DATE: 20010323

DOCKET: C32300

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent)

v. ABDEL ECHEGOYEN (Appellant)

BEFORE: McMURTRY C.J.O., FINLAYSON and LABROSSE JJ.A.

COUNSEL: Craig Parry, for the appellant

Alison Hurst, for the respondent

HEARD: March 20, 2001

On appeal from his conviction by Justice Barry M. Matheson, sitting with a jury, on January 8, 1999 and from the sentence imposed on February 26, 1999

O R A L E N D O R S E M E N T

[1] The appellant was charged with assault with a weapon, aggravated assault, and possession of a weapon for a purpose dangerous to the public. He was tried by a court composed of a judge and jury, was acquitted of the two assault offences and convicted on the weapon offence. He appeals his conviction and the sentence imposed of six months’ imprisonment and two years’ probation.

[2] On the day in question, the appellant was carrying a knife which he intended to return to a certain friend. He attended a pool hall and became involved in a confrontation between another friend and the complainant. During the altercation, the appellant took the knife out of his pocket and stabbed the complainant twice in the back.

[3] The issue at trial was whether the appellant acted in self-defence.

[4] The appellant submits that the trial judge erred in his charge to the jury with respect to the elements of the weapon offence, and with respect to the burden of proof relating to this offence.

[5] The appellant admitted to possessing the knife and stabbing the victim. There was no question that the knife was a weapon. Defence counsel acknowledged that the knife was a weapon and that intent was the only issue. The jury was adequately instructed on the issue of intent, namely, that the appellant possessed the knife for a purpose dangerous to the public. In our view, the trial judge properly instructed the jury on the elements of this offence. We note that defence counsel did not object to the trial judge’s charge with respect to the weapon offence.

[6] On the issue of burden of proof, the appellant, relying on one isolated passage of the charge, submits that the trial judge did not properly charge the jury on the burden of proof regarding the weapon offence. We reject this submission. The trial judge adequately instructed the jury on the presumption of innocence, the burden of proof, and reasonable doubt. The charge, read as a whole, including the re-charge, would not have left the jury with any misapprehension as to the correct burden of proof on the Crown.

[7] Finally, we do not accept that the verdicts were inconsistent. The elements of the assault and possession charges are distinct. There was evidence upon which the jury could find that the appellant possessed the weapon for a purpose dangerous to the public. In particular, the evidence of the appellant that he did not “usually” carry knives, that he did not use a knife unless he thought he needed it and that it was handy to have a knife in case he ran into trouble, supports the conviction.

[8] In our view, the original sentence was appropriate in the circumstances. The trial judge considered but rejected the imposition of a conditional sentence. We agree with his reasons.

[9] Four years have passed since the commission of this offence and, except for a breach of recognizance, the appellant has conducted himself as a responsible citizen and a good parent. He has served seven and one-half weeks of the sentence.

[10] In the circumstances, it is in the public interest to reduce the sentence to time served.

[11] In the result, the appeal from conviction is dismissed, the appeal from sentence is allowed and the sentence varied to time served.

(signed) “R. McMurtry C.J.O.”

(signed) “G. D. Finlayson J.A.”

(signed) “J. M. Labrosse J.A.”