Michael Theriault v. Her Majesty the Queen

(Ontario) (Criminal) (By Leave)


Criminal law - Evidence - Criminal law — Evidence — Credibility — Included offences — Whether triers of fact obligated to consider relevant social context when making credibility assessments — Whether common assault an included offence to aggravated assault when the cause and nature of the injury is not disputed.


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The applicant and his brother were jointly charged with having committed an aggravated assault against the complainant, a young Black man. The complainant said that he was walking down the street when the applicant, an off duty police officer, and his brother accosted him; the complainant responded by running away. The applicant said that he and his brother surprised the complainant stealing from their parents’ truck, and when the complainant fled, they pursued him in order to arrest and detain him. When the applicant and his brother caught up with the complainant, a violent altercation ensued and the complainant was beaten by the applicant and his brother, causing a serious injury to the complainant’s eye.

The trial judge was left with reasonable doubt as to the applicant’s intent when he pursued the complainant and also as to whether he had been acting in self defence, but he accepted that the applicant had hit the complainant with a pipe after the complainant had retreated from the struggle. The trial judge concluded that the blow had not caused the eye injury, and he found the applicant guilty of the lesser and included offence of common assault. The Court of Appeal dismissed the applicant’s appeal and upheld the conviction for common assault.