DATE: 20010924

DOCKET: C36257

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. HOUSTON LECKY (Appellant)

BEFORE:

DOHERTY, GOUDGE and CRONK JJ.A.

COUNSEL:

Paul Calarco

for the appellant

Grace Choi

for the respondent

HEARD:

September 18, 2001

On appeal from the conviction imposed by Justice Hugh R. Locke dated February 1, 2001.

E N D O R S E M E N T

[1] There was some evidence that the appellant was impaired when he accosted the victim. The trial judge referred to some of that evidence in his summary of the evidence. He did not refer to its potential relevance to the existence of the culpable mental state required by s. 343(a) of the Criminal Code. The appellant argues that the trial judge’s silence reveals error and that he failed to consider the “defence” of intoxication.

[2] There are two answers to this submission. Firstly, mere failure to advert to an issue in reasons for judgment does mean that the trial judge did not consider it. Secondly, while there was evidence of impairment, in our view, there was no air of reality to the suggestion that that impairment had reached the level that it could affect the appellant’s state of mind. His conduct was clearly purposeful. The issue was, what was that purpose.

[1] The trial judge properly instructed himself on the constituent elements of robbery as defined in s. 343(a). On the totality of the evidence, it was open to the trial judge to find that the appellant’s conduct could result in a reasonable apprehension of physical injury and did in fact cause this victim to apprehend physical harm. Consequently, his actions amounted to threats of violence under s. 343(a).

[2] Once a threat was proved, there was no additional requirement of some minimum level of violence in order to establish robbery as defined in s. 343(a).

[3] The appeal must be dismissed.

“Doherty J.A.”

“S.T. Goudge J.A.”

“Cronk EA, J.A.”