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 purposes of subsection (1), the “proper administration of justice” includes ensuring that

(a) the interests of 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, 170, 171, 171.1, 172, 172.1, 172.2, 173, 212, 271, 272, 273, 279.01, 279.011, 279.02 or 279.03 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, by reference to the circumstances of the case, the reason for not making an order. R.S., 1985, c. C-46, s. 486; R.S., 1985, c. 27 (1st Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4th Supp.), s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9;1993, c. 45, s. 7;1997, c. 16, s. 6;1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133;2002, c. 13, s. 20;2005, c. 32, s. 15, c. 43, ss. 4, 8;2010, c. 3, s. 4;2012, c. 1, s. 28.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D.W., 2015 ONCA 662

DATE: 20150930

DOCKET: C59378

Strathy C.J.O., MacPherson J.A. and Speyer J. (Ad Hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

D.W.

Appellant

Brian A. Callender, for the appellant

Shawn Porter, for the respondent

Heard: September 28, 2015

On appeal from the conviction entered on June 20, 2014 and the sentence imposed on September 22, 2014 by Justice Wolfram Tausendfreund of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] Following a short trial before Tausendfreund J. of the Superior Court of Justice, the appellant D.W. was convicted of three offences – assault, mischief in relation to property, and failure to comply with conditions of an undertaking. The appellant received a global sentence of 45 days incarceration and two years’ probation for these offences. He appeals the conviction and sentence.

Conviction

[2] Two of the offences arose from an altercation the appellant had with his 16-year-old daughter C.W. at their home. The appellant became very angry with C.W. after listening to a voicemail message from another relative. He decided to evict C.W. from the house immediately, even though it was night and the house was in a rural area. C.W. packed her belongings in several garbage bags and moved them to the front door. She had called an aunt to come pick her up. Near the door, the appellant grabbed C.W.’s arm and pushed her towards the door. He then threw her computer out the door onto the porch. This conduct led to the convictions for assault and mischief in relation to property.

[3] The appellant contends that, once the appellant ordered C.W. to leave the house, she was a trespasser and he was entitled to use reasonable force to remove her.

[4] We do not accept this submission. C.W. was hardly a trespasser. She is the appellant’s daughter and had lived in the family home for several months. She had packed her belongings and moved them to the front door and was waiting for her aunt to arrive. Although the appellant did not apply a great deal of force, there was no need for any. Accordingly, as the trial judge found, “s. 41 [of the Criminal Code] is not a safe haven for the accused on these facts.”

[5] The appellant contends that there is no evidence that the computer was damaged when he threw it through the door onto the porch.

[6] We are not persuaded by this submission. The trial judge reviewed the location of and rationale for the appellant’s action. He concluded: “I accept that the accused willingly damaged that computer, in a pique of anger, by throwing it.” In our view, he was entitled to draw this inference.

[7] The third offence related to an undertaking that bound the appellant not to communicate with his daughter H.W. “except with the permission from CAS Kingston or L.W.” The appellant attempted to get a message to H.W. at school without one of these permissions, but through a third party.

[8] On appeal, the appellant submits that communication with H.W. through the CAS or L.W. is indirect communication. His attempt to communicate with H.W. through a third party was also indirect communication. Accordingly, his conduct was legal; as expressed in his factum: “[T]his is a distinction without a difference. All three options involve a certain amount of indirect communication and were equally acceptable.”

[9] We disagree. The undertaking specifically authorizes communication by the appellant with his daughters through two intermediaries – the CAS and the daughters’ aunt. The appellant cannot dream up and employ his own intermediary because he doesn’t like or trust the CAS and the aunt.

Sentence

[10] The appellant contends that his sentence (45 days incarceration) was disproportionate to the gravity of the offence.

[11] We disagree. The 14-day and one-day consecutive sentences for assault and mischief in relation to property are light. The 30-day sentence for breach of an undertaking is also reasonable, especially bearing in mind that the appellant has eight previous convictions for non-compliance with various court orders.

[12] In light of the fresh evidence relating to the appellant’s motorcycle accident that caused a serious back injury, we accept the appellant’s counsel’s request that the appellant may commence serving the remainder of his sentence on January 2, 2016.

Disposition

[13] The appeals from conviction and sentence are dismissed.

“G.R. Strathy C.J.O.”

“J.C. MacPherson J.A.”

“C.M. Speyer J. (ad hoc)”