Court of Appeal for Ontario

Date: 2018-02-28

Docket: C62982

Panel: Hoy A.C.J.O., Simmons and Pardu JJ.A.

Between

Her Majesty the Queen Respondent

and

Kamalpreet Walia Appellant

Counsel

Alan D. Gold and Laura Metcalfe for the appellant

Christopher Webb for the respondent

Heard: February 16, 2018

Appeal Information

On appeal from the conviction entered by Justice M. Donohue of the Superior Court of Justice sitting with a jury, dated September 22, 2016, and from the sentence imposed on December 1, 2016.

Reasons for Decision

[1] The Incident and Charges

During an argument that had escalated into mutual spitting, the appellant hit her sister-in-law in the face with a glass causing a significant wound. As a result of this action, the appellant was charged with two offences: assault with a weapon, namely, a glass, contrary to s. 267(a) of the Criminal Code and aggravated assault by wounding, contrary to s. 268 of the Criminal Code.

[2] Trial and Verdict

At a jury trial that lasted nine days (including a voir dire and jury selection), the appellant did not dispute hitting her sister-in-law with a glass or wounding her. However, she maintained that she did not hit her sister-in-law intentionally; rather, the blow she struck was a reflexive reaction in response to her sister-in-law striking her in the face with a cell phone.

The jury found the appellant not guilty of assault with a weapon but guilty of aggravated assault.

[3] Sentencing

The trial judge sentenced the appellant to twelve months' imprisonment plus one-year probation.

[4] Grounds of Appeal

The appellant appeals her conviction and seeks leave to appeal sentence.

The appellant's primary argument on her conviction appeal is that the verdicts are inconsistent, rendering the guilty verdict for aggravated assault unreasonable.

[5] Analysis of Inconsistent Verdicts

We accept this submission. As we have said, there was no dispute at trial that the appellant hit her sister-in-law in the face with a glass and that the blow wounded her sister-in-law. The contested issue was whether the blow was reflexive or intentional.

Elements of Aggravated Assault

To prove the appellant guilty of aggravated assault, the Crown had to prove the following elements beyond a reasonable doubt:

• the appellant intentionally applied force to her sister-in-law;
• her sister-in-law did not consent to the application of force;
• the appellant knew her sister-in-law did not consent to the application of force;
• the force applied by the appellant wounded her sister-in-law; and
• a risk of bodily harm was objectively foreseeable in the circumstances.

Elements of Assault with a Weapon

To prove the appellant guilty of assault with a weapon, the Crown had to prove the following elements beyond a reasonable doubt:

• the appellant intentionally applied force to her sister-in-law;
• her sister-in-law did not consent to the application of force;
• the appellant knew her sister-in-law did not consent to the application of force; and
• in applying force to her sister-in-law, the appellant used a weapon.

Definition of Weapon

Weapon is defined in s. 2 of the Criminal Code as:

any thing used, designed to be used or intended for use

a) in causing death or injury to any person, or

b) for the purpose of threatening or intimidating any person

In the circumstances of this case, to prove the final element of assault with a weapon, the Crown had to prove only that the appellant used the glass to injure her sister-in-law and that injury was reasonably foreseeable in the circumstances: R. v. Lamy, 2002 SCC 25, [2002] 1 S.C.R. 868, at paras. 11-16.

Logical Inconsistency

Given the evidence and issues at trial, a properly instructed jury could not render a verdict of guilty to the aggravated assault charge but not guilty to the assault with a weapon charge. It was conceded that the appellant struck her sister-in-law with a glass thereby wounding her. The wound was obviously an injury. Injury was reasonably foreseeable based on the appellant striking her sister-in-law in the face with a glass. The only live issue was whether the strike was reflexive or intentional.

[6] Crown's Argument Regarding Jury Instructions

The Crown submits that the verdicts are reconcilable because of a jury instruction that was favourable to the appellant.

Through her initial instructions and in response to questions, the trial judge told the jury that a glass can be used as a weapon "if it is intended to be used to injure" and that "if a person meant to throw the glass", then the glass is a weapon. The Crown asserts that the trial judge erred in these instructions in two ways. First, she imposed a burden on the Crown to prove something in addition to what it was required to prove, namely, that the appellant intended to use the glass to injure her sister-in-law. Second, she referred to a requirement of "mean[ing] to throw" the glass when there was no evidence of throwing a glass in this case.

[7] Rejection of Crown's Argument

We do not accept the Crown's submissions that the jury verdicts can be reconciled because of the erroneous instructions given by the trial judge. The two charges in this case arose out of the same conduct by the appellant. It was the blow with the glass that caused the wound to the appellant's face. The contested issue was whether the appellant's action was a reflex. Although the trial judge gave some instructions that may be seen as favourable to the appellant, she also told the jury that "whether the glass was a weapon comes back to whether you are satisfied that this was an intentional act or an involuntary act." There is no benefit to speculating about how the jury came to its inconsistent verdicts, whether by way of unprincipled compromise or in response to the flawed instructions.

[8] Principle on Improper Instructions

Further, we note that in R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215, at para. 23, Fish J., speaking for the majority, stated that the Crown cannot rely on improper instructions to which it acquiesced to reconcile unreasonable verdicts. Although he found no error in the jury instructions in that case, he noted the fundamental principle that verdicts are deemed inconsistent and therefore unreasonable as a matter of law if no properly instructed jury could reasonably have returned them both: "[i]mproper instructions do not make improper verdicts proper. Nor do they make inconsistent verdicts consistent" (at para. 23).

[9] Refusal to Order New Trial

The Crown also asked that we order a new trial on the aggravated assault charge if we were to conclude that the verdicts are inconsistent. We do not consider this an appropriate case in which to do so. The Crown did not appeal the acquittal on the assault with a weapon charge. Similar to the conclusion this court reached in R. v. Catton, 2015 ONCA 13, 319 C.C.C. (3d) 99, at para. 25, if this court were to order a new trial on the aggravated assault charge, "it would invite a repetition of the very inconsistency that led to the quashing of the conviction … on this appeal."

Decision

Based on the foregoing reasons, the appeal is allowed, the conviction for aggravated assault is set aside and an acquittal is entered.

Concluding Remarks

Before leaving this matter, we observe that we can discern no obvious reason why the Crown proceeded with the less serious assault with a weapon charge in addition to the aggravated assault charge. Outcomes such as these could be avoided, and trials simplified and shortened, if the practice of proceeding with duplicative counts was avoided.

"Alexandra Hoy A.C.J.O."

"Janet Simmons J.A."

"G. Pardu J.A."