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. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) Any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) Two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
CITATION: R. v. Smith, 2011 ONCA 564
DATE: 20110826
DOCKET: C50528
COURT OF APPEAL FOR ONTARIO
Weiler, Blair and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
John Eric Smith
Appellant
James Foord, for the appellant
Dena Bonnet, for the respondent
Heard: April 18, 2011
On appeal from the convictions entered by Justice Kenneth E. Pedlar of the Superior Court of Justice on January 26, 2009 and the sentence imposed on April 28, 2009.
Epstein J.A.:
I. OVERVIEW
[1] On January 26, 2009, after a five-day judge-alone trial, the appellant was convicted of ten offences – five counts of assault, two counts of assault causing bodily harm, two counts of sexual assault and one count of uttering a threat. On April 28, 2009, he was sentenced to three years’ imprisonment on each count, with each sentence running concurrently. He appeals his convictions and, if leave is granted, the sentences imposed.
[2] Mr. Smith was charged with 13 offences arising out of his relationships with three long-term partners, B.L.[^1], D.Q. and M.O. These relationships spanned the period from 1977 to 2006. In 2006, B.L. went to the police and reported nine years of continuous verbal, physical, financial and sexual abuse by the appellant. As a result of B.L.’s report, the police contacted the appellant’s two previous partners, D.Q. and M.O., each of whom described similar abuse during their relationships with Mr. Smith.
[3] The grounds upon which the appellant challenges the convictions are primarily evidentiary, although he also submits that the trial judge erred in law by finding him guilty of threatening to kill D.Q. and in reversing the burden of proof in relation to two counts arising out of his relationship with M.O.
[4] I would allow the appeal in relation to counts one, two, four, five, six, seven and eight, the counts that pertain to the appellant’s relationship with B.L., on the basis that the trial judge erred by relying on information not in evidence to support his acceptance of B.L.’s version of the events where the credibility of B.L.’s trial testimony was critical to the Crown’s case.
[5] For the reasons that follow, I would dismiss the appeal in relation to the remainder of the counts, namely, counts nine, ten and 12. I would, however, grant leave to appeal sentence and vary the sentences imposed on the remaining counts.
II. FACTUAL BACKGROUND
The Verdicts
(i) The events reported by B.L. – counts one through eight
[6] B.L. and the appellant were together from 1995 to 2006. B.L. testified that the violence, consisting of verbal, physical and sexual abuse, started about two years into their relationship.
[7] Count one, a charge of common assault, related to an incident that took place on March 26, 2006, the day the relationship between B.L. and the appellant ended. In her trial testimony, B.L. described a lengthy dispute between her and the appellant that day, during which the appellant hit her on the knuckles with a telephone when she tried to phone the police and stood on her toes to prevent her from leaving the house where they lived.
[8] The appellant testified that he and B.L. did argue that day but his description of events differed from that of B.L. Significantly, the appellant denied that he assaulted B.L.
[9] Count two, another common assault charge, related to allegations that the appellant, angry that the washing machine was not working, elbowed B.L. in the ribs. B.L. testified that, as a result, she swung at him but missed, hit a wardrobe and bruised her hand. The appellant then pushed her down on the bed, jumped on her, and repeatedly hit her on the back of the head as she lay face down. He also pulled her hair.
[10] The appellant described the difficulty with the washing machine and B.L’s having hit the wardrobe and bruised her hand, but denied the assault.
[11] Count three, assault with a weapon, related to allegations that the appellant hit B.L. with a chair. B.L. testified that she had bruises and marks on her back for a couple of weeks following the incident.
[12] The appellant denied the assault.
[13] Count four, assault causing bodily harm, related to allegations that, during an argument in which B.L. said she was going to the police, the appellant grabbed the purse she was holding and jerked her onto the ground. As a result, B.L. sustained bruising to the inside of her arm from her elbow up to her underarm.
[14] Again, the appellant denied the assault. He testified that B.L. received the bruises from an incident with a horse on their hobby farm.
[15] Count five, common assault, related to allegations that, during an argument, the appellant chased B.L. down the hall into the bedroom and, as she lay on the bed face down, he punched her repeatedly with full force on the back of the head. B.L. testified that she had severe headaches and wet the bed for about a week after the incident.
[16] The appellant remembered the bed wetting but denied the assault.
[17] Count six, assault causing bodily harm, related to allegations that the appellant hit B.L. in the back and knocked her to the ground as a result of which she injured her knee.
[18] The appellant denied the assault and testified that B.L. hurt her knee when she knelt on a toy at her son’s house.
[19] Count seven, sexual assault, related to allegations that, on several occasions, the appellant forced B.L. to have oral sex.
[20] The appellant testified that B.L. never performed oral sex due to a condition with her jaw, a gag and a bite reflex.
[21] Count eight was a catch-all charge of common assault that related to multiple incidents between 1997 and 2006. B.L. described these incidents as including slapping, pushing and hair pulling.
[22] The appellant denied the assaults, although he did agree that during their relationship they often argued and swore at each other.
(ii) The event reported by D.Q. – count nine
[23] The appellant and D.Q. were in a relationship between 1987 and 1994. Prior to the conduct in issue in the charges before the trial judge, the couple had a history of domestic violence. In 1993, the appellant pleaded guilty to an assault that took place in 1991. The appellant testified that the conviction arose from an incident in which he tried to restrain D.Q. in an attempt to prevent her from running away, as she had threatened to commit suicide by crashing into a truck on Highway 401. He admitted that he was wrong to do so, but explained that he was trying to protect her from herself. There were no records of the 1993 assault proceedings to confirm or deny the basis upon which the appellant pleaded guilty.
[24] Count nine, uttering a death threat, related to an allegation that, in 1994, the appellant said to D.Q., “I could kill you at any moment, and no one would be the wiser”. D.Q. testified that, at the time, she thought he was joking. However, later she saw a hole dug in the back of their property. The appellant described it to her as a test hole, related to construction taking place on the property. D.Q. doubted this explanation as, by that time, the construction had progressed to the point where there was no further need for a test hole, and she believed that the hole was big enough for a body. She became fearful for her life and left the appellant while he was away on a trip. D.Q. did not report the threat to the police until they contacted her in 2006.
[25] The appellant denied telling D.Q. that he could “kill [her] at any moment”.
(iii) The events reported by M.O. – counts ten through 13
[26] The appellant and M.O. met in 1972 and were married in 1977. They were together until 1986 and divorced in 1987. M.O. testified that the appellant was physically, emotionally and sexually abusive toward her.
[27] Count ten, common assault, related to allegations that the appellant repeatedly assaulted M.O. between 1978 and 1984. She alleged that the appellant pinched her legs, elbowed her in the stomach, threw forks at her, whipped the back of her legs with a wire, grabbed her hair, hit her on the back of the head and kicked her.
[28] The appellant denied all of the assaults.
[29] Count 11, indecent assault, related to allegations that twice between 1977 and 1983, M.O. dreamed of being raped and when she woke up, she discovered the appellant having sexual intercourse with her.
[30] The appellant denied that this happened.
[31] Count 12, sexual assault, related to allegations that after M.O. had ended her relationship with the appellant and begun a new one (with her current partner of 22 years at the time of the trial), the appellant called her and asked her to come over to help him find a receipt. M.O. testified that after she found the receipt, she wanted to leave but the appellant said that first she had to have sex with him. She said no, but after about an hour she gave in, as she believed she had no choice. When she arrived home, M.O. told her partner what had happened.
[32] The appellant testified that he and M.O. had sex on several occasions after they broke up. According to the appellant’s testimony, it was always consensual.
[33] Count 13, common assault, related to allegations that two weeks prior to their marriage, the appellant and M.O. had an argument. The appellant grabbed M.O. by both arms sufficiently hard that she had bruises on the inside of both arms above the elbows. M.O. testified that she wore a long-sleeved wedding dress to conceal the bruises.
[34] The appellant testified that he grabbed her arms to keep her from hitting him, and that there were no bruises.
III. REASONS OF THE TRIAL JUDGE
Convictions
(i) The counts involving B.L. – counts one through eight
[35] For the most part, the evidence relating to each count consisted of the testimony of B.L. and that of the appellant. In his lengthy and detailed reasons, the trial judge, in convicting the appellant on counts one, two, four, five, six, seven and eight, reviewed the testimony of the appellant and B.L. and explained why he preferred that of B.L. He also considered and rejected the defence position that B.L. had motives to fabricate, evidenced by her animus toward the appellant given the “rocky” nature of their relationship, the testimony of L.C., a defence witness who testified that B.L. had told her she intended to ruin the appellant and B.L.’s 2.5 million dollar civil lawsuit against the appellant. The trial judge, on his own, raised the concern that B.L. may have been alleging the assaults as a way of obtaining exclusive possession of the couple’s hobby farm.
[36] In explaining his preference for B.L.’s evidence over that of the appellant, the trial judge specifically noted, on a number of occasions, that B.L. had been consistent in the major details of her evidence throughout her statement to the police, the preliminary inquiry and trial. In relation to counts four and six, the trial judge also made reference to supporting evidence such as medical records and the testimony of several witnesses who saw a large bruise on B.L.’s arm.
[37] In rejecting the appellant’s evidence and finding it did not raise a reasonable doubt, the trial judge described how he found Mr. Smith’s testimony to be improbable and in one instance, count six, to have been contradicted by that of B.L.’s son.
[38] The trial judge acquitted the appellant of count three on the basis that, while he accepted B.L.’s evidence that the appellant threw a chair at her and that the chair hit her, the trial judge was not satisfied that the appellant intended to hit B.L. with the chair.
(ii) The count involving D.Q. – count nine
[39] With respect to count nine, the trial judge found that the appellant’s credibility on this charge was severely damaged by his assertion that the 1993 assault charge was prompted by an honest belief that he was holding on to D.Q. to prevent her from committing suicide. The trial judge found it “totally unbelievable” that those facts were accepted as supporting a guilty plea to assault.
[40] With respect to the threatening charge, the trial judge held that the appellant said the words alleged by D.Q., and that although they were not taken seriously at the time, when considered together with the unexplained hole in the backyard, the words justifiably intimidated D.Q. Further, it was a reasonable inference that, even without the added concern created by the hole, the words were intended to intimidate; a reasonable person would consider the words a threat.
(iii) The counts involving M.O. – counts ten through 13
[41] The trial judge convicted the appellant on counts ten and 12 and acquitted the appellant on counts 11 and 13.
[42] In relation to counts ten and 12, the trial judge accepted M.O.’s evidence describing it as detailed, specific and consistent. He reasoned that her evidence with respect to count ten would have to be a “total fabrication” if the appellant’s evidence were to be believed, yet she had no motive to fabricate. There was no evidence that she bore any animus toward the appellant. She had moved on with her life. The trial judge stated that M.O. demonstrated candour in her testimony and that she did not attempt to “gild the lily”.
[43] These observations were in contrast to the trial judge’s assessment of the appellant’s evidence in response to M.O.’s description of the events pertaining to counts ten and twelve. The trial judge described the appellant’s denial with respect to count ten as a “blanket denial” providing no evidence concerning the incidents surrounding any of the alleged assaults. Furthermore, the trial judge found that the appellant’s assertions that M.O. arranged to meet him for consensual sex and then falsely reported rape to her partner, were incredible.
[44] The trial judge had some difficulty with M.O.’s evidence relating to count 11 on the basis that M.O. had dreamed of being raped by the appellant before waking up to find him, apparently still asleep, having intercourse with her. In relation to count 13, the trial judge carefully examined the evidence and stated that he was “much more inclined to accept” M.O.’s evidence and that it “likely happened the way she described it”. However, he found himself in some doubt and therefore also acquitted the appellant on count 13.
The Sentences
[45] The trial judge began his reasons by reviewing the purposes of sentencing set out in s. 718 of the Criminal Code, and specifically referring to the identification of spousal abuse as an aggravating factor in s. 718.2. The trial judge also emphasized the principle of totality, referring to it as a “huge” issue and further noting that “the whole concept of totality is what has been raised here, and I think that is highly relevant in this case.”
[46] In terms of mitigation, the trial judge noted that other than the one previous assault conviction, for which he received a fine, the appellant appeared to be a law-abiding member of the community. For three years, he had complied with his conditions of release. The appellant was 56 years old and was being held to account for many actions that took place when he was in his 20s. The trial judge found that, while the appellant was a risk to women with whom he had an intimate relationship, that risk was decreasing with age. Further, the trial judge held that there was no evidence that the appellant posed a risk to the community at large.
[47] These mitigating factors notwithstanding, in response to the defence request for a conditional sentence, the trial judge stated that the offences were too serious for a sentence to be served in the community; a period of incarceration must be imposed. However, he did take account of the mitigating factors by reducing what he identified as a fit sentence – one of four years – by one year, and imposed a “global sentence” of three years.
[48] The following exchange at p. 11 of his reasons for sentence explains the basis upon which the trial judge sentenced the appellant for each count on which he was convicted: [^2]
THE COURT: So, a global sentence will be three years. Now, how do we have to split that up here? I guess any of these would carry three years, wouldn’t they?
MS. FERLAND: Yes.
THE COURT: So, I will just put it on count four, and the others will be concurrent, so they will all be concurrent, three years. But I would like to record it on one of the more serious ones, count four, and then concurrent on the other counts.
[49] In addition, he imposed a DNA order, a ten-year weapons prohibition and a sexual offender registry order.
IV. ISSUES
[50] The appellant raises the following issues on his conviction appeal:
In relation to counts one, two, four, five, six, seven and eight, whether the trial judge erred in law by misapprehending the evidence and by relying on B.L.’s previous consistent statements made to the police and in her testimony at the preliminary inquiry to support the credibility of her trial testimony. And, in relation to the same counts, whether the trial judge erred by failing to take the evidence of L.C. into account.
In relation to count nine, whether the trial judge erred in law by finding that the appellant’s utterance to D.Q. amounted to a threat to kill D.Q.
In relation to count ten, whether the trial judge erred in misapprehending the appellant’s evidence in concluding that he gave only a “blanket denial”.
In relation to counts ten and 12, whether the trial judge erred by reversing the onus of proof.
[51] The nature of the appellant’s sentence appeal is somewhat confusing. In his Supplementary Notice of Appeal and in his factum, the appellant indicates he is appealing sentence on the basis that the trial judge erred by failing to impose a conditional sentence. However, in the appellant’s actual argument as set out in the body of his factum, he submits that his sentence appeal is dependent on a partially-successful conviction appeal. Specifically, he asks that a conditional sentence be imposed “[i]f the appellant is successful on all or part of his conviction appeal”. He fails to offer any basis for varying the sentence if the conviction appeal is dismissed in its entirety.
V. ANALYSIS
The Convictions
(i) Did the trial judge err in law by misapprehending the evidence and by relying on B.L.’s previous consistent statements made to the police and in her testimony at the preliminary inquiry to support the credibility of her trial testimony?
[52] As can be seen from the summary of the reasons for judgment, the Crown’s case was largely dependent on B.L.’s evidence at trial in which she described the events that supported each charge. The appellant, in his testimony, disputed B.L.’s version of events. For the most part, this was a “he said, she said” case. The trial judge’s assessment of B.L.’s credibility was, as I have said, critical to his determination of whether the Crown had proven the facts in support of each count beyond a reasonable doubt.
[53] The appellant submits that on all but one of the counts relating to B.L., count four, the trial judge erred in law by relying on B.L.’s initial statement to the police and the testimony she gave at the preliminary inquiry as support for preferring B.L.’s testimony over that of the appellant. The appellant argues that the trial judge’s error in using B.L.’s prior statements was two-fold. First, and most significantly, the statements were not part of the record available to the trial judge. Secondly, the trial judge was not entitled to use B.L.’s prior statements, even if they were in evidence, to support her trial testimony.
[54] The portion of the reasons relating to B.L.’s allegations, over 50 pages, contain a number of references that clearly demonstrate the importance the trial judge attached to the consistency between B.L.’s trial evidence and what she said in her extensive statement to the police and her testimony at the preliminary hearing.
[55] To refer to just a few, the trial judge said, in relation to count one:
Another factor is, within less than an hour of walking down the lane, the complainant is at a police office, and that same afternoon gives a detailed account of this incident, and also goes back over eleven years of allegations. She has been consistent on all the major issues in her statement, through preliminary, and through trial in her evidence. It is not reasonable, in my view, to suggest that kind of detailed fabrication can be put together and consistently maintained. She was at the police station 40 to 60 minutes after she walked off the property. I just do not think it is reasonably possible for her to fabricate all this detail, and not trip herself up.
In relation to count five:
This allegation and her complaint is, again, first made on March 26, 2006, an hour and a half interview followed. It is not reasonably possible to fabricate this detailed account, repeated again in her evidence at the preliminary, and again at trial. He denies it, and I reject that denial. It is not going to raise as a reasonable doubt. The evidence of the complainant proves the allegation beyond a reasonable doubt because it is detailed, specific, and consistent.
Finally in relation to count eight:
Again, these allegations go back nine years. They were given to the police during an interview March 26, 2006 when they were first reported. No reasonable possibility they were all fabricated under those circumstances. They are consistent in detail.
[56] In response to the appellant’s arguments relating to the improper use of B.L.’s statement to the police and her testimony at the preliminary, the Crown submits that the trial judge relied on these previous statements only for the purpose of his analysis of the defence argument that B.L.’s allegations were fabricated. This, argues the Crown, the trial judge was entitled to do.
[57] My fundamental difficulty with this submission is that B.L.’s prior statements were not in evidence. Neither the recording of the police interview or its transcript nor the transcript of B.L.’s evidence at the preliminary inquiry was tendered by counsel to form part of the trial evidence. Both the preliminary inquiry and the police statement came up at various points during the trial and, in relation to B.L., defence counsel did read from the transcript of B.L.’s police statement in cross-examining B.L.
[58] While there is nothing in the record that indicates how the transcript of B.L.’s police statement or of the preliminary inquiry came into the possession of the trial judge, I can only presume that it took place informally as the trial proceeded. There is certainly nothing in the transcript of the trial that demonstrates that either statement or a portion of either statement was formally tendered or admitted into evidence.
[59] These observations bring into focus problems that arise when proper attention is not paid to the boundaries of the trial evidence. Both counsel and the trial judge are responsible for ensuring that there is no confusion about what is and what is not available to the trier of fact for the purposes of deciding the case. Here, where Crown counsel wished to make use of the prior statements for the permissible purpose of rebutting the defence of fabrication, the Crown was obliged to decide first whether the entire statement or statements or just a portion were required, then to seek a ruling on the admission of what the Crown determined was necessary and finally, to ensure that what was admitted into evidence was limited to the information tendered and ruled admissible and nothing more. In some instances, for example, this may require redacting a portion of the page of a document to ensure that information not in evidence does not inadvertently become part of the record. Similarly, the trial judge has an obligation to monitor the admission of evidence carefully in order to ensure not only that the record is restricted to the material ruled admissible, but also that the evidence is used only for the purpose for which it was admitted. see: R. v. Morrisey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514.
[60] I also disagree with Crown counsel’s argument that the trial judge’s only use of the previous statements was in considering the defence argument that B.L. had a motive to fabricate. The above excerpts from the reasons for judgment demonstrate otherwise. They clearly indicate that the trial judge used the previous statements that were not in evidence, as corroborative of B.L.’s testimony.
[61] In Morrisey, at p. 541, Doherty J.A., highlights the “fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial.” In the same paragraph, Justice Doherty explains that where a trial judge has misapprehended the evidence, including resorting to material not before him or her, and the errors “play an essential part in the reasoning process resulting in a conviction then … the accused’s conviction is not based exclusively on the evidence and is not a “true” verdict” (emphasis added). This reasoning was adopted by the Supreme Court of Canada in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 2-3.
[62] In my view, the appellant has demonstrated that the convictions in relation to counts one, two, four, five, six, seven and eight depended on material not in evidence and this material played an essential part in his conviction of the appellant. While the trial judge did not mention B.L’s previous consistent statements in his analysis of count four and the Crown’s case was supported by the testimony of other witnesses, reasons are to be read as a whole and I am not satisfied the trial judge’s conviction on count four was not tainted by the material not in evidence. Where a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Criminal Code has been demonstrated, the appellant does not need to show that the verdict cannot be supported by the evidence within the meaning of s. 686(1)(a)(i). It follows that, in relation to these counts, the convictions must be quashed.
[63] While it is not necessary for me to deal with the appellant’s second argument, namely, that the trial judge erred by failing to take into account L.C.’s evidence about B.L.’s motive to fabricate, I have decided, for the sake of completeness to do so.
[64] I do not accept the appellant’s submission on this point. The trial judge did refer to L.C.’s evidence, at p. 17 of his reasons for judgment, when considering whether B.L. had a motive to fabricate her evidence. Although, in his reasons, the trial judge did not advert directly to L.C.’s evidence about the toothpaste incident, it was not necessary in the circumstances since he had already rejected the appellant’s evidence with respect to this incident as being contrived and not credible.
(ii) Did the trial judge err in law by finding the appellant guilty of uttering threats to kill D.Q.?
[65] On this count, there were two issues for the determination of the trial judge. Did the appellant actually say the words to D.Q. and second, did they amount to a threat?
[66] The trial judge not only rejected the appellant’s denial that he said the words, but also found that it did not raise a reasonable doubt. This conclusion was based largely on the trial judge’s finding that the appellant’s description of the circumstances under which he pled guilty in 1993 of assaulting D.Q., was incredible. Furthermore, he accepted D.Q.’s evidence that the appellant did say to her that he “could kill [her] at any moment, and no one would be the wiser”.
[67] The trial judge’s conclusion that the appellant said those words to D.Q. was based on his assessment of the evidence. I see no reason to interfere.
[68] The only remaining issue is whether these words, in the circumstances in which they were uttered, support a conviction for uttering a death threat. Counsel for the appellant submits that these words amount only to an assertion of the ability to kill and do not convey a present intention to kill now or in the future - the actus reus of uttering a threat to kill.
[69] Based on the following analysis, I do not agree with this submission.
[70] Section 264.1(1)(a) of the Criminal Code provides that “[e]very one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat (a) to cause death … to any person”.
[71] In R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72, at pp. 82-83, the Supreme Court instructs that the question of whether the impugned words constitute a threat, which it describes as a question of law rather than one of fact, should be approached by looking at the matter objectively from the perspective of the ordinary, reasonable person:
The structure and wording of s. 264.1(1)(a) indicate that the nature of the threat must be looked at objectively; that is, as it would be by the ordinary reasonable person. The words which are said to constitute a threat must be looked at in light of various factors. They must be considered objectively and within the context of all the written words or conversation in which they occurred. As well, some thought must be given to the situation of the recipient of the threat.
The question to be resolved may be put in the following way. Looked at objectively, in the context of all the words written or spoken and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person? [Emphasis added.]
See also R. v. Clemente, 1994 CanLII 49 (SCC), [1994] 2 S.C.R. 758, at p. 763, R. v. Batista (2008), 2008 ONCA 804, 270 O.A.C. 73, at paras. 12-20.
[72] The Crown must therefore prove two elements to establish the offence of uttering a threat. First, the Crown must prove that the appellant made a threat to cause death; and second, that he made the threat knowing that it would be taken seriously.
[73] With respect to the second element, in R. v. LeBlanc, 1989 CanLII 56 (SCC), [1989] 1 S.C.R. 1583, the Supreme Court approved the trial judge’s ruling that whether the threatener intends to carry out the threat is irrelevant to determining if a conviction can be maintained. It is the element of fear instilled in the victim by the issuer of the threat at which the criminal sanction is aimed. Section 264.1 provides that the threat must be knowingly uttered or conveyed by the accused. Thus the Crown is required to establish that the accused intended to threaten the victim with death.
[74] However, here, since the appellant denied uttering the words in issue and therefore provided no evidence as to context or his intent, the determination as to whether there was such a subjective intent must be based upon a consideration of the words themselves.
[75] In considering the first element, whether the words amounted to a threat, the ordinary, reasonable person would take into account all the circumstances, including the manner in which the words were communicated, the person to whom the appellant addressed his comments and the relationship between the appellant and the subject of the alleged threat.
[76] In my view, the trial judge made no error in concluding that objectively, even without the evidence about the hole in the ground, a reasonable person would consider the words uttered to be a threat, given the nature of the appellant’s relationship with D.Q. – a relationship in which the appellant had been physically and emotionally violent towards D.Q. over an extended period of time.
[77] I would therefore not give effect to this ground of appeal.
(iii) Did the trial judge misapprehend the appellant’s evidence in respect of count 10, concluding that he gave only a “blanket denial”?
[78] The appellant submits that the trial judge’s finding that that the appellant “gave no evidence about any incidents surrounding any of these allegations” was contrary to the evidence as the record demonstrates that the appellant testified in some detail about various aspects of his relationship with M.O, including incidents that took place that related to some of the allegations that formed the basis of count ten. Furthermore, argues the appellant, since he took the position that none of the assaults described by M.O. took place, it was unreasonable to expect him to provide detailed information about such events.
[79] In my view, the trial judge’s comment that the appellant gave a blanket denial must be read in the context of the entirety of the portion of his reasons dealing with count ten, in which the trial judge reviewed the appellant’s testimony in full, ending with his rejection of the appellant’s version of events and his conclusion that it did not raise a reasonable doubt. In accepting M.O.’s evidence, the trial judge found that it was balanced, specific, detailed and consistent.
[80] I see no error in the trial judge’s treatment of the evidence relating to count ten or in his analysis of the evidence that led him to the conclusion that the Crown had proven the assaults. I would therefore not give effect to this ground of appeal.
(iv) Did the trial judge err by reversing the onus of proof in relation to counts ten and 12?
[81] With respect to count ten, the appellant submits that the trial judge erred when he said that M.O.’s evidence would have to be a “total fabrication” if the appellant’s was to be believed. The appellant only needed to raise reasonable doubt; he did not need to prove fabrication. With respect to count 12, the appellant similarly argues that the trial judge’s findings that it was unreasonable to believe the appellant’s testimony that M.O. would pursue the appellant after leaving him for a man with whom she still lives 22 years later, and that it defied common sense that she would falsely report a rape to her boyfriend, were unreasonable. These findings, argues the appellant, show that the trial judge’s approach was to assume that he committed the sexual assault against M.O., as it was only then that his testimony would defy common sense.
[82] I would not give effect to this ground of appeal.
[83] In my view, the trial judge did not reverse the onus of proof with respect to count ten or count 12. Throughout his reasons, the trial judge repeatedly referenced the required approach to the assessment of evidence established in W.(D.). The trial judge was entitled to reject the appellant’s evidence and find that it did not raise a reasonable doubt. With respect to count ten, the trial judge’s comment about fabrication was nothing more than a recognition of the obvious – that the appellant’s and M.O.’s evidence conflicted and thus could not both be true. Similarly, with respect to count 12, the trial judge was entitled, on the available evidence, to make the findings of fact that he did. In noting that the appellant’s version of the events was unreasonable, the trial judge was merely explaining why that version did not raise a reasonable doubt about his guilt.
The Sentence
[84] Since I would allow the appeal in relation to counts one, two, four, five, six and eight, quash the convictions and order a new trial and dismiss the appeal in relation to all other counts, it is necessary to consider only the sentences imposed on counts nine, ten and 12. The death threat to D.Q. and the assaults on M.O., including the sexual assault that forms the basis of count 12, must be considered separately for sentencing purposes.
[85] In this province, sentences for uttering a death threat in circumstances similar to those in this case tend to range from the imposition of a suspended sentence to six months imprisonment: see R. v. Rowe (2006), 2006 CanLII 32312 (ON CA), 212 C.C.C. (3d) 254 (C.A.), R. v. Bytyqi (2004), 2004 CanLII 14964 (ON CA), 186 O.A.C. 114 (C.A.), R. v. Stiliadis, 2004 CarswellOnt 1388 (C.A.).
[86] The jurisprudence of this court suggests that a sentence of one to two years will generally be appropriate for a conviction for common assault based on facts such as those comprising count ten, committed against a spouse or domestic partner in the context of a lengthy pattern of domestic abuse: see R. v. Petrovic (1984), 1984 CanLII 2003 (ON CA), 47 O.R. (2d) 97 (C.A.), R. v. Inwood (1989), 1989 CanLII 263 (ON CA), 32 O.A.C. 287 (C.A.), R. v. R.(B.S.) (2006), 2006 CanLII 29082 (ON CA), 81 O.R. (3d) 641 (C.A.), R. v. Sidhu, 2011 ONCA 139, R. v. States (2006), 2006 CanLII 25973 (ON CA), 214 O.A.C. 106 (C.A.).
[87] Finally, in cases of sexual assault involving forced intercourse with a spouse or former spouse, sentences generally range from 21 months to four years: see R. v. R.(B.S.) (2006), 2006 CanLII 29082 (ON CA), 81 O.R. (3d) 641 (C.A.), R. v. Jackson, 2010 ONSC 3910, R. v. M.(B.), 2008 ONCA 645, R. v. Nolan, 2009 ONCA 727, R. v. Toor, 2011 ONCA 114.
[88] These observations take me to the question of whether the sentences I would impose for these crimes should be served consecutively or concurrently. While the decision to impose sentences consecutively or concurrently is entitled to the same deference customarily afforded to sentencing decisions (R. v. M.(T.E.), 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948, at para. 46), in this case, the trial judge failed to offer any justification for his decision that each sentence be served concurrently. As such, there is no reasoning to which to defer. Given the length of time between the offences committed against D.Q. and against M.O., the fact that they were committed against two different complainants and the lack of any other relevant nexus between the offences, including those in relation only to M.O., in my view the trial judge made a reversible error in deciding that the sentences should be served concurrently: see R. v. W.Q. (2006), 2006 CanLII 21035 (ON CA), 213 O.A.C. 217 (C.A.), at para. 15, R. v. Traverse (2008), 2008 MBCA 110, 231 Man R. (2d) 123 (C.A.), at para. 47.
[89] At this juncture it is important to note that the Crown chose not to cross appeal sentence. Therefore, the sentence I would impose in relation to the three counts that require reconsideration cannot exceed three years, in total.
[90] Against that background, having regard to the principles set out in s. 718 of the Criminal Code, the aggravating circumstances, the main one being the fact that the appellant’s acts were acts of spousal abuse, and the mitigating factors identified by the trial judge, I am of the view that fit sentences are two months for count nine, ten months for count ten and two years for count 12. I would order the sentences for counts ten and 12 to be served consecutively with each other and consecutive to the sentence for count nine.
DISPOSITION
[91] In the result, I would allow the appeal and quash the convictions on counts one, two, four, five, six, seven and eight and direct a new trial. I would dismiss the appeal from the convictions on counts nine, ten and 12, grant leave to appeal the sentence imposed on those counts, allow the appeal and vary the sentences imposed on those counts to two months for count nine, ten months for count ten and two years for count 12, each sentence to be served consecutively to each other sentence.
RELEASED:
“AUG 26 2011” “Gloria Epstein J.A.”
“KMW” “I agree K.M. Weiler J.A.”
“I agree R.A. Blair J.A.”
[^1]: B.L. are the complainant’s initials since her marriage. She is referred to as B.V. in the reasons for judgment.
[^2]: The proper approach to sentencing an offender for multiple offences is unsettled. The courts of appeal of various provinces have set out two competing approaches. One requires a sentencing judge to fix an appropriate global sentence first and then assign sentences for each individual offence and designate them concurrent or consecutive to fit within the already determined global sentence: see R. v. Jewell (1995), 1995 CanLII 1897 (ON CA), 83 O.A.C. 81 (C.A.). The alternative approach requires a sentencing judge first to assign fit sentences for each offence and designate those sentences as concurrent or consecutive and only then, as a final step, consider the total sentence to ensure it does not offend the principle of totality: see R. v. Adams (2010), 2010 NSCA 42, 291 N.S.R. (2d) 206 (C.A.), R. v. Wozny, 2010 MBCA 115, [2011] 2 W.W.R. 630 (C.A.). Here, the trial judge followed the approach set out by this court in Jewell.