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. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5

(1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society's interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19

486.6

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 2018-12-03

Docket: C64031

Judges: Simmons, Huscroft and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Daniel Horner Appellant

Counsel: Richard Litkowski, for the appellant Andrew Cappell, for the respondent

Heard: June 19, 2018

On appeal from the conviction entered on April 26, 2017 and the sentence imposed on June 2, 2017 by Justice Sharon Lavine of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant and the complainant had been in an intimate relationship for approximately two years. They did not live together, and both describe the relationship as having its ups and downs. On the morning of July 7, 2015, the complainant sent the appellant a text message, telling him that she needed to distance herself from him and wanted only to be friends. The appellant then drove to the complainant's house intent on speaking with her. He was both uninvited and unwelcome. He took the complainant's children for a walk to a nearby store while the complainant was busy with a business client who had just arrived.

[2] When the appellant returned with the children, the client had left. The appellant and complainant resumed their discussion, which quickly became heated. Things did not proceed the way the appellant would have liked. The complainant asked him to leave. The appellant took a knife from a kitchen drawer and then walked into the back room where the complainant was standing. Their accounts as to what happened next diverge significantly.

[3] The appellant testified that he had the knife at his side and raised in front of him when he entered the back room. The trial judge rejected the appellant's evidence that he intended to hold the knife to his heart to dramatically communicate his pain at the complainant's rejection, with the intention of saying that she "might as well cut [his] heart out." The trial judge also rejected a number of other aspects of the appellant's account of the events. The trial judge accepted the complainant's evidence that she had her back to the appellant and turned at some point to find him holding out the knife and advancing towards her. The complainant was fearful. She attempted to take the knife from the appellant, grabbing his hand with hers. The two fell to the floor and struggled over the knife. The complainant's hands were badly cut during the struggle. Following the struggle, she ran to the back yard, and the appellant attempted to follow her. The appellant subsequently left the home.

[4] The trial judge accepted the appellant's testimony that he did not take the knife from the drawer with the intention of using it to harm the complainant.

[5] The trial judge convicted the appellant of assault with a weapon, but acquitted him of aggravated assault, uttering a threat to cause death, and possessing a weapon for a purpose dangerous to the public peace. The trial judge imposed a sentence of thirteen months' custody less four months credit for pre-trial house arrest.

[6] The Crown did not appeal any of the acquittals. The appellant appeals both conviction and sentence.

[7] With respect to conviction, the appellant's primary ground of appeal is that the verdict was unreasonable. His argument was made on two bases: (1) the evidence did not support the conclusion that he intended to threaten the complainant with the knife and the trial judge never made such a finding; and (2) the trial judge returned inconsistent verdicts – convicting the appellant of assault with a weapon while acquitting him of possession of a weapon for a purpose dangerous to the public peace.

Analysis

(1) Mens rea for assault with a weapon

[8] As the trial judge correctly noted, a person commits an assault when that person threatens by an act or gesture to apply force to another person if he has, or causes that person to believe on reasonable grounds that he has, present ability to effect his purpose: Criminal Code, s. 265(1)(b). The trial judge found that the actus reus of the offense of assault with a weapon was made out by the appellant's advancing on the complainant with a knife. That is, by his actions, the appellant communicated to the complainant a threat to use the knife to assault her. The appellant argues, however, that the trial judge failed to make a finding that the appellant had the requisite intent to threaten the complainant.

[9] As the appellant points out, the trial judge found that the appellant did not have the intention of actually using the knife to "harm" the complainant. But as explained below, it is apparent from the reasons that the trial judge was using "harm" in the narrow sense of causing bodily harm, and not in a broader sense that includes non-bodily harm, such as psychological harm caused by threatening.

[10] Thus, the finding that the appellant did not have the intention of using the knife to harm the complainant is not dispositive of whether the appellant had the intention of threatening the complainant with the knife. The relevant mens rea lies in the appellant's intention to threaten, and not in the intention to carry out that threat: R. v. Horncastle (1972), 8 C.C.C. (2d) 253 (N.B.C.A.), at p. 262. Although the trial judge did not expressly state that the appellant held the knife with the intention of threatening the complainant, her finding in that regard can be discerned from a reading of her decision as a whole. She rejected the appellant's explanation that he only intended to hold the knife to his heart to communicate the pain of his rejection. She queried why, if the appellant thought there was a misunderstanding, he testified that he said nothing to the complainant to allay her fears as they struggled over control of the knife.

[11] On the facts as found by the trial judge, there was simply no inference to be drawn other than this: when the appellant advanced on the complainant with the knife it was a threat to apply force. The act of holding a knife can itself constitute a threat: see R. v. Edgar, 2016 ONCA 120, 344 O.A.C. 399, at para. 10. That the appellant may not have intended to follow through on the threat and cause physical harm to the complainant is irrelevant. The trial judge made no error in concluding that the appellant intended to threaten the complainant with the knife.

(2) Inconsistent verdicts

[12] The appellant argues the verdict was unreasonable because conviction for assault with a weapon is inconsistent with the trial judge's decision to acquit the appellant for possession of a weapon "for a purpose dangerous to the public peace" contrary to s. 88(1) of the Criminal Code. Section 88(1) of the Criminal Code provides:

Every person commits an offence who carries or possesses a weapon … for a purpose dangerous to the public peace or for the purpose of committing an offence.

The offence thus has two elements:

The accused possessed a weapon; and
The purpose of that possession was one dangerous to the public peace.

(See R. v. Kerr, 2004 SCC 44, [2004] 2 S.C.R. 371, at para. 24.)

[13] The trial judge concluded that the appellant could not be convicted of this offence because she was not satisfied that the purpose for which the appellant took possession of the knife was one dangerous to the public peace.

[14] For the appellant to succeed on this ground of appeal, it is not sufficient that he establish that the conviction and the acquittal are inconsistent verdicts. Where an inconsistent verdict results from a legally unsound acquittal and the factual findings on the acquittal are not inconsistent with the factual findings on the conviction, an appellate court is not required to set aside the conviction, even if the Crown did not appeal the acquittal: R. v. Plein, 2018 ONCA 748, at paras. 46-47, 49, 51.

[15] The apparent inconsistency in this case is rooted in the trial judge's finding on the weapons dangerous charge that it was not established that when the appellant took possession of the knife, he "had formed an intention to use the knife in a manner dangerous to the public peace." There are, it seems to us, three possible bases that could have led the trial judge to this conclusion. Although it would have been preferable had the trial judge specified which basis she had in mind, we are content that none of them present a necessary conflict with the findings of fact on the conviction.

[16] The first potential basis for the acquittal is that the trial judge concluded that the appellant had not formed the intention to threaten the complainant when he picked up the knife, or at any time prior to the moment he actually threatened her. This would present no legal or factual inconsistency between the conviction for assault and the acquittal for possession of a weapon for a dangerous purpose. For the latter offence, on our understanding, the Crown must prove the accused had possession of the weapon and formed the intention to use it for a dangerous purpose prior to its actual use: see R. v. MacDonald (2002), 170 C.C.C. (3d) 46 (Ont. C.A.) at paras. 28-32.

[17] A second basis would be a finding that the appellant lacked the intention to threaten at the moment he took possession of the knife, coupled with the legal error that for the purposes of the possession offence, the only relevant moment in time is the time at which possession begins. In Kerr, Bastarache and Major JJ. found that accused persons who initially possess a weapon with a non-dangerous purpose may be convicted if their purpose subsequently becomes dangerous: at para. 24.

[18] A third basis would be the legal error that the intention to threaten another person with a weapon does not satisfy the purpose dangerous requirement. But in Kerr, LeBel and Arbour JJ. held that it is a purpose dangerous to the public peace to intentionally threaten to do an act which is likely to cause harm or puts another person in fear of harm: para. 91. Similarly, appellate courts have consistently held that the intention to possess a weapon for the purpose of threatening another person satisfies the purpose dangerous requirement: see MacDonald, at paras. 28-32; R. v. Brooks (1988), 71 Sask. R. 297 (C.A.), at para. 6; R. v. Howard (1985), 65 N.B.R. (2d) 76 (C.A.), at para. 5; R. v. Howlett, 1987 CarswellBC 1086 (C.A.), at para. 11; R. v. Calder (1984), 1984 ABCA 45, 11 C.C.C. (3d) 546 (Alta. C.A.), at p. 555.

[19] On the reasons given, it is not apparent which of these three conclusions formed the basis for the trial judge's conclusion. Nevertheless, it is clear that none of them involve an acquittal on the basis of inconsistent factual findings. On the first basis, there would be no legal or factual inconsistency. On the second and third bases, the inconsistency would be the result of an error of law concerning the requirements to convict for possession of a weapon for dangerous purpose. As an appeal of the acquittal is not before us, we are not required to isolate the trial judge's potential paths of reasoning any further. It is sufficient that we determine that any inconsistency would not have been the result of inconsistent factual findings.

[20] In Plein, this court held there is no "legal principle that requires … that inconsistent verdicts can never be left to stand": para. 49. Where an accused person seeks to set aside an inconsistent conviction, the accused has put the reasons for that inconsistency in issue. Where a court concludes that the acquittal appears legally erroneous and the conviction sound in light of the trial judge's factual findings, the court can take the frailty of the acquittal into account in determining whether to allow the appeal from conviction: Plein, at paras. 47, 51. Accordingly, even if the verdicts were inconsistent, which is not clear to us, that inconsistency would be based on an error of law by the trial judge concerning the requirements to convict for possession of a weapon for dangerous purpose. The acquittal would thus be legally erroneous and the conviction sound.

(3) Uneven scrutiny

[21] The appellant also argues that the trial judge did not adequately scrutinize the complainant's evidence, specifically her denial that she coached her children before they were interviewed by police. The appellant argues that the complainant clearly lied about this in her testimony at trial, and the trial judge erred by not addressing how this impacted her credibility.

[22] We do not agree. The complainant's testimony about what she said to the children is not entirely clear. There is, however, no obvious contradiction between the complainant's testimony that she did not tell the children about what happened inside the house, and the children's statements that she told them about what happened outside the house. In any event, the trial judge was alive to the complainant's credibility issues and canvassed them thoroughly.

(4) Sentence Appeal

[23] The appellant was sentenced to 13 months custody less 4 months credit for the 22 months of house arrest prior to trial and sentencing. The Crown had sought 18 months custody followed by two years' probation. The defence asked for a suspended sentence and one year of probation.

[24] The appellant argues that the trial judge failed to give sufficient weight to the principle of restraint; that is, in failing to consider all available sanctions short of incarceration, particularly given that the appellant is a first time offender. Also, the appellant argues that the trial judge gave insufficient credit for the strict bail conditions imposed on the appellant during the 22 months' house arrest.

[25] We do not agree. The appellant has not identified any error of principle in sentencing. This was a case of domestic violence which left the complainant with a significant injury and has had a traumatic impact on both her and her young children. A sentence that emphasized denunciation and deterrence was entirely appropriate. Neither was there any error in the credit given for pre-trial custody.