COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Horton, 2014 ONCA 616

DATE: 20140902

DOCKET: C56728

Watt, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

George Horton

Appellant

Peter Copeland, for the appellant

Amy Alyea, for the respondent

Heard and released orally: August 25, 2014

On appeal from the conviction entered on May 15, 2012 and the sentence imposed on September 28, 2012 by Justice Beverly Brown of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant was convicted of assaulting a peace officer and of intimidating a justice system participant arising out of his participation in a street demonstration during the G20 summit in Toronto in late June of 2010. He was found not guilty of obstructing a peace officer in the execution of his duties arising out of the same events.

[2] The conduct that underpins the prosecution may be described briefly.

[3] The appellant approached a marked police cruiser stopped on a downtown street. The car was occupied by a police officer in uniform, wearing a bright yellow jacket with reflective markings, the word “Police” on the front and back, and police patches on each sleeve. It was mid-afternoon. The officer was seated in the driver’s seat.

[4] The appellant approached the vehicle from the curb directly opposite the driver’s door. The window in the driver’s door was closed, the rear seat window on the same side broken out. The appellant squared himself to the door and landed two direct kicks with his booted right foot on the upper portion of the door panel, and lower-to-mid portion of the driver’s side window. The window did not break.

[5] The appellant testified at trial. He maintained that he did not know that anyone was inside the vehicle. He intended to kick the door. He said he was disgruntled because of what he perceived to be abusive police treatment of some demonstrators, and so it was that he kicked the cruiser.

[6] In this court the appellant says that both convictions are flawed because the trial judge failed to address important features of the evidence that were relevant to the appellant’s knowledge that the marked police cruiser he twice kicked in broad daylight was occupied by a police officer. According to the appellant, the trial judge’s failure to advert to this evidence reflects a misapprehension of the evidence or an insufficiency of reasons.

[7] We do not agree.

[8] We begin with the obvious. A trial judge need not detail his or her findings on each piece of evidence or on every controverted fact, so long as the findings linking the evidence to the verdict can be logically discerned: 2008 SCC 51, at para. 20. In cases that turn largely on credibility, as the appellant’s claim of lack of knowledge did here, determinations of credibility by trial judges attract a high degree of deference. We consider the sufficiency of her reasons in light of that deference. The prevailing jurisprudence teaches that rarely will deficiencies alleged in a trial judge’s credibility analysis as expressed in the reasons for judgment merit our intervention: 2008 SCC 24, at para. 26.

[9] From the very outset of trial proceedings, the trial judge was keenly aware of the appellant’s denial of knowledge that the police car was occupied and the implications of that claim on the Crown’s proof of the essential elements of each offence with which the appellant was charged. She acknowledged in her reasons that the officer leaned to his right in the driver’s seat, but was unable to lean too far in that direction because of the position occupied by a computer terminal inside the police vehicle.

[10] The trial judge found, as she was entitled to do, that the appellant had a clear and unobstructed view of the police vehicle, and the window of the driver’s door, when he delivered his two kicks after steadying himself on the curb. The video itself, even on a casual viewing, reduces to sheer fantasy any suggestion that the appellant could not or did not see a person in the driver’s seat wearing a bright yellow jacket with police markings on it.

[11] Nor are we persuaded that the trial judge erred in concluding that the essential elements of the offences of assaulting a peace officer and intimidating a justice system participant were established by the evidence.

[12] The trial judge found, and the evidence supporting her finding of assault under s. 265 (1)(b) of the Criminal Code. By kicking the window of the cruiser, the appellant attempted to apply force to Staff Sergeant Queen either directly, or by causing the glass to shatter and strike the officer. Further, in the circumstances, with the windshield already damaged and the rear driver’s side window broken out, it was open to the trial judge to conclude that Staff Sergeant Queen reasonably believed the appellant had the ability at that time to carry out his purpose.

[13] The appellant advances several arguments in connection with his conviction for intimidation of a justice system participant under s. 423.1 of the Criminal Code. He faults the trial judge for her failure to refer to the legislative history of s. 423.1 to conclude that “state of fear” requires something more than a transitory state and to hold that “duties” relates to the administration of criminal justice.

[14] The trial judge was under no obligation to refer to the legislative history of s. 423.1. Her task was to give such fair, large and liberal construction and interpretation to the section as best ensured the attainment of its objects. Whatever may be the outer boundaries of s. 423.1(1), which we find it unnecessary to determine, we are satisfied that the appellant’s conduct fell four-square within the prohibition.

[15] The police officer who occupied the driver’s seat of the marked police vehicle was a peace officer engaged in the exercise of his duties, monitoring the activities of an unruly crowd of protesters engaged in damaging property in the downtown area of Canada’s largest city. On any reasonable assessment, the evidence could support an inference that the violent kicks aimed at the driver’s door and window of the cruiser were intended to cause and did cause more than a momentary state of fear in the officer to impede him in the performance of his duties. For only the second time in his lengthy police career, the officer made a 10-33 call. And that was enough to establish the appellant’s guilt under s. 423.1(1) of the Criminal Code.

[16] The appellant seeks a stay of his conviction for assaulting a peace officer on the basis that to permit it to stand would violate the rule against multiple convictions for the same delict.

[17] The rule against multiple convictions requires a sufficient factual and legal nexus between the two offences. The factual nexus exists here since both convictions are grounded on the same conduct. But the legal nexus between the two offences in our view is lacking. The offence of s. 423.1 contains additional fault elements, the ulterior intent to provoke a state of fear in the justice system participant, that is absent from the offence of assaulting a peace officer in the execution of his duties. The rule against multiple convictions is not applicable in these circumstances. This ground of appeal fails.

[18] It is common ground that the sentence imposed on the conviction for assaulting a peace officer is illegal. It exceeds the maximum sentence that may be imposed when the offence is prosecuted by summary conviction. The sentence for that conviction should be reduced to a term of six months to be served concurrently with the sentence for the s. 423.1 offence.

[19] For these reasons, the appeals from conviction are dismissed. Leave to appeal sentence is granted. The appeal against sentence on the assault peace officer conviction is allowed and the sentence reduced to imprisonment for six months to be served concurrently with the sentence imposed on the conviction for intimidating a justice system participant.

“David Watt J.A.”

“M. Tulloch J.A.”

“M.L. Benotto J.A.”