R. v. Middleton, 2007 ONCA 538

DATE: 20070725

DOCKET: C45536

COURT OF APPEAL FOR ONTARIO

BEFORE: WEILER, GILLESE and LAFORME JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN Respondent

And

TIMOTHY MIDDLETON Appellant

Counsel: Gregory Lafontaine and Crystal Tomusiak for the appellant Andrew Cappell for the respondent

Heard: July 23, 2007

On appeal from the conviction entered on April 18, 2006, and the sentence imposed on June 20, 2006, by Justice John D. G. Waugh of the Ontario Court of Justice.

ENDORSEMENT

[1] Lisa Dubreuil, the complainant, met the appellant in July 2002. They began dating shortly after meeting and, in November 2002, she moved in with him in his apartment in Pembroke, Ontario.

[2] In December 2002, the complainant learned she was pregnant. When the appellant lost his job in May 2003, they moved to Sudbury and lived at various places including the home of the complainant’s parents. Their daughter was born on June 7, 2003.

[3] Shortly after their daughter was born, the complainant, appellant and their child moved to an apartment in Sarnia. In August of 2003, the appellant and complainant broke up. They reconciled in January 2004 and moved to Brockville where the appellant had employment.

[4] Everything was fine for the first few months after reconciliation. The complainant testified that after those first few months, the appellant began to threaten and assault her. In May 2004, the family moved into a home that had been bought by the appellant. The complainant testified that she stayed with the appellant because she was frightened of him and frightened to leave the relationship.

[5] On or about September 24 or 25, 2004, the appellant pushed the complainant into a metal door and her right collarbone was broken as a result. The complainant did not contact the police following this incident.

[6] In January 2005, the appellant began living in the basement of the home.

[7] On February 15, 2005, the complainant went to the basement to do laundry and said something to the appellant. He pulled out a gun, pointed it at her head and threatened to kill her if she did not leave him alone. The complainant called the police and the appellant was charged in respect of both this incident and the prior incident on September 24, 2004.

[8] Following a trial by judge alone, the appellant was convicted of:

i) assault causing bodily harm;

ii) utter a threat; and

iii) pointing a firearm.

[9] He was sentenced to 90 days’ imprisonment to be served intermittently for the assault causing bodily harm conviction, with a concurrent 18-month conditional sentence to be followed by 3 years probation for the utter threat and pointing a firearm convictions.

[10] The appellant appeals against the convictions and seeks leave to appeal the sentence.

[11] The appellant raises three arguments on the conviction appeal. The first is that the trial judge erred in admitting evidence of discreditable conduct on the part of the appellant that did not form part of the allegations in the indictment.

[12] In our view, the trial judge committed no error in respect of the evidence of discreditable conduct on the part of the appellant. Crown counsel submitted that the evidence was admissible as part of the narrative to understand why the complainant had not left the appellant and delayed in reporting some of the conduct charged. The trial judge accepted that submission and admitted the evidence as part of the narrative. In the circumstances, the trial judge was not obliged to conduct a voir dire regarding the admissibility of the evidence. The evidence was relevant and important in understanding the relationship between the parties, the context within which the alleged abuse occurred, the appellant’s animus towards the complainant and why the complainant failed to leave the relationship earlier than she did. Its probative value outweighed its prejudicial effect. We note that defence counsel made no objection to the admission of this evidence.

[13] The second argument raised on appeal is that the trial judge used the evidence of discreditable conduct in an improper manner. Read in the context of the trial judge’s reasons as a whole, we do not understand the trial judge to have engaged in impermissible propensity reasoning. He used the evidence of discreditable conduct as part of his assessment of the appellant’s credibility and to reject the argument that the appellant was not the person he had portrayed himself to be in his evidence.

[14] The trial judge rejected the appellant’s evidence concerning the two incidents because he found it to be “inconsistent, contradictory, evasive, exaggerated and false”. Although the trial judge did not frame it as such, he was following the first branch of (W.)D. and explaining why he did not believe the appellant’s evidence. The impugned paragraphs that followed are the application of the second and third steps of (W)D: that is, the trial judge explained why the evidence which he did accept convinced him beyond a reasonable doubt of the appellant’s guilt. He did not reverse the burden of proof or hold the appellant to a higher standard than the respondent.

[15] We note that R. v. Batte (2000), 2000 5751 (ON CA), 145 C.C.C. (3d) 449 (C.A.) was neither argued nor addressed below. In the circumstances, we need not address its applicability here.

[16] The third argument is that the trial judge erred in finding that the pellet gun was a firearm. The appellant testified that the pellet gun was an “air pellet pistol”. In R v. Covin, 1983 151 (SCC), [1983] 1 SCR 725, the Supreme Court of Canada held that an air pistol is a firearm because it is capable of causing bodily injury. On the evidence before the trial judge, including that of the appellant that the gun was loaded and operable and that it could hurt and possibly kill him, the trial judge was entitled to find that it was a firearm within the meaning of s. 2 of the Criminal Code.

[17] The appeal against convictions is, therefore, dismissed.

[18] With respect to the sentence appeal, the appellant submits that the trial judge erred in not imposing a conditional sentence and in holding that a “real jail sentence” was required. We see no merit in this ground of appeal. Viewed cumulatively, the appellant’s conduct in fracturing the complainant’s collar bone, threatening to kill her while holding an air pistol to her head and his abusive conduct towards her over a sustained period of time, may well have merited a penitentiary sentence. The Crown has not, however, cross-appealed the sentence imposed.

[19] The appellant also argues that the imposition of an 18-month conditional sentence in addition to the intermittent sentence rendered the intermittent sentence unlawful, as the appellant’s global sentence would exceed the maximum 90 days prescribed by s. 732 of the Criminal Code.

[20] Section 732(3) reads as follows:

732. (3) Where a court imposes a sentence of imprisonment on a person who is subject to an intermittent sentence in respect of another offence, the unexpired portion of the intermittent sentence shall be served on consecutive days unless the court otherwise orders.

[21] We do not accept that the sentence imposed was “unlawful”. However, in our view, s. 732(3) does apply. At the time that the sentencing judge imposed a sentence of imprisonment by means of the conditional sentence for uttering a threat and pointing a firearm, he had already sentenced the appellant to the intermittent sentence for assault causing bodily harm. Section 732(3) has the effect of causing the unexpired portion of the intermittent sentence, which was the full 90 days, to be served on consecutive days.

[22] The sentence, as imposed, was intended to cause the appellant to serve “real jail time” but without loss of employment and consequent support for the child. No one contends that the sentence was unfit or unreasonable although the Crown argues that it is lenient. In our view, although the effect of s. 732(3) was unintended, given the nature of the offences, we would do nothing to disturb its effect.

[23] Accordingly, we would grant leave to appeal the sentence but dismiss the appeal. For the sake of clarity, we reiterate that as a consequence of the operation of s. 732(3), the 90-day term of imprisonment is to be served on consecutive days and the balance of the sentence remains unchanged.

“K. M. Weiler J.A.”

“E. E. Gillese J.A.”

“H. S. LaForme J.A.”