DATE: 20021031
DOCKET: C34463
COURT OF APPEAL FOR ONTARIO
O’CONNOR, A.C.J.O., CRONK and ARMSTRONG, JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Riun Shandler, for the respondent
Respondent
- and -
GUILLERMO VALLE-QUINTERO
Gregory Lafontaine, for the appellant
Appellant
Heard: May 22, 2002
On appeal from the convictions entered by Justice R.A. Minard on February 12, 1999 and the sentences imposed on March 30, 1999.
CRONK J.A.:
[1] The appellant was convicted of the attempted murder of his former girlfriend, Telma Quezada, and sentenced to ten years and four months imprisonment. He was found not guilty of uttering a threat to cause death, but was convicted of the lesser and included offence of uttering a threat to cause bodily harm. He received a concurrent sentence of six months imprisonment for that offence. In addition, following pleas of guilty, he was convicted of the offences of unlawful confinement, breach of recognizance of bail, and breach of probation. He received a concurrent sentence of six years imprisonment, a consecutive sentence of one year imprisonment, and a concurrent sentence of six months imprisonment, respectively, in connection with those convictions. He was found not guilty on a charge of possession of a weapon for the purpose of committing murder. The total sentence imposed was eleven years and four months imprisonment. He appeals his convictions of attempted murder and threatening to cause bodily harm and seeks leave to appeal his sentence.
[2] The appellant appeals from his conviction for attempted murder on the grounds that:
(i) the verdict is unreasonable because it is based on an erroneous finding of fact, namely, that the complainant’s head was covered with a plastic bag and secured by duct tape; and
(ii) the trial judge misdirected himself as to the requisite mens rea of attempted murder.
The appellant appeals from his conviction for uttering a threat to cause bodily harm on the basis that it is perverse and unreasonable given the trial judge’s conclusion that the appellant was not guilty of possessing a weapon for the purpose of committing murder. He also alleges various errors by the trial judge in his consideration of sentence. For the reasons that follow, I would dismiss the convictions appeal, grant leave to appeal sentence and dismiss the appeal as to sentence.
I. BACKGROUND TO THE CONVICTIONS
[3] The grounds of appeal on the convictions appeal require a detailed review of the evidence. The background facts in this case are horrific. I summarize them as follows.
[4] The appellant married a Canadian woman in Cuba in 1996. On May 11, 1997, he moved to Canada from Cuba to join his wife. He met the complainant, Telma Quezada, eleven days later and soon began an intimate affair with her which continued, with some interruptions, for approximately eighteen months.
[5] While the relationship between the appellant and the complainant was initially unproblematic, over time it became turbulent. It was the Crown’s theory that the appellant became increasingly abusive, manipulative and controlling of the complainant.
[6] In January 1998, the complainant was convicted of assaulting the appellant after an altercation between the appellant and the complainant’s teenaged son. She received a suspended sentence and probation. In April 1998, the appellant was convicted of assaulting the complainant; he received a suspended sentence and one year probation. His probation order required him to keep the peace and be of good behaviour, and to attend and actively participate in anger management counselling.
[7] At some point in 1997 or early 1998, the appellant concluded that the complainant was working in Scarborough at a massage parlour, an activity which he considered to be immoral. The appellant photographed the complainant at the massage parlour. The complainant told him that she was attempting to buy the massage parlour business and that she was not working there. The appellant believed that she was lying to him and engaging in activities which shamed him and of which he disapproved.
[8] In July 1998, the complainant travelled to California, where she had previously lived. The appellant followed the complainant there, without prior notice to her. He took photographs of a massage parlour, where he believed her to be working. He also photographed a car that was parked at the massage parlour; the complainant had been driving the car during her stay in California. An argument ensued when the appellant confronted the complainant with the photographs.
[9] In September 1998, the complainant returned to Canada. In early November 1998, the relationship between the appellant and the complainant terminated. The appellant claimed that he decided to return to his wife, and that he left the complainant’s apartment on November 4, 1998, taking his belongings with him. On the same day, the complainant lodged an assault complaint against the appellant, relating to an incident which allegedly occurred in mid-October 1998. The appellant was arrested on November 14, 1998 and released on bail on November 18, 1998. His bail conditions provided that he not communicate with the complainant, that he not be within 500 metres of her home or workplace, and that he keep the peace and be of good behaviour.
[10] On the night of November 18, 1998, notwithstanding the terms of his bail, the appellant telephoned the girlfriend of the complainant’s son and indicated that he wanted to make contact with the complainant to talk about his pending assault charge. The girlfriend told him that he was not to contact the complainant because of a court order. Nevertheless, he asked her to arrange a three-way call with the complainant for the next day. She agreed to do so.
[11] The next morning, before any call to the complainant took place, the appellant went to the underground parking garage of the complainant’s residence. The Crown alleged that the appellant brought with him a plastic bag containing duct tape, cloth ties, and a four foot long yellow canvas bag, for the purpose of killing the complainant.
[12] The complainant testified that, while she was backing her car out of her parking space, the appellant jumped into the car and forced her into the back seat. He told her that he wanted to be with her “for the last time”. The complainant noticed a plastic bag beside her on the back seat of the car, and observed that it contained silver tape, a yellow canvas bag, and a ball of what appeared to her to be rope or laces. The appellant grabbed the plastic bag from the complainant and threw it to the floor. He then tied the complainant’s hands and feet and, after unsuccessfully trying to force a sponge or a piece of foam into the complainant’s mouth, wrapped duct tape around her mouth, nose and chin.
[13] The appellant showed the canvas bag to the complainant, saying “this is for you”. The appellant then placed a bag over the complainant’s head and face and secured it by wrapping duct tape around her head several times. The complainant’s testimony referred to the canvas bag being on her head. She did not mention the plastic bag. It was the Crown’s theory that the appellant first placed the plastic bag over the complainant’s head, secured it with duct tape, and then placed the canvas bag over her head.
[14] After the “bag” was placed over the complainant’s head and secured with tape, the appellant locked the complainant in the trunk of her car and drove away.
[15] The complainant struggled strenuously to free herself. She testified that she freed one hand, untied her feet, and pulled the “bag” from her face and head. She attempted to hide the “bag” by placing it near the car’s signal lights. She removed the tape from her mouth and nose, removing her false nails in order to do so. When she could not open the trunk lid, she stuck her fingers out of the trunk to attract the attention of other drivers. Thereafter, according to her evidence, she heard the sound of a car horn. Within seconds, the appellant stopped the car at a busy strip mall plaza.
[16] The appellant parked the car at the back of the plaza, near a wooden enclosure containing two garbage dumpsters. The appellant opened the trunk after telling the complainant to put her fingers back inside. When the trunk was opened, the complainant tried to jump out, but the appellant pushed her back. She tried again to jump out and succeeded in doing so. The appellant grabbed her by her jacket and took her closer to the garbage dumpsters. According to the complainant, the appellant told her to keep quiet and to get back inside the car. He threatened to stop her, or stab her with a knife, if she did not do so. The complainant told the appellant that she would do as he asked if he threw away the knife. She believed that he did so, whereupon she sat down on the curb.
[17] In addition to the complainant, various investigating police officers and medical personnel, the Crown called four bystanders as witnesses who observed various events between the appellant and the complainant at the plaza. None of those witnesses saw the appellant with a knife or other weapon. The police searched the area; no weapon was recovered.
[18] As a result of interventions by at least two of the bystanders, one of whom told the appellant that he was going to call the police, the appellant walked around the corner of a building at the plaza and disappeared. The complainant was assisted into a restaurant in the plaza, and the police and an ambulance were called.
[19] The appellant testified that, on leaving the plaza, he approached a passing motorist and asked for a ride. He then approached a passing police cruiser. He told the police that his car had been stolen by three youths. He was allowed to leave and did so. The next day, after hearing on the news that the police were looking for him, he surrendered to the police and provided a videotaped statement.
[20] Investigating police officers found both a yellow canvas bag and a grey plastic bag inside the trunk of the complainant’s car. The plastic bag was torn, had large amounts of silver duct tape wrapped around the handles area, and had a substance on the outside surface of the bag which appeared to be blood. At trial, the officer-in-charge of the investigation testified that the plastic bag also had hair attached to it.
[21] In contrast, when found by the police, the yellow canvas bag had no duct tape, blood-like stains or hair on or attached to it. The canvas bag was approximately four feet long and two feet wide. It had a hemp rope closure.
[22] The defence position came from the evidence of the appellant. He admitted many of the facts alleged by the Crown. He acknowledged attending at the complainant’s parking garage on November 19, 1998, but claimed that he did so to discuss with the complainant his forthcoming court appearance on the pending assault charge for the purpose of urging her to “tell the truth”. He also said that he wished to return some photographs to her. It was the appellant’s position that the complainant had fabricated the assault charge against him, in revenge for his leaving her to return to his wife.
[23] The appellant also acknowledged tying the complainant up, placing duct tape around her face, placing the yellow canvas bag over her head, and locking her in the trunk of her car; however, he said that he did so for the purpose of taking her to a coffee shop to talk because the complainant had refused to talk with him in the car. He denied bringing the plastic bag, duct tape, cloth ties, and canvas bag to the underground parking garage on the morning of the incident. He said that those items were already in the complainant’s car or garage. He denied placing a plastic bag over the complainant’s head or having a knife in his possession, and he claimed that he never intended to kill her. It was the defence position that the appellant lacked the requisite intent to commit murder. The appellant also submitted that, since there was no reliable evidence of the existence of a knife and the complainant’s testimony regarding the alleged threat was inextricably linked to her testimony concerning the knife, the charge of uttering a threat to cause death or bodily harm had not been proven.
II. ANALYSIS
(1) Appeal of the Conviction for Attempted Murder
[24] Whether the verdict is unreasonable: did the trial judge err by finding that the complainant’s head was covered with a plastic bag and secured by duct tape?
[25] The information against the appellant alleged that he attempted to murder the complainant “by placing a plastic bag over her head, taping it, [and] tieing [sic] both hands and feet” [emphasis added].
[26] The Crown is obliged to prove an offence alleged against an accused, as particularized by the Crown: R. v. Saunders, 1990 1131 (SCC), [1990] 1 S.C.R. 1020 at 1023; R. v. Rosen, 1985 58 (SCC), [1985] 1 S.C.R. 83 at 85. Here, the Crown alleged the offence of attempted murder by a particular method, that is, by the placement of a plastic bag over the complainant’s head and the taping of it, in combination with the tying of both of her hands and feet. Thus, proof by the Crown of the use of the plastic bag was critical to the Crown’s case against the appellant.
[27] The appellant conceded that he had tied the complainant’s hands and feet. The trial judge found as a fact that the appellant had placed a plastic bag over the complainant’s head and secured it with duct tape. He concluded, therefore, that the Crown had proved the actus reus of the offence of attempted murder, as particularized. Before this court, Crown counsel acknowledged that the attempted murder conviction rests on the reasonableness of the trial judge’s finding that the appellant placed a plastic bag over the complainant’s head and secured it with duct tape.
[28] The trial judge’s analysis of the evidence concerning the use of the plastic bag began with reference to the complainant’s testimony on the issue, which he described as follows:
The next issue to be determined is whether the plastic bag was put over the complainant’s head and secured with duct tape, or not. The complainant is not sure. She does not recall the plastic bag, and her narrative of events does not include it being put on her head; but does contain a vivid description of her efforts to remove the canvas bag which had been put on her head and to secrete it in a corner of the trunk [emphasis added].
[29] The trial judge next observed that the appellant denied putting the plastic bag on the complainant’s head and securing it with duct tape. Thereafter, the trial judge set out in detail the basis for his conclusion that, despite the appellant’s denial, that had in fact occurred:
I have considered the matter as carefully as I can, and particularly I have examined the plastic bag, being exhibit 10, very carefully. I conclude that I have been satisfied beyond a reasonable doubt that the bag was, in fact, put over her head and secured by the duct tape. Why have I come to that conclusion? Exhibit 10 was recovered in the trunk. There was blood on it, no doubt from the complainant’s torn fingernails in her desperate and flailing attempts to remove the bags from her head and to assist her in breathing. The duct tape on the plastic bag is a substantial amount, and it is wound around the handles area of the bag exactly where one would expect it to be in order to secure it over a person’s head. The location and the amount, and the manner of the securing of the duct tape on the bag are clearly not consistent with a terrified complainant trying to remove duct tape from the canvas bag, or from her face area, and in her flailing efforts torn pieces of duct tape happened to get stuck to the bag. This duct tape was deliberately applied to this bag. There is a significant hole in the bag exactly where one would expect the complainant’s mouth and nose to be consistent with her desperate efforts to remove whatever was impeding her from breathing. The complainant’s inability to recall the plastic bag is understandable in the circumstances. She was fighting for her life in the trunk of a car, and the first thing she would be grappling with was the much heavier, more substantial yellow, canvas bag that had been placed over her head. Her inability to specifically recall removing the plastic bag does not surprise. There was no duct tape on the canvas bag. The bag could be secured by the drawstring. If the bag was secured by the duct tape, one would expect some evidence of this on the canvas bag, but the duct tape is on the plastic bag, not the canvas bag.
The defendant denies use of the plastic bag and in support of this [his counsel at trial] relies on the denial of the use of the plastic bag given to the police by the accused in the video tape statement taken on November 20th. I watched him very carefully when he was asked concerning the bag and whether or not he put a plastic bag on her head. He hesitated when he answered, and then he repeated the question before he answered it. His demeanour in responding to the question did not assist in a positive assessment of his credibility on this issue. I therefore conclude that notwithstanding the denial of the accused, and the complainant’s inability to recall, I have been nonetheless satisfied beyond a reasonable doubt that the accused placed a plastic bag over the head of the complainant and secured it with duct tape.
[30] The appellant argues that the trial judge’s finding that the plastic bag was placed by the appellant over the complainant’s head, and secured by duct tape, was not supported by the evidence, thus resulting in an unreasonable verdict. I disagree, for the following reasons.
[31] The issue of the use of the plastic bag by the appellant turned in part on an assessment of the credibility of the appellant’s denial that he placed the plastic bag over the complainant’s head and secured it with duct tape. The trial judge expressly considered and rejected the appellant’s version of events concerning the plastic bag, as he was entitled to do. His assessment of the appellant’s credibility is entitled to considerable deference from this court: See, for example, Housen v. Nikolaisen (2002), 2002 SCC 33, 211 D.L.R. (4th) 577 at 587–91 (S.C.C.) and R. v. S. (P.L.), 1991 103 (SCC), [1991] 1 S.C.R. 909 at 931.
[32] The trial judge also addressed the complainant’s evidence regarding the plastic and canvas bags. He acknowledged that her version of events contained a description of her efforts to remove the canvas bag but did not include any reference to a plastic bag. He described that discrepancy as the complainant’s “inability to recall” the plastic bag and concluded that her lack of recall was “understandable” given the traumatic events which she had experienced. The appellant challenges that finding on the basis that no evidence was led at trial concerning the complainant’s capacity for recall under stressful or frightening circumstances, and argues that it reflects a misapprehension of the complainant’s evidence by the trial judge. In my view, that challenge is defeated by the evidentiary record, and common sense.
[33] At trial, defence counsel (not counsel on this appeal) suggested to the complainant that the traumatic effect of being locked in the trunk of her car and tied up by the appellant may have caused her to become confused about the existence of a knife. The complainant agreed. Thus, the defence elicited evidence from the complainant that trauma could affect her recall of events.
[34] In addition, the reasons of the trial judge indicate that he was clearly alive to the complainant’s evidence regarding removal of the canvas bag and her failure to mention the plastic bag. His reference to the complainant’s “inability to recall” the plastic bag did not reflect a misapprehension of the evidence. Rather, in my view, it was an expression employed by the trial judge to describe the fact that the complainant’s version of events was directed to the removal of the canvas bag, in contrast to removal of the plastic bag.
[35] The trial judge’s reasons indicate his understanding that use by the appellant of the plastic bag was critical to the Crown’s case on the charge of attempted murder. Further, his conclusion that the complainant’s inability to recall the plastic bag was “understandable” in the circumstances did not require opinion evidence concerning the complainant’s capacity for diminished recall. That conclusion was based on the trial judge’s reasonable assessment of the evidence as a whole which, not surprisingly, established that the experience undergone by the complainant at the hands of the appellant was traumatic and highly upsetting to her. The trial judge’s reasons record his understanding of that impact on the complainant, which informed his assessment of the reliability of her evidence. His reference to her “inability to recall” being “understandable” was a simple recognition that there was a reasonable explanation for the complainant’s failure to mention the plastic bag.
[36] Moreover, the trial judge’s finding concerning the plastic bag was not based solely on his credibility findings. It also derived from his detailed observations of the physical evidence and his consideration of the related testimony of various witnesses concerning the physical evidence. That evidence, in my opinion, strongly supported the Crown’s theory that the plastic bag had been placed over the complainant’s head by the appellant and secured by duct tape. It is useful to review some of the important aspects of that evidence.
[37] A plastic bag was found in the trunk of the complainant’s car by the police, together with a yellow canvas bag. The plastic bag had blood-like stains on it. The canvas bag did not. If the plastic bag was not on the complainant’s head, as alleged by the Crown, it is difficult to explain the presence of blood-like stains on it and the absence of such stains on the canvas bag. It is clear from the trial judge’s exchange with counsel during final submissions at trial that he was alert to the possibility that blood stains became attached to the plastic bag from the complainant’s torn fingernails while she was trying to escape from the trunk, and not from her efforts to remove the bag. The trial judge’s reasons indicate that he rejected that supposition.
[38] Further, contrary to the appellant’s oral submissions before this court, there was some evidence that the plastic bag had hair attached to it. The canvas bag did not. The in-charge investigating police officer testified that he located and removed a grey plastic bag with blood and hair from the floor of the trunk area of the complainant’s car. His evidence in that regard was not challenged on cross-examination.
[39] The plastic bag also had a substantial amount of duct tape attached to it. The canvas bag did not. That fact is particularly telling because the canvas bag had a hemp rope closure. Thus, no duct tape would have been required to secure the canvas bag around the complainant’s neck, head or upper body. The appellant admitted affixing duct tape to the bag which he placed over the complainant’s head.
[40] In addition, as observed by the trial judge, the duct tape on the plastic bag was located around the handles area of the bottom of the plastic bag. That location was consistent with the Crown’s theory that the plastic bag had been placed upside down, over the complainant’s head, with the handles area of the bag around her neck. Moreover, the tape on the bag was wound over itself, in a manner consistent with the complainant’s description of how the tape was wound repeatedly around her neck. The defence theory at trial was that the duct tape accidentally became stuck on the plastic bag during the complainant’s panicked efforts to secure her release. The trial judge considered, and rejected, that theory as implausible. In my view, it was both open to him and proper to do so based on the physical evidence concerning the placement and amount of duct tape on the plastic bag, and the complainant’s testimony of how the tape was affixed to the bag on her head. Indeed, to conclude otherwise would be to accept that the duct tape became accidentally, and coincidentally, affixed to the plastic bag in the precise location and manner where it would have been found had it been applied deliberately.
[41] The plastic bag also had a ripped hole in a location which the trial judge noted was consistent with the place where the complainant’s mouth and nose would have been positioned had the bag been placed over her head. There was no ripped hole on the canvas bag. The appellant argues that there was no evidence at trial of the complainant ripping the plastic bag. However, contrary to that submission, the complainant testified that the first thing that she wanted to do when she freed her hands in the trunk of her car was to “pull out the thing I have on my head, and in that way I can try to pull out the tape that I have on my face”. The transcript reveals that when giving that evidence, the complainant made a ripping motion with her hands, over her face. The trial judge was in a position to observe the complainant when she made that motion, which was consistent with the complainant attempting to rip either or both a bag and tape from her face, in order to breathe. The plastic bag, as opposed to the sturdier, and heavier, canvas bag, was capable of being torn with bare hands, in the fashion described by the complainant.
[42] The trial judge’s conclusion concerning the appellant’s use of the plastic bag was a critical finding of fact to which the trial judge devoted considerable attention in his reasons. Unless it was not reasonably supported by the evidence, such a finding does not permit of appellate intervention: R. v. W. (R.) (1992), 1992 56 (SCC), 74 C.C.C. (3d) 134 (S.C.C.). I have no hesitation in concluding that the evidence amply supported the trial judge’s finding. Therefore, I would not give effect to this ground of appeal.
(b) Whether the trial judge misdirected himself as to the requisite mens rea of attempted murder
[43] The appellant argues that the trial judge misdirected himself as to the requisite mens rea of attempted murder. When the trial judge’s reasons are read as a whole, it is clear that, after finding that the appellant placed a plastic bag over the complainant’s head and secured it with duct tape, the trial judge next considered the appellant’s claim that he tied and bound the complainant and drove her to the plaza for the purpose of taking her for coffee to talk. That claim was an important support for the appellant’s denial that he intended to kill the complainant. Accordingly, the trial judge’s assessment of the reliability of that claim was a key part of his analysis of the evidence concerning the appellant’s state of mind.
[44] The trial judge’s rejection of the appellant’s claimed purpose for the trip to the plaza rested on a strong evidentiary foundation which included: i) the appellant parked his vehicle in a laneway at the back of the plaza near the dumpsters and not in a parking spot near the coffee shop at the entrance to the plaza. The appellant’s contention that he was required to do so because of the positioning of other vehicles in the plaza parking lot was not supported by the testimony of other witnesses who had been at the plaza; ii) the complainant was in very difficult circumstances while at the plaza. As found by the trial judge, she was tied and gagged, had duct tape entangled in her hair and around her head, and was in a distressed physical and emotional state. The trial judge concluded that her condition made it implausible that she could have accompanied the appellant for coffee; iii) there was no evidence that the plaza coffee shop was previously frequented by the appellant, alone or with the complainant; iv) the complainant testified that she was desperate to escape the trunk and that she struggled with the appellant in order to do so after he opened the trunk; v) although the complainant had repeatedly asked the appellant what he was doing, and where they were going, the appellant never told her that he was taking her for coffee to talk; and vi) the complainant heard a car horn honk shortly after she managed to get her fingers outside the trunk. The appellant stopped the vehicle in the plaza shortly thereafter.
[45] On that evidence the trial judge concluded, correctly in my view, that the purpose of the appellant’s stop at the plaza was not to take the complainant for coffee but, rather, to verify that the complainant was still secured in the trunk.
[46] It is in that context of reasoning that the trial judge next considered whether the evidence established an intention by the appellant to kill the complainant. He reviewed the submissions of both Crown and defence counsel and noted that the Crown relied on the following facts: i) the duct tape was secured by the appellant around both the complainant’s mouth and nose area; ii) as found by the trial judge, the appellant placed the plastic bag over the complainant’s head and secured it with duct tape; iii) the appellant then put the canvas bag over the complainant’s head and secured it by that bag’s drawstring; iv) the complainant’s hands were tied behind her back, to prevent her from being able to free herself; and v) the complainant’s feet were bound and she was placed in the trunk of her car.
[47] The trial judge accepted that those facts provided some evidence of an intention by the appellant to kill the complainant. He then commented, in connection with the Crown’s argument:
The Crown argues that the natural consequences of all of the above absent some further intervention is that the complainant would have suffocated and died. She, even with her escape, was still in a desperate state, hyperventilating. Oxygen was administered by Fire Department personnel who attended the scene. The Crown argues that all of what he did to her was life-threatening. The defendant must have known that the natural consequences had she not been able to loose herself, would have been that she would have suffocated to death, and that the accused must be taken to have intended the natural consequences of his actions.
[48] The trial judge next reviewed in detail, and rejected, the arguments the appellant advanced to support his contention that he did not intend to kill the complainant. The trial judge concluded:
[Defence counsel] also argues that the tape around the mouth and nose was more life-threatening than the plastic bag secured as it was by the duct tape. I have considered this argument and reject it. In doing so, I have considered the following. You can’t ignore that the duct tape was put over her mouth and nose and wound around her head numerous times. This would obviously make breathing very difficult, if not near impossible. But placing the plastic bag over the head and face and further securing it by the duct tape was a further means of ensuring the complainant would not be able to breathe. Add to this that he then puts a duffle bag over her head and further secures it will further make it virtually impossible for the complainant, in these circumstances, to breathe at all. The information says, and charges, an attempt to murder by placing a plastic bag over her head, taping it and tying her up. To tie her up was an essential part of his goal to suffocate her if, indeed, this was his goal. And the plastic bag secured as it was around her head would clearly assist, and aid, and quicken the suffocation process. This, in my view, is enough to return a finding of guilt given the wording in the information if I am satisfied on the whole of the evidence that the accused had such an intention to kill by suffocation.
The natural consequences of the accused’s action of securing her in the trunk as he did, absent her being able to undo the cloth tie-wraps, would have been death by suffocation. The accused tied her up, including hands behind the back to ensure she would not loose the wraps. He must have known in those circumstances that the natural consequence of these actions, as I have stated, was death by asphyxiation. I conclude therefore that this was his intent. The cumulative weight of the points argued by the defence do not cause me to have a reasonable doubt about that. To this end I concur with the points and items raised and relied upon by the Crown. I therefore find the accused guilty of the count of attempted murder [emphasis added].
[49] The appellant maintains that the basis of the trial judge’s conclusion that the Crown had established the requisite intent for attempted murder was reliance upon a “presumption” that a person intends the natural consequences of his or her acts, and that reliance on such a presumption was tantamount to the application of an objective, rather than subjective, standard for mens rea. In my view, that argument misconstrues the reasons of the trial judge.
[50] It is well established that there is no “presumption” that a person intends the natural consequences of his or her acts. Rather, it is an inference which may, but need not, be drawn based on all the facts of the case. As observed by Roach J.A. of this court in R. v. Giannotti, 1956 160 (ON CA), [1956] O.R. 349 at 364 (C.A.):
That a person intends the natural consequences of his acts is not a presumption of law. Denning L.J. dealt with that matter in Hosegood v. Hosegood, (1950), 66 T.L.R. 735 at p. 738, which incidentally, was a civil case, thus: “When people say that a man must be taken to intend the natural consequences of his acts, they fall into error: there is no ‘must’ about it: it is only ‘may’. The presumption of intention is not a proposition of law but a proposition of ordinary good sense. It means this: that, as a man is usually able to foresee what are the natural consequences of his acts, so it is, as a rule, reasonable to infer that he did foresee them and intend them. But, while that is an inference which may be drawn, it is not one which must be drawn. If on all the facts of the case it is not the correct inference, then it should not be drawn.”
See also, R. v. Beyo (2000), 2000 5683 (ON CA), 47 O.R. (3d) 712 at 725-26 (C.A.), leave to appeal to S.C.C. refused [2000] 2 S.C.R. vi.
[51] The offence of attempted murder requires proof of a specific, subjective intent: R. v. Ancio, 1984 69 (SCC), [1984] 1 S.C.R. 225. It cannot be presumed that such a subjective state of mind must follow from a person’s actions. In my view, however, the trial judge here did not presume such an intention by the appellant. To the contrary, he determined the appellant’s state of mind by a detailed consideration of the relevant evidence, including the appellant’s denial of such an intent and the alternative explanations advanced on behalf of the appellant for his actions. The trial judge made express reference to the evidence, including the appellant’s evidence, that could bear on the question of his state of mind.
[52] This trial was conducted by a judge, without a jury. The trial judge considered the extensive submissions made by defence counsel at trial regarding the absence of mens rea and rejected them. He gave thorough reasons explaining what evidence he accepted and what evidence he rejected. He must be presumed to know the law. As this court stated in R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 at 524 (C.A.), per Doherty J.A.:
Where a phrase in a trial judge’s reasons is open to two interpretations, the one which is consistent with the trial judge’s presumed knowledge of the applicable law must be preferred over one which suggests an erroneous application of the law. … [citation omitted].
[53] I conclude that the trial judge drew a permissible inference of the requisite subjective intent for attempted murder from the facts established by the evidence and accepted by him. Many of those critical facts were conceded by the appellant. On the demonstrated facts, such an inference reasonably and logically could be drawn (see Morrissey, at 530).
[54] Finally, in connection with mens rea, I note that the appellant submits in his factum that the trial judge erred by failing to consider alternative guilty states of mind that are equally consistent with the facts relied upon by the trial judge as establishing an intention by the appellant to kill the complainant. That contention was not advanced by the appellant’s counsel in oral argument at this hearing. Accordingly, it is unnecessary to address it.
(2) Appeal of the Conviction for Threatening to Cause Bodily Harm
[55] The trial judge had a reasonable doubt concerning the reliability of the complainant’s evidence regarding the existence of a knife. In particular, he noted that the police had been unable to locate a knife or similar weapon during their investigation, and that the complainant herself had conceded on cross-examination that she may have been mistaken about the existence of a knife. As I mentioned earlier, none of the bystanders to the incident in the plaza observed the appellant with a knife or other weapon, and the appellant denied having a knife. Accordingly, the trial judge acquitted the appellant of the charge of possession of a knife, or imitation thereof, for the purpose of committing murder.
[56] The appellant asserts that the existence of a knife was integral to the determination of whether there was a threat. Therefore, he argues that the trial judge’s conclusion that the existence of a knife had not been proven dictated an acquittal on the charge of threatening to cause death, and it was unreasonable and perverse for the trial judge to convict the appellant of the lesser and included offence of threatening to cause bodily harm. I disagree.
[57] The trial judge gave the following reasons for finding the appellant guilty of threatening to cause bodily harm to the complainant:
I propose now to consider count number four, which is the charge of possession of a knife, or imitation thereof for the purpose of committing murder. This is linked with count number three concerning the threat to cause death to Telma Quezada, that arises in factual circumstances where the two are near the dumpster at the rear of Panini’s Bakery. And it is Telma Quezada’s evidence that the accused had in his hand what appeared to be a silver kitchen knife, and that he threatened to stab her with it if she did not remain quiet and stop doing things that would draw attention to the two of them.
The complainant recalls that there was such a knife which the defendant in a motion of throwing his hand over his shoulder she believed had deposited it in the dumpster area after she had assured him that if he would get rid of the knife that she would comply with his request. The police have conducted a thorough search of the dumpster and the area around it and have found no knife, or anything akin to a knife. A silver X-acto knife was found in the vehicle, but there is no suggestion on the whole of the evidence that this may have been what was in the accused’s hand. The complainant admits, obviously reluctantly, that she may have been mistaken about the knife, or object in the accused’s hand that he had at the time that he threatened to stab her with. The evidence is not such that the court can conclude beyond a reasonable doubt that at the time the alleged threat was made the accused had a knife in his hand. Accordingly, I have a reasonable doubt on this issue and the accused will be found not guilty on count four.
That leaves the consideration then of count three, the threatening to cause death. I have found a reasonable doubt with respect to the reliability of the complainant’s evidence concerning the existence of [sic] knife. Is it possible, therefore, to be satisfied beyond a reasonable doubt that such a threat was made. I conclude that it is. The complainant may or may not have been mistaken about an object or a knife in the accused’s hands, but she clearly recalls the threat that was made in circumstances where one would expect such a threat would, indeed, be made. And her evidence on this, in my view, is credible and reliable. He was desperate to keep her quiet and to have her behave as if nothing was wrong and to get her back to the car. The civilians who have testified were closing in, and he was trying hard to convince them that this was no big deal. The charge is threatening to kill. The evidence is that he threatened to stab her. The appropriate charge, therefore, is threaten to cause bodily harm, a lesser and included offence. I have considered this matter and the evidence in support of it as carefully and objectively as I can, and I conclude that the Crown has made out the offence: that is, the lesser and included offence of threaten to cause bodily [harm] by threatening to stab her, beyond a reasonable doubt. And I therefore find the accused guilty of this lesser and included offence.
[58] The trial judge noted that the charge of possession of a knife, or imitation thereof, for the purpose of committing murder was related to the separate charge of threatening to cause death. Count number three in the information against the appellant reads as follows:
And further that Guillermo VALLE-QUINTERO on or about the 19 day of November in the year 1998 at the City of Vaughan in the said Regional Municipality of York did verbally knowingly utter a threat to Telma QUEZADA to cause death to Telma QUEZADA contrary to the Criminal Code Section 264.1 (1) (a).
[59] Thus, as framed in the information against the appellant, the offence of threatening to cause death was not particularized so as to include reference to the threatened use or possession of a knife or other weapon. The offence as framed was restricted to the language of s. 264.1 (1) (a) of the Criminal Code, R.S.C. 1985, c. C-46, as amended, which provides:
264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat
(a) to cause death or bodily harm to any person; [emphasis added].
[60] As appears from the language of s. 264.1 (1) (a) of the Code, the offences of knowingly uttering a threat to cause death or to cause bodily harm to any person are not dependent upon proof of any particular method for effecting the threatening utterance, or upon the possession or use of a weapon. The plain language of s. 264.1 (1) (a) contemplates that a threat to cause death or bodily harm to any person uttered or conveyed “in any manner” is sufficient to establish an offence.
[61] The mens rea of the offence of threatening to cause bodily harm is established if the words used were meant to intimidate, to instil fear, or to be taken seriously. Under s. 264.1 (1) (a), it is a crime to issue a threat without any further action being taken beyond the threat itself: R. v. Clemente, 1994 49 (SCC), [1994] 2 S.C.R. 758. At p. 762 of Clemente, Cory J., on behalf of the Supreme Court of Canada, confirmed that R. v. McCraw, 1991 29 (SCC), [1991] 3 S.C.R. 72 set out the proper approach to a charge of threatening. McCraw, at p. 83, directs the court to focus on the following question:
Looked at objectively, in the context of all the words written or spoken having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person?
(See also, Beyo, at 527).
[62] The complainant testified during her examination-in-chief that during her confrontation with the appellant in the plaza parking lot, after she told him to let her go and to stop what he was doing, the appellant “told me that if I didn’t keep quiet, that I should stop talking. That I shouldn’t do anything. I shouldn’t talk, because if not he was going to stop me [emphasis added]. She further stated that the appellant was going to stop her with a knife, that he had said “I will stab you here, now” and that the appellant had told her “that if I talk, or scream, or do something, he was going to give me a stab.” During cross-examination, she stated that the appellant told her that “if [she] make noise he will stab me…” and that she told the appellant to throw the knife away. She also acknowledged that she was nervous and perhaps was confused and that “it could be” that there wasn’t a knife at the scene in the plaza.
[63] The questioning of the complainant on the alleged threat by the appellant focused on whether the appellant had a knife in his possession which the complainant claimed to have seen and later described to the police. She was not cross-examined on the threatening words allegedly used by the appellant, or upon her assertion that the appellant had told her that she shouldn’t talk because “if not he was going to stop [her]”. Similarly, it was not suggested to the complainant during cross-examination that the words used by the appellant were not frightening or intimidating, or that no threat of any kind had been made by him. The appellant denied having a knife in his possession. He did not deny making any threat to the complainant, although his narrative of events made no reference to a threat.
[64] In the circumstances of this case, in my view, the trial judge was not required to segregate the complainant’s evidence at trial concerning the existence of a knife from her evidence regarding a threat by the appellant. Indeed, he was required to consider the entirety of the evidence concerning the alleged threat in the context of all the words spoken, and the manner in which they were spoken, to the complainant by the appellant. Here, that context involved a continuum of closely connected events.
[65] Moreover, proof of the offence of threatening to cause bodily harm was not dependent upon demonstration of the existence of a knife or other weapon. The actus reus of the offence is the uttering of the threat. The trial judge found the complainant’s evidence about the fact of a threat to be credible and reliable. It was open to the trial judge to accept the complainant’s evidence that the appellant had threatened to “stab” and “stop” her. On her evidence, it is clear that the words spoken were intended to be taken seriously and to instil fear. Accordingly, the trial judge’s conclusion that the appellant threatened to cause bodily harm to the complainant was neither perverse nor unreasonable.
(3) Appeal as to Sentence
[66] The appellant argues that the trial judge erred in several respects in his consideration of sentence. At this hearing, the court called upon the Crown to respond only to the appellant’s submissions on his convictions appeal. For the reasons that follow, I would not give effect to any of the appellant’s grounds of appeal on his appeal as to sentence.
(a) Psychological harm
[67] By the time of the appellant’s sentencing hearing, the complainant had experienced a change of heart regarding the appellant and was visiting him in jail on a frequent basis. She testified at the sentencing hearing that she had not suffered any psychological problems arising from the incident in question and urged that the appellant receive the “most minimum sentence”. The trial judge stated:
It was obvious from the manner of her testimony at the trial that she was traumatized and remains traumatized by this incident. And this, in my view, only accords with common sense. She will never be able to entirely put this incident behind her. And the fact that she now claims that she’s fine is, in my view, more testament to the defendant’s influence over her, and his manipulative skills with respect to the complainant.
The appellant argues that the trial judge erred in reaching those conclusions, in the absence of direct evidence of psychological harm to the complainant. I am unable to accept that submission.
[68] There was clear evidence at trial of the trauma visited upon the complainant by the appellant. Moreover, the pre-sentence report concerning the appellant contained this concluding passage:
It is the opinion of the writer that the subject is a manipulative, violent and duplicitous individual who does not possess the capacity or the desire to understand either the gravity or potential consequences of his actions.
It was open to the trial judge to conclude on that evidence that the complainant’s change of heart concerning the appellant and her claim of no psychological harm was the product of the appellant’s continuing control over, and manipulation of, her following his convictions. I think that the trial judge’s approach during sentencing to the effect of the incident on the complainant was without error and grounded on the evidentiary record.
(b) The appellant’s early guilty pleas
[69] The appellant contends that the trial judge erred by either not taking into account the appellant’s early guilty pleas to some of the charges against him, or by failing to give any mitigating benefit to the appellant in consequence of those pleas. I disagree. As Crown counsel argues, the trial judge’s reasons clearly reflect that he was alive to the mitigation relevance of the appellant’s early guilty pleas. Had the trial judge not intended to assign some mitigating benefit to those pleas, there was no need to refer to them in his reasons. Having noted the guilty pleas in his consideration of sentence, the trial judge was not required to state explicitly the extent of mitigation benefit afforded by those pleas or to further confirm that he had treated them as a mitigating factor.
(c) Consideration of aggravating factors
[70] The appellant submits that the trial judge erred in two additional respects. First, the appellant points to his plea of guilty to the charge of breach of recognizance of bail, and his sentence on that charge, to contend that the trial judge erred by treating as an aggravating factor the fact that the offence occurred immediately after the appellant was released on bail, a term of which required that he have no contact with the complainant. Consideration of that factor, the appellant maintains, resulted in him being punished twice for the same offence. Second, the appellant asserts that the trial judge erred in finding, as a fact, that he lacked remorse. I would reject those arguments.
[71] The trial judge noted numerous serious aggravating factors in this case. They included the fact that: i) the nature of the offence was very serious and arose out of a domestic situation; ii) a significant degree of planning and deliberation was involved, including bringing to the complainant’s garage the items that were used in commission of the offence; iii) the offence occurred immediately after the appellant was released on bail, the primary terms of which “he honoured in the immediate breach…”; iv) the appellant had a prior conviction for an assault against the complainant; v) there was a history of stalking between the complainant and the appellant; and vi) the appellant’s attitude towards the complainant was one of dominance, possessiveness and jealousy.
[72] Those aggravating factors warrant a significant penitentiary sentence which clearly repudiates and denounces the type of conduct in which the appellant engaged: R. v. Denkers (F.P.) (1994), 1994 2660 (ON CA), 69 O.A.C. 391 (C.A.). The fact that the attempted murder occurred while the appellant was on bail, on terms designed to protect the complainant, was but one relevant factor which the trial judge could, and did, consider in fashioning a proper sentence. It formed part of the overall context in which the offence occurred and bore directly on the circumstances of the appellant relevant to sentencing. Here, the sentence imposed by the trial judge was not directed only or primarily at that aspect of the appellant’s misconduct. Rather, the trial judge considered the need for specific and general deterrence and fashioned a lengthy sentence of imprisonment to denounce all of the appellant’s conduct. In R. v. Bates (D.R.) (2000), 2000 5759 (ON CA), 134 O.A.C. 156 (C.A.), this court emphasized how critical it is that offenders not breach court orders or their undertakings to the court while on release. The trial judge’s approach to the issue, in my view, was both necessary and proper.
[73] The trial judge also stated in his reasons for sentence:
I have considered carefully whether there is any presence of remorse in this case, and I find that there is none. In so finding, I’ve considered that the accused refused anger management counselling which was a term of the probation order on his assault conviction. …The accused, in his testimony, it is clear, still does not believe that he requires any kind of such counselling.
He testified that the only person in his life that he hasn’t been able to get along with was the complainant. And this, in my view, speaks volumes with respect to his attitude, and the fact that in his heart he believes that the real problem here is not with him but with the complainant. The lack of remorse has further been commented upon in the pre-sentence report and, in my view, any present protestations of remorse are not genuine.
[74] In making those observations the trial judge was properly concerned with the appellant’s prospects for rehabilitation because he refused to take treatment and failed to accept responsibility for his own actions. The trial judge acknowledged that the appellant claimed at his sentencing hearing to be remorseful, but also noted that the post-convictions material indicated that the appellant was at “great risk to re-offend”. The pre-sentence report contained the following statement: “[T]he subject presented as an individual who has been wronged both by his lover and by the justice system. He exhibited absolutely no remorse for his actions and adamantly maintained that he was justified in engaging in such behaviour.” The trial judge was entitled to take such evidence into account in assessing the credibility of the appellant’s claim of remorse for the purpose of arriving at a fit sentence.
(d) The totality principle
[75] Finally, the appellant contends that the sentence imposed was harsh and excessive having regard to the totality principle and the nature of the offence and the offender. I would reject that argument. The trial judge specifically addressed the totality principle in his reasons for sentence. Further, he reduced the sentence which he otherwise would have imposed for the charge of attempted murder, in recognition of the appellant’s pre-trial custody, and considered the appellant’s steady employment and positive work ethic as mitigating factors. In accordance with the caselaw provided to him, he declined to impose a penitentiary sentence in the range of seventeen years to life, as urged by the Crown, because the complainant did not suffer significant physical injury as a result of the appellant’s actions.
[76] The nature of the offences committed by the appellant is grave and the circumstances surrounding their commission are repugnant and violent. The trial judge applied the proper principles to sentencing and considered the circumstances of the offence and of the appellant. The sentence imposed was within the acceptable range of sentences for similar offences. Accordingly, I conclude that there is no basis on which appellate interference with that sentence is justified.
III. DISPOSITION
[77] For the reasons given, I would dismiss the convictions appeal, grant leave to appeal the sentence and dismiss the appeal as to sentence.
RELEASED: “OCT 31 2002”
“DOC” “E.A. Cronk J.A.”
“I agree Dennis O’Connor A.C.J.O.”
“I agree Robert P. Armstrong J.A.”