COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Breton, 2016 ONCA 425

DATE: 20160601

DOCKET: C58374

Simmons, van Rensburg and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jean Claude Breton

Appellant

Joseph Di Luca, for the appellant

Michael Perlin, for the respondent

Heard: November 25, 2015

On appeal from the convictions entered on September 13, 2013 and the sentences imposed on December 5, 2013 by Justice A.L. Guay of the Ontario Court of Justice.

Benotto J.A.:

Overview

[1] The appellant was convicted of robbery, possession of a weapon for a purpose dangerous to the public peace (“weapons dangerous”) and three counts of breaching probation orders in connection with his involvement in a drug transaction. The charge of aggravated assault was stayed under R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

[2] His co-accused, Ashley Labonte, was convicted of robbery and accessory to an attempted robbery, the latter of which was stayed under the Kienapple principle.

[3] The appellant and Labonte both appealed their convictions and sentences. The two appeals were heard together. The reasons are being released together and are intended to be read together. The facts with respect to the convictions are set out in the reasons for my decision on the Labonte appeal: see R. v. Labonte, 2016 ONCA 426.

Robbery

[4] In the Labonte appeal, I concluded that the trial judge provided insufficient reasons, by failing to make the findings of fact necessary to find Labonte guilty of robbery in the manner particularized by the Crown, such that a new trial was required.

[5] I set aside Labonte’s conviction for robbery and the stay of her conviction for accessory to an attempted robbery and ordered a new trial.

[6] The Crown submits that if this court allows the appellant’s appeal from his robbery conviction, then this court should either remit the aggravated assault charge back to the trial judge to enter a conviction and sentence, or this court should enter a conviction for aggravated assault pursuant to its powers under s. 686(8) of the Criminal Code, R.S.C. 1985, c. C-46.

[7] For the reasons that follow, I would dismiss the appeal pursuant to s. 686(1)(b)(i) of the Criminal Code, which allows this court to dismiss the appeal where it is of the opinion that the appellant, although not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment. I would quash the conviction on robbery, lift the stay on the aggravated assault charge, enter a conviction for aggravated assault and, pursuant to s. 686(3)(b), remit the matter back to the trial judge for sentencing on aggravated assault.

Aggravated Assault

[8] The appellant testified that when Courtemanche leaned into the car, stabbed Labonte and tried to engage the handbrake, he wrestled the knife away and stabbed Courtemanche in an effort to defend Labonte.

[9] The trial judge rejected this evidence for several reasons, all of which were available to him on the evidence. Further, the trial judge made findings of fact in relation to the essential elements of aggravated assault. He found that the appellant unabashedly admitted to stabbing Courtemanche eight times. He also found that Courtemanche was wounded as a result. The trial judge made a finding of guilt on the aggravated assault count and stayed that charge.

[10] At trial, the appellant sought to rely on the “Defence of Person” provisions in s. 34 of the Criminal Code. These provisions came into force in March 2013, after the events in question. The trial judge implicitly acceded to the submission to have the provisions apply retrospectively. Instead of applying the previous s. 37, the trial judge applied the new s. 34. After the trial, this court held in R. v. Bengy 2015 ONCA 397, 325 C.C.C. (3d) 22, that the provision does not apply retrospectively. In any event, as counsel agreed on appeal, the key factual inquiry governing the application of the new provision and the previous self-defence provisions is the same: was the force used defensive and proportionate to the threat at hand. The trial judge rejected the defence on both bases.

[11] The provision applied by the trial judge states:

34 (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

[12] This defence is only available, as per s. 34(1)(c), if the actions of the appellant were reasonable in the circumstances. Section 37 provided that the defence was only available if no more force than was necessary to prevent the assault or the repetition of it was used. Further, the force could not be excessive. The appellant submitted that the trial judge erred in concluding that he had the time to extricate himself, and get out of the car. Even if the trial judge erred factually with respect to this issue, his ultimate finding was based on proportionality. The trial judge concluded that – even if the appellant’s evidence was accepted in its entirety – once he wrestled the knife from Courtemanche, stabbing him eight times was disproportionate to the threat he posed. In short, his conduct went far beyond what could be considered reasonable or necessary in the circumstances pursuant to either s. 34 or s. 37.

[13] I see no error in the trial judge’s consideration of this defence.

[14] Under s. 686(3)(b) of the Criminal Code, this court has the power to substitute the verdict that should have been found by the trial judge. Accordingly, I would quash the conviction for robbery, lift the stay and enter a conviction on the aggravated assault charge.

Weapons Dangerous

[15] In convicting the appellant for possession of a weapon for a purpose dangerous to the public peace, the trial judge said this:

It is clear that the knife (a flick knife) used to stab John Courtemanche was the property of, or, at a very minimum, in the possession of Jean-Claude Breton. As such, possession of this weapon at the time of the commission of the offence fulfills the criteria for a conviction under section 88 of the Criminal Code of Canada.

[16] The basis for the conviction was the use of the knife during the aggravated assault. This was a finding open to the trial judge. However, in light of the conviction that has now been entered for aggravated assault, the Kienapple principle should be applied to stay that charge, along with its corresponding sentence of 12 months’ imprisonment.

Sentence

[17] As a result of my conclusions, there is no reason to consider the appellant’s sentence appeal except to point out that – as conceded by the Crown – the appellant should have received enhanced credit of 1.5 days for each day spent in pre-trial custody (a reduction of 178 days), pursuant to R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575.

Disposition

[18] I would dismiss the appeal pursuant to s. 686(1)(b)(i) of the Criminal Code. In doing so, I would quash the appellant’s conviction for robbery, lift the conditional stay on the charge of aggravated assault, enter a conviction for aggravated assault, enter a stay on the weapons dangerous conviction, and remit the matter back to the trial judge for sentencing on the aggravated assault conviction, pursuant to s. 686(3)(b). The appellant’s convictions on three counts of breach of probation stand, along with the sentences imposed in relation to those convictions.

Released: June 1, 2016

“M.L. Benotto J.A.”

“I agree Janet Simmons J.A.”

“I agree K. van Rensburg J.A.”