R. v. Warner, 2008 ONCA 443

CITATION: R. v. Warner, 2008 ONCA 443

DATE: 20080605

DOCKET: C43831

COURT OF APPEAL FOR ONTARIO

MOLDAVER, SIMMONS AND ROULEAU JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

DENIS WARNER

Appellant

Howard L. Krongold for the appellant

Karen Shai for the respondent

Heard and endorsed: June 3, 2008

On appeal from conviction by Justice Bernard T. Ryan of the Superior Court of Justice dated August 26, 2004.

APPEAL BOOK ENDORSEMENT

[1] The central issue in this case was identification. The trial judge considered the whole of the evidence and came to the conclusion that the appellant was the shooter and that he was satisfied of this beyond a reasonable doubt.

[2] In so concluding, the trial judge instructed himself on the danger of acting on eye-witness identification evidence. Having done so, he was nonetheless satisfied that he could safely act on Ms. H.’s evidence, which took the form of recognition evidence as opposed to evidence identifying a stranger. Additionally, the trial judge relied on the victim’s evidence, in the form of a KGB statement, that his assailant was a man known to him as “D” and a police officer’s evidence that the appellant was known to him and responded to the name “D”.

[3] While the case for the Crown may not have been overwhelming, it was certainly open to the trial judge, in the absence of evidence from the appellant, to conclude, in accordance with the criminal standard, that the case against the appellant had been made out beyond a reasonable doubt.

[4] That said, we agree with the appellant that in finding the appellant guilty of attempted murder, the trial judge may not have been alive to the requisite intent to sustain that charge. At several places in his reasons, the trial judge seemed to be of the view that an intent to cause ‘harm’ would suffice. That of course is not correct – there must be an intent to kill.

[5] In the circumstances, despite the Crown’s argument to the contrary, we are not persuaded that the proviso can be applied to sustain the attempt murder conviction. Accordingly, on the charge of attempt murder, we would dismiss the appeal and substitute a conviction for discharging a firearm with intent to wound under s. 244(a) of the Code. The appellant has served his sentence and the issue of sentence is not before us.

[6] Crown counsel has fairly conceded that the ‘point firearm’ conviction which was registered and for which the appellant received a concurrent sentence of one year should be stayed in accordance with the Kienapple principle. We agree and the conviction for that charge will be stayed.