Court of Appeal for Ontario

Date: 2019-06-20 Docket: C64724

Judges: Sharpe, Brown and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

Anna La Force Appellant

Counsel

Raymond Boggs, for the appellant

Manasvin Goswami, for the respondent

Heard

June 18, 2019

Appeal Information

On appeal from the convictions entered by Justice Beth A. Allen of the Superior Court of Justice on July 14, 2017, with reasons reported at 2017 ONSC 4303.

Reasons for Decision

Facts and Charges

[1] The appellant, Anna La Force, was charged on a three-count indictment with aggravated assault, assault with a weapon, and unlawful entry into a dwelling house with intent to commit an indictable offence. She was acquitted on the latter count but convicted on the assault counts. She appeals her convictions.

[2] The appellant's convictions resulted from her assaults on the complainant, Allison Robinson, on July 23, 2014. On the facts as found by the trial judge, on that day the complainant and Luisa Botelho entered an apartment rented by Cavin Banfield. At the time, both the appellant and Ms. Botelho were in a relationship with Mr. Banfield. He was not in the apartment at the time.

[3] The appellant subsequently arrived at the apartment. The appellant had lived with Mr. Banfield in the apartment for about two years.

[4] The three women ended up in the apartment's bedroom. An argument broke out between Ms. Botelho and the appellant. Ms. Robinson attempted to block the appellant from reaching Ms. Botelho. At that point, the appellant began to assault Ms. Robinson, stabbing her with a pair of scissors. Ms. Botelho retreated into a bathroom. Ms. Robinson tried to wrestle the scissors away from the appellant, who then bit Ms. Robinson on her shoulder, ribcage, and breasts. Ms. Botelho called the police. Ms. Robinson was able to subdue the appellant. The charges against the appellant ensued.

Grounds of Appeal

[5] The appellant advances three grounds of appeal.

First Ground: Defence of Property

[6] The appellant's main ground of appeal is that the trial judge failed to consider her defence of "lawful attempt to eject two trespassers" from the apartment. As a result, her convictions should be set aside and a new trial ordered.

[7] It is far from clear that the appellant squarely raised a defence under s. 35 of the Criminal Code for the trial judge's consideration. Although in her written closing submissions at trial the appellant argued that she was "entitled to use as much force as is necessary to defend herself from attack, or to eject a trespasser," the appellant's primary position at trial was that she was not guilty of an offence because she was acting in self-defence: Criminal Code, s. 34.

[8] That said, in considering self-defence the trial judge made clear findings of fact about the purpose of the appellant's acts against Ms. Robinson and their reasonableness. Those findings establish beyond a reasonable doubt that the appellant was not acting in defence of property within the meaning of s. 35 of the Criminal Code.

[9] A defence under s. 35 of the Criminal Code is available where the act that constitutes the offence is committed for the purpose of removing a person who is not entitled to enter the property or preventing that person from taking property. The trial judge made the following findings about the appellant's purpose in assaulting Ms. Robinson, at paras. 84 and 93 of her reasons:

I accept that Ms. Robinson kept herself between Ms. La Force and Ms. Botelho and when Ms. La Force could not get to Ms. Botelho, who she actually had the grievance against, she embarked on a series of vicious attacks on Ms. Robinson for blocking her from getting to the bathroom where Ms. Botelho was.

I find in conclusion that Ms. La Force's stabbings and biting were not directed to self-defence but rather to forcing Ms. Robinson to let her go so she could go and attack Ms. Botelho who she regarded as her true foe.

[10] The evidence amply supported those findings. The trial judge found that the appellant situated herself with her back to the bedroom door so as to physically block the bedroom door, which would prevent Ms. Robinson and Ms. Botelho from leaving: at para. 86. As well, the trial judge accepted Ms. Robinson's version of events, which included her testimony that the appellant continued to assault her notwithstanding that Ms. Botelho had called 911 for police assistance.

[11] In considering self-defence, the trial judge found that the appellant's acts were not reasonable in the circumstances stating, at para. 95:

I think my findings on the other factors make it clear that the stabbing and biting was not reasonable in the circumstances. Ms. La Force's actions were offensive actions. They were not acted out for the purpose of Ms. La Force defending herself. Ms. La Force's state of mind was such that she was very angry with Ms. Botelho for sleeping with Mr. Banfield. She was focused on getting past Ms. Robinson to confront Ms. Botelho. Ms. Robinson bravely put herself in danger by blocking Ms. La Force in order to help her good friend.

[12] Even when looked at through the lens of s. 35(1)(d), the evidence established beyond a reasonable doubt that the appellant's acts of stabbing and viciously biting Ms. Robinson were not reasonable in the circumstances.

[13] Accordingly, even though the trial judge did not address a s. 35 defence in her reasons, her findings of fact reveal that such a defence was not available to the appellant in the circumstances.

Second Ground: Admissibility of Discreditable Conduct

[14] As her second ground of appeal, the appellant submits that the trial judge erred in law by admitting evidence of her discreditable conduct consisting of her prior conduct and meetings with Ms. Robinson and Ms. Botelho, and by using it for the impermissible purpose of propensity reasoning. We are not persuaded by this submission.

[15] Although this ground of appeal was not developed in the appellant's factum, the transcript of the first day of trial records Crown counsel advising the trial judge that, based on her discussions with defence counsel, there was no issue with the Crown's discreditable conduct application. As a result, counsel would not be making legal argument on the application and Crown counsel would simply introduce the evidence. Defence counsel did not object to this representation to the court and the trial proceeded on that basis. Defence counsel did not object to the evidence of discreditable conduct as it was introduced.

[16] As well, the trial judge did not rely on it for any impermissible purpose. Rather, the evidence of the appellant's past interactions with Ms. Robinson and Ms. Botelho was material to her defence of self-defence, specifically whether the appellant had reasonable grounds to believe that Ms. Robinson or Ms. Botelho were using force or making a threat of force against her.

[17] Accordingly, we do not give effect to this ground of appeal.

Third Ground: Verdict Inconsistency

[18] Finally, in her factum the appellant contends that her assault convictions conflict with her acquittal on the count of unlawful entry. We see no inconsistency. The trial judge acquitted the appellant on the unlawful entry count on the basis that she had a reasonable doubt that the appellant was in the apartment without lawful excuse. As the Crown notes in its factum, a person who is lawfully present in a dwelling house can be found guilty of assaulting someone else in the premises. The verdicts are not inconsistent.

Disposition

[19] For these reasons, the appeal is dismissed. The sentence appeal was abandoned.

Robert J. Sharpe J.A.

David Brown J.A.

L.B. Roberts J.A.