Court of Appeal for Ontario

Date: 2018-10-18 Docket: C64206

Judges: Sharpe, Lauwers and van Rensburg JJ.A.

Between

Her Majesty the Queen Appellant

and

Nerville Ferdinand Respondent

Counsel

Christopher Webb, for the appellant Kristin Bayley, for the respondent

Heard and released orally: October 3, 2018

On appeal from: The acquittal order of Justice Michael Brown of the Superior Court of Justice, sitting with a jury, dated July 22, 2017.

Reasons for Decision

[1] The Crown appeals a verdict of acquittal on a charge of aggravated assault. The respondent was charged with attempted murder, aggravated assault and several firearms offences. The charges arose from a dispute during which the respondent brandished a handgun. The gun was fired causing serious injury to Tristan Kelly, the respondent's friend.

[2] The theory of the Crown was that the respondent intended to shoot another individual standing near Kelly and that the doctrine of transferred intent made the respondent liable for attempted murder or, in the alternative, for aggravated assault and discharging a firearm with intent.

[3] The respondent's defence was that the gun fired accidentally and that he had waved it to scare those present into calming down.

[4] The respondent was found guilty of three firearms offences, and acquitted on the charge of discharging a firearm with intent and aggravated assault. Three charges were stayed pursuant to the Kienapple principle. The jury failed to reach a verdict on attempted murder and charges under s. 244(1) and s. 244.2(1)(b).

[5] The trial judge refused the Crown's request to charge the jury on liability for assault through a threat of application of force pursuant to s. 265(1)(b) of the Criminal Code which provides that a person commits assault when he or she "threatens, by act or gesture, to apply force to another person if he has or causes that other person to believe on reasonable grounds that he has present ability to affect his purpose." The Crown argued on the appellant's version he had threatened to apply force to another person and that the actus reus for assault was made out when the respondent threatened the use of force by taking out and waving the gun.

[6] The trial judge refused to charge the jury in that manner for two reasons. First, he ruled that the request was inconsistent with the Crown's primary contention that the shooting was intentional. Second, the trial judge thought that charging the jury on potential liability pursuant to s. 265(1)(b) would unduly complicate the instruction.

[7] On this appeal, the respondent effectively concedes that the trial judge's ruling cannot stand. First, the Crown was not required to prove assault according to one specific theory. The application of s. 265(1)(b) arose from the respondent's own evidence and the Crown was entitled to have the jury instructed that even if it accepted that evidence, there remained an available legal route to liability for aggravated assault.

[8] While the trial judge has a discretion to avoid undue complexity in a jury instruction, the Crown was legally entitled to have the jury instructed that while accepting the respondent's version would mean that he should be acquitted of attempted murder, it did not exclude a conviction for aggravated assault.

[9] We do not accept the respondent's position that the appropriate remedy in these circumstances is to dismiss the appeal but to allow aggravated assault to be put to the jury on the new trial as an included offence: see R. v. McKay, 2005 SCC 79, [2005] 3 S.C.R. 725, at 727 which in our view excludes this possibility.

[10] Accordingly, we conclude that the appropriate remedy is to allow the appeal, to set aside the acquittal on aggravated assault and to direct a new trial.

"Robert J. Sharpe J.A."

"P. Lauwers J.A."

"K. van Rensburg J.A."