DATE: 20021126

DOCKET: C37456

COURT OF APPEAL FOR ONTARIO

DOHERTY, AUSTIN and ARMSTRONG JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Tina Yuen for the applicant/appellant

Appellant

• and -

DONALD MACDONALD

Edward L. Greenspan Q.C. and Melanie Dunn for the respondent

Respondent

Heard: October 4, 2002

On appeal from the judgment of Justice John H. Jenkins dated November 19, 2001.

DOHERTY J.A.:

I

[1] The respondent was convicted of threatening his wife and possession of a weapon for a purpose dangerous to the public peace after a trial in the Ontario Court of Justice. The charges arose out of the same incident. He successfully appealed to the Superior Court. The convictions were quashed and acquittals were entered. The Crown seeks leave to appeal from the order of the Superior Court on questions of law alone, and if leave is granted appeals from that order.

[2] Counsel for the respondent submits that the Crown has not demonstrated any error of law warranting the reversal of the order of the Superior Court. Alternatively, he advances other grounds of appeal, which while raised in the Superior Court were not addressed by that court. He submits that these grounds, if successful, require at least a new trial.

[3] I would grant leave to appeal, allow the appeal and restore the convictions.

II

[4] The respondent and his wife, Anita MacDonald, had been married for twenty-one years. The marriage had been difficult and at times violent. By October 2000 when the relevant events occurred, the marriage was over and the parties were separated, although both continued to live in the home on the family farm operated by the respondent. Mrs. MacDonald commenced divorce proceedings in September. She was seeking possession of the family home.

[5] On the morning of October 8, 2000, Mrs. MacDonald left the farm house with her twenty year old daughter Elaine. They were planning to go shopping after which Mrs. MacDonald was to take Elaine to the home of the respondent’s mother for Thanksgiving dinner. Mrs. MacDonald testified that before leaving the house, she gathered up various documents relating to the farming operations. She took the papers to her van intending to give them to Elaine so that Elaine could deliver them to the respondent’s mother. Mrs. MacDonald had been the bookkeeper for the farming business for many years, but that function had been recently transferred to the respondent’s mother.

[6] The respondent realized that his wife had certain papers with her when she left the house. He believed that some of these documents were unrelated to the farming business, and were his personal documents. The respondent thought that Mrs. MacDonald was going to take these documents to her lawyer in the hope of gaining some advantage in the ongoing divorce proceedings.

[7] Mrs. MacDonald saw the respondent running towards the van as she was about to drive out of the driveway. He was yelling. Mrs. MacDonald stopped the van thinking that he wanted to speak with Elaine. The respondent stood in front of the van preventing Mrs. MacDonald from driving out of the driveway. He yelled at her and demanded the return of the papers she had taken. She refused. The respondent became angry and unleashed a barrage of profanities at Mrs. MacDonald. He tried to lift the hood on the vehicle to block Mrs. MacDonald’s view so she could not drive away. The hood could not be lifted from the outside. The respondent became more and more upset as the encounter continued. He took a jack-knife from his pocket and opened it. According to Elaine he said: “Fine then, I’ll slash the tires”. Mrs. MacDonald described the respondent as becoming calm with a “cold look” in his eye. The respondent always carried this jack-knife with him and used it for various purposes around the farm.

[8] In his testimony, the respondent acknowledged that he went after his wife to retrieve the papers which he believed she had improperly taken from the house. He also agreed that he became very angry and verbally abusive when his wife would not return the papers. In addition, the respondent conceded that he tried to prevent the vehicle from leaving the property and that after he could not get the hood up, he took out his pocket knife and opened it. He testified that he was going to use the tip of the knife to press down the valve on the vehicle’s tire to let the air out, thereby disabling the vehicle. On cross-examination, the respondent admitted that he threatened to let the air out of the tire unless his wife returned the documents to him and that he intended to intimidate her with that threat.

[9] Mrs. MacDonald testified that when the respondent moved away from the front of the vehicle and bent down beside the tire, she saw this as her opportunity to drive away. She moved the vehicle forward and the side view mirror struck the respondent. He stood up and according to Mrs. MacDonald, said: “You’re next”. When he made this statement his face was very close to the driver’s side front window of the van. He spoke calmly and held the opened jack-knife at chest level. Mrs. MacDonald did not stop the vehicle because she did not know what the respondent would do to her. She interpreted his comment, “You’re next” as meaning that she was going to get “another beating”.

[10] Elaine, who has a significant hearing impairment, did not hear the respondent’s statement to his wife. Nor could she see the respondent when he was standing at the side of the van.

[11] On the respondent’s version, he was struck by the vehicle as he was bending down by the tire. He stood up and swore profusely at his wife as she drove away. He denied that he threatened her, and he denied saying the words “You’re next”. The respondent testified that he thought about having his wife charged for trying to run him over with her vehicle, but decided against that course of action.

[12] Mrs. MacDonald did not go to the police until later that day after she returned home from shopping and her daughter left for the grandmother’s. She said that she did not want to go to the police immediately and put her daughter in the middle of the conflict between herself and the respondent. She also explained that she needed to speak to her sister for moral support before going to the police.

[13] After a voir dire, the trial judge admitted evidence describing the history of the marital relationship between the respondent and Mrs. MacDonald. Mrs. MacDonald described the respondent as a demanding and controlling person who was often verbally abusive and on occasion physically abusive. She testified that he had threatened to kill her in the past. It was Mrs. MacDonald’s evidence that the relationship had become increasingly physically abusive towards the end of the marriage. Elaine acknowledged that there were difficulties in her parents’ marriage for many years. She could recall one physical altercation in which both parents had been equally involved.

[14] The respondent also testified on the voir dire. He said that he would become frustrated if his wife did not answer his questions and he could become verbally abusive. He denied ever threatening Mrs. MacDonald and indicated that there were only two minor physical altercations during their marriage. He claimed both were precipitated by Mrs. MacDonald.

[15] The trial judge admitted the evidence of the marital relationship, holding that it gave context to the events of October 8, 2000. The trial judge also held that the evidence was capable of demonstrating the respondent’s animus towards Mrs. MacDonald and would assist in assessing credibility.

III

[16] In the course of detailed and careful reasons, the trial judge made the following significant findings.

• The respondent uttered the words “You’re next” to Mrs. MacDonald while standing beside the front window of the van holding an opened jack-knife.
• The words, “You’re next”, considered in the circumstances in which they were uttered, constituted a threat to cause death or serious injury to Mrs. MacDonald.
• The respondent intended that Mrs. MacDonald should take the threat seriously as he meant to intimidate and frighten her.
• The respondent’s initial possession of the jackknife was lawful.
• When the respondent removed the knife from his pocket and opened it he intended to use it to intimidate and frighten Mrs. MacDonald in an effort to retrieve his papers. When the respondent formed the intention to use the knife to intimidate his wife, his lawful possession of the knife changed to a possession for a purpose dangerous to the public peace.

[17] In reversing the trial judge, Jenkins J. began by acknowledging the limited scope of appellate review:

My duty, sitting on a summary conviction appeal, is not to replace the learned trial judge with my view of credibility or even the evidence that was before him. However, it is necessary for me to determine in law whether he has erred in law or is clearly wrong. …

[18] After a brief review of the evidence, Jenkins J. turned to the conviction on the threatening charge. He said:

This, in my view, falls short of the serious criminal charge of causing death or serious bodily harm. The complainant was not concerned, from the evidence that I read, about her safety at that time. …

[19] Jenkins J. did not specifically refer to the findings of fact underlying the conviction on the charge of possession of a weapon for a purpose dangerous to the public peace, but instead dealt globally with both charges in the penultimate paragraph of his reasons. He said:

This is unfortunately a situation involving a man who had apparently an impeccable background and had had no criminal record. He had never been charged by her before. In my view, great care ought to be made to determine whether the conviction had been made out. The learned trial judge, to me, fell into the trap of simply accepting all the evidence of one person and disregarding all the evidence of the other. I don’t think he properly dealt with the evidence of the daughter who was there. She did not hear and even allowing for her hearing deficit she did not describe this cold look or stare. To me it falls below the threshold of proving the offence.

IV

[20] A justice of the Superior Court hearing a summary conviction appeal has the same powers as does this court does on appeals in indictable matters: Criminal Code, R.S.C. 1985, c. C-46, s. 822(1). Jenkins J. would appear to have invoked the power under s. 686(1)(a)(i) and allowed the appeal on the basis that the convictions were unreasonable. A finding on appeal that a conviction is unreasonable raises a question of law: R. v. Biniaris (2002), 2000 SCC 15, 143 C.C.C. (3d) 1 at 13-20 (S.C.C.); R. v. Yebes (1987), 36 C.C.C. (3d) 417 (S.C.C.).

[21] In the course of argument, the Crown advanced a second question of law. It contended that Jenkins J. erred in law in holding that the trial judge had erroneously approached the evidence by simply accepting all of the evidence of one witness (Mrs. MacDonald) and rejecting the conflicting evidence from the other witness (the respondent). I have no doubt that the issue as framed by the Crown raises a question of law. I do not think, however, it raises a separate question of law in this case. I read Jenkins J.’s reference to the manner in which the trial judge approached the evidence as his identification of the defect in the trial judge’s reasoning which led him to an unreasonable result: R. v. Biniaris, supra, at p. 22. Subject to the alternative arguments raised by the respondent, the appeal turns on whether the Crown can demonstrate that the convictions were not unreasonable.

[22] To determine whether a conviction is unreasonable, an appellate court must decide whether the conviction is one that a properly instructed jury, acting judicially, could reasonably have rendered. The test is equally applicable to the judgment of a judge sitting without a jury. As Arbour J. observed in R. v. Biniaris, supra, at p. 21:

That formulation of the test imports both an objective assessment and, to some extent, a subjective one. It requires the appeal court to determine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyze and, within the limits of appellate disadvantage, weigh the evidence.

[23] My review of the trial judge’s reasons offers no support for Jenkins J.’s conclusion that the trial judge fell into the “trap” of simply accepting the evidence of Mrs. MacDonald. He ultimately accepted her evidence on crucial issues, but only after an analysis and consideration of the entirety of the evidence. My conclusion that the trial judge did not fall into the analytical error attributed to him by Jenkins J. does not mean, however, that the convictions were not unreasonable. Even absent analytical error, a verdict is unreasonable if the evidence cannot support it.

The Threatening Charge

[24] The essential elements of the crime of threatening as described in s. 264.1 of the Criminal Code are outlined in R. v. Clemente (1994), 91 C.C.C. (3d) 1 (S.C.C.), the authority relied on by the trial judge. In Clemente, Cory J. said at p. 4:

Under the present section, the actus reus of the offence is the uttering of threats of death or serious bodily harm. The mens rea is that the words be spoken or written as a threat to cause death or serious bodily harm; that is, they were meant to intimidate or to be taken seriously.

To determine if a reasonable person would consider that the words were uttered as a threat the court must regard them objectively; and review them in light of the circumstances in which they were uttered, the manner in which they were spoken, and the person to whom they were addressed [emphasis added].

[25] It was open to the trial judge to accept Mrs. MacDonald’s evidence and find that the respondent uttered the words “You’re next”. The evidence as to the circumstances in which those words were uttered offers ample support for the trial judge’s conclusion that the essential elements of the offence of threatening as described in Clemente, supra, were established beyond a reasonable doubt. In reaching that conclusion, the trial judge was entitled to consider the words spoken, the history between the respondent and Mrs. MacDonald, the immediate context, including the respondent’s anger, and his possession of an opened jack-knife, as well as the respondent’s own admission that he intended to intimidate and frighten Mrs. MacDonald. On this evidence, it cannot be said that a conviction on the threatening charge was unreasonable.

[26] In holding that the conviction was unreasonable, Jenkins J. observed:

The complainant [Mrs. MacDonald] was not concerned, from the evidence that I read, about her safety at that time.

[27] This observation is contrary to the evidence. Mrs. MacDonald testified that she was afraid and immediately drove away fearing that she might get “another beating”. Furthermore, it is not an essential element of the offence that the person subjected to the threat actually fear for his or her safety as a result of the threat. Indeed, that person does not even have to know that the threat was made. The reaction of the person threatened is of evidentiary significance only: R. v. Carons (1978), 42 C.C.C. (2d) 19 (Alta. S.C. (A.D.)); R. v. Rémy (1993), 82 C.C.C. (3d) 176 (Que. C.A.), leave to appeal to S.C.C. refused 84 C.C.C. (3d) vi.

The Weapon Dangerous Charge

[28] The possession of a weapon for a purpose dangerous to the public peace charge required that the Crown prove (1) that the jack-knife was in the possession of the respondent, (2) that it was a weapon as defined in the Criminal Code, and (3) that the purpose for which the respondent had possession was one which was dangerous to the public peace: R. v. Cassidy (1989), 50 C.C.C. (3d) 193 at 197 (S.C.C.). There was no question but that the respondent had possession of the jack-knife. By his own admission, he used the knife to intimidate and frighten his wife. “Weapon” is defined in s. 2 of the Criminal Code as meaning “any thing used … for the purpose of threatening or intimidating any person”. The jack-knife, therefore, became a weapon at the moment the respondent used it to threaten his wife. The contentious issue was whether the respondent formed the intention to use the knife to threaten his wife before actually using it to intimidate and frighten his wife.

[29] Counsel for the respondent places reliance on this court’s decision in R. v. Proverbs (1983), 9 C.C.C. (3d) 249 (Ont. C.A.) where, as in this case, the initial possession of the weapon was clearly lawful. Dubin J.A. said at p. 251:

… That the accused had in his possession a weapon was not in issue. The issue is whether he possessed that weapon for a purpose dangerous to the public peace. That purpose must be determined at an instant of time which preceded the use of the weapon. The use of a weapon in a manner dangerous to the public peace does not constitute the offence although the formation of the unlawful purpose may be inferred from the circumstances in which the weapon was used [emphasis added].

[30] In R. v. Proverbs, supra, Dubin J.A. referred with approval to R. v. Flack, [1969] 1 C.C.C. 55 at 56 (B.C.C.A.), another case where possession of the weapon was initially lawful. There, Davey C.J.B.C. said:

One of the elements of the offence is the purpose for which the person has or carries the weapon. When he has possession of the weapon lawfully, I do not think an unpremeditated use of the weapon out of sudden anger or annoyance for the forbidden purpose is enough to convert a lawful possession or carrying of it into an unlawful one within the meaning of the section. The formation of the unlawful purpose, which may be inferred from the circumstances in which the weapon is used, must precede its use. The interval of time between the formation of the purpose and the use of the weapon need not be long. It may in some cases be very short, but the gap must be significant [emphasis added].

[31] The trial judge expressly referred to the principles outlined in R. v. Proverbs, supra, and R. v. Flack, supra. He then said:

The court, in this case, is satisfied here, that when the accused removed the knife, opened the blade, that he had formed the intention to use it in an unlawful manner, and the accused’s original lawful purpose in possessing the knife had therefore changed, as far as this Court is concerned, constituted the committing of the offence and I am satisfied of that beyond a reasonable doubt.

[32] The respondent’s state of mind immediately prior to using the knife to intimidate Mrs. MacDonald was a question of fact to be determined by inference from the totality of the relevant evidence. Some triers of fact may not have been satisfied that the respondent formed the prohibited purpose prior to actually using the knife. I do not think, however, that the inference drawn by the trial judge that the respondent did form the purpose prior to using the knife can be characterized as unreasonable on the totality of the evidence. A reasonable trier of fact could have concluded that when the respondent’s verbal abuse and attempt to lift the hood of Mrs. MacDonald’s van failed to get her to do as she was told, the respondent decided to secure her compliance by intimidating and threatening her with his knife. A reasonable trier of fact could further have concluded that after the respondent had formed that intention, he took the knife out of his pocket, opened it and used it in an intimidating manner. On this view of the evidence, the offence was made out. The conviction on this charge was not unreasonable.

V

[33] Counsel for the respondent raises two additional arguments, both of which were made in the Superior Court. Jenkins J. did not address these arguments given his conclusion that the verdicts were unreasonable. The respondent is entitled to raise them in this court in response to the Crown’s appeal.

[34] Counsel contends that the trial judge erred in admitting evidence of the respondent’s misconduct in the course of the marriage, and misused that evidence as demonstrating that the respondent had a propensity to act in a controlling manner towards his wife.

[35] I cannot accept either submission. The evidence of the nature of the relationship between the respondent and Mrs. MacDonald provided background and context that was essential to an accurate interpretation of the relevant events. This was particularly true in relation to the threatening charge. Evidence of the nature of the relationship between the respondent and Mrs. MacDonald could provide valuable insight into the meaning to be given to the words uttered by the respondent and the intention with which they were uttered. I agree with counsel for the Crown that a trial on these charges without evidence of the nature of the relationship would have given an incomplete and potentially misleading picture of the relevant events: R. v. F.(D.S.) (1999), 132 C.C.C. (3d) 97 at 103-108 (Ont. C.A.); R. v. B.(S.), [1996] O.J. No. 1187 at paras. 26-56 (Ont. (Gen. Div.)). As I read the trial judge’s reasons, he used the evidence for the very purpose for which it was properly admitted.

[36] Counsel for the respondent also submits that the trial judge erred in failing to give the respondent the benefit of the defence set out in s. 38(1) of the Criminal Code:

38. (1) Every one who is in peaceable possession of personal property, and every one lawfully assisting him, is justified

(a) in preventing a trespasser from taking it, or

(b) in taking it from a trespasser who has taken it,

if he does not strike or cause bodily harm to the trespasser.

[37] Counsel contends that Mrs. MacDonald was a “trespasser” in respect of the papers of the respondent that she had in her possession and that the respondent was entitled to retrieve those papers from Mrs. MacDonald. This defence depended entirely on the respondent’s evidence. The trial judge, in express and strong language, rejected that evidence as incredible. He was entitled to do so. Instead, he found that the real motivation for the respondent’s conduct was his desire to exercise control and domination over his wife. The recovery of the papers provided the pretext for the exercise of that domination.

[38] Even if the evidentiary basis for the defence had not been completely rejected by the trial judge, I do not see how s. 38 could justify the threat made in this case. On the evidence accepted by the trial judge, the threat was made as Mrs. MacDonald was driving away. On the trial judge’s view of the evidence this was a threat to do serious bodily harm at some unspecified time in the future. A threat to do harm in the future cannot be viewed as an attempt to retrieve property in the possession of the person threatened, any more than a threat to do harm in the future could be viewed as an act of self-defence.

VI

[39] Jenkins J. erred in law in holding that the convictions were unreasonable. The additional grounds advanced on behalf of the respondent do not demonstrate error in the trial proceedings. The order of the Superior Court should be set aside and the convictions restored.

RELEASED: “NOV 26 2002”

“DD”

“Doherty J.A.”

“I agree Austin J.A.”

“I agree Robert P. Armstrong J.A.”