COURT OF APPEAL FOR ONTARIO

DATE: 20001106

DOCKET: C33273

CARTHY, ABELLA and FELDMAN JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN )

) Stuart Beverley Scott

Respondent ) for the appellant

• and - )

) Shawn Porter

CHRISTOPHER ANTHONY ALLEN ) for the respondent

Appellant ) Heard: October 13, 2000

FELDMAN J.A.:

On appeal from the conviction by Humphrey J., dated Decemer 4, 1998, and on appeal from the sentence imposed by Humphrey J., dated February 12, 1999.

[1] The appellant was convicted of four offences after trial before Humphrey J. in the superior court: robbery and assault causing bodily harm of Osople, the first taxi driver, assault of Abraham, the second taxi driver, and falsely representing himself to be a police officer. He was sentenced to two years concurrent on each count. He appealed his convictions and sentence, although the sentence appeal was not argued as he had served his sentence by the time of the appeal.

[2] The appellant’s defence was identity. Although the reasons of the trial judge were exceedingly brief, he made it clear that he was alive to the issue and therefore focused on the evidence which linked the person who took the taxi and assaulted the first taxi driver, to the appellant. We see no error in his approach. He was entitled on the evidence to make the finding which he did.

[3] The appellant also challenges the basis of the convictions for assault causing bodily harm and robbery in terms of the elements of the offences. We are satisfied that the injury suffered by the taxi driver in the assault, a cut over his eye requiring three stitches, was in the circumstances, significant enough to amount to “bodily harm” within the Code definition. It is also clear that the robbery offence is pursuant to ss.343(c) of the Code, which subsection does not require that the offender actually steals anything from the victim.

[4] However, because assault causing bodily harm is an included offence of robbery (see: R. v. Horsefall (1990), 1990 CanLII 1039 (BC CA), 61 C.C.C. (3d) 245 (B.C.C.A.)) and both charges arose out of the same delict, the rule in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729 should be applied and the conviction for assault causing bodily harm stayed.

[5] Crown counsel raised before this court the fact that four offences were tried together in superior court after a preliminary hearing, that they were all contained in one indictment, but that one of the offences, impersonating a police officer, is a summary conviction offence (s. 130 of the Code). It is clear that a procedural error was made when a preliminary hearing was held on the summary conviction offence and the appellant was bound over for trial in an indictment before the superior court. The jurisdiction of the superior court is to try indictable offences only, not summary conviction offences. The Supreme Court of Canada decision in R. v. Clunas, 1992 CanLII 127 (SCC), [1992] 1 S.C.R. 595 deals with the issue of joinder of summary and indictable offences. This may be done only when the accused has waived both the right to be tried in a higher court and the preliminary inquiry. That did not occur in this case. The conviction for impersonating a police officer is therefore quashed.

[6] There was no suggestion however, that the trial of the summary conviction offence together with the three indictable offences in any way prejudiced the appellant. The indictment in respect of those three offences remains valid: s.591(2).

Result

[7] The appeals in respect of the robbery and assault counts are dismissed. The conviction for assault causing bodily harm is stayed and the conviction for impersonating a police officer is quashed.

RELEASED: November 6, 2000