DATE: 20060605

DOCKET: C40209

COURT OF APPEAL FOR ONTARIO

O’CONNOR A.C.J.O., DOHERTY and MACFARLAND JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

Jenny Reid

for the applicant/appellant

Amanda Rubaszek

for the respondent

• and -

COURTNEY WONG

Applicant/Appellant

Heard: May 12, 2006

On appeal from the conviction entered by Justice Frank R. Caputo, sitting with a jury, of the Superior Court of Justice dated March 31, 2003.

DOHERTY J.A.:

I

[1] The appellant was charged with three offences all arising out of the same events. He was acquitted on counts 1 and 3. Count 2 charged the appellant with “aggravated assault … by wounding” contrary to s. 268 of the Criminal Code. He was acquitted on main charge, but was convicted on the included offence of assault causing bodily harm. He appeals from that conviction.

[2] Counsel for the appellant raised four grounds of appeal. I would give effect to one. I agree with her submission that the trial judge should not have left the included offence of assault causing bodily harm with the jury and that the appellant’s conviction on that charge cannot stand.

II

[3] The appellant became involved in an altercation with his roommate and a co-worker of his roommate late one evening at the apartment that the appellant and his roommate shared. During the altercation, the appellant picked up two knives and struck the co-worker across the chin with one of them causing an eighteen stitch gash.

[4] The appellant, his girlfriend who was present during the altercation, the roommate and the co-worker all testified. Not surprisingly, their description of the relevant events differed in many details. It was common ground, however, that the appellant struck the co-worker on the chin with the knife in the course of the altercation. There was also no dispute that the co-worker suffered an eighteen stitch gash when struck with the knife.

[5] The appellant advanced two defences at trial. He maintained that he did not intend to strike the co-worker with the knife, but only meant to wave it at him so that the co-worker would not attack the appellant. The appellant also contended that he acted in self defence. The trial judge left both defences with the jury, and no objection is taken to his instructions in respect of either defence.

[6] When instructing the jury on the aggravated assault charge, the trial judge left with the jury the included offences of assault causing bodily harm and assault. He did so without asking counsel for submissions as to the availability of these included offences. Immediately after the instructions were complete, trial counsel for the appellant objected and submitted that the included offences should not have been left with the jury. She said:

[T]he included offences which, in my respectful submission, aren’t really an issue before the jury … The defence is not arguing that, and if it was intentional, it wasn’t an aggravated. I mean the defence position is if they find it’s intentional, it was an aggravated assault and nothing less such that the jury should not get sidetracked and, as well with the assault with the weapon [emphasis added].

[7] The trial judge did not ask the Crown for submissions on the question of whether the included offences should have been left with the jury and did not recharge the jury. As indicated above, the jury acquitted on the aggravated assault charge and convicted on the included offence of assault causing bodily harm.

III

[8] On appeal, counsel for the appellant renews the argument that the trial judge should not have left the included offences of assault causing bodily harm and assault with the jury. She submits that this was an “all or nothing” case. If the jury had a reasonable doubt as to whether the appellant struck the co-worker intentionally or a reasonable doubt as to whether the appellant acted in self defence, the jury was obliged to acquit the appellant. If the jury did not have a reasonable doubt on either of these two issues, then, as the injury clearly amounted to a wounding as defined for the jury, a conviction on the full charge of aggravated assault was the only available verdict.

[9] Counsel submits that the verdict of the jury indicates that it was either confused as to the essential elements of the offence of aggravated assault or reached a compromise verdict. Counsel argues that a conviction on a charge that should not have been left with the jury cannot stand even if logic suggests that had the jury properly applied the law, it would have convicted of the full offence.

[10] In her submissions, Crown counsel contends that the trial judge did not err in leaving the included offence with the jury. She further argues that the jury’s verdict signals a clear rejection of the defences advanced by the appellant. In oral argument, however, Crown counsel acknowledged, correctly, that on the evidence the acquittal on the aggravated assault charge and the conviction on the included offence of assault causing bodily harm are logically irreconcilable.

IV

[11] The offence of assault causing bodily harm is an included offence in a charge of aggravated assault by wounding: see Criminal Code s. 662(1), R. v. R. (G.) (2005), 2005 SCC 45, 198 C.C.C. (3d) 161 at paras. 25-34 (S.C.C.). A trial judge is not, however, obliged to instruct a jury on all offences that are as a matter of law included offences. The trial judge’s obligation to instruct on included offences will depend on the evidence led, the issues raised and the positions of the parties: see R. v. Smith (1978), 43 C.C.C. (2d) 417 (S.C.C.). It has long been recognized that in some cases, having regard to the entirety of the evidence, the issues raised by the evidence, and the positions taken by the parties, an “all or nothing” instruction leaving the jury with only two possible verdicts – guilty or not guilty – is appropriate: see e.g. R. v. Melyniuk and Humeniuk (1930), 53 C.C.C. 296 at 300 (Alta. C.A.), aff’d (1930), 58 C.C.C. 106 (S.C.C.); R. v. Wright (1945), 83 C.C.C. 225 (S.C.C.); R. v. Aalders (1993), 82 C.C.C. (3d) 215 (S.C.C.); R. v. Wade (1995), 98 C.C.C. (3d) 97 (S.C.C.), rev’g (1994), 89 C.C.C. (3d) 39 (Ont. C.A.).

[12] Where on the law applicable to the main charge and the included offence there is no reasonable view of the evidence, when considered as a whole, that could cause the jury to acquit on the main charge and convict on the included offence, an instruction on included offences is a breeding ground for confusion and compromise. Neither are conducive to a true verdict.

[13] There was no reasonable view of the evidence that would yield an acquittal on the charge of aggravated assault by wounding and a conviction on the included offence of assault causing bodily harm. The essential elements of the two offences differ only in the nature of the injury required to establish each offence. On the undisputed evidence, as confirmed by counsel for the appellant at trial, the injury suffered by the co-worker amounted to a wounding. Indeed, the trial judge told the jury:

To wound means to injure someone in a way that breaks or cuts or pierces or tears the skin or some part of the person’s body. It must be something more than trifling, fleeting or minor such as a … I don’t believe there’s any issue here that the laceration that Mr. Cheema [the co-worker] suffered would constitute a wound.

[14] The nature of the injury suffered by the co-worker could not provide a basis for acquitting the appellant on the main charge and convicting him on the included offence. There was no other meaningful distinction to be made between the two offences on the evidence adduced. Had either of the appellant’s defences left the jury with a reasonable doubt, he was entitled to an outright acquittal. If both failed, there was no reason why he should not be convicted of the full offence.

[15] I can think of only two possible explanations for the verdicts. The jury may have misunderstood the definition of wounding, or the verdict may reflect a compromise between factions on the jury, some whom favoured an outright acquittal and others who favoured a conviction on the main charge. On either explanation, the conviction cannot stand. In the language applicable to inconsistent verdicts, a conviction on the included offence of assault causing bodily harm cannot be reconciled on any rationale or logical basis with an acquittal on the charge of aggravated assault by wounding: R. v. Pittiman (2006), 2006 SCC 9, 206 C.C.C. (3d) 6 at paras. 7-8 (S.C.C.).

[16] Before turning to the appropriate order, I will make one further observation. This was not an easy jury instruction. The trial judge had to deal with several complicated matters, including the notoriously complicated law of self-defence. His charge was exemplary in many respects. It is unfortunate that he did not canvass with counsel the availability of the included offences before instructing the jury on those offences. While it is ultimately up to the trial judge to decide whether, in the totality of the circumstances, an instruction on included offences is appropriate, the position of the parties on that issue should assist the trial judge in determining whether any included offences are in play. I cannot help but think that, had the trial judge had the benefit of the submissions that this court heard before he instructed on the included offences, he would not have done so.

V

[17] Given my conclusion that the conviction cannot stand, the question becomes what order should this court make. Section 686(2) of the Criminal Code provides that where the court allows an appeal from conviction it shall quash the conviction and either direct a verdict of acquittal or order a new trial. If the court were to order a new trial, that new trial could not be on the charge of aggravated assault by wounding. The Crown could have, but chose not to, appeal the acquittal on the main charge: Criminal Code s. 676(2). Absent a Crown appeal, this court cannot set aside the acquittal on the charge of aggravated assault by wounding and order a new trial on that charge: R. v. Guillemette (1986), 26 C.C.C. (3d) 1 at 5 (S.C.C.).

[18] Nor, in my view, would an order directing a new trial on the charge of assault causing bodily harm make sense. It would seem incongruous having held that the trial judge erred in leaving the charge of assault causing bodily harm with the jury to turn around and order a new trial on that charge. More to the point, as the acquittal on the aggravated assault charge stands, any verdict other than an acquittal on a charge of assault causing bodily harm would in the circumstances of this case constitute an inconsistent and unreasonable verdict: R. v. Pittiman, supra, at para. 14.

[19] An outright acquittal of the appellant is not a palatable result. There was ample evidence on which the jury could have convicted on the wounding charge. Indeed, it might be said that, in light of the apparent rejection of the appellant’s two defences, the jury should have convicted on the wounding charge. Furthermore, but for the extant acquittal on the wounding charge, there would be nothing to prevent this court from ordering a retrial on the assault causing bodily harm charge. There is ample evidence to support a conviction on that charge.

[20] Pittiman, supra, at para. 14, holds that a new trial will usually be the appropriate order where there is evidence to support the verdict which is found to have been inconsistent. That holding assumes, as was the case in Pittiman, that the charge giving rise to the inconsistent verdict was properly left to the jury. I have concluded that this jury should not have been instructed on the offence of assault causing bodily harm. I have further concluded that there is no proper basis upon which a jury could acquit on the wounding charge and convict on the charge of assault causing bodily harm. As the acquittal on the wounding charge stands, the only possible result on the causing bodily harm charge is also an acquittal.

[21] I would quash the conviction and enter an acquittal.

RELEASED: “DOC” “JUN 05 2006”

“Doherty J.A.”

“I agree Dennis O’Connor A.C.J.O.”

“I agree J. MacFarland J.A.”