DATE: 20030403

DOCKET: C38134

COURT OF APPEAL FOR ONTARIO

CRONK, GILLESE and ARMSTRONG JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

C. Jane Arnup for the respondent

Respondent

• and -

ROCKY BASILIO

Paul Slocombe for the appellant

Appellant

Heard: February 20, 2003

On appeal from the convictions by Justice Keith A. Hoilett of the Superior Court of Justice dated April 18, 2002 and from the sentence imposed on June 6, 2002.

GILLESE J.A.:

[1] The appellant was convicted of aggravated assault, assault with a weapon, weapons dangerous and common assault arising out of a bar room brawl. He raises three grounds of appeal in support of his submission that acquittals should be entered or a new trial ordered. He seeks leave to appeal from sentence, as well.

Background

[2] The appellant, his girlfriend Adelpha and several friends were at a bar on April 1, 2000. The complainants, David Kerr and Aileen Lee, were also at the bar along with an acquaintance, Tiago Gonsalves. Lee was dancing when an altercation began between Adelpha and her. The appellant and others then attacked Lee. Kerr went to her rescue and the group set upon him. Gonsalves tried to get Kerr to leave but Kerr resisted. He was angry at having been attacked and wanted to fight the people who had punched him. Kerr kicked the front door of the bar, causing its glass to break. At about the same time he felt what he thought was a push from behind. He, in fact, had been stabbed. He collapsed after walking a few steps. After the stabbing, the appellant walked back and forth outside the bar through a group of people milling about. He was waving a knife.

[3] It took twenty-seven staples to close David Kerr’s stomach wound. His chest, diaphragm and liver had been punctured; two litres of blood had flowed into his abdomen from the liver stab wound. Without immediate medical attention, he would have died.

[4] The appellant testified. He denied stabbing Kerr and that he had a knife in his possession. He testified that Kerr stabbed him at the base of his right thumb, a wound that required three stitches to close. He admitted that he had intervened in the fight between Lee and Adelpha and that he had pushed Lee against a wall. Thereafter, he maintained, he was a bystander.

The Onus of Proof and W.D.

[5] Based on R. v. W.D. (1991), 63 C.C.C. (3d) 397 (S.C.C.), the appellant submits that the trial judge erred by placing the burden of proof on the appellant. He relies on the following sentence from the trial judge’s reasons for this submission:

I do not find credible that evidence tending to support the accused’s position; nor does it raise a reasonable doubt in my mind … [emphasis added].

[6] The appellant says that the use of the word “raise”, rather than “left in” as was suggested in W.D., shows that the trial judge placed the burden of proof upon the appellant.

[7] This was a trial by judge alone. In considering the trial judge’s reasons as a whole, it is my view that although he did not use exactly the same words as in W.D., he followed the approach that it recommended. He disbelieved the appellant’s evidence on the crucial issues involving the appellant’s role in the fight and gave reasons for coming to that conclusion. Thereafter, he referred to the evidence supporting the appellant’s position and made the impugned statement that it did not “raise a reasonable doubt in my mind concerning the accused’s guilt”.

[8] In my view, the statement in question reflects the second stage of analysis recommended in W.D. The second stage requires the trier of fact who disbelieves the testimony of the accused to acquit if the testimony leaves him or her in a reasonable doubt. Here, the trial judge found that the evidence did not raise a reasonable doubt in his mind. It was not a shifting of the burden to the appellant to raise a reasonable doubt. Rather, the statement shows that the trial judge disbelieved the appellant’s testimony and had determined that the testimony did not leave him with a reasonable doubt. Accordingly, this ground of appeal fails.

The Reasonableness of the Convictions

[9] The appellant submits that the verdicts were unreasonable and unsupportable on the evidence.

[10] With respect to the assault on Lee, the appellant admitted shoving Lee and that she fell as a result. This confirms, at least in part, her identification of the appellant as one of her attackers. In the circumstances, there can be nothing unreasonable in determining that the appellant assaulted Lee.

[11] There was ample circumstantial evidence to support the appellant’s conviction for aggravated assault and assault with a weapon. That evidence includes:

1. the appellant acknowledged that he was within two feet of Kerr moments after the glass in the door was broken and Kerr was stabbed;
2. Lee saw the appellant push Kerr from behind;
3. after being pushed, Kerr took several steps and started to collapse;
4. no one else was seen to have physical contact with Kerr in the moments between breaking the glass and his collapse from the stab wounds;
5. Lee testified that the appellant was wearing a hat or cap;
6. Kerr said his assailant was wearing a cap and carrying a thin-bladed knife;
7. shortly after the stabbing, the appellant was seen by a person whom he knew, walking back and forth in a crowd and openly carrying a thin-bladed knife;
8. there was no evidence that anyone else was seen with a knife.

The Rule Against Multiple Convictions

[12] The appellant argues that the same act grounds each of the first three counts and that the rule against multiple convictions should apply. Application of the Kienapple principle, he submits, would lead to convictions on only counts 1 and 4 (aggravated assault upon Kerr and common assault upon Lee). See R. v. Kienapple (1974), 15 C.C.C.(2d) 524 (S.C.C.). The trial judge, he argues, erred in failing to apply the principle.

[13] In R. v. Prince (1986), 30 C.C.C. (3d) 35 (S.C.C.) at pp. 43-52, the Supreme Court of Canada stated that multiple convictions should be barred where there is a sufficient factual and legal nexus between counts. In my view, there is no sufficient factual nexus between the events surrounding the possession of a weapon for a purpose dangerous and that of the assault upon Kerr. The same act did not ground each of the charges. The actus reus of the weapon offence consisted of waving a knife, shortly after the fight and stabbing, while many of the combatants milled about. Although the stabbing and the waving of the knife were close in time, they were separate wrongful acts.

[14] Does the Kienapple principle apply to the two counts in which Kerr is the complainant, namely, aggravated assault and assault with a weapon? The Crown properly concedes that the factual nexus is met in respect of those two counts because both are based on the single assault with a knife, by the appellant, upon Kerr. The Crown argues, however, that the conviction for assault with a weapon should not be stayed because the requisite legal nexus does not exist between the two counts.

[15] The Crown’s argument runs as follows. To analyse the legal nexus requirement, one must determine whether the elements of the two charges are sufficiently similar and whether the lesser offence contains distinct or additional elements. Assault with a weapon is the lesser offence as it carries a maximum period of imprisonment of ten years whereas conviction for aggravated assault carries a maximum sentence of fourteen years. The count alleging aggravated assault particularizes that the appellant wounded Kerr. There is no requirement, either in the charge as framed in the indictment or in the section creating the offence (s. 268), that a weapon be used in the commission of the offence. The lesser offence requires the use of a weapon. As such, it contains a distinct or additional element, the legal nexus does not exist and the rule against multiple convictions does not apply.

[16] I disagree. In my view, there is a sufficient legal similarity such that the Kienapple principle does apply. In coming to this conclusion, I rely upon R. v. French, [1993] O.J. No. 1063 (Ont. C.A.)[^1], a decision of this court involving a single act leading to charges of assault with a weapon and aggravated assault. At paragraph 2 of the endorsement, the court agreed that the Kienapple principle applied “ … [s]ince the assault with a weapon and the aggravated assault were, in effect, the same transaction”. The court then stayed the count for assault with a weapon.

[17] I am mindful that the Alberta Court of Appeal came to a different result in R. v. Strawberry, [1995] A.J. No. 579 (Alta. C.A.). In Strawberry, the appellant was also charged with assault with a weapon and aggravated assault. At paragraph 9 of the reasons, Stratton J.A. writing for the court, rejected the argument that the Kienapple principle should apply saying:

The fact of a wound having been inflicted introduces an additional element to the assault with a weapon. In this respect we follow the rationale of this court in R. v. Switzer (1987), 1987 ABCA 23, 32 C.C.C. (3d) 303.

[18] The Switzer case, however, involved charges of aggravated assault and use of a firearm in the commission of an indictable offence arising from a single act. As the court in Switzer noted, the legislative provisions governing the use of firearms makes it clear that Parliament abrogated the rule against multiple convictions in such cases. The court in Switzer relied upon the decision of this court in R. v. Langevin (1979), 47 C.C.C. (2d) 138 (Ont. C.A.) and the following passage by Martin J.A. at p. 146 in particular.

It is clear to me that Parliament intended by s. 83 to repress the use of firearms in the commission of crimes by making such use an offence in its own right, and one which attracts a minimum sentence of one year consecutive to that imposed for the offence which such use accompanies. The use of firearms in the commission of crimes is fraught with danger and gravely disturbing to the community, and Parliament has sought to protect the public from the danger and alarm caused by that use by enacting the present legislation. It is not for the Courts to pass upon either the wisdom or the necessity for the legislation, but to give effect to the clear intention of Parliament expressed in the language which reflects that intention.

Manifestly, the legislation is directed at those crimes in which firearms are likely to be used, such as robbery, and not at offences where they are not likely to be used, for example, forgery. To construe the section as not applicable to the use of a firearm during the commission of the offence of theft while armed with a firearm would largely defeat the clear intention of Parliament.

[19] This court followed Langevin in R. v. Osborne (1994), 94 C.C.C. (3d) 435 (Ont. C.A.), leave to appeal to the Supreme Court of Canada dism’d [1995] S.C.C.A. No. 91, and found that an accused could be convicted of both aggravated assault and use of a firearm while committing an indictable offence. Citing Langevin, the court noted that aggravated assault can be committed in a variety of ways and with the use of different weapons, but if the perpetrator elects to use a firearm as a weapon, he can expect to receive an additional and mandatory sentence by virtue of s. 85 of the Criminal Code.

[20] The clear legislative intent identified in Langevin, Osborne and Switzer, to create a separate firearms offence, does not apply to the present appeal. Section 267 does not create a stand-alone weapons offence but, rather, a type of assault.

[21] In Prince, the court sets out three ways in which sufficient legal correspondence can be found to exist. First, an element may be a particularization of another element. Second, there may be multiple ways of proving a single delict. The third arises where Parliament, in effect, deems a particular element to be satisfied by proof of a different nature, not because logic dictates the conclusion but because of social policy or inherent difficulties in proof. The court concludes by emphasizing that application of the criteria is not to be done in a fashion that causes us to “lose sight of the overarching question whether the same cause, matter or delict underlies both charges”.

[22] On the facts of this case, the same delict underlies both charges. The wounding in the charge of aggravated assault was inflicted through the use of the knife to stab Kerr. It is a knife wound. It is this same wrongful use of a knife to stab Kerr that underlies the charge of assault with a weapon. To focus on the distinction between the elements of wounding and use of a knife, without reference to the essential connection between these two elements on the facts of this case, is to lose sight of the overarching consideration that the same wrong underlies both charges. The wrongful use of the knife is addressed through the more serious offence of aggravated assault. Thus, the conviction for the lesser offence of assault with a weapon should be set aside.

The Sentence Appeal

[23] At the time of sentencing, the Crown sought a custodial term of between eighteen months and two years less a day and urged the court to impose a sentence at the top of the range. The defence asked for a jail term of between eight and twelve months. The appellant was sentenced to two years less a day followed by two years probation; a ten-year prohibition order pursuant to s. 109 was made, as well.

[24] At the hearing of the appeal, counsel for the appellant conceded that unless he were successful on the conviction appeal, the sentence was fit. Although he was successful in part, the original sentence in my view was a lenient one and ought not to be interfered with despite that success.

[25] The appellant was convicted of assault upon Aileen Lee and possession of a weapon dangerous to the public in addition to his conviction for aggravated assault of David Kerr. The aggravated assault was a serious, violent offence in which the victim sustained life-threatening injuries. The appellant’s actions after the stabbing of walking back and forth displaying a knife in a highly charged atmosphere were dangerous.

[26] The sentence, after allowing for the result of the convictions appeal, is not manifestly unfit nor is it clearly unreasonable. There is no reason to interfere with it.

Disposition

[27] Accordingly, I would allow the appeal against convictions in part: the conviction on counts 1, 3 and 4 will stand but the conviction on count 2 will be set aside and the charge on that count will be stayed. I would grant leave to appeal the sentence and dismiss the sentence appeal.

“E. E. Gillese J.A.”

“I agree E.A. Cronk J.A.”

“I agree R.P. Armstrong J.A.”

Released: April 2, 2003

[^1]: Leave to appeal to the Supreme Court of Canada was denied but the application for leave appears to have been limited to the question of admissibility of similar fact evidence. See [1993] 3 S.C.C.A. 336.