COURT
    OF APPEAL FOR ONTARIO

CITATION: R. v. Theriault, 2021 ONCA 517

DATE: 20210719

DOCKET: C68671, C68489 & C68490

Tulloch, Roberts and Trotter
    JJ.A.

DOCKET:
    C68671

BETWEEN

Her
    Majesty the Queen

Respondent

and

Michael
    Theriault

Appellant

DOCKET:
    C68489

AND BETWEEN

Her
    Majesty the Queen

Appellant

and

Michael
    Theriault

Respondent

DOCKET:
    C68490

AND BETWEEN

Her
    Majesty the Queen

Appellant

and

Christian
    Theriault

Respondent

Michael Lacy and Deepa Negandhi for the
    appellant (C68671) and respondent (C68489), Michael Theriault

Alan D. Gold and Laura Metcalfe for the
    respondent (C68490), Christian Theriault

Susan Reid and Rebecca Schwartz for the
    appellant (C68489 & C68490) and respondent (C68671), Her Majesty the Queen

Heard: May 12 and 13, 2021 by video conference

On appeal from
    the conviction entered by Justice Joseph Di Luca of the Superior Court of
    Justice on June 26, 2020, with reasons reported at 2020 ONSC 3317, and the sentence
    imposed on November 5, 2020, with reasons reported at 2020 ONSC 6768
    (C68671).

On appeal from
    the acquittals entered by Justice Joseph Di Luca of the Superior Court of
    Justice on June 26, 2020, with reasons reported at 2020 ONSC 3317 (C68489 &
    C68490).

Tulloch J.A.:

A.

Introduction

[1]

In the early morning hours of December 28, 2016,
    Michael Theriault and his brother, Christian, were smoking cigarettes in their
    parents garage in a suburban town east of Toronto.
[1]
The
    brothers heard a sound coming from outside and slid under the garage door to
    investigate. They caught some teenagers stealing from their parents truck. One
    of those teenagers was Dafonte Miller.

[2]

Mr. Miller is a young Black man. The accused
    brothers are white. At the material time, one of the brothers, Michael, was an
    off-duty police officer.

[3]

Once the Theriault brothers emerged from the
    garage, the teenagers ran in different directions. Michael and Christian
    pursued Mr. Miller for a distance of approximately 130 metres before Mr. Miller
    ran between two houses. As Mr. Miller attempted to scale a fence between the
    houses, Michael body checked him.

[4]

A violent struggle ensued. At some point, one of
    the individuals introduced a metal pipe into the melee. The fight quickly
    became one-sided, with Mr. Miller as the victim. As a result of this
    altercation, Mr. Miller sustained serious injuries that resulted in a
    permanently blind left eye, as well as associated physical and emotional trauma.
    The Theriault brothers sustained minor, if any, injuries.

[5]

Months later, the Theriault brothers were
    jointly charged with committing an aggravated assault against Mr. Miller and with
    attempting to obstruct justice by lying about it to the police thereafter.

[6]

After a ten-day trial, the judge acquitted the
    brothers of aggravated assault and attempting to obstruct justice. The trial
    judges reasonable doubt stemmed from his holdings that the brothers may have
    been: (i) attempting to execute a lawful arrest, and (ii) acting in
    self-defence.

[7]

The trial judge convicted Michael of the lesser
    and included offence of assault in relation to the final part of the struggle,
    in which he was alleged to have struck Mr. Miller in the head with a metal pipe
    as Mr. Miller sought assistance at a nearby house. The trial judge sentenced
    Michael to nine months imprisonment.

[8]

Michael appeals his conviction and sentence for
    common assault. For the reasons that follow, I would dismiss the defence appeal
    on both grounds.

[9]

The Crown also appeals both brothers acquittals
    of aggravated assault and attempts to obstruct justice. However, in its factum,
    and again at the oral hearing, the Crown confirmed that it would seek a new
    trial only if the defence appeal also succeeded. The Crown framed its position in
    its factum as follows:

The Crown has appealed the acquittals so that,
    if Michael Theriaults conviction appeal is successful and a new trial is
    ordered, the trial can proceed on the original charges of aggravated assault
    and attempt to obstruct justice.
The Crown is satisfied
    that, if Michael Theriaults conviction for common assault is upheld, it is not
    in the public interest to seek a new trial on the offence of aggravated
    assault, or the charge of attempt to obstruct justice, against either Theriault
    brother, and in those circumstances the Crown will not seek an order for a new
    trial.
[Emphasis added.]

[10]

Accordingly, since I would dismiss the defence
    appeal, and the Crown has indicated it will not pursue a retrial should its
    appeal succeed, it is not in the interests of judicial economy to address the
    Crowns appeal. My dismissal of the Crowns appeal, however, should not
    necessarily be taken as agreement or disagreement with the trial judge on the
    issues the Crown raises. My reasons do not consider the merits of the Crown
    appeal. Rather, given the Crowns position and my decision to uphold the
    conviction for common assault, these reasons focus only on the grounds of
    appeal raised by Michael.

B.

The Evidence at trial

[11]

Since this case was in its nascency, Mr. Miller
    and the brothers have advanced very different versions of events concerning
    what happened on December 28, 2016. This section summarizes Mr.
    Millers evidence, the Theriault brothers evidence, the evidence of other
    witnesses, the 911 calls, the physical evidence, and the evidence pertaining to
    the injuries sustained by Mr. Miller and the brothers.

(1)

Mr. Millers Evidence at Trial

[12]

On the evening in question, Mr. Miller testified
    that he was hanging out with his friend, Antonio Jack, and an acquaintance,
    Bradley Goode. According to Mr. Miller, after smoking marijuana at a
    friends house, he and his friends decided to meet up with some women that Mr.
    Goode knew. He denied that he was breaking into cars that evening. As I return
    to below, Mr. Millers denial regarding his activities that night was
    inconsistent with the physical evidence at the scene and the testimony of one
    of his companions, Mr. Goode. Notably, Mr. Goode admitted that they were
    stealing valuables from cars that night.

[13]

Mr. Miller and his friends set out on foot. Mr.
    Miller testified that, as they walked through a residential neighbourhood
    toward their destination, he observed two individuals standing outside an open
    and lit garage. Mr. Miller later learned that these individuals were the two accused
    brothers: Michael and Christian.
[2]

[14]

Mr. Miller testified that the Theriault brothers
    randomly approached him and his friends. Mr. Miller recalled Christian asking
    whether they lived in the area. Mr. Miller testified that Mr. Jack responded
    no and gestured in the direction of the neighbourhood they do live in. Christian
    then asked what they were doing in the neighbourhood. Mr. Miller testified that
    at the time, he felt like he and his friends were being questioned. Mr. Miller further
    recalled Michael identifying himself as a police officer. According to Mr.
    Miller, Michael said he was a cop and could ask whatever he wanted.

[15]

Mr. Miller testified that he started walkinthe
    way we were goin. Moments later, when he glanced back, he saw the Theriault
    brothers coming towards him. Mr. Miller and his friends ran. Initially, he
    thought he was running in the same direction as his friends, but quickly
    realized that he was on his own, with the Theriault brothers quick on his trail.
    He recalled the brothers trying to grab him, but he managed to keep running. When
    he turned back, he did not remember seeing anything in either brothers hands.

[16]

Mr. Miller recalled his pursuers trying to grab
    him for a second time. He then turned in an attempt to make it to a door of a
    house to get help. Instead, according to Mr. Miller, he and the brothers ended
    up between that house and another house (the houses would later be identified
    as the Silverthorn and Forde residences). While between the houses, Mr. Miller
    recalled Christian placing him into a headlock. Mr. Miller remembered facing
    down, pretty much on the ground. He felt hits to his back and head.

[17]

Mr. Miller testified that he first saw a metal
    pipe in Michaels hands when he managed to get out of the headlock. Mr. Miller recalled
    standing up, turning around, and being struck with the pipe. He felt Christian
    grabbing his leg, and next remembered being on the ground facing the fence. He
    recalled Michael repeatedly hitting him with the metal pipe, while Christian hit
    him with his hands and feet. He testified that the pipe struck him on the side
    of his face. He recalled just laying there, looking at the fence. He remembered
    being unable to feel the blows anymore.

[18]

Mr. Miller then recalled a moment when it
    stopped, and he struggled to his feet. He made his way around the Silverthorn
    residence to the front door, touching the walls of the house with his hands as
    he walked. He testified that he was still receiving blows with the pipe by the
    time he reached the door of the Silverthorn residence. According to Mr. Miller,
    although he attempted to block some of the blows with his arms, he did not otherwise
    fight back.

[19]

Mr. Miller next recalled knocking on the door. In
    his words, he was tryin to just use the rest of [his] strength to get help.
    He turned towards Michael, who was still holding the pipe. Mr. Miller
    remembered saying you are going to kill me to Michael. According to Mr.
    Miller, it is in that moment that Michael then hit him in the eye with the
    pipe. Mr. Miller remembered blood pouring on the ground before him. He then
    turned around and continued to bang on the door for help.

[20]

After realizing that no one was coming to his
    assistance, Mr. Miller recalled walking over to the driveway. He testified that
    Michael kept hitting him in the back with the pipe until he fell over.
    Christian was on the sidewalk, some distance away.

[21]

Mr. Miller next remembered being on the ground,
    sitting against a car. He took out his phone and called 911. According to Mr.
    Miller, at this point, Michael was yelling at him to put his phone down, while still
    holding the pipe. Michael then put Mr. Miller face down on the ground. Mr.
    Miller testified that Michael had his knee on his upper back. He could not
    breathe and asked to be turned over.

[22]

According to Mr. Miller, Michael first told him that
    he was under arrest when he was on the phone with 911. After initially being
    evasive in his testimony, he eventually agreed that he could be heard on the
    911 call recording saying: I know.

[23]

Michael remained on top of Mr. Miller until
    police officers arrived on the scene. Michael handcuffed Mr. Miller. Police
    officers helped him up, searched him, and placed him under arrest. An ambulance
    took him to the hospital.

[24]

Mr. Miller testified that the only person he saw
    wield the pipe was Michael. He denied ever using the pipe to assault Michael or
    Christian.

(2)

Mr. Millers Prior Evidence

[25]

Before testifying at trial, Mr. Miller made a
    number of statements about the incident, including statements to the Special
    Investigations Unit (SIU), a complaint to the Office of the Independent
    Police Review Director (OIPRD), and his testimony at the preliminary inquiry.
    In all of these statements, Mr. Miller denied involvement in any illicit
    activity leading up to the encounter with the Theriault brothers and maintained
    that he did not pick up the pipe at any time.

[26]

Certain other details in Mr. Millers account of
    the events that night varied considerably each time he provided a statement or
    testimony, including:

a.

the time that he met up with Mr. Jack and Mr. Goode;

b.

whether he, Mr. Jack, and Mr. Goode went to
    visit a third friends house before setting out to meet the girls;

c.

whether he smoked marijuana that night;

d.

whether he told police the name of his friends when
    speaking with the officers at the scene;

e.

whether he knew the names of the girls that he
    and his friends were purportedly going to visit;

f.

whether he saw Michael and Christian smoking and
    drinking in their garage;

g.

whether he reviewed his own criminal disclosure;
    and

h.

whether he knew the version of events advanced
    by his friend, Mr. Jack (which is detailed below).

(3)

Michael Theriaults Evidence at Trial

[27]

Michael testified at trial that, on the evening
    in question, he and his brother were at their parents house for a family
    dinner. They were drinking alcohol. At approximately 2:00 a.m., he recalled going
    to the garage to smoke cigarettes with his brother. He testified that he was
    wearing jeans, a shirt, and socks without shoes, while his brother was wearing
    shorts, a sweater, shoes, and a toque.

[28]

Michael next recalled hearing truck doors close
    right outside the garage. He assumed someone was inside his parents truck. Michael
    testified that he told his brother to open the garage door. He remembered
    rolling under it to get outside as quickly as possible. He denied bringing
    anything, including a metal pipe, with him for safety.

[29]

When he got outside, he saw two teenagers in his
    parents truck; one was exiting the front drivers side, the other was exiting
    the front passengers side. According to Michael, the teenagers started running
    right away. He gave chase. Michael indicated that he ran after the person who
    was sitting in the drivers seat because he wanted to apprehend  one of the
    males  arrest him  and wait til Durham Police arrived. He yelled to his
    brother to follow.

[30]

Michael denied having any discussion with Mr.
    Miller prior to the pursuit. Contrary to Mr. Millers testimony, Michael said
    he did not tell Mr. Miller and his friends that he was a police officer when
    they first encountered one another in front of the Theriault residence.

[31]

Michael agreed that during the chase, he still
    did not identify himself in any way as a police officer. His explanation for
    not saying anything was because everything happened really fast. He agreed it
    would have been helpful for Mr. Miller to know what was happening. He also
    agreed that saying something like stop, police would have assisted in the
    apprehension of Mr. Miller.

[32]

Michael did not see Mr. Miller running with the
    metal pipe and he agreed that it was too big to be hiding in Mr. Millers
    pants.

[33]

According to Michael, as he and his brother
    chased Mr. Miller, he turned and ran between two houses. Mr. Miller did not
    slow down at any point. Michael figured that Mr. Miller was fleeing and didnt
    wanna get caught. He denied that Mr. Miller attempted to get to the door of the
    Silverthorn or Forde residence. Instead, he testified that Mr. Miller attempted
    to climb a fence between the two properties. He testified that he then body checked
    Mr. Miller into the fence because he didnt want him to, to escape,
    essentially. Michael agreed that he had not said a word before body checking Mr.
    Miller.

[34]

Michael testified that Mr. Miller started
    hitting him in the body with a weapon of some sort immediately following the
    body check. According to Michael, he realized that Mr. Miller had something in
    his hand, and he yelled to his brother: Hes got a bat, hes got a bat. Michael
    testified that he subsequently realized that Mr. Miller had a metal pipe in his
    hands.

[35]

At trial, Michael maintained that he did not
    know where the pipe came from. As I will explain below, this differed from his
    initial statement at the scene. At that time, he had said to police: [l]ooking
    after it appears [Mr. Miller] took the pole from the gas line at [the
    Silverthorn residence].

[36]

Michael admitted that he still did not identify
    himself as a police officer or tell Mr. Miller he was under arrest when the struggle
    began between the two houses. He testified that his first and foremost
    thoughts was he has a weapon, and, uh, I just wanted to make sure that me and
    Christian were safe.

[37]

Michael next recalled Christian engaging Mr.
    Miller. He testified that Mr. Miller struck Christian in the head with the
    pipe. Michael indicated that he then decided to cut the distance between himself
    and Mr. Miller in an effort to disarm him. Michael testified that he began
    punching Mr. Miller wherever he could and as hard as [he] could in the face
    and body. He indicated that in accordance with police training, he punched Mr.
    Miller in the face to distract him so that Mr. Miller would loosen his grip
    on the pipe, and he could retrieve it.

[38]

Michael indicated that Mr. Miller was punching
    him back, although he could not recall where he was punched. He denied that Mr.
    Miller was defenceless on the ground, with the brothers beating him repeatedly
    with the pipe.

[39]

This portion of the altercation, according to
    Michael, occurred closer to the fence.

[40]

The altercation then moved towards the flowerbed
    alongside the Forde residence. Michael testified that he was unsuccessful in
    disarming Mr. Miller, so he called Christian to get in here. Christian was
    able to get Mr. Miller in a headlock. According to Michael, Christian was on
    his back, holding Mr. Miller, who was on top of him, punching him. At this
    point, Michael indicated that he was able to disarm Mr. Miller. He denied
    striking Mr. Miller with the pipe. Instead, he testified that he threw the pipe
    some distance away, and it landed on the snow-covered lawn. According to Michael,
    he threw the pipe because he didnt want Mr. Miller to grab it again, to start
    using it on us again. He testified that he then started punching Mr. Miller
    since Mr. Miller was punching Christian.

[41]

According to Michael, Mr. Miller eventually
    stopped punching Christian, leading Michael to stop punching Mr. Miller. At
    this juncture, Michael said he told Christian that he was calling the police.
    He testified that as he pulled out his phone, Mr. Miller started punching
    Christian again. He indicated that he then threw his phone, re-engaged, and
    started punching Mr. Miller again.

[42]

Michael testified that for a second time, Mr.
    Miller stopped fighting so Christian let go of him. At this point, Michael said
    he grabbed the pipe from the lawn because he feared that Mr. Miller was
    possibly going to arm himself with it again. Michael testified that although he
    picked up the pipe, he did not use it to strike Mr. Miller.

[43]

Michael testified that Mr. Miller walked toward
    the front door of the Silverthorn residence and started banging on the door.
    Michael admitted that he was holding the pipe upright with both hands at this
    time. This posture, according to Michael, was consistent with police training
    around the use of batons. However, he denied striking Mr. Miller as he walked
    from the area between the houses to the front door of the Silverthorn
    residence. As he followed Mr. Miller to the front of the house, he said that he
    was yelling at him to get down. He also said he yelled at the occupants of
    the Silverthorn residence to call 911.

[44]

Michael recalled Mr. Miller then walking toward
    the car parked in the driveway. Mr. Miller put both his hands on the hood of
    the vehicle. Michael testified that he again told Mr. Miller to get down. He
    admitted that it was at this juncture that he told Mr. Miller he was under
    arrest for the first time.

[45]

According to Michael, Mr. Miller was not
    complying with his order to get down, so he grabbed Mr. Miller and put him on
    the ground. Once he had control of Mr. Miller, with his knee on Mr. Millers
    back, Michael said he threw the pipe to the middle of the lawn. Michael
    explained that the act of putting Mr. Miller to the ground was consistent with
    police training. He denied continuing to hit Mr. Miller while he restrained
    him.

[46]

Michael admitted that he still did not tell Mr.
    Miller why he was arrested because he figured, uh, once Durham Police came
    over, and took over the scene, um, they would take over the formalities. He
    also said he assumed that Mr. Miller knew that he was under arrest for whatever
    he did in the car and for attacking him and Christian with a weapon.

[47]

Michael said that at this point, Christian was
    at the end of the driveway, on the phone.

[48]

When the police arrived, one of the officers
    handed Michael a pair of handcuffs and said something to the effect of you
    know what youre doing. Michael recalled handcuffing Mr. Miller and helping
    him to his feet. He then handed over custody of Mr. Miller to the uniformed
    police officers.

(4)

Michael and Christians Police Statements

[49]

Both Michael and Christian gave statements at
    the scene. Additionally, two weeks later, Christian came into the police
    station to give a second statement. The statements were generally consistent
    with the narrative advanced by Michael in his trial testimony, however, neither
    brother made any mention of Michaels possession of the pipe beyond disarming
    Mr. Miller between the houses.

[50]

The brothers denied knowing where the pipe came
    from in their statements but made different suggestions implicating Mr. Miller.

[51]

As noted above, Michael indicated that: [l]ooking
    after it appears he took the pipe from the gas line at [the Forde residence]. The
    trial judge found that this gas line referred to the air conditioning
    rough-in near the flowerbed on the Forde property. When asked about this suggestion
    about the provenance of the pipe during cross-examination, Michael denied
    returning to the area between the houses after the police arrived on the scene.
    He explained that he was just speculating and had no idea what gas line he was
    talking about.

[52]

In both of Christians statements, he suggested that
    Mr. Miller had the pipe, which was approximately four feet long, tucked in his
    pants from the outset. Christian said that Mr. Miller pulled it out when the
    confrontation began between the houses.

(5)

The Evidence of Mr. Millers companions, Antonio
    Jack and Bradley Goode, at Trial

[53]

Mr. Jack was a classmate and friend of Mr.
    Millers. On the night in question, he indicated that he was with Mr. Miller
    and Mr. Goode. They set out on a quest to locate marijuana. According to Mr.
    Jack, as the three of them were walking, two guys came out of a garage and approached
    Mr. Miller and Mr. Goode, who were walking some distance ahead of Mr. Jack. Mr.
    Jack heard what sounded like an argument in a loud pitched voice. He asked Mr.
    Miller if he was okay and Mr. Miller replied yes. Mr. Jack denied being
    present alongside Mr. Miller and Mr. Goode when this interaction occurred. He also
    denied hearing the questions asked by the men who came out of the garage.

[54]

Mr. Jack then saw two or three white males run
    out of the garage towards them. Mr. Jack recalled that one male ran after Mr.
    Goode and two males ran after Mr. Miller. According to Mr. Jack, one of the
    white males who started chasing Mr. Miller had something in his hand that
    looked like a silver pipe. Mr. Jack also ran. He did not see the men or Mr.
    Miller again that night.

[55]

In cross-examination, defence counsel confronted
    Mr. Jack with a number of inconsistencies in his version of events, which
    differed between his initial statement to a SIU investigator, his testimony at
    the preliminary inquiry, and his testimony in chief at trial. For example, Mr.
    Jack had testified at the preliminary inquiry that he had not seen a weapon in
    the hands of any of the men who pursued Mr. Miller. At trial, he maintained
    that he now recalled seeing a weapon in one males hands. When asked about this
    inconsistency, Mr. Jack admitted that his testimony at the preliminary inquiry
    on this point was false. Mr. Jack continued to deny that he, Mr. Goode, and Mr.
    Miller were car hopping on the evening of the incident.

[56]

Counsel also prodded Mr. Jack about any discussions
    he may have had with Mr. Miller about the incident in the time leading up to
    trial. Mr. Jack maintained that he and Mr. Miller did not discuss matters in
    detail. He further denied that he was lying to protect and/or support Mr.
    Miller.

[57]

Mr. Goode advanced a different narrative
    altogether. Mr. Goode was an acquaintance of Mr. Miller; they were not close. On
    the evening in question, Mr. Goode met up with Mr. Miller and Mr. Jack. Mr.
    Goode testified that Mr. Miller and Mr. Jack indicated that they were going to
    steal valuables from cars and invited him to join them. Mr. Goode agreed. They walked
    around trying doors on various cars to see if they had been left unlocked. Mr.
    Goode entered three or four cars and believed that Mr. Miller and Mr. Jack also
    entered a few cars. Mr. Goode estimated that between the three of them, they
    entered between ten to fifteen cars that evening.

[58]

At a certain point, Mr. Goode was no longer interested
    in entering cars and he fell back from Mr. Miller and Mr. Jack. They were
    walking ahead of him and they entered a truck parked on a driveway in front of
    a house. Mr. Goode believed he saw a garage door open. He then saw Mr. Miller
    and Mr. Jack exit the truck, shut the doors, and start running. Mr. Goode saw
    two men giving chase. He did not see either of these persons holding a metal
    pipe. Mr. Jack ran towards Mr. Goode and Mr. Miller ran the other way. He did
    not see Mr. Miller or the men again that night.

(6)

Eyewitnesses Evidence

[59]

James Silverthorn lived in one of the houses
    adjacent to the altercation (i.e., the Silverthorn residence). The morning of
    the incident, he woke up to a commotion outside. He realized it was coming from
    the west side of his house. He looked out the west-facing window of his
    upstairs bathroom and observed three people located by the wall of his next-door
    neighbours house. He noted that: [T]here were two individuals, and, uh, they
    were both, um, uh, swinging their arms and punching somebody that was up
    against the wall. The punches were described as very hard and fairly rapid.

[60]

According to Mr. Silverthorn, the third person was
    crouched down and cornered between the wall and the jut-out for a fireplace,
    near the flowerbed on the Forde property. Mr. Silverthorn could not see whether
    the third person was retaliating or throwing punches, but he was down low, while
    the other two punched downward. The punches seemed to hit the third mans
    torso. From Mr. Silverthorns vantage point, it appeared, to me, that,
    um, one individual was being beaten by two other people. He did not see anyone
    using a weapon at this point in time.

[61]

Mr. Silverthorn told his wife to call 911 and
    went downstairs. Through the living room window at the front of the house, he
    observed someone go between the houses towards the street. At the same time, a Black
    male began banging frantically on the front door. According to Mr. Silverthorn:
    [T]he person banged so hard on the door, it, they are double doors, um, I
    thought that the doors, uh, were not gonna hold their security. The Black male
    screamed call 911 several times and then left.

[62]

Mr. Silverthorn went back upstairs, where he
    joined his son and wife, who had called 911. He took the phone from his wife.
    As he spoke to the 911 operator, he was looking down from his upstairs window
    and observed two people on the driveway near his wifes vehicle. One person was
    on the ground between the car and a snowbank, while the other stood above him
    holding what appeared to be a silver or white broom, like, a broomstick, or a
    piece of pipe around four feet in length. According to Mr. Silverthorn: [T]he
    person, a few times, tried to lift up, and the person would, uh, would stab
    down with this thing to hold the person where they were. Mr. Silverthorn also
    observed a third person on the street, pacing back and forth, who appeared to
    be on the phone.

[63]

In addition to James Silverthorn, the trial
    judge heard evidence from two other witnesses who saw the last stage of the
    incident, as Michael restrained Mr. Miller in front of the Silverthorn
    residence. The witnesses described Michael holding the pipe near Mr. Miller at
    the front of the Silverthorn residence. However, neither of these witnesses saw
    Michael use the pipe to keep Mr. Miller down on the ground.

(7)

The Evidence of George Forde

[64]

Mr. Forde lived in the other house adjacent to
    the altercation (i.e., the Forde residence). Soon after the incident, he told
    police that the pipe may have been from his property. He explained that he
    often uses old sticks, like brooms or rakes, to hold up his plants in his yard.
    However, at trial, he was unable to positively identify the pipe in question as
    his own. Indeed, he denied that it was associated with his property, and
    further denied that the pipe was anything that he recognized as something he
    might use to keep plants up.

(8)

911 Calls

[65]

Three 911 calls were entered into evidence on
    consent.

[66]

First, Christian called 911 at 2:48:13 a.m. He
    told 911 dispatchers that: We caught guys trying to break into our cars. He
    said that they caught one of the culprits, and his brother was restraining
    him. He also said that the person who was being restrained needed an ambulance.
    When asked about the nature of the injury that required medical attention,
    Christian said: He was fighting. Hes fighting us back we were trying. He
    continued, were all  all fucking bloody right now. Christian did not
    mention a weapon. Christian was then heard speaking to Mr. Miller, saying:
    Im on 911 you fucking, you fucking in our cars and shit, eh? You picked the
    wrong cars.

[67]

At 2:48:33 a.m., 911 operators received a call
    from the Silverthorn residence. Mr. Silverthorn told the operator that someone
    was banging on his door and yelling to call 911. He described his observations
    and indicated that he saw one person bent over his wifes car and another
    holding a stick that was approximately four feet long. He then stated:
    Jesus, I think hes gonna strike the guy again.

[68]

At 2:52:21 a.m., Mr. Miller also placed a call
    to 911. Michael can be overheard telling Mr. Miller he is under arrest and Mr.
    Miller is overheard saying I know. Mr. Miller also said: Please get the
    police here and an ambulance now. Twice he said, turn me the other way and
    you have the wrong person man.

(9)

Evidence Found at the Scene

[69]

Police seized the pipe used during the
    altercation from the front yard of the Silverthorn property. It is a hollow
    aluminum pipe, approximately four feet in length. The blood found on the end of
    the pipe was tested for DNA and Mr. Miller could not be excluded as the
    contributor.

[70]

Police also found blood on the hood of the car
    parked in the driveway of the Silverthorn residence, as well as in the snow
    nearby. Drops of blood continued up the walkway towards the front door of the
    residence. Blood was present at the base of the Silverthorns front door, on
    the glass window of that door, and by the bench placed to the right of the
    door. Mr. Silverthorn also testified that when he later inspected the side of
    his home leading towards the fence, he observed blood on the eavestrough
    downspout. Otherwise, there was no visible blood in between the houses or on
    the objects found between the houses.

[71]

Both the Silverthorn and Forde properties were
    damaged: the frame around the glass window of the front door of the Silverthorn
    residence was cracked; the window on the door had scrapes or gouges in the
    glass; and the bricks that surrounded the flowerbed along the wall of the Forde
    residence were dislodged.

[72]

The sweater worn by Mr. Miller on the night of
    the incident had significant blood stains along the sleeves, cuffs, and lower
    front portion. There was no visible blood on either of the Theriault brothers
    or their clothing on the morning in question.

[73]

Finally, when police searched Mr. Miller, they
    found loose change, a lighter, a pair of sunglasses, a car key, and some marijuana
    on his person. They also found a pair of gloves at the scene, which contained
    Mr. Millers blood.

(10)

The Injuries Sustained by Mr. Miller and the
    Theriault Brothers

[74]

Dr. Michael James Pickup is a forensic
    pathologist who was qualified as an expert on consent. He testified that Mr.
    Miller sustained the following injuries:

a.

A left globe rupture with retinal herniation,
    resulting in a permanently blind left eye which required two surgeries.

b.

A left orbital floor fracture.

c.

A left nasal fracture.

d.

Two small forehead lacerations above the left
    eye.

e.

One 0.5 cm laceration on the right forehead or
    eyelid which required suturing.

f.

A right ulnar styloid (wrist) facture.

g.

A left lower eyelid injury which required
    surgical removal of scar tissue.

[75]

Dr. Pickup testified that injuries (a), (b), (c)
    and (g) could have occurred as a single event, or single blow. Dr. Pickup also hypothesized
    that the likely cause for these injuries was blunt force trauma, by way of a
    punch or punches, rather than a metal pipe or pole. In his expert report, Dr.
    Pickup explained his reasoning underlying his favoured mechanism for the eye
    injury:

A metal rod can be used two ways to inflict
    injury depending on which surface (the end or the side) strikes the body. 1. If
    the side of a metal rod was wielded with enough force to rupture the globe, I
    would expect fractures to the bridge of the nose, and the lateral wall of the
    orbit (zygomatic bone), possibly with overlying lacerations. 2. If the end of
    the metal rod was used to puncture the globe, I would expect more eyelid
    injuries. For these reasons, the metal rod as an instrument causing the
    observed injuries is considered less likely, but not entirely excluded.

[76]

Dr. Pickup opined that the nasal fracture would
    have bled profusely and immediately, whereas the eye injury would have bled,
    but not as profusely as the nose injury.

[77]

Dr. Pickup testified that it was difficult to
    say what his favoured mechanism for the fractured wrist was. He indicated that
    the more likely mechanism for the fractured wrist was the forceful bending of
    the wrist, such as when someone tries to break a backwards fall with their
    hand. However, a strike with a metal pipe could have caused this injury while Mr.
    Miller held his arm in a defensive pose. Dr. Pickup opined that it would be
    difficult to explain this [injury] by a punch. Um, a hitting with a, with an
    instrument would be more likely.

[78]

It was agreed at trial that Mr. Millers eye
    injury satisfied the wounds, mains, disfigures element of aggravated assault.

[79]

Michael had no visible injuries but reported
    feeling general soreness.

[80]

On the night in question, the only injury that police
    photographed on Christian was a small scratch on his hand. Since then, Christian
    reported several other relatively minor injuries: a bruise on his right thigh,
    tenderness over the right anterior parietal area of his head and base of his
    thumb, and pain in his right elbow. He was also later diagnosed with a
    concussion based on self-reported symptoms.

C.

The trial judges FINDINGS OF credibility and
    fact

[81]

The trial judge grappled in great detail with the
    various inconsistencies in the witnesses testimony. He made extensive findings
    of credibility and fact. This section will summarize each in turn.

(1)

Credibility Findings

(a)

The Theriault Brothers Credibility

[82]

While the trial judge accepted portions of the
    brothers testimony, he rejected significant aspects of their evidence that
    made him concerned about their overall credibility.

[83]

With respect to Michael, the trial judge stated
    the following at para. 239 of his reasons:

There are aspects of Michaels evidence that I
    accept as I will detail momentarily. That said, there are significant aspects
    of his evidence that I do not accept. I reject his assertion that his initial
    intention was to arrest Mr. Miller. I am troubled by his description of how Mr.
    Miller first produced the metal pipe. I also have significant concerns about
    his description of what happened in between the Silverthorn and Forde
    residences. Lastly, I do not accept his evidence about what happened at the
    front door of the Silverthorn residence. His evidence is contradicted by the
    physical evidence at the scene and the evidence of other witnesses.

[84]

With respect to Christian, the trial judge accepted
    portions of his police statements while rejecting others. He rejected the
    suggestion initially advanced by Christian that the pipe possibly came from Mr.
    Millers pants. This suggestion was seen as an obvious attempt to paint a less
    than favourable picture of Mr. Miller and may also have been an attempt by
    Christian to distance himself and his brother from the pipe. The trial judge
    was also troubled by Christians comment that can be overheard on the 911 call
    (namely, you picked the wrong cars). The trial judge found that this
    statement undermined the self-defence narrative advanced in both of Christians
    police statements, and instead suggested that Christian believed a degree of
    retribution had been administered.

(b)

Mr. Millers Credibility

[85]

The trial judge found that Mr. Miller presented
    significant credibility problems, noting that [h]e proffered a version of
    events that was false in certain material aspects. Specifically, he found that
    Mr. Miller attempted to maintain that false narrative despite the evidence to
    the contrary in relation to his illicit activities leading up to the incident.

[86]

The trial judge noted that it is dangerous to
    convict a defendant solely on the unconfirmed word of a person who has
    demonstrated a willingness to lie under oath, and accordingly instructed
    himself that he must approach Mr. Millers evidence with great caution. He
    went on to note that he must consider whether other independent evidence
    confirms key points of Mr. Millers testimony in a manner that may restore the
    courts faith in his evidence.

[87]

As I will return to below, the trial judge
    accepted only Mr. Millers evidence regarding what happened in front of the
    Silverthorn door. He rejected Mr. Millers narrative about what he and his
    friends were up to that night. He also rejected Mr. Millers evidence
    concerning what happened in front of the Theriault residence, prior to the
    struggle. Finally, due to Mr. Millers credibility issues, the trial judge
    could not accept his evidence concerning what happened between the Forde and
    Silverthorn houses because there was a lack of independent evidence to
    corroborate Mr. Millers account.

[88]

At the conclusion of his assessment of Mr.
    Millers credibility, the trial judge made the following comment at para. 246:

In assessing Mr. Millers credibility, I am
    also mindful that I must assess his evidence in a fair context and with a
    sensitivity to the realities that racialized individuals face in society. In
    this regard, when I assess Mr. Millers initial denial of criminal involvement
    with the Theriault vehicle, I must keep in mind that as a young black man, Mr.
    Miller may well have had many reasons for denying any wrongdoing including a
    distrust of law enforcement. This is understandable especially in view of his
    injuries and the fact that he was initially arrested and later charged with a
    number of criminal offences relating to the incident.

(c)

The Credibility of Mr. Jack, Mr. Goode, and Mr.
    Silverthorn

[89]

The trial judge rejected most, if not all, of
    Mr. Jacks evidence. The trial judge found that he posed significant
    credibility problems since he was intent on offering a version of events that
    supported Mr. Miller regardless of the truth.

[90]

The trial judge thought that Mr. Goode, on the
    other hand, was credible and told the truth about what he, Mr. Miller, and Mr.
    Jack were doing on the night in question.

[91]

Finally, the trial judge found Mr. Silverthorns
    account compelling, dispassionate, and objective. There were, however,
    potential reliability concerns as he made his observations from an upstairs
    window in less than ideal conditions in a highly emotive environment. That
    said, the trial judge generally accepted Mr. Silverthorns evidence as
    credible and reliable.

(2)

Findings of Fact

(a)

The Events
    That Precipitated the Altercation

[92]

The trial judge was satisfied that Mr. Miller,
    Mr. Jack, and Mr. Goode were car hopping before they encountered the
    Theriault brothers. He was further satisfied that Mr. Miller and Mr. Jack had
    opened the unlocked doors to the vehicle on the driveway at the Theriault
    residence, and Michael and Christian essentially caught them in the act of
    stealing items from that vehicle.

[93]

In making this finding, the trial judge rejected
    the evidence of Mr. Miller and Mr. Jack, noting that they attempted to proffer
    a false version of events that avoids any mention of car hopping. Their various
    statements were inconsistent on material issues, were contradicted by physical
    evidence at the scene, and were inconsistent with the evidence of Mr. Goode,
    who admitted they were car hopping that evening.

[94]

While the trial judge did not address this point
    explicitly, he rejected Mr. Millers entire explanation about what
    happened in front of the Theriault house, which included his memory of Michael
    identifying himself as a cop. The trial judge instead accepted Michaels
    version of events on this point, in which he failed to identify himself as a
    police officer at that time.

(b)

The Provenance of the Metal Pipe

[95]

Based on the evidence before him, the trial
    judge identified three possible ways that the metal pipe could have been
    introduced into the altercation: (1) Mr. Miller had the pipe with him
    initially, either down his pants or perhaps in his hands; (2) Michael or
    Christian took the pipe from the garage as they left to confront the unknown persons
    in their parents vehicle; or (3) the pipe was located in between the
    Silverthorn and Forde residences and was grabbed by either Mr. Miller or
    one of the brothers at some point during the altercation.

[96]

The trial judge disposed of the first option
    easily, finding it to be virtually impossible for Mr. Miller to have had a
    four foot long pipe secreted down his pants as he walked the neighbourhood and
    later ran away from the [Theriault brothers].

[97]

With respect to the second option, the trial
    judge thought that it made sense for Michael or Christian to grab the metal
    pipe as they were leaving the garage. First, they were confronting an unknown
    individual or individuals who they believed to be committing an offence and who
    could potentially pose a safety risk. A trained police officer would think
    twice before entering that type of situation without anything to protect
    himself. Second, it would explain why Michael body checked Mr. Miller against
    the fence instead of grabbing him: he was holding the pipe in his hands. The
    trial judge found this option to be a reasonable possibility.

[98]

Turning to the third option, the trial judge accepted
    that the pipe was possibly located at the side of the Forde residence, perhaps
    stored against the wall near the fireplace jut out and flowerbed. The trial
    judge was troubled by Michaels evidence as to how the pipe was produced by Mr.
    Miller: it seemed quite unlikely that as Mr. Miller was body checked, he simply
    landed right where the metal pipe happened to be. The trial judge was also
    troubled by Michaels evidence that the pipe could have come from the gas
    line at the side of the house. The trial judge noted that Mr. Miller would
    have had to run past the air conditioning rough-in on his way to the fence while
    being chased, and it is highly unlikely that in so doing he would have managed
    to spot and grab the pipe without Michael noticing it.

[99]

Ultimately, the trial judge did not decide with
    certainty where the pipe came from. He also did not decide who first wielded
    the pipe.

(c)

The Theriault Brothers Intent to Arrest

[100]

From the outset of this case, the Theriault brothers maintained that
    their intent was always to arrest Mr. Miller, notwithstanding that Michael did
    not identify himself as a police officer or utter words of arrest until the
    last portion of the encounter. The trial judge rejected Michaels explanation
    that everything unfolded quickly and that he just did not have time to
    identify himself as a police officer and utter words of arrest. Rather, the
    trial judge found that this was not simply a momentary delay in the midst of a
    rapidly unfolding and dynamic situation, but a prolonged and sustained
    failure to abide by police training that is rooted in common sense.

[101]

The trial judge found the fact that nothing was said during the
    chase to be telling especially given the distance covered on a cold night in
    the middle of winter, when Michael was only wearing socks. The trial judge
    found it equally, if not more telling that nothing was said to Mr. Miller at
    the time of the body check or when the incident escalated into a violent
    struggle. He also found it to be telling that, by the stage of the encounter
    when Michael pulled his phone out to call 911, Michael still did not identify
    himself or utter words of arrest. Lastly, the trial judge was troubled that, as
    the struggle subsided and Mr. Miller moved towards the front door of the
    Silverthorn residence, Michael again failed to identify himself as a police
    officer or utter words of arrest. Instead, the trial judge pointed out that
    Michael retrieved the metal pipe and brandished it.

[102]

The trial judge concluded his commentary on this point with the
    following comments at paras. 276-277:

It is inconceivable that a trained police
    officer intent on effecting an arrest would have failed to utter a word by this
    stage in an encounter. Lastly, it is telling that it is only when Mr. Miller is
    on the phone with 911 that Michael Theriault finally identifies himself as a
    police officer.

On the whole, I am satisfied that Michael
    Theriaults initial intent was not to conduct an arrest. It was likely to
    capture Mr. Miller and assault him.

[103]

With respect to Christian, the trial judge paid particular attention
    to his comment You picked the wrong cars, and concluded that at least in
    Christians mind, retribution had been served.

[104]

With respect to Mr. Millers state of mind at the time of the chase,
    the trial judge made the following comment, at para. 279:

in the absence of any words of arrest or
    words identifying a police presence, I cannot conclude that Mr. Miller
    would have known that his pursuers were attempting to lawfully arrest him. At
    best, he would have known that his pursuers wanted to catch him, perhaps to
    arrest or detain him for police, perhaps to harm him, or perhaps both.

(d)

The Events that Transpired between the Homes

[105]

The trial judge accepted Michaels account concerning the beginning
    of the struggle: namely, that he body checked Mr. Miller against the fence as
    Mr. Miller attempted to scale it in an effort to escape. He rejected Mr.
    Millers explanation that he was attempting to go to a house for help.

[106]

After the body check, the trial judge found that a violent struggle
    ensued near the area of the fence. As the struggle continued, it progressed
    over to the fireplace jut out and flowerbed alongside the Forde residence. The
    trial judge found that the metal pipe could have been introduced into the
    struggle at some point after the body check when the parties moved over to the
    flowerbed. Given the credibility issues with Mr. Miller, the trial judge was
    unable to accept that he never had the pipe in his hands and it was a
    reasonable possibility that he wielded the pipe at some point during this
    initial encounter.

[107]

He next found that there was a further struggle at the side of the
    Forde residence near the fireplace jut out and flowerbed. He accepted that by
    this stage, Christian had joined the melee and was holding Mr. Miller in a
    headlock for at least some period of time.

[108]

While the trial judge could not reject the possibility that Mr.
    Miller wielded the pipe initially, he was satisfied that if he did, it quickly
    ended, likely with the pipe being taken away by Michael as he indicated in his
    evidence. He further found that the fight thereafter quickly became one-sided.
    In this regard, he accepted Mr. Silverthorns evidence that when he looked
    out his bathroom window, he observed two individuals rapidly and forcefully
    punching a third individual in the area of the fireplace jut out.

[109]

The trial judge found that the struggle initially tapered off likely
    once Mr. Miller stopped fighting. He accepted Michaels evidence that when
    Mr. Miller stopped, he let him go and grabbed his phone, ostensibly to call
    911. He further found that the call was not completed, and the phone was
    dropped.

[110]

What likely happened, according to the trial judge, was that Mr.
    Miller broke free from Michael and Christian at the flowerbed and started to
    retreat. Michael then re-engaged. The trial judge rejected Michaels evidence
    that he did not hit Mr. Miller after he left the flowerbed. He accepted
    that both Michael and Christian continued to hit and kick Mr. Miller when they
    were between the houses. The trial judge did not make any finding that Mr.
    Miller was still acting aggressively at this stage of the encounter.

[111]

The trial judge found that the eye injury was likely caused at some
    point between the flowerbed and Mr. Millers movement towards the door of the
    Silverthorn residence. He made this finding based on Dr. Pickups evidence that
    the injury would have caused profuse blood loss, and the blood trail at the
    side of the house confirmed that the injury was caused while the parties were
    still in between the houses. Further, the trial judge reasoned that the injury
    could not have occurred on the flowerbed as there was no blood in that location
    and neither Michael nor Christian had any blood on them, despite the struggle occurring
    in close quarters at that stage.

[112]

The trial judge accepted Dr. Pickups evidence that the eye injury was
    most likely caused by a punch, and not a strike with a metal pipe. With respect
    to the wrist fracture, the trial judge found that it could have been a
    defensive wound or caused when Mr. Miller fell backwards with an arm
    outstretched to break the fall. He further found that the multitude of punches
    with significant force caused Mr. Millers bruises.

(e)

The Events in Front of the Silverthorn Residence

[113]

After the altercation in between the houses, the trial judge
    accepted that Mr. Miller moved toward the front door of the Silverthorn
    residence, away from Michael and Christian. He was further satisfied that Mr.
    Miller was vigorously banging on the door of the Silverthorn residence. It was
    also clear that he was badly injured and seeking help.

[114]

The trial judge accepted that Michael followed Mr. Miller to the
    front of the house, and that Michael was brandishing the pipe at this time. The
    trial judge rejected Michaels explanation that he retrieved the metal pipe to
    prevent Mr. Miller from rearming himself. In this portion of the incident, Mr.
    Miller was not going near the pipe and in fact was in retreat.

[115]

The trial judge was satisfied that Michael struck Mr. Miller in the
    face with the pipe when he was standing at the front door of the Silverthorn
    residence. He made this finding based on Mr. Millers evidence, in combination
    with the available external evidence which provided sufficient confirmation
    of Mr. Millers evidence on this point. This evidence included the following:

a.

Mr. Miller testified that as he was banging on the door, he turned
    around and was struck in the face by the metal pipe.

b.

There was a gouge/scrape on the glass of the
    front door of the Silverthorn residence, which was not present before the
    incident. While Mr. Miller banging on the door could have caused the crack in
    the window/door frame, the gouge/scrape on the glass must have been caused by
    contact with the edge of the metal pipe. According to the trial judge, this
    would have been caused when Mr. Miller was struck in the face with the pipe.

c.

Mr. Millers blood was on the end of the pipe.
    The trial judge concluded that the blood was placed on the pipe when it came
    into contact with Mr. Millers face, which was already bloodied from the punch
    that injured his eye. Again, the only person alleged to have held the pipe
    after the eye injury  which was sustained between the houses  was Michael.

d.

Michael brandished the pipe with two hands and
    followed Mr. Miller in front of the house.

e.

While Mr. Silverthorn did not suggest seeing or
    hearing the pipe come into contact with his door, he did note that the banging
    was very loud, and the door was shaking. The trial judge reasoned that the
    failure to observe the strike against the glass did not undermine the remaining
    evidence.

[116]

The trial judge went on to find that Mr. Miller walked toward the
    driveway and surrendered onto the hood of the car. The trial judge accepted Michael
    struck Mr. Miller further times with the pipe after he was struck at the door
    and before police arrived at the scene. This finding was based on Mr. Silverthorns
    observation that Michael was using the pipe to downward jab Mr. Miller when he
    tried to get up off the ground. The fact that the other witnesses did not see
    Michael use the pipe in any way did not undermine Mr. Silverthorns
    observations, as they were all observing the same eventat different times,
    from different vantage points, while having been suddenly awoken in the middle
    of the night.

[117]

Police subsequently arrived on the scene, and as explained above, they
    handcuffed, searched, and arrested Mr. Miller.

D.

The trial judges analysis

(1)

The Trial Judges Analysis of Whether the
    Brothers Attempted to Lawfully Arrest Mr. Miller

[118]

The trial judges reasons with respect to the arrest issue were
    confined to one paragraph. At para. 315, he wrote:

I am satisfied that Michael Theriaults
    initial intent was likely not to arrest Mr. Miller but rather to capture him
    and assault him. That said,
I cannot exclude the
    reasonable possibility that his intent was also to arrest him, notwithstanding
    the manner in which he conducted himself.
As such, I cannot conclude
    that the Crown has proven beyond a reasonable doubt that the initial body check
    against the fence amounts to an assault in law.
To be
    clear, it was probably an assault as Michael probably intended only to capture
    and assault Mr. Miller at this stage. However, as with all criminal cases,
    probability is not a sufficient standard of proof
. As such, I have a
    reasonable doubt about whether this initial interaction amounts to an unlawful
    assault. [Emphasis added.]

[119]

In other words, the
    trial judge had a reasonable doubt that the brothers were only trying to
    capture Mr. Miller to assault him; there was a possibility that they were also
    trying to effect a lawful arrest. Although not stated explicitly, it seems the
    trial judge concluded that the body check constituted reasonable force.

(2)

The Trial Judges Analysis of the Self-Defence
    Claim

[120]

The trial judge assessed the self-defence claim from the vantage
    point that it was a reasonable possibility that Mr. Miller initially wielded
    the pipe and that Michael and Christian were responding to this aggressive
    action.
[3]
The trial judge then emphasized, at paras. 320-321, that he must
    treat the events that unfolded from the flowerbed stage onward as one
    continuous event:

When I assess this evidence, I remind myself
    that this incident unfolded quickly and in real time, without an opportunity
    for reflection.
I must guard against artificially
    dissecting the incident to determine at precisely which point a punch turned
    from a lawful exercise of self-defence into an unlawful assault
. Again,
    the law does not require clinical precision. The test is reasonableness and the
    onus on the Crown is to disprove self-defence beyond a reasonable doubt.

It is tempting to divide the portion of the
    incident that occurs on the flowerbed from the portion of the incident that
    occurs roughly in between the homes when Mr. Miller is on the ground facing the
    fence. However, I find that it is artificial to do so. The reality is that this
    portion of the incident is essentially one continuous event. The defendants and
    Mr. Miller are engaged at the flowerbed and the struggle moves over to the spot
    in between the houses. During this portion of the incident, Michael Theriault
    tries to use his phone to call 911. The fighting then resumes and Mr. Miller suffers
    his eye injury at some point. He then moves over to the front door while
    Michael goes to retrieve the metal pipe. [Emphasis added.]

[121]

Ultimately, the trial judge was left with a reasonable doubt about
    whether Michael and Christian were acting in lawful self-defence during this
    portion of the incident. He reasoned that, if Mr. Miller initially wielded the
    pipe, Michael and Christian would have been entitled to act in self-defence by
    repeatedly punching Mr. Miller to disarm him and thereafter to prevent him,
    within reason, from engaging in any further assaultive conduct. He then noted
    that while in a perfect world, once Mr. Miller was disarmed, the defendants
    would have stopped hitting him, clinical precision is not required. The trial
    judge was satisfied that the scope of permissible self-defence could, in these
    circumstances, extend beyond the initial disarming of Mr. Miller. He concluded
    with the following comment, at para. 322:

However, and to be clear, I am simply left
    with reasonable doubt on this issue. The defendants were probably
not
acting
    in self-defence at this stage and by the end of this portion of the incident,
    the self-defence justification would have been razor thin. By that stage, they
    were probably just beating on Mr. Miller. Probability, however, is not the test
    for a criminal case. [Emphasis in original.]

[122]

The trial judge accepted that the eye injury (which satisfied the
    wounds, maims, disfigures element of aggravated assault) occurred between the
    houses, while self defence was still in play. As such, the trial judge
    acquitted Michael and Christian of aggravated assault in relation to the
    incident between the houses.

[123]

However, for the trial judge, the events in front of the Silverthorn
    residence extended beyond the permissible scope of self-defence. Once Mr.
    Miller moved to the side wall of the Silverthorn residence, he was badly
    injured, in retreat and seeking refuge. The trial judge noted that [t]he
    already razor thin self-defence justification evaporates at this stage.

[124]

The trial judge was satisfied beyond a reasonable doubt that when
    Michael struck Mr. Miller with the pipe at the front door of the Silverthorn
    residence, he was neither acting in self-defence nor attempting to effect a
    lawful arrest. As such, Michael committed an unlawful assault contrary to s.
    265 of the
Criminal Code
. However, as explained above, the trial judge
    was not satisfied beyond a reasonable doubt that this assault caused the eye
    injury and therefore it could not fulfil the wounds, maims, disfigures
    requirement of aggravated assault under s. 268(1) of the
Criminal Code
.

[125]

The trial judge found that Christian was not a party to the assault
    simpliciter offence because, at that point, Christian was some distance way.

[126]

The trial judge was satisfied beyond a reasonable doubt that the
    pipe was used as a weapon and it was used on more than one occasion, including
    at least one strike to the face at the door and at least two downward jabs
    while on or near the driveway. However, he could not enter a conviction for
    the offence of assault with a weapon because it was neither a charge before the
    court, nor is it a lesser and included offence of aggravated assault.

(3)

The Trial Judges Analysis of the Attempts to
    Obstruct Justice

[127]

The trial judge ultimately could not conclude beyond a reasonable
    doubt that the core narrative of the statements provided by the brothers at the
    scene were false, given his conclusions on the self-defence issue. He noted: Again,
    it is probably false, but probably false is not enough.

[128]

He was, however, troubled by the absence of any mention that Michael
    wielded the pipe and struck Mr. Miller once Mr. Miller was seeking assistance
    at the Silverthorn residence. He agreed with the Crown that the failure to
    even mention that Michael was holding the pipe at this point in time is likely
    an attempt to distance Michael from the pipe.

[129]

The trial judge also noted that the issue in relation to Christians
    second statement was more difficult because the statement was detailed and
    still did not mention Michaels use of the pipe. Ultimately, the trial judge found
    that Christian Theriault was not completely open and forthright about what
    happened but he was not satisfied beyond a reasonable doubt that the failure
    to mention Michaels possession and use of the metal pipe at the end of the
    incident amounted to an attempt to obstruct justice.

E.

ISSUES in the defence appeal

[130]

Michael appeals his conviction of common assault in relation to the
    events in front of the Silverthorn residence. He makes the following arguments
    on appeal:

a.

the verdict was unreasonable, and the trial judge misapprehended the
    evidence;

b.

the trial judge failed to explain why Michaels corroborated
    evidence did not raise a reasonable doubt or analyze whether his use of force
    was reasonable;

c.

assault simpliciter was not an included offence
    in this case; and

d.

the sentence was unfit.

[131]

I analyze each ground of appeal in the above-noted order.

F.

Analysis of defence appeal

(1)

Was the Verdict Unreasonable?

[132]

Section 686(1)(a)(i) of the
Criminal Code
bestows a duty on
    an appellate court to set aside a verdict that is unreasonable or cannot be
    supported by the evidence.  A conviction is reasonable if the verdict is one
    that a properly instructed jury or judge could reasonably have rendered:
Corbett
    v. The Queen
, [1975] 2 S.C.R. 275, at p. 282;
R. v. Yebes
, [1987]
    2 S.C.R. 168, at p. 185;
R. v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R.
    381, at para. 37. In applying that test, a [c]ourt must re-examine and to some
    extent reweigh and consider the effect of the evidence:
R. v. Sheppard
,
    [2002] 1 S.C.R. 869, 2002 SCC 26, at para. 34 (citing
Yebes
, at p.
    186).

[133]

In this case, Michael argues that his assault conviction was
    unreasonable due to the trial judges treatment of Mr. Millers evidence, given
    that Mr. Miller presented significant credibility issues. Specifically, Michael
    submits that the trial judge failed to give effect to his finding that Mr.
    Miller perjured himself, and instead explained and excused it. On this point,
    Michael places great significance on para. 246 of the trial judges reasons,
    which I repeat for convenience:

In assessing Mr. Millers credibility, I am
    also mindful that I must assess his evidence in a fair context and with a
    sensitivity to the realities that racialized individuals face in society. In
    this regard, when I assess Mr. Millers initial denial of criminal involvement
    with the Theriault vehicle, I must keep in mind that as a young black man, Mr. Miller
    may well have had many reasons for denying any wrongdoing including a distrust
    of law enforcement. This is understandable especially in view of his injuries
    and the fact that he was initially arrested and later charged with a number of
    criminal offences relating to the incident.

[134]

In reference to this paragraph, Michael submits that: Mr. Millers
    perjury was not explicable or explainable and could not be laundered through
    speculative assertions by the trial judge as to why Mr. Miller might have lied
    based on the colour of his skin or his distrust for law enforcement.

[135]

The Crown argues the following: the trial judges credibility
    assessment of Mr. Miller is entitled to considerable deference; his reasons
    disclose no error; and the trial judge looked for and found confirmatory
    evidence before he relied on aspects of Mr. Millers account of events. The
    Crown further submits that the trial judges substantial rejection of most of
    Mr. Millers evidence shows that he did not excuse the frailties in Mr.
    Millers evidence at all; instead, his reasons reveal quite the opposite.

[136]

For the reasons that follow, I agree with the Crown.

[137]

The record gives no indication that the trial judge abandoned his obligation
    to strictly scrutinize the evidence of a witness whose credibility was in
    question. There could be no dispute that Mr. Miller presented significant
    credibility issues, and this fact was not lost on the trial judge. Indeed, it
    is precisely why the trial judge rejected most of Mr. Millers evidence and
    accepted only his evidence about what happened in front of the Silverthorn
    residence, which he viewed as sufficiently corroborated.

[138]

In any event, the trial judge was entitled to
    accept Mr. Millers evidence about what happened in front of the Silverthorn
    residence notwithstanding the credibility issues he identified. Trial judges
    may rely upon the evidence of someone who demonstrated a willingness to lie
    under oath, provided they do so with great caution:
R. v. Khela,
2009
    SCC 4, [2009] 1 S.C.R. 104, at para. 37. Where a particular risk attaches to a
    critical element of that persons evidence, trial judges must be
satisfied that the potentially unreliable
    evidence can be relied upon as truthful:
R. v.
    Kehler
,

[2004] 1 S.C.R. 328, 2004 SCC 11,
    at para. 20.

[139]

The trial judge was entitled to accept all, some or none of Mr.
    Millers evidence. He plainly emphasized the dangers inherent in convicting
    Michael on the basis of Mr. Millers evidence but was satisfied that the
    potentially unreliable evidence he accepted from Mr. Miller could be relied
    upon as truthful. In particular, he found that Mr. Millers narrative about
    what happened in front of the Silverthorn residence was independently supported
    by several pieces of evidence, including a gouge/scrape on the glass of the
    front door, Mr. Millers blood on the end of the pipe, and Michaels own
    admission that he brandished the pipe. None of this evidence was tainted by any
    connection to Mr. Miller or concerns about the truthfulness of his testimony.

[140]

While I return to the trial judges reliance on this evidence below,
    as Michael also argues that it amounted to a misapprehension, for now, suffice
    to say, the trial judge was clearly satisfied that Mr. Millers evidence about
    what happened in front of the Silverthorn house was true. I see no error in the
    trial judges credibility assessment, and his assessment is entitled to
    significant deference on appeal:
R. v. M. (O.),
2014 ONCA 503,
    318 O.A.C. 390, at para. 19;
R. v. A. (A.),
2015 ONCA 558, 337 O.A.C.
    20, at para. 121.

[141]

Moreover, I see no merit to Michaels argument that the verdict was
    unreasonable because the trial judge recognized and observed that he must
    assess Mr. Millers credibility in a fair context and with a sensitivity to
    the realities that racialized individuals face in society and that he must
    keep in mind that as a young black man, Mr. Miller may well have had many
    reasons for denying any wrongdoing including a distrust of law enforcement.

[142]

Contrary to Michaels suggestion, this paragraph of the trial
    judges reasons does not explain and excuse Mr. Millers credibility
    issues. Rather, these comments simply acknowledge the racialized context of
    this case.

[143]

The existence of anti-Black racism in Canadian society is beyond reasonable
    dispute and is properly the subject matter of judicial notice. It is well
    recognized that criminal justice institutions do not treat racialized groups
    equally: Robin T. Fitzgerald and Peter J. Carrington,
    Disproportionate Minority Contact in Canada: Police and Visible Minority
    Youth (2011) 53
Can. J. Crimin. & Crim. Just.
449, at
    p. 450;
R. v. Le,
2019 SCC 34, 375 C.C.C. (3d) 431. This reality may
    inform the conduct of any racialized person when interacting with the police,
    regardless of whether they are the accused or the complainant.

[144]

The social context of anti-Black racism was relevant in the case at
    hand. I agree with the trial judge that it would have been understandable for
    Mr. Miller to distrust law enforcement. When police arrived on the scene, Mr.
    Miller was severely injured; he was bleeding profusely from his face and unable
    to stand on his own. The Theriault brothers had no visible injuries, except for
    a scratch on Christians hand. Yet, police permitted Michael to handcuff and
    search the severely injured Mr. Miller. The trial judge was right to point out
    that the matter may have unfolded differently had the first responders arrived
    at a call late one winter evening and observed a black man dressed in socks
    with no shoes, claiming to be a police officer, asking for handcuffs while
    kneeling on top of a significantly injured white man. Mr. Millers charges
    were not stayed until months later.

[145]

This context does not excuse Mr. Millers choice to lie about his
    illicit activities that night, nor the fact that he was unlawfully rummaging
    through cars, looking for items to steal. While Mr. Miller may have been
    justifiably arrested for his conduct, his actions did not justify the severe
    beating that the Theriault brothers meted out on him. The trial judge was correct
    to consider the social context of anti-Black racism, and its effect on Mr.
    Millers actions and how he was treated on the night in question. It is common
    sense that being a Black man in our society could have affected Mr. Millers
    trust in law enforcement and the criminal justice system more broadly.

[146]

In my view, it is incumbent on trial judges to consider relevant
    social context, such as systemic racism, when making credibility assessments.
    The trial judge did not err in doing so, and his findings are entitled to
    considerable deference on appeal.

[147]

It also should be noted that the trial judges contextualization of
    Mr. Millers evidence did not overwhelm nor determine the trial judges
    credibility assessment by any stretch of the imagination. The impugned comments
    are part of one paragraph in a three hundred and thirty-six paragraph judgment.
    And again, the trial judge rejected most of Mr. Millers testimony, and only
    gave weight to his testimony regarding the events at the door of the
    Silverthorn residence after considering independent evidence which confirmed
    it.

[148]

A court of appeal reviewing a trial courts assessments of
    credibility to determine whether the verdict is reasonable cannot interfere
    with those assessments unless it is established that they cannot be supported
    on any reasonable view of the evidence:
R. v. R.P.,
2012 SCC 22,
    [2012] 1 S.C.R. 746, at para. 10. The trial judges reasons disclose no such error.
    In my view, the trial judges treatment of Mr. Millers evidence and his
    credibility in no way compromised the reasonableness of the verdict. I would
    dismiss this ground of appeal.

(2)

Did the Trial Judge Misapprehend the Evidence?

[149]

A misapprehension of evidence encompasses at least three errors: (1)
    the failure to consider evidence relevant to an issue; (2) a mistake about the
    substance of an item or items of evidence; and (3) a failure to give proper
    effect to evidence:
R. v. Stennett
, 2021 ONCA 258, at para. 50.

[150]

If there is an allegation of a misapprehension of evidence, the
    first step is to consider the reasonableness of the verdict. If the verdict is
    not unreasonable, then this court determines whether there was a
    misapprehension of evidence that occasioned a miscarriage of justice:
R. v.
    Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 219;
Stennett
,
    at para. 51. A misapprehension of evidence will occasion a miscarriage of
    justice and render a trial unfair where the trial judge is mistaken as to the
    substance of material parts of the evidence and those errors play an essential
    part in the reasoning process resulting in a conviction:
Morrissey,
at
    p. 221;
R. v. Lohrer,
[2004] 3 S.C.R. 732, 2004 SCC 80, at paras. 2,
    8. If the appellant fails on this ground as well, the court must then consider
    whether the misapprehension rests on an error of law:
Morrissey,
at
    pp. 219-20;
Stennett
, at para. 51. If so, an appellate court may
    nonetheless dismiss the appeal if the Crown shows that no substantial wrong or
    miscarriage of justice occurred:
Morrissey,
at p. 220;

see
    also
Criminal Code,
s. 686(1)(b)(iii).

[151]

In this case, Michael argues that a misapprehension of evidence
    occasioned a miscarriage of justice. In particular, he takes issue with the
    trial judges finding that Michael struck Mr. Miller in the face with the pipe
    in front of the Silverthorn residence. Again, in addition to Mr. Millers
    testimony, the trial judge cited the following evidence in support of that
    conclusion:

a.

there was a gouge/scrape on the glass door of the Silverthorn
    residence, which was not there before the incident and seemed consistent with
    the impact of a metal pipe;

b.

police found Mr. Millers blood on the end of
    the pipe, and it was common ground that he did not possess the pipe after he
    obtained his eye injury (which caused him to bleed); and

c.

Michael admitted that he picked up the pipe
    between the houses and held it upright with two hands as he followed Mr. Miller
    to the door of the Silverthorn residence, when Mr. Miller was clearly
    injured and seeking refuge.

[152]

Michael argues the trial judge erred by misapprehending this
    evidence in five ways. I will address each alleged misapprehension in turn. In
    essence, the Crown submits that each finding in question was supported by the
    record when viewed in its totality, and none of Michaels complaints rise to
    the level of a misapprehension of evidence.

[153]

Ultimately, I agree with the Crown. As I will explain, none of Michaels
    complaints meet the exacting standard required to overturn the assault conviction
    on the basis of a misapprehension of evidence.

(a)

Finding #1:
Michael caused
    the gouge/scrape when he struck Mr. Miller in the face with the pipe

[154]

First, Michael takes issue with the trial judges reliance on the
    gouge/scrape on the glass door of the Silverthorn residence to support the
    conclusion that Michael struck Mr. Miller in the face with the pipe. Michael points
    out that no expert evidence was called on this issue, nor was the glass made an
    exhibit. Michael also argues that there was no basis to infer that Mr. Miller
    did not cause the gouge/scrape when he was banging on the door for help.

[155]

Defence counsel made similar arguments in its written submissions at
    trial in reply to the following argument advanced by the Crown:

The Crown relies on common sense and human
    experience to submit that this diagonal gash visible on the glass was not made
    by Mr. Millers hand banging for help. It was made by Michael Theriault hitting
    it with the pipe as he swung at Mr. Miller, consistent with what Mr. Miller
    described. It [is] impossible to look at this diagonal gash and attribute its
    cause to anything other than being hit by an object.

[156]

Defence counsel submitted that it could not be credibly claimed that
    the gouge/scrape was caused by the pipe coming into contact with the door in
    the absence of any witness testimony confirming that this indeed occurred.
    Rather, defence counsel offered an alternative inference: the evidence
    disclosed that the gouge/scrape was caused by Mr. Millers fist when he was
    banging on the door. According to defence counsel, it followed that the
    evidence was only capable of supporting the finding that Mr. Miller caused the
    gouge/scrape in the glass.

[157]

In my view, it was within the trial judges discretion, as the trier
    of fact, to reject defence counsels theory. The trial judge found that a hand
    or fist would not have caused the gouge/scrape in the glass, whereas, it would
    have been caused by contact with the edge of a metal pipe. While this finding was
    neither supported by any expert evidence, nor expressed by any of the witnesses,
    it nevertheless rested on common sense. One would think that a pounding hand or
    fist would cause a crack, not a scrape. It seems more likely that a metal pipe,
    as a hard surface, would have caused a gouge/scrape in the glass. This
    non-technical matter did not require expert evidence as it was within the
    knowledge and experience of the ordinary person and trier of fact:
R. v.
    Mohan,
[1994] 2 S.C.R. 9, at pp. 23-25. Moreover, defence at trial did not
    argue that expert evidence was required to prove the pipe gouged the glass; it
    only offered another cause for the damage  namely, the fist pounding  which
    defence argued was equally plausible. I see no error in the trial judges
    analysis on this point.

[158]

Michael also argues that it is illogical to reason that because the
    pipe made contact with the door, it must have at the same time made contact
    with Mr. Millers face. While I agree that there is no way to prove with
    absolute certainty that the pipe made contact with both surfaces in the same
    motion, I do not understand the trial judge to have made such a finding.
    Rather, the trial judge found that the gouge or scrape was caused by contact
    with the edge of the metal pipe used in the incident, and that this would have
    been caused when Mr. Miller was struck in the face with the pipe. In other
    words, the striking of the door and Mr. Millers face was part of the same
    incident.

[159]

The trial judge arrived at his conclusion that the pipe made contact
    with Mr. Millers face and the door as part of the same incident because
    independent evidence supported Mr. Millers version of events (again, the
    gouge/scrape in the glass, the blood on the end of the pipe, and Michaels own
    admission about brandishing the pipe). When viewed in totality, I agree with
    his assessment. This finding is owed deference on appeal and does not amount to
    a misapprehension of evidence.

(b)

Finding #2:
The
    blood on the pipe was placed there when Michael struck Mr. Miller in the face

[160]

Second, Michael submits that the trial judge also erred in his
    assessment of the blood on the pipe. He notes that no expert evidence was
    called on the issue of transference or the lack of blood spatter. He instead
    offers an alternative explanation on appeal: Mr. Millers blood could have
    come on the pipe from it being transferred from [Michaels] hands after
    punching him and causing the eye injury when [Michael] grabbed the pipe to
    prevent Mr. Miller from re-arming himself.

[161]

For the trial judge, the bloodied pipe was extremely telling given
    the sequence of events and Dr. Pickups evidence regarding Mr. Millers blood
    loss. Again, the trial judge found that Mr. Miller sustained the eye injury
    when he was punched in the face between the two houses. His nasal fracture
    which Dr. Pickup testified could have resulted from the same blow as the eye
    injury  is what caused him to bleed profusely. By Michael and Christians own
    evidence, the metal pipe was not involved in the altercation at this point in
    time. Michael then went and picked up the pipe, as Mr. Miller retreated to the
    Silverthorn residence. Michael brandished the pipe with both hands as he
    followed Mr. Miller to the front door. He maintained that he did not use the
    pipe on Mr. Miller at any point going forward. Yet, somehow, Mr. Millers blood
    ended up on the tip of the pipe. Something clearly did not add up.

[162]

As noted above, Michael argues that he somehow transferred Mr.
    Millers blood to the end of the pipe. The trial judge did not address or
    consider this possibility, as it was not raised by defence counsel at trial. However,
    I agree with the Crown that Michaels submission was not a reasonable inference
    on the facts. First, there was no visible blood on Michael after the incident.
    Second, this explanation is inconsistent with how he said he held the pipe
    (upright and with two hands). If he transferred the blood to the pipe, one would
    expect blood marks where his hands would have been, rather than on the tip of
    the pipe. In my view, the trial judge did not err by failing to consider this
    alternative possibility.

[163]

It is also difficult to conceive of how Mr. Miller could have
    transferred his own blood to the pipe. Taking Michaels own version of events
    at its highest, he was the only one who held the pipe after the bleeding
    started, and he never touched Mr. Miller with the pipe.

[164]

That leaves us with the only other rational explanation: the blood
    was left on the pipe because Michael used it to strike Mr. Millers bloodied
    face. No expert evidence was necessary to draw this inference, as it rested on
    common sense. This finding did not amount to a misapprehension of evidence.

(c)

Finding #3
:

Michael brandished the pipe and
    therefore he used it to strike Mr. Miller

[165]

Third, Michael argues that the trial judge operated under a misplaced
    assumption: because he brandished the pipe, he must have used it. On this
    point, the trial judge said as follows at para. 305:

On Michael Theriaults evidence, once Mr.
    Miller walks away from the area in between the homes and heads towards the
    front door of the Silverthorn residence, Michael runs to retrieve the metal
    pipe. He indicates that he did this to prevent Mr. Miller from getting the pipe
    again. I reject this evidence. I accept that once Mr. Miller broke free he was
    moving along the wall of the side of the Silverthorn residence and heading
    towards the front door. He was touching the side of the house as he was doing
    so, likely because he was injured. This portion of Mr. Millers evidence is
    confirmed by the presence of blood on the side wall and eaves downspout at the
    Silverthorn residence. Importantly, during this portion of the incident, Mr.
    Miller was not going near the pipe which had been thrown somewhere in between
    the two homes. Even if I were to accept that Michael ran towards the pipe to
    prevent Mr. Miller from getting it, it would not explain why he brandished it
    in both hands, ready for use. In my view, this is a telling admission. On
    Michaels own evidence, Mr. Miller was in retreat at this stage. I find that
    regardless of why Michael initially retrieved the pipe, once he had it, he
    decided to use it to hit Mr. Miller.

[166]

With respect, I disagree with Michaels characterization of the
    trial judges reasoning. I do not understand this passage to suggest that there
    was a causative relationship between Michael picking up the pipe and Michael
    using it to strike Mr. Miller. Rather, in my view, the trial judge was
    simply treating Michaels admission that he retrieved the pipe as corroboration
    for the proposition that he was acting offensively, not defensively. In this
    regard, it was fair for the trial judge to consider Michaels demeanour in the
    context of the other evidence. It was telling that Michael brandished the pipe
    with both hands when Mr. Miller was badly injured and seeking refuge.

[167]

Moreover, the reliance on the fact that Michael brandished the pipe
    to ground the trial judges finding that Michael indeed struck Mr. Miller must
    not be overstated. There was also other evidence showing that the pipe was used
    in a violent manner: namely, Mr. Millers testimony, the gouge/scrape on the
    glass, and the blood on the pipe. Michael brandishing the pipe was one piece of
    the puzzle and must properly be viewed in the context of the totality of the
    evidence.

[168]

I am not convinced that the trial judge erred in his consideration
    of Michaels admission that he brandished the pipe. His reasoning on this point
    does not rise to the level of a misapprehension of evidence.

(d)

Finding #4:
Mr.
    Miller was struck in the face by the pipe notwithstanding the absence of
    confirmatory medical evidence

[169]

Fourth, Michael argues that Dr. Pickups evidence contradicted the
    trial judges conclusion regarding the assault with the pipe. Specifically, in
    his factum, Michael asserts that: In addition to concluding that the most
    likely cause of the injury to Mr. Millers eye was a punch, [Dr. Pickup] also
    testified that there were no other injuries on Mr. Millers person that were
    consistent with being struck with a pipe.

[170]

Respectfully, I interpret Dr. Pickups evidence differently. Dr.
    Pickup only opined that the eye injury was likely not caused by the pipe. He
    indicated that he could not fully exclude the possibility that Mr. Millers eye
    injury was caused by the pipe, and he could not determine whether Mr. Miller
    had been hit with the pipe on his head, face or body, in a manner that did not
    cause a significant injury or leave a tram track bruise. Indeed, Dr. Pickup
    testified that Mr. Miller could have received a number of blows (from punches
    and/or the pipe) that would not necessarily show up as an injury:

Q: is it possible that Mr. Miller could have
    received a number of blows, whether it be a punch, or a rod that would not
    result in a fracture to that area of his face?

A: Yes, of course. Uh, so, injury or blows
    from a fist, or so-forth, uh, wouldn't necessarily show up as an injury.

[171]

The trial judge did not misapprehend the evidence by failing to give
    effect to any absence of confirmatory evidence from Dr. Pickup about Mr. Miller
    being struck in the head with the pipe. His testimony clearly left open the
    possibility that Mr. Miller could have sustained blows from the pipe without
    any resulting visible injuries.

(e)

Finding #5:
Michael pushed
    Mr. Miller down with the metal pipe

[172]

Fifth, Michael takes issue with the trial judges finding that he
    pushed Mr. Miller with the pipe in downward motions while Mr. Miller was
    on the ground on the driveway. This finding was based solely on Mr.
    Silverthorns evidence, who witnessed the altercation from his house, as Mr.
    Miller did not specifically describe downward jabs with the pipe. Two other
    witnesses did not see Michael use the pipe against Mr. Miller in any way, but
    they did see him holding it.

[173]

The trial judge was entitled to accept Mr. Silverthorns evidence on
    this point. Mr. Silverthorns evidence was clear and credible, and as the trial
    judge noted, [t]he other witnesses viewed the scene from different vantage
    points, at different times, after being awoken in the middle of the night.
    This does not amount to a misapprehension of evidence.

(f)

Conclusion on the Misapprehension of Evidence
    Ground

[174]

In my view, the trial judge did not misapprehend the evidence.
    Accordingly, I would dismiss this ground of appeal.

(3)

Did the Trial Judge Fail to Analyze Whether Michaels
    Use of Force Was Reasonable or Explain Why Michaels Evidence Did Not Raise a
    Reasonable Doubt?

[175]

Michaels next ground of appeal alleges that the trial judge failed
    to address whether Michaels conduct at the time of the alleged assault
    constituted a lawful use of force in an attempt to arrest Mr. Miller. He also
    argues that the trial judge failed to provide reasons why Michaels evidence
    did not raise a reasonable doubt about him using the pipe as a weapon at the
    doorway and driveway. In other words, Michael alleges that the trial judge
    erred in his application of the methodology set out in
R. v. W.
(
D
.),
    [1991] 1 S.C.R. 742.

[176]

The Crown argues that it was implicit in the trial judges findings
    that Michaels use of the pipe as a weapon to assault Mr. Miller was not a
    reasonable use of force, and that the trial judge otherwise had no reasonable
    doubt about the legality of Michaels conduct in front of the Silverthorn
    residence.

[177]

I agree with the Crown. In my view, the reasons, read in the context
    of the trial record, sufficiently address both of Michaels asserted
    deficiencies. To hold otherwise, would be to finely parse the trial judges
    reasons in search of error, a foundering that the Supreme Court recently
    warned against:
R. v. G.F.,
2021 SCC 20, 71 C.R. (7th) 1, at
    para. 69.

[178]

In fairness, the trial judge did not explicitly address the prospect
    that Michael could have been attempting to effect a lawful arrest when he used
    the pipe to strike Mr. Miller in front of the Silverthorn residence. However, I
    agree with the Crown that it is obvious that the trial judge implicitly found
    the assault was not a reasonable use of force. Again, by all accounts, Mr.
    Miller was badly injured and in retreat. In fact, he was the one banging on the
    Silverthorn door asking the residents to call 911. At that point in time, Mr.
    Miller was not someone who was intent on evading law enforcement, nor was he
    someone who was acting aggressively in any way. If Michael was attempting to
    lawfully arrest Mr. Miller, then he certainly used excessive force and the
    assault cannot be justified on this basis.

[179]

I also see no issue with the trial judges
W. (D.)
analysis
    respecting Michaels exculpatory testimony regarding what happened in front of
    the Silverthorn residence. The conclusion of guilt was not based solely on the
    trial judges rejection of Michaels portrayal of events, nor did it amount to
    a dichotomous credibility contest between Mr. Miller and Michael. As noted in great
    detail above, the trial judge pointed to multiple pieces of evidence that
    sufficiently corroborated the conclusion that Michael struck Mr. Miller with
    the pipe (namely, the gouge/scrape in the glass, the blood on the pipe, and
    later, Mr. Silverthorns testimony regarding the downward jabs). It is clear
    that the evidence, when viewed as a whole and in its proper context, did not
    leave the trial judge with a reasonable doubt about Michaels guilt on the
    assault count. And this conclusion was not based simply on a flat acceptance of
    the testimony of the complainant over that of the accused. I see no error in the
    trial judges application of
W. (D.).

[180]

I would dismiss this ground of appeal.

(4)

Assault Simpliciter Was an Included Offence

[181]

Michaels final ground of appeal against his conviction concerns
    whether assault simpliciter is an included offence of aggravated assault. Michael
    argues that the trial judge did not have the jurisdiction to find him guilty of
    assault in the context of this case. He submits that assault is not a lesser
    and included offence of aggravated assault, and the assaultive action was a separate
    transaction from the assault that caused the aggravated injury. Michael also
    argues that an assault conviction was unfair because the indictment only put
    him on notice that he was liable for causing the aggravated injury. The trial
    judge already rejected this argument post-conviction in dismissing Michaels
    application to re-open the trial: see
R. v. Theriault,
2020 ONSC 5725.
    I see no error in his disposition of this issue.

[182]

This court recently addressed the question of lesser and included
    offences in
R. v. Tenthorey
, 2021 ONCA 324, albeit under different
    circumstances. Paciocco J.A., writing for the court, affirmed that an offence
    will be an included offence if the essential elements of that offence would
    necessarily be proved if the Crown were to successfully establish any one of
    the legally available avenues of conviction for the charged offence:
Tenthorey,
at para. 51.

[183]

Section 268(1) of the
Criminal Code
provides: Every one
    commits an aggravated assault who wounds, maims, disfigures or endangers the
    life of the complainant. In this case, the indictment was particularized to permit
    three avenues to conviction for the offence of aggravated assault instead of
    four: the brothers were alleged to have wounded, maimed, and/or disfigured Mr.
    Miller. The indictment removes the possibility of a fourth avenue to conviction,
    namely, through endangerment of life.

[184]

Crucially, under each of these avenues to conviction, common assault
    will necessarily be proved by establishing any of the ways in which the charged
    offence can be committed. An assault only requires the intentional
    non-consensual application of force, and this definition applies to all forms
    of assault:
Criminal Code,
s. 265(1)-(2);
Canadian Foundation for
    Children, Youth and the Law v. Canada (Attorney General)
, 2004
    SCC 4, [2004] 1 S.C.R. 76, at para. 1. I reject Michaels argument that
    aggravated assault is a stand-alone offence under s. 268. Aggravated assault is
    simply an aggravated version of common assault: the only distinguishable
    feature is the added legal requirement that the assault must wound, maim,
    disfigure, or endanger the life of another. I am satisfied that common assault
    is an included offence of aggravated assault: see also
R. v. Rocchetta
,
    2016 ONCA 577, 352 O.A.C. 130, at para. 38.

[185]

Michaels argument on this ground also seems to challenge the
    factual nexus between the aggravated assault allegation and the assault
    conviction. Put another way, he submits that the alleged assault constituted a
    separate transaction from the charge alleging aggravated assault, as there was
    a significant legal break in the factual context after the dynamic changed
    and Mr. Miller retreated. Relying on
R. v. Talbot,
2007 ONCA 81, 217 C.C.C.
    (3d) 415, at paras. 90-91, Michael argues that this was an all or nothing
    case, and if the Crown had wanted to allege that the assault was criminal even
    if the aggravated assault was not, it should have laid a separate charge for
    the assault.

[186]

I would not accede to this argument. A single transaction can
    include a single act, or circumstances that are successive and cumulative and
    which comprise a series of acts that are sufficiently connected:
R. v.
    Manasseri,
2016 ONCA 703, 344 C.C.C. (3d) 281, at para. 73, leave to
    appeal refused, [2016] S.C.C.A. No. 513. In my view, the events that
    transpired in front of the Silverthorn residence are sufficiently connected to
    the events between the houses. Very quickly after the struggle began, the
    dynamic was, and continued to be, one-sided, with the Theriault brothers
    exacting a successive and cumulative attack on Mr. Miller. In my view, it
    constituted a single and continuous transaction.

[187]

Simply put, the trial judges findings belie the argument that there
    was a significant legal break in the factual context. Critically, Mr. Miller
    was not acting aggressively when the alleged aggravated assault occurred. Rather,
    the trial judge found that Michael and Christian re-engaged, and caused the aggravated
    injury, when Mr. Miller was likely in retreat. Mr. Miller was also not
    acting aggressively when the assault occurred in front of the house. He was
    seeking assistance and was badly injured. The factual dynamic did not change. These
    findings demonstrate that there was a consistent and sustained attack on Mr.
    Miller. Ciphering the events into two discrete transactions would amount to an
    artificial dissection of a series of connected acts that occurred over a short
    and concentrated period of time.

[188]

Lastly, in my view, the assault simpliciter conviction occasioned no
    unfairness to Michael, despite the fact that the indictment only included the
    aggravated assault count. The factual landscape of this case always involved a
    series of assaults on Mr. Miller, including assaults at the front door and on
    the driveway. The Crown was clear from the outset that the assaults were
    connected and occurred in the course of one single transaction. In these
    circumstances, defence had fair notice of the scope of potential criminal
    liability, notwithstanding the way the offence was charged in the indictment. I
    see no error in the trial judges approach in this regard.

[189]

I would dismiss this ground of appeal.

G.

sentence appeal

[190]

Michael takes issue with the nine-month sentence imposed for the
    assault simpliciter conviction. He argues that the trial judge made five errors
    in principle, and also imposed a sentence that was disproportionately unfit.

[191]

Appellate review of sentences is subject to a highly deferential
    standard of review. An appellate court may only intervene if the sentence is
    demonstrably unfit or the sentencing judge made an error in principle that had
    an impact on the sentence:
R. v. Friesen
, 2020 SCC 9, 444 D.L.R. (4th)
    1, at paras. 25-26;
R. v. Lacasse
, 2015 SCC 64, [2015] 3
    S.C.R. 1089, at paras. 11, 41 and 44. The sentencing judges findings of fact
    and identification of aggravating and mitigating factors are entitled to
    deference, to the extent they are not affected by an error in principle:
R.
    v. R.A.
, 2021 ONCA 126, 154 O.R. (3d) 552, at para. 32; see also
Friesen
,
    at para. 28.

[192]

I would dismiss his sentence appeal for the reasons that follow.

(1)

The Trial Judges Finding of Significant Force

[193]

First, Michael takes issue with the trial judges finding that he used
    significant force when striking Mr. Miller in the face. He argues this finding
    was not grounded in the evidence and was unreasonable. I disagree.

[194]

The trial judge made this finding post-trial at the sentencing
    stage. Certainly, the gouge/scrape alone may not prove that Michael used
    significant force; it is conceivable that a relatively light tap with a metal
    pipe could cause damage to glass. However, I agree with the Crown that significant
    force was a reasonable inference due to Michaels own admission that he
    brandished the pipe. As the trial judge noted, the assault involved a two
    handed-strike with a metal pipe held above the shoulders that left a gouge in
    the glass front door of the Silverthorn residence. Based on the way Michael
    wielded the pipe, as well as the damage the pipe occasioned to the glass, it is
    common sense that the strike involved significant force. I see no error in his
    reasoning here.

[195]

I would dismiss this ground.

(2)

The Trial Judges Consideration of the Use of a
    Weapon

[196]

Second, Michael argues that the trial judge erred in aggravating the
    sentence based on Michaels use of the weapon since he was not tried nor
    convicted of assault with a weapon.

[197]

I disagree. The use of a weapon was proven beyond a reasonable doubt
    and clearly formed part of the circumstances of this case. It called for
    consideration. Furthermore, proportionality demanded close attention to the
    circumstances that increased the gravity of the offence. Indeed, facts tending
    to establish the commission of other offences of which an accused has not been charged
    or convicted can be admitted to enable a court to determine a just and
    appropriate sentence:
Criminal Code,
s. 725(1)(c);
R. v. Luu
,
    2021 ONCA 311, at para. 30;
R. v. Angelillo
, 2006 SCC 55, [2006] 2
    S.C.R. 728, at paras. 22-27; and
R. v. Edwards
(2001), 155 C.C.C. (3d)
    473, (Ont. C.A.), at paras. 63-65.

[198]

Additionally, this aggravating factor occasioned no unfairness to Michael.
    Although the Crown omitted the assault with a weapon charge from the
    indictment, the Crown never abandoned the allegation that Michael wielded the
    metal pipe. Since this was a critical aspect of the Crowns theory of the case,
    Michael was fully apprised of the possibility that the weapon could feature in
    sentencing; no fairness was occasioned when this prospect was actualized. The
    trial judge did not err by taking the use of a weapon into consideration.

[199]

I would dismiss this ground.

(3)

The Trial Judges Consideration of the Self-Defence
    Context

[200]

Third, Michael submits that the trial judge erred in failing to take
    into account the self-defence context of the incident as a mitigating factor. I
    would reject this argument for two reasons.

[201]

First, it is clear throughout the trial judges reasons for judgment
    that he believed this defence, to use his words, was razor thin while the
    altercation was taking place between the houses, and had evaporate[d] by the
    time the assault occurred. Indeed, he was satisfied beyond a reasonable doubt
    that Michael was not acting in self-defence when he assaulted Mr. Miller with
    the pipe at the front door and thereafter in the driveway. As he put it at
    para. 84 of his sentencing reasons:

To be clear, this is not a case where in the
    course of self defence an accused simply went too far. This is a case where
    after any reasonable possible threat abated, the accused armed himself with a
    weapon and struck the obviously injured and retreating victim.

[202]

The trial judge was not obligated to treat his earlier reasonable
    doubt regarding self-defence as mitigating, given how far Michaels actions
    strayed from any proper scope of self-defence. As the trial judge said, the
    assault was gratuitous and violent, and the victim was acutely vulnerable at
    the time in question.

[203]

Second, the trial judge did take into account the self-defence
    context when assessing the seriousness of the offence and the degree of
    Michaels moral culpability. Indeed, the trial judge found that Michaels moral
    responsibility was modestly moderated by the fact that this incident was
    preceded by a violent encounter that did not result in any criminal liability.
    The trial judge properly considered the events that preceded the assault, and
    the weight he ascribed to this factor is subject to deference.

[204]

I would dismiss this ground.

(4)

The Trial Judges Consideration of the Breach of
    Trust

[205]

Fourth, Michael argues the trial judge erred in aggravating the
    sentence on the basis that the circumstances of the offence were a breach of
    trust.

[206]

This was not improper reasoning. It is well recognized that police
    are held to a higher standard than would be expected of ordinary citizens
    because they are charged with enormous responsibilities and granted a great
    deal of trust and power:
R. v. Forcillo,
2018 ONCA 402, 361 C.C.C.
    (3d) 161, at paras. 198-99, leave to appeal refused, [2018] S.C.C.A. No. 258. Police
    officers are duty bound to serve and protect the community. They are also duty
    bound to uphold the law. When the conduct of a police officer runs contrary to
    either of these duties, the legitimacy of the rule of law  a postulate of our
    constitutional structure  rests on fragile ground. This court has emphasized
    that the principles of denunciation and general deterrence become magnified in
    these circumstances:
Forcillo,
at para. 199.

[207]

I agree with the trial judge that the fact that a police officer is
    off duty at the time they commit the offence does not alter the power and
    corresponding responsibilities that come with their job. This is especially the
    case when they are purporting to act in a policing or quasi-policing capacity.
    Police officers are trained to respond properly to volatile encounters; when
    that training is weaponized in a manner that undermines public safety, public
    trust will be particularly compromised.

[208]

That is exactly what happened here. Taking Michaels evidence at its
    highest, he was acting in a de facto police capacity throughout his encounter
    with Mr. Miller that night. The entire basis of Michaels defence was that he
    was attempting to effect a lawful arrest, which had gone awry. He consistently
    made reference to his police training when explaining various actions that he
    took, despite his repeated failings to comply with protocol. He admitted he
    brandished the weapon in the manner he did at the time of the assault because
    it was consistent with his police training. He took Mr. Miller to the ground
    and was ultimately the one to handcuff and search him. Indeed, the fact that he
    was an off-duty police officer goes a long way to explaining why his version of
    events was initially accepted when the police arrived to find a seriously
    injured Black man, who was then handcuffed and arrested. It therefore stands to
    reason that Michael was acting in a position of trust, and that trust was egregiously
    broken with his gratuitous use of force against an acutely vulnerable person.

[209]

I agree with the trial judges assessment of this factor. I would
    dismiss this ground.

(5)

The Trial Judges Consideration of a Heightened
    Degree of Denunciation

[210]

Fifth, Michael contends the trial judge erred in aggravating the
    sentence and for misperceiving the need for a heightened degree of
    denunciation on the basis that the victim was Black, and the perpetrator was
    white. Michael contends that this was not a racially motivated crime and the
    concurrence of the victim being Black and the accused being white was
    happenstance.

[211]

The Crown did not prove that this was a racially motivated crime
    beyond a reasonable doubt. Nevertheless, the racial context within which this
    offence took place was a relevant consideration.

[212]

While often overlooked out of a tendency to distance ourselves from
    the social ills plaguing our southern neighbour, Canadas long history of
    anti-Black racism has manifested in the contemporary phenomena of over-policing
    and disproportionate incidents of violence during interactions between Black
    people and the police:
Le,
at para. 93. Systemic and overt racism have
    long sustained unequal treatment before the law, leading to a crisis of
    confidence in the administration of justice in some communities. The current
    moment of reckoning with respect to systemic racism in Canada is long overdue.

[213]

As the trial judge put it, Michaels conduct further sowed the
    seeds of distrust between the Black community and the police. Michaels actions,
    as a white off-duty police officer who assaulted a retreating, injured Black
    youth, cannot, and should not, be divorced from this wider context. As noted
    above, Michael was a representative of the rule of law in this country, and his
    actions shattered a communitys trust in the very system that is supposed to
    protect them.

[214]

Mr. Miller may have broken the law that night, but he did not
    deserve what subsequently happened to him. The right to be free from excessive
    and unreasonable force does not discriminate.

[215]

The trial judges treatment of this larger context in sentencing was
    laudable and sets a model for future cases of this nature. As I will explain,
    he did not falter in his role of imposing an individualized and proportionate
    sentence, while also recognizing that this type of crime warrants heightened
    denunciation due to its devastating implications.

[216]

At all times, the trial judge remained tethered to the fundamental
    principle of sentencing: that a sentence must be proportionate to the gravity
    of the offence and the degree of responsibility of the offender. He recognized
    that he was not imposing a punishment in an attempt to right past societal or
    systemic failings. He took into consideration Michaels mitigating
    circumstances and maintained a focus on the individualized offence before the
    court. At the same time, the trial judge acknowledged that denunciation, as a
    collective statement of societys values, must evolve in tandem with developing
    social values. This includes increasing awareness about anti-Black racism.

[217]

As the Supreme Court instructed in
Friesen,
at para. 35:

Sometimes, an appellate
    court must also set a new direction, bringing the law into harmony with a new
    societal understanding of the gravity of certain offences or the degree of responsibility
    of certain offenders (
R. v. Stone
, [1999] 2 S.C.R. 290, at para. 239).
    When a body of precedent no longer responds to societys current understanding
    and awareness of the gravity of a particular offence and blameworthiness of
    particular offenders or to the legislative initiatives of Parliament,
    sentencing judges may deviate from sentences imposed in the past to impose a
    fit sentence
(
Lacasse
, at para. 57).
    That said, as a general rule, appellate courts should take the lead in such
    circumstances and give sentencing judges the tools to depart from past
    precedents and craft fit sentences. [Emphasis added.]

[218]

The trial judge correctly concluded that this case called for
    heightened denunciation and I endorse his approach. As our society comes to
    grips with disproportionate rates of police violence against Black people, it
    is integral that the need for denunciation of crimes that are emblematic of
    these broader social patterns develops accordingly.

[219]

I would dismiss this ground of appeal.

(6)

The Sentence Was Not Demonstrably Unfit

[220]

Lastly, Michael argues the sentence itself was
    demonstrably unfit and outside the range of sentences for similar offenders. He
    submits that a non-custodial sanction would be a fit sentence in this case. He
    also argues that the trial judge provided insufficient reasons for rejecting an
    alternative to a custodial sentence.

[221]

The trial judge did not err by deviating from the range advocated by
    defence counsel. Defence counsel sought a sentence ranging from an absolute or
    conditional discharge to a suspended sentence, or at worst, a conditional
    sentence. The Crown argued that the case law does not provide a discernable
    range given the unique circumstances of this case, and to the extent that a
    range can be extrapolated, the aggravating features of this case called for a
    departure from the range.

[222]

Ultimately, the trial judge accepted the Crowns argument that there
    is no applicable range of sentence that can be discerned from the case law. He explained
    that the case law referred to by defence counsel suffered from the following
    deficiencies: it was dated and occurred in a different social context; it involved
    the mitigation of a guilty plea and/or other factual scenarios that are less
    serious; or it was otherwise distinguishable in that the offences were not
    committed by police officers. The unique factual nexus in this case meant that
    the cases provided did not greatly assist in determining the appropriate range.
    In any event, the fact that a judge deviates from the proper sentencing range
    does not in itself justify appellate intervention:
Lacasse,
at para.
    11.

[223]

A sentence will be demonstrably unfit if it
    constitutes an unreasonable departure from the principle of proportionality:
Lacasse,
at para. 53. This
incident
    was, by any measure, a gratuitous and violent assault on a retreating, badly
    injured, victim. The events of that night caused irreparable harm to Mr. Miller
    and to the community at large. A custodial sentence was proportional in the
    circumstances of this case, as were the ancillary orders. As the trial judge
    put it at para. 104: The sentence is substantial, but not crushing. The
    sentence was fit and is owed deference on appeal:
Friesen,
at para. 25.

[224]

The trial judges reasons for imposing a
    custodial sentence were sufficient in the context for which they were given.
    The trial judge explicitly considered less restrictive alternatives to
    imprisonment, but ultimately concluded that nothing short of a jail sentence
    will suffice to adequately denounce the offence and to offer the requisite
    degree of deterrence. He concluded that a discharge would be manifestly
    contrary to the public interest in these circumstances and would risk
    trivializing the offence and undermining public confidence in the
    administration of justice. He also considered a conditional sentence, but
    ultimately concluded that a very strong denunciatory message  can only be
    sent by a term of real jail. The trial judges reasons explain what he decided
    and why he came to that conclusion, and in so doing, permitted meaningful
    appellate review.

[225]

I would dismiss this ground of appeal.

H.

conclusion

[226]

I would dismiss the defence appeal against conviction and sentence. As
    noted above, given the Crowns position on a retrial, I would also dismiss the
    Crowns appeal without addressing its merits.

Released: July 19, 2021 M.T.

M.
    Tulloch J.A.

I
    agree. L.B. Roberts J.A.

I
    agree. Gary Trotter J.A.

[1]
As the two brothers have the same last name, I will refer to them
    in these reasons by only their first names. I do this not out of disrespect,
    but to distinguish between them.

[2]
In his testimony, Mr. Miller differentiated between the two
    brothers by their hairstyles. For simplicity, I have used their names instead
    of their descriptors.

[3]

As noted above, due to the credibility
    issues with both parties, the trial judge was unable to determine who initially
    wielded the pipe. However, he recognized that if the pipe was first introduced
    by Mr. Miller, it was quickly removed from him and the incident became
    one-sided.