Court of Appeal for Ontario

CITATION: R. v. Poitras, 2015 ONCA 475

DATE: 20150625

DOCKET: C57956

BEFORE: Cronk, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicholas Poitras

Appellant

COUNSEL:

James Foord, for the appellant

Mary-Ellen Hurman, for the respondent

HEARD: June 19, 2015

On appeal from the decision of the Summary Conviction Appeal Court, dated September 5, 2013, by Justice Michel Z. Charbonneau of the Superior Court of Justice, dismissing the appeal from the conviction entered on January 18, 2012 by Justice Bruce E. MacPhee of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant seeks leave to appeal from a Summary Conviction Appeal Court (“SCAC”) decision dismissing his appeal from conviction for assault.

[2] At the conclusion of oral argument, this court granted leave to appeal and allowed the appeal, for reasons to follow. These are those reasons.

[3] The test for leave to appeal to this court from a decision of the SCAC is an exacting one. Leave may only be granted in one of two circumstances: i) where there is an arguable question of law that has significance to the administration of justice beyond the four corners of the case; or ii) where there appears to be a clear error of law, even if it cannot be said that the issue is one of general importance: R. v. R.(R.) (2009), 2008 ONCA 497, 234 C.C.C. (3d) 463 (Ont. C.A.).

[4] During oral argument, the focus of the appellant’s proposed appeal was significantly narrowed. As argued, the appellant makes two main submissions. First, he contends that the trial judge erred, in effect, by failing to address and make an explicit finding on the actus reus for the common assault alleged. Second, the appellant maintains that the SCAC judge erred by stating, without elaboration or analysis, that “the trial judge clearly reject[ed] the idea that what occurred here was a consensual fight.”

[5] Crown counsel acknowledges that if the trial judge failed to determine that the Crown had established the actus reus for the alleged assault, this error would support the granting of leave to appeal to this court under the second part of the leave test articulated above. We agree.

[6] On our review of the record, it is unclear whether the actus reus of the offence charged was established at trial. The trial judge made no explicit finding that the encounter between the appellant and his father was a non-consensual incident. His reasons suggest that he found the appellant guilty of assault because he concluded that the appellant had acted unwisely in asserting his mother’s claim to possession of a former family car. Although the trial judge clearly held that the appellant initiated the attempt to retake possession of the car, he made no finding that the jostling and pushing that ensued in the front seat of the car when the father tried to retake the car keys and his son resisted those efforts, was non-consensual or that the appellant actually assaulted his father.

[7] In these circumstances, the SCAC judge erred when he concluded that the trial judge had made a finding that the encounter between the appellant and his father was a non-consensual fight. This error warrants intervention by this court. The trial judge made no finding as to the actus reus of the assault – namely, that any force applied by the appellant occurred in the context of a non-consensual fight.

[8] Accordingly, in the unusual circumstances of this case, leave to appeal is granted, the appeal is allowed and a new trial is ordered. We note that the appellant has abandoned his sentence appeal. Since the appellant has served his sentence – 18 months’ probation – the Crown may wish to consider whether a new trial would be in the interests of justice.

“E.A. Cronk J.A.”

“G. Pardu J.A.”

“M.L. Benotto J.A.”