DATE: 20050418

DOCKET: C42507

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Appellant) – and – GERARD KOLKMAN (Respondent)

BEFORE: ROSENBERG, MOLDAVER and GOUDGE JJ.A.

COUNSEL: Tina Yuen for the appellant Robert Sheppard for the respondent

HEARD & ENDORSED: April 15, 2005

On appeal from the order of Justice William J. Jenkins of the Superior Court of Justice, sitting as a Summary Conviction Appeal Court Judge, dated September 15, 2004, quashing the conviction by Justice Katie McKerlie of the Ontario Court of Justice, dated June 9, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] The Crown concedes that the respondent’s beliefs were honestly held. The issue is whether those beliefs were reasonable in the circumstances.

[2] The trial judge held that “there were no reasonable grounds for apprehending imminent or impending danger to the defendant [respondent] or his family.

[3] The Summary Conviction Appeal Judge (SCAP) disagreed.

[4] In his view, having regard to all of the circumstances, the trial judge’s finding on that issue was unreasonable. In so concluding, he focused, correctly in our view, on the trial judge’s failure “to consider that once the appellant had removed the keys from Mr. Campbell’s vehicle, he realized that the intruders had no way of escaping from his .farm without taking the keys away from him”. In those circumstances, as the SCAJ noted, the respondent did indeed have reason to fear for his safety and the safety of his family. In so concluding, we note that this incident occurred at 4:00 a.m. in a rural area where the police were not readily accessible and when the respondent had reason to believe that there were two unknown robberies in his barn that had done away with his dog. His belief of imminent harm was therefore based on objectively verifiable facts.

[5] The Crown did not raise the issue of excessive force in argument. We see no error in the SCAJ’s assessment of that issue.

[6] Accordingly, leave to appeal is granted but the appeal is dismissed.