COURT OF APPEAL FOR ONTARIO

DATE: 20060531

DOCKET: C43460

RE: HER MAJESTY THE QUEEN (Respondent) – and – RONALD CRAWFORD (Appellant)

BEFORE: MOLDAVER, FELDMAN and GILLESE JJ.A.

COUNSEL:

Michael J. MacDonald for the appellant

David Lepofsky and Daniel Guttman for the respondent

HEARD & ENDORSED: May 24, 2006

On appeal from conviction by Justice J. Robert MacKinnon of the Superior Court of Justice, sitting with a jury, dated March 10, 2005 and sentence imposed May 3, 2005.

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

[1] Of the various grounds of appeal raised by the appellant against conviction, we are not persuaded that the trial judge erred in refusing to order severance of the breach of probation charge. The trial judge felt that any possible prejudice could be dealt with by way of a limiting instruction and he was obviously concerned that the appellant might, at the end of the trial, go back on his undertaking, thereby necessitating a second trial on all of the same evidence. In the end, we are not persuaded that the trial judge erred in exercising his discretion as he did. This ground therefore fails.

[2] Likewise, we think it was open to the trial judge, in the exercise of his discretion, to admit the “prior relationship” evidence concerning the appellant’s hostile relationship with his neighbours. The trial judge weighed the probative value of the evidence and measured it against its prejudicial effect. In the end, he concluded that the evidence was sufficiently probative to warrant its reception and that a strong limiting instruction would eliminate any concern about prejudice. We are not persuaded that he erred in exercising his discretion as he did. Accordingly, we would not give effect to this ground.

[3] Finally, we reject the appellant’s “inconsistent verdicts” argument. In our view, it was open to the jury to find that the appellant tussled with the complainant over the shovel and that in doing so, he applied force either directly or indirectly to her person without her consent. It was also open to the jury, we believe, to find that in the course of the tussle, the appellant took possession of the shovel in circumstances where it was capable of, and intended by him, to be used as a weapon. This conclusion follows from the fact that the appellant was clearly not planning to use the shovel to remove snow and he did not rely upon self-defence. In that regard, even though there may have been some confusion on the record about the viability of that defence, in the end, we have great difficulty accepting that there was an error of reality to it in the circumstances. Accordingly, this ground of appeal also fails.

[4] With respect to sentence, we would not interfere with the eight-month sentence imposed for assault. We note in that regard that the trial judge gave the appellant credit for the equivalent of four months in pre-trial custody. In other words, he considered the assault to be worth twelve months. We think that range of sentence was fit in the circumstances.

[5] We would, however, interfere with the six-month consecutive sentence imposed for the breach of probation. The breach in question was inextricably linked to the assault. Because of that, we think that the total sentence was too high. That said, we are satisfied that a consecutive sentence was warranted. In our view, two months consecutive for the breach of probation charge would have been the proper sentence.

[6] Accordingly, leave to appeal sentence is granted. The sentence for the breach of probation is reduced from six months consecutive to two months consecutive. In all other respects, we would not interfere with the sentence imposed.