



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Williams, 2019 ONCA 743

DATE: 20190920

DOCKET: C62459

Juriansz, Watt and Hourigan
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Geran Williams

Appellant

Carlos Rippell and Jeffrey Fisher, for
    the appellant

Linda Shin, for the respondent

Heard: May 23, 2019

On appeal from the conviction entered by
    Justice Jane Ferguson of the Superior Court of Justice, sitting with a jury, on
    March 11, 2016 and from the sentence imposed on June 6, 2016, with reasons
    reported at 2016 ONSC 3219.

REASONS FOR DECISION

[1]

We dismissed the
    appellants appeal of his conviction for aggravated assault with reasons to
    follow. These are the reasons.

A.

Facts

[2]

The appellant was at a
    bar with friends on the evening of March 27, 2015. He was wearing his work vest,
    which contained a five-inch folding knife that he used for his job at a glass
    factory. After the group left the bar, they encountered the complainant and his
    friends on the street. The complainant, most of his friends, and the
    appellants friends had been drinking that night. The complainant testified
    that he was blackout drunk and had no memory of the incident.

[3]

An argument broke out
    between the two groups. According to the appellant, the complainant punched
    him, his glasses went flying, and he felt woozy. He pulled out his knife and
    waved it, telling the complainant to get away. The complainant was not
    intimidated. The appellant testified the complainants friends held the
    complainant back and the appellant ran away down the street, unaware the
    complainant had been cut. The complainant broke free, pursued the appellant,
    and the fight continued.

[4]

No one witnessed the
    second stage of the fight. The appellant said he stopped and saw the
    complainant coming after him. The complainant punched the appellant again and
    tried to take the knife from him. The appellant said he waved the knife to
    create space between himself and the complainant. He said he ran and jumped
    into a taxi. He did not think the complainant was hurt.

[5]

In fact, the
    complainant was seriously injured from 13 stab wounds. The appellant sustained
    minor injuries. An independent witness said she saw the complainant bloodied on
    the sidewalk after the fight, holding his wounds and yelling, [w]hyd you do
    that? She said the appellant walked away from the complainant at a normal pace
    and looked back. She and her friend then took the complainant to a restaurant
    and asked staff to call 911.

[6]

The appellant was tried
    on one charge of possession of a weapon for a  purpose dangerous to the public
    peace, contrary to s. 88(1) of the
Criminal Code
, and one charge of aggravated assault
    under s. 268(1). The trial judge granted a directed verdict of acquittal on the
    first charge. The jury convicted the appellant of aggravated assault.

[7]

At trial, the appellant
    claimed he had acted in self-defence. The Crown conceded that the complainant
    was likely the initial aggressor in the fight. The issue was whether the appellant
    had used more force than reasonably necessary.

B.

Appellants Arguments

[8]

The appellant advanced
    three arguments on appeal.

[9]

First, the appellant contended
    that the trial judge erred by refusing his application under
R. v. Scopelliti
(1982), 34 O.R. (2d) 524,

to
    call a witness who, on an earlier occasion, had been attacked by the
    complainant. The trial judge also limited the appellants cross-examination of
    the complainant on why he entered a peace bond after being charged with assault
    on that earlier occasion.

[10]

Second, the appellant submitted
    that the trial judge erred in dismissing his application to exclude his own
    criminal record pursuant to
R. v. Corbett
, [1988] 1 S.C.R. 670
.

[11]

Third, the appellant
    argued that the trial judge should have instructed the jury that the directed
    verdict on the weapon dangerous charge was an acquittal.

C.

Dismissal of the Appellants
Scopelliti
Application and Restriction of the Cross-Examination of the Complainant

[12]

The complainant had
    been charged in 2011, about four years before the offences charged, for a drunken
    assault of the manager of a sports bar. The charges were withdrawn when the
    complainant entered a peace bond.

[13]

In cross-examination,
    the complainant acknowledged the incident occurred but claimed he was too drunk
    to remember what happened. The trial judge limited the appellants
    cross-examination of the complainant as to why he had entered a peace bond. The
    appellant brought a
Scopelliti
application to call the victim of the
    complainants previous attack to testify that the complainant had aggressively
    attacked him while drunk. The trial judge dismissed the application with brief reasons
    and did not reconsider her decision following the appellants unsuccessful
Corbett

application.

[14]

The appellant submitted
    that the complainants history of aggressive behaviour while highly intoxicated
    was relevant to his (the appellants) defence of self-defence. The evidence
tended to support the appellant's claim that the complainant was the
    aggressor and thus the appellant's response was in self-defence.


[15]

We were not persuaded
    by this argument. At trial, it was not disputed that the complainant was the
    aggressor, both in the initial altercation and following his chase of the
    appellant. Evidence that the complainant became aggressive when drunk on
    another occasion was unnecessary. As well, the probative value of the proposed
    evidence was minimal: it involved an incident in 2011, when the complainant was
    19 years old.

[16]

In the context of this
    trial, the trial judge did not need to provide detailed reasons for her ruling
    on the
Scopelliti
application. The ruling had a clear basis in the
    record and the issues were straightforward.

[17]

Moreover, much of the
    proposed evidence was already before the jury. In cross-examination, the
    complainant stated that the last time he got blackout drunk, he was arrested
    for punching a man at a bar, referring to the 2011 incident. Although the trial
    judge precluded further questioning about this incident and denied the
    appellants
Scopelliti
application, the details of the peace bond were before
    the jury in an agreed statement of fact. The record provided defence counsel
    with the basis to argue, as he did, that the jury should find that the
    complainant tended to become violent when drunk.
[1]

[18]

The appellant argued that
    the trial judge ought to have revisited her
Scopelliti

ruling after denying the appellants
Corbett
application. We reject this submission. The evidence of the complainants past
    conduct did not become relevant simply because the trial judge admitted
    evidence of the appellants past criminal conduct.

D.

Dismissal of the
    Appellants
Corbett
Application

[19]

The appellant brought a
Corbett
application to exclude his five convictions, which
    were all related to his possession of a loaded firearm on a single occasion.

[20]

Though the trial judge
    dismissed the application, she admitted evidence of only one of the appellants
    five convictions. She admitted only the conviction for possession of a prohibited
    or restricted firearm with ammunition, contrary to s. 95(1) of the
Criminal Code
,
    and excluded the other four convictions as they arose out of the same incident
.

[21]

The appellant argued
    that the trial judge should have allowed his
Corbett
application because possession of a
    restricted firearm is not a crime of dishonesty, and admission of the criminal
    record created a real risk that the jury might reason that the appellant had a
    propensity for violence.

[22]

This ground of appeal
    failed because the appellants entire criminal record was presumptively admissible,
    the one conviction admitted was relevant to the appellants credibility even
    though it was not a crime of dishonesty, and the probative value of the
    conviction outweighed its potential prejudicial effect.

[23]

Accordingly, we
    rejected this ground of appeal.

E.

The Trial Judges
    Failure to Inform the Jury that the Appellant Was Acquitted on the Weapons
    Charge

[24]

After allowing the
    defences application for a directed verdict on the charge of possession of a
    weapon for a dangerous purpose, the trial judge gave the jury the following
    mid-trial instruction:

THE COURT: All right.
    And I need to instruct you on this, as a matter of law Im withdrawing from
    your consideration count number two, namely the count of possession of a
    weapon, a knife, for a purpose dangerous to the public. And I am entering the
    verdict on this count that I would otherwise have directed you to give as a
    matter of law. What remains for your determination is the aggravated assault
    charge.

[25]

The appellant argued
    that the trial judge ought to have informed the jury that he had been
    acquitted. He submitted that the jury could have suspected that the he had been
    found guilty, creating a risk of prejudicial reasoning. The jury might have
    inferred that the appellant was carrying the knife for a dangerous purpose, and
    not because he needed it for work as he testified.

[26]

The argument could not
    succeed as the trial judge used the very language directed by the Supreme Court
    of Canada in
R. v. Rowbotham
;
R. v. Roblin
, [1994] 2 S.C.R. 463, at p. 477. Lamer
    C.J. writing for the court said:

I conclude that the common law procedure with
    respect to directed verdicts should be modified -- in instances where in the
    past the trial judge would have directed the jury to return a particular
    verdict, the trial judge should now say
as a matter of law, I am
    withdrawing the case from you and I am entering the verdict I would otherwise
    direct you to give as a matter of law
. [Emphasis added.]

[27]

In any event, there is
    no basis for the appellants argument that the jury may have reasoned that the
    appellant had been found guilty of the weapons possession charge. In defence
    counsels closing submissions, he described to the jury in detail why it was
    normal for the appellant to be carrying the folding knife for work. The trial
    judge repeated in her charge that the appellant was carrying a knife he used at
    work. The jury was left with no suggestion that the appellant was convicted of
    the weapons charge.

F.

Conclusion and
    Disposition

[28]

The appellant abandoned
    his appeal against sentence.

[29]

For these reasons, the
    appeal was dismissed.

R.G. Juriansz J.A.

David Watt J.A.

C.W. Hourigan J.A.





[1]
We leave for another day whether the principles in
Scopelliti
apply to non-fatal offences against the person. See,
R. v. Borden
, 2017
    NSCA 45, 349 C.C.C. (3d) 162.


