COURT OF APPEAL FOR ONTARIO
GOUDGE, CRONK AND LAFORME JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
(Respondent)
- and -
MATTHEW PURCELL
(Appellant)
Brian Snell Duty counsel for the appellant
Kimberley Crosbie for the respondent
Heard: December 18, 2006
On appeal from the convictions entered by Justice Stephen A.J. March of the Ontario Court of Justice dated July 10, 2006 and August 17, 2006 and from the sentences imposed by Justice Stephen A.J. March dated August 28, 2006.
GOUDGE J.A.:
1The appellant was convicted of committing an aggravated assault on Daniel Graham, contrary to s. 268(1) of the Criminal Code, R.S. 1985, c. C-46 and of using a firearm while committing that indictable offence, contrary to s. 85(1)(a) of the Code. He was sentenced to 11 months in jail (after receiving a credit of 16 months for pre-trial custody) for the first conviction, and the mandatory minimum of 12 months in jail consecutive for the second conviction, to be followed by three years probation.
2He appeals both conviction and sentence.
3On the conviction appeal, the only issue raised is whether the trial judge erred in his analysis of the mental element required to convict the appellant of the s. 85(1)(a) offence. The appellant does not contest his conviction for aggravated assault.
4At trial, the facts were in a large measure uncontested. On December 31, 2005, a number of young men in their late teens decided to celebrate at the home of one of them by drinking to excess. Some time after 1:00 a.m., the victim Daniel Graham, who had fallen asleep on the couch, was awakened by a commotion. He saw the appellant, who was one of his friends, standing about three feet from him with a pellet gun in his hand. The next thing Mr. Graham knew, the gun discharged and a pellet struck him in the left eye, ultimately costing him the sight in that eye.
5The appellant admitted discharging the gun but said that the shooting was an accident. The trial judge rejected the appellant’s evidence of accident, finding that it did not raise a reasonable doubt.
6However, he also found that the Crown had failed to establish that the appellant intended to shoot a pellet at Mr. Graham.
7The trial judge then went on to consider recklessness. He concluded that the Crown had established beyond a reasonable doubt that the appellant had a gun in his hand and knew it to be a danger, that he pointed it at Mr. Graham, and that he pulled the trigger. While the trial judge was not satisfied that the appellant had the necessary intention to shoot Mr. Graham, he found that the appellant, knowing the risk that the gun if fired could seriously hurt someone, was reckless in his use of the gun. He concluded that the appellant therefore had the necessary mens rea for aggravated assault and convicted him of that charge. While I have considerable doubt about whether recklessness is the proper basis on which to find the mental element in the circumstances of this case, there can be no doubt that the facts support the necessary mens rea and that the conviction was proper. Moreover, since neither this conviction nor the accompanying mens rea finding are contested here, I accept both for the purpose of this appeal.
8The trial judge then heard further argument on the mental element necessary for the s. 85(1)(a) offence. He decided that, because the s. 85(1)(a) offence is one of general intent, the recklessness he had found regarding the use of the gun satisfied the mens rea required for that offence as well and, as a result, convicted the appellant.
9The appellant attacks his conviction on the basis that the offence created by s. 85(1)(a) of the Code is one of specific intent not general intent, and therefore the Crown must prove more than recklessness to establish the necessary mens rea.
10Section 85(1)(a) of the Code reads as follows:
- (1) Every person commits an offence who uses a firearm
(a) while committing an indictable offence, other than an offence under section 220 (criminal negligence causing death), 236 (manslaughter), 239 (attempted murder), 244 (causing bodily harm with intent – firearm), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), subsection 279(1) (kidnapping) or section 279.1 (hostage-taking), 344 (robbery) or 346 (extortion),
whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm.
11In R. v. Pringle, 1989 CanLII 65 (SCC), [1989] 1 S.C.R. 1645, the Supreme Court of Canada made clear that a conviction and sentence for the underlying offence is a necessary prerequisite for a conviction under s. 85(1)(a).
12In this case, the trial judge properly followed this approach by first convicting the appellant of aggravated assault. As I have said, in doing so, the trial judge was not satisfied that the appellant intended to shoot a pellet at Mr. Graham, but found the mens rea necessary for this offence in the fact that the appellant was reckless about whether that could happen when he fired the gun.
13When the trial judge turned to the s. 85(1)(a) offence, he addressed as his primary task the question of whether this offence is one of general or specific intent. Finding it to be one of general intent, he held that the mental element required was satisfied by the finding of recklessness he had made in convicting the appellant of aggravated assault.
14The distinction between offences of general or specific intent has been of most importance in addressing the question of whether drunkenness can negate the mental element required for conviction. See, for example, R. v. Daviault, 1994 CanLII 61 (SCC), [1994] 3 S.C.R. 63.
15The distinction between the two was described in Daviault by Sopinka J. dissenting, but not on this point, at pp. 123-24:
The principles that emerge from the cases which serve as guidelines in classifying offences as specific or general intent offences are as follows. General intent offences as a rule are those which require the minimal intent to do the act which constitutes the actus reus. Proof of intent is usually inferred from the commission of the act on the basis of the principle that a person intends the natural consequences of his or her act. …
Specific intent offences are as a rule those that require a mental element beyond that of general intent offences and include “those generally more serious offences where the mens rea must involve not only the intentional performance of the actus reus but, as well, the formation of further ulterior motives and purposes” (per McIntyre J. in R. v. Bernard, supra, at p. 880). These are often referred to as “ulterior intent” offences. See Majewski, supra. Professor Colvin, in “A Theory of the Intoxication Defence” (1981), 59 Can. Bar Rev. 750, correctly points out that it is the further intent in addition to the basic intent that is the hallmark of ulterior intent offences. …
16Applying the definitions of general and specific intent offences articulated by Sopinka J., I agree with the trial judge that s. 85(1)(a) is a crime of general intent. The requisite mens rea relates only to the conduct which constitutes the actus reus (the use of the weapon) and not to an ulterior motive or purpose.
17However, categorization of the offence created by s. 85(1)(a) as a crime of general intent does not fully describe the fault element, or mens rea, of the offence or address the issue of whether the necessary mens rea exists in a given case.
18Section 85(1)(a) creates the crime. The language of the section must inform the mens rea analysis. The section prohibits the use of a firearm while committing most indictable offences. There is nothing in the language of the section that suggests any culpable state of mind other than the intention to do the prohibited act, that is, to use the firearm while committing the underlying offence. Pointing and firing a gun clearly constitutes the use of a firearm. In the circumstances of this case, the mens rea of the offence required that the appellant intend to point and fire the gun.
19That mental element is not coincident with the mental element for the underlying aggravated assault. The appellant’s intention to fire the gun while committing the underlying offence is distinct from his intent concerning where the pellet would go when he did so.
20Thus, the trial judge erred in law in concluding that the recklessness he found to constitute the mens rea for the aggravated assault could also serve as the mens rea required for the appellant’s s. 85(1)(a) conviction.
21However, the trial judge clearly found as a fact that the appellant intended to fire the gun while committing the aggravated assault. He found that the appellant pointed the gun at Mr. Graham and pulled the trigger. That is enough to establish the mens rea needed to convict the appellant of the s. 85(1)(a) offence.
22This finding makes this an appropriate case in which to apply s. 686(1)(b)(iii) of the Code. No substantial wrong or miscarriage of justice occurred because, if the trial judge had correctly addressed the issue of the mens rea necessary for the s. 85(1)(a) offence, he would necessarily have found that it was properly established, given his findings of fact.
23In the result, because it does not arise on the facts of this case, I do not think it necessary to decide whether the mens rea required for a s. 85(1)(a) conviction can be satisfied by recklessness in the use of the gun while committing the underlying offence. Nor should I be taken as agreeing with the trial judge that it can be.
24I would therefore dismiss the conviction appeal.
25The appellant was sentenced to a global sentence of 39 months, which was reduced to 23 months because of credit for pre-trial custody. The 23 months was made up of 11 months for the aggravated assault and the 12 month minimum required by the Code for the s. 85(1)(a) conviction. In my view, the trial judge did not err in principle in sentencing the appellant. In addition, the sentence is not disproportionate to the offences given the serious injury suffered by the victim. The sentence appeal must also be dismissed.
26The appellant was self-represented but was ably assisted by duty counsel, Mr. Snell. We were much assisted by his helpful submissions and equally by those of Ms. Crosbie for the Crown.
RELEASED: February 15, 2007 “STG”
“S.T. Goudge J.A.”
“I agree E.A. Cronk J.A.”
“I agree H.S. LaForme J.A.”
