W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. Subsections 486(3) and 486(5) of the Criminal Code provide:
- (3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i), (ii) and (iii).
(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20.
DATE: 20050322
DOCKET: C37684
COURT OF APPEAL FOR ONTARIO
ROSENBERG, GOUDGE AND MACFARLAND JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Timothy E. Breen for the appellant
Respondent
- and -
STEPHEN MORGAN
Ian Bulmer for the respondent
Appellant
Heard: March 3, 2005
On appeal from the conviction by Justice James C. Crawford of the Ontario Court of Justice dated December 20, 1996 and from the sentence imposed by Justice James C. Crawford dated July 4, 2001.
MACFARLAND J.A.:
[1] On December 20, 1996 the appellant pled guilty to three charges:
criminal harassment s. 264(2)(d)
obstruct justice s. 139
breach of recognizance s. 145(3)
and was convicted on each of those charges by the Honourable Mr. Justice Crawford at Barrie, Ontario.
[2] On June 22, 1998 the Crown applied for a finding that the appellant was a dangerous offender pursuant to s. 753 of the Criminal Code. On July 4, 2001 that application was dismissed; however, the trial judge, in the exercise of his discretion, found the appellant to be a long term offender. The appellant appeals from that finding.
[3] The Crown’s application was predicated upon the charge of obstruct justice as it was the only offence charged that provided a maximum sentence of at least ten years imprisonment, a pre-condition for a “serious personal injury offence” as defined by s. 752 of the Code.
[4] The appellant’s position simply stated is that the predicate offence which triggers s. 753 must be one involving “serious personal injury”. Obstruct justice he says is not a serious personal injury offence and therefore the Crown may not use that offence to ground its application for a finding that the appellant is a dangerous offender. It will be helpful to set out briefly the facts which gave rise to the application.
[5] The appellant had been convicted in August, 1996 of an offence relating to the criminal harassment of L. C., a former girlfriend and the victim of the three offences to which he pled guilty in December, 1996.
[6] While on bail awaiting sentence in respect of the August, 1996 conviction, the appellant wrote a threatening letter to Ms. C. in an effort to dissuade her from giving evidence she might have otherwise and which would assist him in his efforts to get a reduced sentence. Further at the time he sent the letter he was required by the terms of his bail to have no communication with Ms. C. The letter is excerpted in the materials before this court and it is sufficient to say it contains serious threats of death and/or physical harm to Ms. C., her friends and current boyfriend.
[7] As the Crown put it in its factum in this court the appellant does not suggest that he does not meet the criteria for designation as a long term offender, nor does he submit that the trial judge erred in finding that his conduct inflicted or was likely to inflict severe psychological damage on the victim. The only issue raised is whether the offence of obstruct justice, to which the appellant pled guilty on December 20, 1996, was capable in law of constituting a “serious personal injury” offence as defined in s.572(1) of the Criminal Code.
[8] The appellant argues that the real gravamen of the conduct here is the criminal harassment – an offence, which at the time, carried only a maximum penalty of 5 years. Were that the only charge, it would not have been sufficient to meet the definition of s. 752 and trigger section 753. It is that same conduct – the sending of the threatening letter – which is the basis for both the criminal harassment and obstruct justice charges.
[9] Section 752(a)(ii) of the Code provides:
“serious personal injury offence” means
(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person,
and for which the offender may be sentenced to imprisonment for ten years or more, or …
[10] Mr. Breen argues that the obstruct justice provision is directed against those who would attempt to influence the course of justice; it is not an offence against the person per se. It is merely fortuitous, he says, that at the time the letter is sent, Ms. C. happens to be a witness in an ongoing prosecution. The conduct which causes the damage is the criminal harassment. One cannot intelligently describe obstruct justice as a serious personal injury offence, it is really an offence against the justice system. To meet the purpose of the scheme, the predicate offence, it is argued, must be an offence against the person. To include other offences casts the net too widely and would in result, include others to whom the section was never meant to apply.
[11] In my view giving the language of s. 752 of the Code its ordinary meaning, it includes the offence of obstruct justice. Had Parliament intended that only offences against the person were capable of meeting the definition of “serious personal injury offence”, it would have said so as it did in respect of sexual offences in s. 752(b).
[12] Section 752(a)(ii) sets up two preconditions. First the offence must be one where the offender may be sentenced to 10 years or more. Obstruction of justice is such an offence.
[13] Second, to meet the definition the conduct must be such that inter alia it was “inflicting or likely to inflict severe psychological damage upon another person” here Ms. C. The section requires that the conduct have actually inflicted severe psychological damage on a complainant or be such that it is likely to cause severe psychological damage. It is in this sense that the offence can be said to be a serious personal injury offence. Trivial conduct or conduct de minimis would not meet the severity requirement.
[14] In his reasons the trial judge found that the September letter:
did in fact cause L.C. severe psychological damage, notwithstanding her strength of character which tended to note the effects of the letter to some extent …
and
Moreover, again, I find that the sending of the September letter was likely to cause severe psychological damage to any recipient in the situation of L.C.
[15] Mr. Breen properly concedes that these findings were open to the trial judge.
[16] In my view the trial judge properly interpreted the section as it applied to the facts before him.
[17] Accordingly, I would dismiss the appeal.
RELEASED: March 22, 2005 “MR”
“J. MacFarland J.A.”
“I agree Marc Rosenberg J.A.”
“I agree S.T. Goudge J.A.”