



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mikasinovic, 2018 ONCA 573

DATE: 20180622

DOCKET: C63527

Watt, van Rensburg and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nedeljko Mikasinovic

Appellant

Michael W. Lacy and Lawrence Gridin, for the appellant

John Patton, for the respondent

Heard: June 12, 2018

On appeal from the conviction entered by Justice Robert
    F. Goldstein of the Superior Court of Justice, sitting with a jury, on February
    6, 2017, and from the sentence imposed on May 25, 2017, with reasons reported
    at 2017 ONSC 863 and 2017 ONSC 3192.

REASONS FOR DECISION

[1]

After leaving a restaurant with friends, the appellant was involved in a
    physical altercation with two individuals, Marc Casaponsa and Tim Runge. He was
    charged with the assault of Casaponsa and aggravated assault of Runge. At his
    first trial, a jury found the appellant not guilty of assaulting Casaponsa but
    was unable to reach a verdict on the count of aggravated assault of Runge.

[2]

After his second trial for the aggravated assault of Runge, the
    appellant was convicted of assault causing bodily harm. He appeals that conviction
    and seeks leave to appeal his sentence of 14 months imprisonment and two
    years probation.

[3]

The conviction appeal consists of one ground  whether the trial judge
    erred in leaving assault bodily harm with the jury as an included offence and
    verdict. The appellant says that, in light of the uncontested nature of Runges
    injuries, there was no reasonable view of the evidence that would have
    permitted the jury to acquit on aggravated assault but to convict him of assault
    causing bodily harm.

[4]

The appellant points to the expert medical opinion evidence that Runge
    suffered a serious and permanent brain injury, and would have died if left
    untreated. He says that this is consistent with endangering life, disfiguring, wounding
    or maiming, the consequences required for a conviction of aggravated assault. The
    appellant points to the fact that the sole distinguishing feature between
    assault bodily harm and aggravated assault is the degree of harm visited upon
    the victim. In this case, the unequivocal nature of the expert evidence established
    the consequences of aggravated assault. On this evidence the only available
    verdict was guilty of aggravated assault. By leaving the included offence of
    assault bodily harm for the jurys consideration, the appellant argues that the
    trial judge invited a compromise verdict.

[5]

The appellant also asserts that, in answering a jury question, the trial
    judge intensified the concern over a compromise verdict because he told the
    jury that assault causing bodily harm is a less serious offence than
    aggravated assault. This instruction is said to have provided the jury with a
    consideration that was relevant to sentencing, not conviction, and to have increased
    the chances of a compromise verdict. Finally, the appellant argues that trial
    counsels concession that the jury should be instructed on both aggravated
    assault and assault causing bodily harm should not influence the result on
    appeal. Counsels concession resulted from a flawed understanding of the
mens
    rea
for the two offences.

[6]

We disagree. First, we do not accept the appellants characterization of
    the expert evidence in this case as being dispositive of the degree of harm
    necessary to meet the requirements of an aggravated assault. The trial judge
    was required to instruct the jury on and to leave as an available verdict any
    included offence that had an air of reality:
R. v. Luciano,
2011 ONCA
    89, 273 O.A.C. 273, at para. 75. There was no evidence from a treating
    physician as to the actual scope of the resulting harm to Runge. Rather, Dr.
    Roger Smith, qualified as an expert neuroradiologist, testified based on the
    MRIs and CAT scan of Runges brain that the effects of the brain injury would
    range from a bad headache to the potential, without treatment, of death. Runge
    also testified about his medical treatment and condition. The jury may have
    been left in a reasonable doubt that the degree of harm experienced by Runge
    rose to the level required for an aggravated assault, yet concluded that it amounted
    to bodily harm as the judge defined it.

[7]

Second, throughout the trial, including submissions on the charge,
    defence counsel reasonably acknowledged that assault bodily harm was an
    available verdict. This case is unlike
R. v. Wong
, [2006] O.J. No.
    2209, 211 O.A.C. 201 (C.A.), relied on by the appellant, where this court
    concluded that the trial judge erred in leaving assault causing bodily harm
    with the jury as an available verdict. There, this courts assessment was
    consistent with that of defence counsel at trial, who objected to the included
    offence being left with the jury. Unlike this case, everyone agreed in
Wong
that the victims injury (an 18 inch gash from a knife) was an aggravated
    assault if the act was intentional.

[8]

The position of counsel at trial is important in determining whether an
    included offence ought to have been left with the jury, having regard to the
    accuseds constitutional right, within limits, to control his or her own
    defence:
Luciano
, at para. 77. See also
Wong
at para. 11:
    the trial judges obligation to instruct on included offences will depend on
    the evidence led, the issues raised, and the positions of the parties.  In
    this case, defence counsel specifically asked that the jury be instructed on
    the included offence of assault causing bodily harm.

[9]

Third, the trial judges instructions, including the statement that
    assault causing bodily harm is a less serious offence than aggravated
    assault, provided together with his accurate instructions on the components of
    the three offences, attracted no objection from defence counsel at trial, and reveal
    no error.

[10]

The
    conviction appeal is therefore dismissed.

[11]

The
    appellant seeks leave to appeal his sentence on grounds relating to two factors
    the trial judge found to be aggravating: (1) that the appellant was the
    aggressor throughout the events; and (2) that the injury to the victim was a
    severe, permanent brain injury that endangered his life.

[12]

On
    the first factor, the appellant says that the trial judge erred in attempting
    to discern the basis on which self-defence was rejected. He argues that the
    trial judge erroneously concluded that the appellant was the aggressor by
    ignoring that he had been acquitted at the earlier trial of the assault on
    Casaponsa.

[13]

We
    disagree. The trial judge made it clear that he could not determine what the
    jury must have concluded in rejecting the self-defence claim. He was required,
    under s. 724 of the
Criminal Code
, to accept the findings that were
    essential to the jurys verdict, and to find any other relevant fact that was
    disclosed by the evidence at the trial. Based on the evidence, he arrived at
    his own entirely reasonable conclusion that the appellant had been the
    aggressor throughout. Further, the trial judge properly rejected the
    appellants argument that the result of the earlier trial precluded a finding
    that he was the aggressor. The focus here was on the appellants conduct in
    relation to Runge, and there was no question that the evidence, particularly
    the surveillance videos, supported the trial judges conclusions.

[14]

On
    the second factor, the seriousness of the injury was properly taken into
    account as an aggravating factor by the trial judge. The jury must have acquitted
    the appellant of aggravated assault because they had a reasonable doubt that Runges
    injury was a wound, a disfiguring, or a maiming, and did not endanger his life.
    There is nothing inconsistent between the basis of that acquittal and the trial
    judges conclusion that Runges brain injury was severe, permanent, and had the
    potential to endanger his life if left untreated.

[15]

The
    conviction appeal is dismissed.

[16]

There
    is no basis to interfere with the sentence. Leave to appeal sentence is
    granted, and the sentence appeal is dismissed.

David Watt J.A.

K. van Rensburg J.A.

Fairburn J.A.


