DATE: 20040719
DOCKET: C40612
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) – and – KEITH LAWRENCE (Appellant)
BEFORE: WEILER, SHARPE and SIMMONS JJ.A.
COUNSEL: Susan Mulligan for the appellant
Lisa Joyal for the respondent
HEARD: July 14, 2004
RELEASED ORALLY: July 14, 2004
On appeal from the order of Justice Margaret P. Eberhard of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated August 18, 2003, setting aside the acquittal entered by Justice L. Theodore G. Collins of the Ontario Court of Justice dated December 6, 2002.
E N D O R S E M E N T
[1] The appellant appeals from the August 18, 2003, decision of Madam Justice Eberhard, sitting as a Summary Conviction Appeal Justice in Peterborough, whereby she ordered a new trial on the appellant’s assault charge and overturned the acquittal entered on December 6, 2002, by Justice L.T.G. Collins, of the Ontario Court of Justice.
[1] In our opinion the SCAJ did not err in holding that the general intent required to prove assault does not include the intent to cause discomfort to another person.
[2] That said, we do not read the trial judge’s reasons in the manner that the SCAJ did. This was a fact driven case. Taken in context, the trial judge was saying that he had a reasonable doubt that the appellant, in taking his wife’s arm at the elbow, intentionally applied more force than the ordinary touching that takes place with implied consent in a conjugal relationship. The trial judge could not say whether he accepted the appellant’s evidence that he had simply taken his wife’s elbow to guide her away from people so they could have a discussion in private just as he would guide her out to the dance floor and in that situation properly acquitted the appellant. The Crown did not meet the test in R. v. Vezeau (1977), 2 S.C.R. 277, and the SCAJ therefore erred in setting aside the acquittal and ordering a new trial.
[3] The appeal is therefore allowed, the order of the SCAJ is set aside and the acquittal entered on December 6, 2002 is restored.
“Karen M. Weiler J.A.”
“Robert J. Sharpe J.A.”
“Janet Simmons J.A.”