



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. MacIsaac, 2015 ONCA 587

DATE: 20150831

DOCKET: C58389

Laskin, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gordon MacIsaac

Appellant

Frank Addario and Andrew Burgess, for the appellant

Kevin Rawluk, for the respondent

Heard: April 7, 2015

On appeal from the conviction entered on December 16,
    2013 by Justice Diane M. Lahaie of the Ontario Court of Justice, sitting
    without a jury, with reasons reported at 2013 ONCJ 787.

Hourigan J.A.:

[1]

Mr. MacIsaac appeals his conviction on one count of aggravated assault,
    which resulted from an on-ice collision during a recreational hockey game in
    Ottawa.

[2]

Central to the determination of guilt at trial was the issue of whether
    the collision was an unavoidable accident, as submitted by the appellant, or a
    deliberate blindside hit, as submitted by the Crown and found by the trial
    judge.

[3]

For the reasons that follow, I would allow the appeal and order a new
    trial. In my view, the appellant did not receive a fair trial because the trial
    judge engaged in impermissible speculative reasoning in reaching her verdict.

A.

FACTS

[4]

This appeal stems from a collision between two players during a March
    15, 2012, hockey game in the no-contact Ottawa senior mens league. The
    appellant played for the Tiger-Cats and the complainant played for the Pirates.
    During the final 47 seconds of the game, with the complainants team up by two
    goals, the pair collided. The complainant was knocked to his back on the ice.
    He suffered several lacerations to his face, two missing front teeth and a
    concussion. At the time of trial, he continued to experience debilitating daily
    headaches as a result of the incident.

[5]

The appellant was charged with one count of aggravated assault. The
    court heard from 11 witnesses, including the appellant, the complainant, one of
    the games referees, and various members of both hockey teams.

[6]

The Crowns position was that the appellant deliberately delivered a
    blindside hit to the left side of the complainants head. The complainant and
    the three Crown witnesses who observed the incident all gave slightly different
    accounts. The complainant testified that he entered the area behind his teams
    net from the right side (from the perspective of someone facing the net). He
    skated behind the net and was on the left side of the net with his head turned
    to his right when the appellant struck the left side of his head.

[7]

The goalie on the complainants team, David Winton, testified that he
    saw the appellant leap off the ice, raise his arms and hit the complainant in
    his shoulder and head area. Mr. Winton said the appellants arms hit the
    complainants head and that the appellants facemask may have hit the
    complainants face.

[8]

Jonathan Clark, another teammate of the complainant, said the appellant
    stood tall with his arms raised up and delivered a line drive hit. While he
    did not see the appellants skates leave the ice he said he was not looking at
    the appellants feet.

[9]

Jonathan Desjardins, one of the referees, testified that the appellant
    entered the Pirates zone from the left side and the complainant entered from
    the right side. Mr. Desjardins stated that the appellant and the complainant were
    facing each other when the appellant lifted his skates about six inches off the
    ice, raised his arms above his shoulders and hit the complainant. The
    appellants forearm made contact with the complainants head, causing it to
    snap back. Although Mr. Desjardins repeatedly stated that the pair was facing
    each other when the collision occurred, he believed that the complainant would
    not have been anticipating the hit. Mr. Desjardins immediately attended to the
    complainant after the collision. He noticed that the complainant had suffered a
    number of injuries, including a cut on his chin, a gash above his lip on the
    left side, and two missing front teeth. Half of his face was covered in blood.
    Mr. Desjardins and Mr. Winton believed the incident was a deliberate hit
    and not an accidental collision because the appellants arms were raised and
    his feet were lifted off the ice.

[10]

The
    Crown witnesses differed as to where the puck was at the time of the collision.
    Mr. Desjardins claimed that both the appellant and the complainant were skating
    towards the puck. The complainant testified that neither he nor the appellant
    had the puck. Mr. Winton did not remember exactly where the puck was. He said
    the complainant did not have the puck but that it may have been in the general
    area of where the hit occurred. Mr. Clark believed that a number of other
    players were fighting over the puck in a corner, away from the point of impact.

[11]

The
    Crown also called two of the complainants other teammates, one of whom was his
    brother, who testified that after the incident the appellant skated by the
    Pirates bench and said thats retaliation for the trip, referring to an
    incident earlier on the same play where one of the appellants teammates was
    tripped.

[12]

The
    defence position was that the incident was an accidental, unavoidable
    face-to-face collision.

[13]

The
    appellant said he skated towards the complainant, who had the puck, to try to
    steal the puck and score a goal. He claimed that when the pair was beside the
    Pirates net, the complainant suddenly turned, which caused them to collide.
    The appellant said he and the complainant were nearly facing each other when
    they collided and there was no reason the complainant would not have seen him
    coming.

[14]

Two
    of the appellants teammates, Kenneth Shouldice and Jason Shorey, agreed that
    the appellant and the complainant had been facing each other, while another
    teammate, Ryan Robinson, testified that he saw both men moving towards the puck
    but could not tell if they made eye contact. Mr. Shorey said he saw both the
    appellant and the complainant brace themselves before colliding.

[15]

As
    for the location of the puck, Mr. Robinson and Mr. Shouldice claimed that the
    complainant and the appellant were both skating towards the puck, while Mr.
    Shorey said the complainant got rid of the puck immediately before the
    collision.

[16]

All
    of the defence witnesses testified that they believed the incident was
    unintentional and unavoidable. The appellant and the defence witnesses who
    observed the collision all testified that the appellants feet did not leave
    the ice and that he did not raise his arms above his shoulders.

[17]

The
    appellant testified that when he skated by the Pirates bench after the
    incident he said something to the effect that it could easily have been any one
    of his own teammates who was injured. He explained that he had been referring
    to the tripping incident earlier on the same play and suggested that his
    statement may have been misinterpreted to mean that the hit was retaliatory or
    intentional. Nonetheless, he insisted the incident was an accidental collision.

B.

DECISION BELOW

[18]

The
    trial judge began by stating that most of the witnesses showed a clear bias
    depending on which of the two hockey teams he belonged to. She found that the
    referee, Mr. Desjardins, was the sole completely neutral witness and that his
    evidence was credible and reliable. While Mr. Desjardins account of the
    appellant and complainants positions on the ice  with the pair heading
    towards the puck behind the net  differed from that of the other witnesses,
    the trial judge accepted the entirety of his evidence aside from his testimony
    regarding the tripping incident earlier on the same play.

[19]

The
    trial judge also accepted the complainants testimony in its entirety. The
    injuries to the left side of the complainants face were consistent with his
    testimony about where he was looking and supported the conclusion that this was
    not a face to face head on collision. Mr. Wintons account of the incident
    was also consistent with Mr. Desjardins evidence, the complainants injuries
    and a finding that the appellant delivered a deliberate blindside hit.

[20]

The
    trial judge rejected the evidence of the appellants teammate Mr. Robinson.
    She was not prepared to find beyond a reasonable doubt that Mr. Robinson had
    been on the ice at the time of the incident because it was not logical for
    three Tiger-Cats defencemen to be on the ice with the team down by two points
    and with so little time left in the game. Even if Mr. Robinson had been on the
    ice, his stated position would not have been conducive to observing what he
    described in his testimony. Specifically, he would have been looking at the
    appellant from the back and would not have been able to tell whether his hands
    were down.

[21]

Similarly,
    the trial judge rejected Mr. Shouldices evidence on the ground that he would
    not have been able to see the collision from his stated position. Mr. Shouldices
    testimony that the appellant and the complainant were facing each other when
    they made contact was illogical because neither man moved to avoid the
    collision. The trial judge also found that this testimony was inconsistent with
    the complainants injuries and with the complainant and Mr. Desjardins
    descriptions of how the complainant fell to the ice.

[22]

Although
    the trial judge accepted the evidence of defence witness Andrew Cameron,
    another member of the appellants team, that the game became more intense as it
    went along, she rejected his evidence about the location of the puck at the
    time of the collision because it was not consistent with the testimony of any
    other witness.

[23]

As
    for Mr. Shorey, the trial judge found that his testimony was biased and
    included numerous errors. She said his claim that he saw hits similar to the
    one at issue all the time stood in stark contrast to Mr. Desjardins
    testimony that it was the most serious hit he had seen in the league. The trial
    judge also stated that Mr. Shoreys account of the hit was inconsistent with
    the evidence of Mr. Desjardins, Mr. Winton, and the complainant, all of
    which she accepted.

[24]

Turning
    to the testimony of the appellant, the trial judge first adverted to the
    standard for assessing credibility set out in
R. v. W.(D.)
, [1991] 1
    S.C.R. 742. She rejected the appellants evidence on the ground that it was
    illogical and inconsistent on key points. Specifically, she rejected his claims
    that he left his usual position as a defenceman in an effort to steal the puck
    from the complainant and score a goal, that the complainant made an
    unpredictable turn rendering a collision unavoidable, and that the appellant
    did not have sufficient control over his speed to avoid hitting the
    complainant.

[25]

The
    appellants account of the hit was inconsistent with the complainants injuries
    and with the evidence of the complainant and Mr. Desjardins, which the trial
    judge accepted. The trial judge found that the complainant did not have the
    puck at that time because if he had, it would have been illogical for him not
    to have seen and avoided the appellant. Further, if the appellant had truly
    been aiming to get control of the puck and score a goal, he would have been
    focused on the puck in the left corner of the ice and would not have been
    skating at full speed towards the location where the collision occurred.

[26]

The
    trial judge accepted that as the appellant skated by the Pirates bench after
    the collision he commented that a member of his own team could have been
    injured on the play. She explained that there would have been no reason for the
    appellant to mention another player on his team, even generally, if he was not
    concerned with the earlier tripping incident.

[27]

Given
    that this comment was made immediately after the hit to the complainant, the
    trial judge was convinced beyond a reasonable doubt that the appellant
    intentionally delivered a blindside hit to the complainants head as
    retaliation for the tripping incident.

[28]

On
    the issue of consent, the trial judge found that the hit amounted to such a
    marked departure from the conduct expected in a no-contact hockey league that consent
    to such conduct cannot be given. As for
mens rea
, the trial judge
    held that the appellant foresaw the risk that his actions would cause serious
    bodily harm, but nonetheless chose to take that risk. The Crown had established
    beyond a reasonable doubt that the appellant intended the consequences of his
    actions, which carried a sufficient risk of injury and objective foreseeability
    of bodily harm to negative consent. As a result, the trial judge convicted the
    appellant of aggravated assault.

C.

POSITIONS OF THE PARTIES

(i)

Position of the Appellant

[29]

The
    appellant submits the trial judge erred in her fact-finding process by
    reversing the onus of proof and rejecting defence evidence based on speculative
    reasoning. In the appellants view, the trial judge created an amalgam of the
    inconsistent Crowns witnesses accounts without considering whether the
    inconsistencies raised a reasonable doubt. She then rejected evidence where it
    was inconsistent with the assembled Crown narrative. These errors shifted the
    onus of proof to the appellant to explain his innocence.

[30]

The
    appellant also submits the trial judge misapplied the law of consent and failed
    to consider whether the appellant had an honest but mistaken belief in consent.
    The appellants evidence was that he had a belief that players in the hockey
    league consented to any type of bodily contact that was foreseeable in a game,
    including deliberate blindside checks. The fact that defence counsel did not
    raise the issue did not relieve the trial judge of her obligation to turn her
    mind to the defence and whether it was applicable in the circumstances.

(ii)

Position of the Respondent

[31]

The
    respondent submits that the trial judge carefully considered the evidence and
    made factual findings that were well supported on the record. She did not err
    in in her assessment of the evidence, subject it to different levels of
    scrutiny or engage in speculative reasoning. There was no air of reality to the
    defence of honest but mistaken belief in consent, which was not raised at
    trial, because the trial judge found that the appellant delivered a deliberate
    blindside hit and the appellant admitted that such hits fall outside the scope
    of the expected play in a non-contact hockey league.

D.      ANALYSIS

[32]

There
    are three issues raised on the appeal. First, did the trial judge engage in
    impermissible speculation? Second, did the trial judge reverse the onus of
    proof? Third, did the trial judge err in failing to consider the defence of
    honest but mistaken belief in consent?

[33]

I
    agree with the submission of the appellant that the trial judge engaged in
    impermissible speculative reasoning in rejecting the evidence of the defence
    witnesses. This impaired the appellants right to a fair trial. On this basis,
    I would order a new trial. It is unnecessary, therefore, to consider the other
    issues raised by the appellant.

[34]

The
    first example of speculative reasoning is the trial judges rejection of the
    evidence of Mr. Robinson at para. 122:

I am not prepared to find beyond a reasonable doubt that Mr.
    Robinson was on the ice as it was not logical that three Tiger-Cats defencemen
    would be on the ice in the last minute of the game when the Tiger-Cats were
    down by two goals.

[35]

Obviously,
    the defence had no burden to prove any fact, including that Mr. Robinson
    was on the ice, let alone to the standard of proof beyond a reasonable doubt.
    Leaving aside that part of the statement, which might have been a slip by the
    trial judge, the balance of the reasons given for this rejection of Mr.
    Robinsons evidence remains troubling. The trial judge appears to be taking
    judicial notice of hockey strategy and using that as a basis for rejecting the
    testimony.  Her conclusion about who would be on the ice at the end of the game
    is entirely speculative and is also contrary to the evidence of Mr. Shorey
    that, in the final stages of games in the Ottawa senior mens league, teams
    play the most skilled players, regardless of their positions.

[36]

The
    Crown correctly submits that this passage should not be examined in isolation
    from the rest of the reasons:
R. v. R.M.
, 2014 ONCA 785, 317 C.C.C.
    (3d) 145, at paras. 44-47. In addition, the Crown points out that the trial
    judge went on to find that even if Mr. Robinson was on the ice, his position
    was not conducive to observing what he described and that his evidence was
    biased and unreliable.

[37]

I
    agree that if this were the sole example of speculative reasoning that it may
    not be sufficiently egregious to imperil trial fairness and warrant ordering a
    new trial. However, this is but one example of speculative reasoning engaged in
    by the trial judge. In addition, it is hard not to draw a link between the
    trial judges conclusion that Mr. Robinsons evidence was biased and unreliable,
    and her finding that he erroneously testified that he was on the ice at the
    time of the incident. Thus the speculative reasoning is not entirely benign as
    the Crown would contend.

[38]

The
    second example of speculative reasoning also includes the trial judges views
    on hockey strategy. In rejecting the evidence of the appellant about what he
    was doing immediately before contact with the complainant, she stated at para.
    136:

Mr. MacIsaac was a defencemen who was out of position both
    because he was deep in the other teams zone and because he was a on the wrong
    side. It defies logic that Mr. MacIsaac, a defencemen, would have gone to the
    net in hopes of scoring a goal and that he would be skating with such lack of
    control.

[39]

Again
    the trial judge appears to impose her personal knowledge of hockey on the facts
    of the case. She reached this conclusion in an evidentiary vacuum. There was no
    evidence about whether players in this league stick to their position at all
    times. Moreover, the trial judge ignored the fact that the appellants team was
    down two goals with less than a minute to go in the game and was, according to
    Mr. Shorey, planning on pulling their goalie to add another skater.  Thus the
    evidence suggests that their priority was not playing defence, but rather
    scoring goals.

[40]

The
    third example, found at para. 137 of the trial judges reasons, is as follows:

If Mr. MacIsaac was skating in to score a goal or poke the puck
    away, he would have had to have more control over his speed than he purports to
    have had.

[41]

This
    finding, like the two previously mentioned, is speculative and based on the
    trial judges understanding of hockey, specifically the speed that a player
    would be skating in that situation. Moreover, the appellant did not testify
    that he was skating out of control. Rather, he said that he was skating quickly
    and the collision occurred because the complainant made an unexpected turn.

[42]

The
    fourth example is also found at para. 137 of the trial judges reasons:

Mr. MacIsaacs evidence in relation to the play is not
    consistent with the injuries sustained by the complainant and it is not
    consistent with the evidence of Mr. Desjardins and Mr. Casteron which I
    accept.

[43]

The
    trial judge did not elaborate on how or why the injuries were inconsistent with
    the appellants testimony. The testimony of the appellant was that the front of
    his helmet hit the complainants face when they collided. The Crown called no
    medical or other expert evidence and thus there was no basis upon which the
    trial judge could reach this conclusion, other than on her review of the
    description and photos of the complainants injuries. In my view, the type of
    injuries that would be suffered as a result of the collision if it occurred as
    the Crown witnesses testified or as the defence witnesses testified was not a
    matter that was within the knowledge of the trial judge.

[44]

The
    fifth example is found at para.138 of the trial judges reasons:

I also reject Mr. MacIsaacs assertion that Mr. Casterton had
    the puck because it would be illogical for Mr. Casterton not to see Mr.
    MacIsaac if he had the puck and would have to manoeuvre around him.

[45]

The
    suggestion appears to be that the complainant would have his head up if he had
    the puck. Once again, this is speculative. In fact, Mr. Casterton testified
    that there is less need to keep ones head up in no-contact leagues.

[46]

It
    was open to the trial judge to draw inferences that
reasonably
    and logically flowed from the facts established by the evidence.  But it was an
    error of law to draw inferences that did not flow logically and reasonably from
    established facts, because doing so draws the trial judge into the
    impermissible realms of conjecture and speculation:
R. v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at pp. 530-531.

[47]

Where
    a trial judge has employed speculative reasoning,
unless the
    Crown can demonstrate that the error caused no substantial wrong or miscarriage
    of justice, the convictions tainted by that error must be quashed:
Morrissey
, at p. 531.

[48]

The
    examples of the trial judges speculative reasoning cited above were not on
    peripheral areas; the issues she was dealing with were central to the case and
    were highly relevant to the determination of whether the Crown had proven the offence
    beyond a reasonable doubt. For example, evidence of the appellants intentions
    as he skated toward the complainant was critical in deciding if this was a
    premeditated hit or an accidental collision.  The evidence of defence witnesses
    was rejected in whole or in part based upon the trial judges understanding of
    hockey strategy and her views regarding on-ice injures, unaided by any expert
    testimony. While an isolated example of speculative reasoning may not have
    sufficed to render the trial unfair, I agree with the submission of the
    appellant that the trial judge rejected evidence that was capable of raising a
    reasonable doubt based on this series of speculative conclusions, and that this
    reasoning directly lead to her decision to convict.

[49]

The
    appellant was entitled to a determination of his guilt or innocence based on
    the evidence at trial, not on the hockey experience of the trial judge or her
    understanding of the injuries to be expected from various types of on-ice
    collisions. An accused in a criminal proceeding must make any number of
    strategic decisions based upon the evidence that is presented at trial. He or
    she bases decisions about what questions to ask, what evidence to lead, whether
    to testify and what arguments to advance, based on the state of play of the
    trial. A trial judge ought not to supplement and supplant the evidentiary
    record, except in very limited situations where taking judicial notice is
    permitted.

[50]

This
    was not a case in which judicial notice could be taken of the disputed facts. A
    court can take judicial notice of a fact only if it is: (1) so notorious or
    generally accepted that no reasonable person would disagree; or (2) capable of
    immediate demonstration by reference to sources of indisputable accuracy (
R.
    v. Find
, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48, citing
R. v.
    Potts
(1982), 66 C.C.C. (2d) 219 (Ont. C.A.)). Due to concerns about
    possible prejudice to the accused, the Supreme Court has set strict limits on
    the use of judicial notice to determine adjudicative facts in criminal trials:
R.
    v. Spence
, 2005 SCC 71, [2005] 3 S.C.R. 458, at paras. 61-62. Those
    concerns have been echoed more recently by this court:
R. v. Perkins
, 2007
    ONCA 585, 223 C.C.C. (3d) 289, at paras. 37-42.

[51]

Measured
    against the above principles, hockey strategy is not a proper subject for
    judicial notice. From the sports pages to social media, it is abundantly clear
    that reasonable Canadians often disagree about what constitutes a rational
    hockey strategy in a given situation. Nor is there any source of indisputable
    accuracy by which to settle these disagreements. Neither branch of the test for
    judicial notice is fulfilled.

E.      DISPOSITION

[52]

In
    my view, the trial judge erred in law in engaging in speculative reasoning,
    which led to the appellants conviction and denied him a fair trial.
    Accordingly, I would quash the appellants conviction and order a new trial.

Released: August 31, 2015 (JL)

C.W.
    Hourigan J.A.

I
    agree John Laskin J.A.

I
    agree P. Lauwers J.A.


