DATE: 20021021 DOCKET: C38162

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) - and - RANDY CARL LOWRY (Appellant)

BEFORE: FINLAYSON, MOLDAVER and FELDMAN JJ.A.

COUNSEL: Irwin Koziebrocki For the appellant

Howard Leibovich For the respondent

HEARD: October 8, 2002

RELEASED ORALLY: October 8, 2002

On appeal from conviction by Justice Lorne E. Chester of the Ontario Court of Justice on December 14, 2001.

E N D O R S E M E N T

[1] [1] The court is divided. The majority would dismiss the appeal.

[2] [2] The appellant appeals his conviction for uttering a threat on the ground that the trial judge erred by basing his finding that the appellant intended to threaten and intimidate the victim, on the victim’s subjective fear reaction.

[3] [3] In the view of the majority, the trial judge made no error in his assessment, and based his conclusion on an objective analysis of the evidence including the words spoken, “the circumstances in which they were uttered, the manner in which they were spoken, and the person to whom they were addressed” in accordance with R. v. Clemente (1994), 91 C.C.C. (3d) 1 (S.C.C.) at p. 4. After referring to Clemente, he proceeded to analyze the evidence to determine objectively whether the appellant intended the threat to be a threat of serious bodily harm. The factors the trial judge took into account together with the words spoken were: (1) the fact that the appellant was drinking; (2) the fact that in the past the appellant had beaten the victim when he had been drinking; (3) the fact that the appellant knew that it was in such circumstances that he had previously been violent with the victim.

[1] [4] Absent any explanation from the appellant, the trial judge was entitled to come to the conclusion he did. The fact that the appellant did not carry out the threat did not mean that he did not have the intent to carry it out when the threat was made.

[2] [5] Accordingly, the majority would dismiss the appeal from that conviction.

[3] [6] The appellant abandoned his appeal with respect to the impaired driving conviction and, accordingly, the appeal against that conviction is also dismissed.

[4] [7] Finlayson J.A., dissenting, would allow the appeal with respect to the charge of uttering a threat. In his view, the statement of the appellant that “if you do not stop bugging me you will get it”, viewed objectively, and in the light of the subsequent conduct in which the utterance was not repeated and no attempt was made to assault the spouse, should have raised a reasonable doubt as to whether he was guilty of uttering a threat. The trial judge only concluded that it was a threat by considering the subjective reaction of the spouse to the words uttered. The court should be reluctant to interpose the heavy hand of the Criminal Code into domestic disputes except in the clearest of cases. This is not such a case.

Signed: “G.D. Finlayson J.A.”

M.J. Moldaver J.A.”

K. Feldman J.A.”