WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486. (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(2) For the purpose of subsection (1), the “proper administration of justice” includes ensuring that.

(a) the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and

(b) justice system participants who are involved in the proceedings are protected.

(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order. R.S., c. C-34, s. 442; 174-75-76, 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; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).

CITATION: R. v. Felteau, 2010 ONCA 821

DATE: 20101203

DOCKET: C52121

COURT OF APPEAL FOR ONTARIO

Doherty, Feldman and Juriansz JJ.A.

BETWEEN:

Her Majesty the Queen

Appellant

and

Corey Leonard Felteau

Respondent

Benita Wassenaar, for the appellant

Jason H. Gilbert, for the respondent

Heard: November 29, 2010

On appeal from the acquittal entered by Justice J.D. Nadelle of the Ontario Court of Justice, dated April 27, 2010.

ENDORSEMENT

[1] Mr. Felteau was charged with uttering a threat to cause bodily harm and several breaches of his bail orders and his probation terms. All of the offences related to a threat allegedly made by Mr. Felteau against Ms. “G”, his former probation officer, through Mr. Gemmell, a mental health care worker.

[2] The trial judge accepted Mr. Gemmell’s evidence that Mr. Felteau told him he was going to follow Ms. G and “assault” her. The trial judge also found that Mr. Felteau uttered the threat intending to intimidate or assault Ms. G.

[3] The trial judge further held that:

The only thing that Mr. Felteau threatened to do was to follow and then assault Ms. G. That does not necessarily include bodily harm. He thus must be found not guilty on count number 1.

[4] The Crown appeals from the acquittal.

[5] We accept Ms. Wassenaar’s submission that the determination of whether an utterance made in specified circumstances constitutes a threat to do bodily harm is a question of law: R. v. Baptista (2008), 2008 ONCA 804, 238 C.C.C. (3d) 97 (Ont. C.A.) at para. 14.

[6] We also accept her submission that the determination of whether the threat constituted a threat to do bodily harm must be made by considering how a reasonable person in the circumstances would construe the utterance. The circumstances give meaning to the specific words uttered: R. v. McCraw, 1994 49 (SCC), [1994] 2 S.C.R. 758 at paras. 26-27.

[7] The trial judge did not consider the surrounding circumstances in deciding whether the threat to “assault” Ms. G. was a threat to do bodily harm to her. Instead, he looked at the word “assault” in isolation from the circumstances and found it to be ambiguous as to the nature of the proposed assault.

[8] On the trial judge’s findings, the context relevant to the meaning of the threat included the following:

• Mr. Felteau was fixated upon Ms. G. and had very recently been convicted of harassing her;

• Mr. Felteau was angry with Ms. G. when he made the threat. He blamed her for his arrest and detention. Someone had apparently stolen his belongings while he was in jail;

• Mr. Felteau has a violent history, including acts of serious violence directed at women;

• Mr. Felteau was mentally unstable;

• Mr. Felteau had apparently consumed cocaine all that week, including on the morning that he made the telephone call; and

• Mr. Felteau indicated to Mr. Gemmell that he was on his way to assault Ms. G. when he terminated the conversation. He led Mr. Gemmell to believe that he was in the courthouse where Ms. G.’s office was located.

[9] Based on the circumstances outlined above, none of which were in issue by the end of the trial, a reasonable person could only conclude that Mr. Felteau, an angry unstable person with a lengthy criminal history, was on his way to find and hurt Ms. G., a person whom he had victimized a short time earlier and whom he blamed for his latest predicament. A threat to “assault” made in those circumstances constitutes a threat to cause bodily harm to Ms. G.

[10] The Crown’s appeal must succeed. The acquittal will be set aside and a conviction entered.

The Appropriate Sentence

[11] When this court enters a conviction, it can impose sentence or remit the matter to the trial court. We think this is an appropriate case for this court to sentence Mr. Felteau on the conviction on the charge of threatening bodily harm. In doing so, we take into account the outcome of his appeal in C52189. In that appeal, Mr. Felteau appealed his convictions on two counts of breaching his recognizance and three counts of breaching his probation orders. He also appealed the sentences. The trial judge had determined that an appropriate sentence was one of 18 months. After giving Mr. Felteau credit for 190 days spent in custody prior to sentencing, the trial judge imposed a sentence of 349 days.

[12] This court dismissed Mr. Felteau’s appeals. Our task is to impose an appropriate sentence on the conviction for threatening to cause bodily harm that takes into account the sentences imposed on the other charges.

[13] The trial judge gave careful reasons for sentence. Although he had acquitted Mr. Felteau on the charge of threatening bodily harm, he did find that Mr. Felteau had threatened Ms. G. He took that finding into account in determining the appropriate sentences for the breaches of the court orders. That threat constituted the actus reus of those breaches. Of course, in taking the threat into account, the trial judge did not consider, as we must, that the threat was one to do bodily harm. The nature of the threat is an aggravating factor.

[14] In imposing sentence, the trial judge reviewed Mr. Felteau’s background. He had a lengthy criminal record which included many failures to comply with court orders. The trial judge concluded:

Obviously, any prospects of rehabilitation are virtually nil. The protection of the community by removal of the accused from society is the dominating principle of sentencing that applies in this case.

[15] On the facts before the trial judge, the dim picture painted by him was accurate. We have, however, received two additional reports from the same doctor whose report was before the trial judge. That material outlines Mr. Felteau’s post-sentence progress in the provincial institution. It offers some, albeit guarded, reason to think that Mr. Felteau’s future prospects have improved.

[16] A threat to do bodily harm to anyone is a serious matter. It is particularly serious when the threat is addressed to someone in the position of Ms. G. Probation officers must know that where crimes are committed against them in the course of their duties, the justice system will take those crimes seriously. In our view, the further conviction on the charge of threatening bodily harm against Ms. G. would normally have warranted a sentence of six months in addition to the 18 months imposed on the other charges. However, based on the fresh evidence which indicates that Mr. Felteau has improved prospects for rehabilitation, we would impose the same sentence (349 days) for the threatening bodily harm charge as Mr. Felteau received on the other charges. The sentences should be served concurrently.

[17] In the result, the appeal by the Crown is allowed, the acquittal on the charge of threatening bodily harm is set aside, and a conviction is entered. Mr. Felteau is sentenced to 349 days on that charge. The sentence is to be served concurrently with the sentences imposed on the other counts in the information.

“Doherty J.A.”

“K. Feldman J.A.”

“R.G. Juriansz J.A.”