certain
    contradictions in the evidence, misapplied the burden of proof and failed to
    consider self-defence properly.

[23]

We
    do not accept this submission.  The trial judge applied his mind to the appellants
    self-defence theory, namely that he was reasonably defending himself against,
    and only spoke the threatening words in the context of, the threats posed by
    the complainant and his menacing posse. He rejected the evidence upon which
    that theory was based, and we see nothing to suggest that he reversed the
    burden of proof in rejecting the appellants theory.

[24]

The
    appellant suggests that, because the eyewitness who testified that she heard
    the complainant say to the appellant during the beating Take it, just take it
    did not testify that she heard anything else said between the two, an
    unresolved conflict that would lead to an unreasonable verdict arose.  However,
    one does not follow from the other, and the trial judge accepted the take it,
    just take it evidence, which, once accepted, is only consistent with either
    the theft of the bicycle or the demand for the complainants wallet.  It confirmed
    the complainants testimony regarding the appellants demand that he hand over
    his wallet.

Count
    Six (Choking)

[25]

The
    trial judge recognized that count six was somewhat problematic  to find the
    appellant guilty of choking with intent to choke would be tautological  but
    ultimately accepted the Crowns position that the choking was done to disable
    the complainant in order to continue with his intended beating and to
    facilitate what followed.

[26]

The
    appellant submits the trial judge erred in this regard, and that choking that
    is incidental to an assault does not amount to the offence of overcoming
    resistance by choking.  As noted, the trial judge recognized this tautology. 
    He founded the choking conviction on a different theory, though.  In effect, he
    concluded that there were two instances of the appellants application of force
    to the complainant: first, choking the complainant while he was still standing
    astride his bicycle; second, punching and kicking the complainant while he was
    on the ground.  In short, the choking was in furtherance of the assault that
    followed.

[27]

These
    findings were open to him on the record.  It is not clear what the appellants
    argument is to the effect that the trial judge misapplied the burden of proof
    in connection with count six.  In any event, we see nothing to suggest that he
    did so.

Failure
    to Comply

[28]

Finally,
    with respect to the conviction for failure to comply, in addition to arguing an
    unreasonable verdict, the appellant submits that the trial judge erred by
    shifting the burden to the appellant to show that he had permission from his
    mother to be off-residence after his curfew hour.

[29]

The
    defence was that the appellants mother, his surety, had supplied him with
    permission that evening before he went to McDonalds.  No note was ever
    produced, although the appellant said he must have left it at home in the
    garage before leaving and he did not think to ask his mother to produce it
    because he did not think it was relevant.  His mother said she had prepared a
    note but could not remember if it was for that specific night.  The trial judge
    rejected the idea that there was a note, and was entitled to do so on the
    evidence.  He did not believe the appellant or his mother.  In doing so, he was
    not reversing the burden.

Disposition of the Conviction Appeals

[30]

In essence, the appellants argument on the conviction appeals asks us
    to accept the appellants version of what happened, as amplified by the
    testimony of his mother, and conduct our appellate analysis based upon that
    revised version of the facts.  We cannot do so.  The trial judge made no
    palpable or overriding errors in his factual finding and properly addressed the
    relevant principles of law.

[31]

The
    appeal as to conviction is dismissed.

The Sentence Appeal

[32]

The
    appellant argues that he is entitled to enhanced credit, for pre-trial
    custody.  He spent 55 days in pre-trial custody in relation to these charges,
    which the trial judge appears to have rounded up to two months on a 1 for 1
    basis but the appellant seeks credit for 84 days credited on a 1.5 to 1 basis.
[1]

[33]

The
    trial judge addressed the issue of enhanced credit and declined to award it in
    the circumstances.  In arriving at this decision he took into account the
    particularly violent nature of the offences, the appellants criminal record
    stretching back to 1996 and the flagrant nature of the breach in this case.

[34]

We
    see no basis for interfering with his decision in this regard.

Conclusion

[35]

For
    the foregoing reasons, the appeal from the appellants convictions is dismissed. 
    Leave to appeal sentence is granted, but the appeal as to sentence is dismissed
    as well.

Released:

JCM                                                          J.C.
    MacPherson J.A.

JUN 20 2017                                    R.A.
    Blair J.A.

J.
    MacFarland J.A.





[1]

In his reasons for sentence, the trial judge misspoke,
    referring to 73 days of pre-trial custody which he counted as two months. 
    There appears to be no issue, however, that the appellant had spent 55 days in
    pre-trial custody in relation to these charges.


