Court of Appeal for Ontario

Date: 2021-02-19 Docket: C67573

Judges: MacPherson, van Rensburg and Jamal JJ.A.

Between: Her Majesty the Queen, Respondent and Marcel Seip, Appellant

Counsel: Marcel Seip, acting in person Danielle Robitaille, appearing as duty counsel Jeffrey Wyngaarden, for the respondent

Heard: February 9, 2021 by video conference

On appeal from the conviction entered on May 21, 2019 and the sentence imposed on October 9, 2019 by Justice Diane M. Lahaie of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant Marcel Seip appeals his conviction and sentence for the offences of using a restricted or prohibited firearm in a kidnapping with intent to confine, break and enter, aggravated assault, assault, possession of a firearm while prohibited by reason of an order under s. 109 of the Criminal Code, R.S.C. 1985, c. C-46, breach of recognizance, and two counts of uttering threats to cause death.

Background

[2] The trial judge made the following findings relevant to this appeal:

• The appellant participated in a home invasion and kidnapping with an accomplice to collect a $300 drug debt. The appellant was the “mastermind” and “principal driving force” of the home invasion and kidnapping. He knew his accomplice had a gun and decided it was time to be taken seriously regarding the money owed to him.
• The appellant asked his girlfriend to knock on the door of the home as a decoy. She knew nothing about the accused’s plan in advance.
• The door was opened by an 18-year-old high school student who lived at that address with his mother. The appellant and the accomplice barged in and the accomplice shot the student in the arm. The trial judge found that the accomplice “put the gun to [the student’s] forearm and shot him”. The bullet travelled through his arm and into the arm of the accomplice.
• The appellant and the accomplice threatened to kill or harm the five occupants if they called the police, and did so again when they screamed with fear.
• The appellant punched the individual who owed the drug debt in the face. Then, the appellant and the accomplice kidnapped him to force him to get the money to repay the debt. Eventually he escaped.
• The trial judge found that although the appellant and the accomplice discussed and intended to use the gun as part of the home invasion, she was not prepared to find beyond a reasonable doubt that the plan was to shoot the gun into the student or anyone else. The trial judge was left in doubt by the evidence of the appellant’s girlfriend, that the gun “went off” when the student “flinched” after opening the door, and because in shooting the student the accomplice shot himself, which suggested the gun might have been fired accidentally. The trial judge therefore acquitted the appellant of discharging a firearm with intent to wound, but found him guilty of aggravated assault.
• The appellant was sentenced to a global sentence of 10 years in jail, less 866 days credit for pre-sentence custody, and various ancillary orders.

Analysis

[3] On the conviction appeal, duty counsel argues that because the trial judge acquitted the appellant of discharging a firearm with intent to wound, she could not convict the appellant of aggravated assault. She asserts that the trial judge’s conclusion that she could not find beyond a reasonable doubt that the shooting was intentional precluded any finding of an intentional application of force needed to convict him for aggravated assault. Duty counsel submits that if the aggravated assault conviction is set aside, a global sentence around 6 to 7 years would be more appropriate. No other argument was made in relation to the sentence appeal.

[4] We do not accept this submission. In our view, the trial judge was entitled to find the appellant guilty of aggravated assault in the circumstances.

[5] Section 268(1) of the Criminal Code provides:

Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

[6] The essence of aggravated assault is captured by Morris Manning and Peter Sankoff in Manning, Mewett & Sankoff — Criminal Law, 5th ed. (Toronto: LexisNexis, 2015), at p. 998:

The most serious type of assault short of homicide is called aggravated assault, which occurs when a person wounds, maims, disfigures or endangers the life of another. Conduct of this sort is punishable by imprisonment for up to 14 years. The elements of the offence are fairly well established. In addition to proving the basic requirements for an assault, it must also be shown that one of the prohibited consequences — wounding, maiming, disfiguring or endangering — was caused by the assault. Although it is not necessary to prove that the accused intended those consequences in all cases, the Crown must demonstrate that the conduct was at least objectively likely to cause bodily harm. [Emphasis added.] [Footnotes omitted.]

[7] The mens rea for aggravated assault is the mens rea for the offence of assault coupled with objective foreseeability of harm. As Cory J. stated in R. v. Godin, [1994] 2 S.C.R. 484, at p. 485:

The mens rea required for s. 268(1) of the Criminal Code, R.S.C., 1985, c. C-46, is objective foresight of bodily harm. It is not necessary that there be an intent to wound or maim or disfigure. The section pertains to an assault that has the consequences of wounding, maiming or disfiguring.

[8] Here, the trial judge found the accomplice put the gun to the student’s arm. This intentional act was an assault. Even if the accomplice did not intend to shoot the student, the trial judge was entitled to find that the resulting injury was objectively foreseeable as a result of this assault, and was thus an aggravated assault. The trial judge was also entitled to find that the appellant was a party to this offence. He was the mastermind of the home invasion and knew his accomplice had a gun and intended to use it in the crime. We therefore see no error in the following analysis and conclusion of the trial judge:

[The appellant] was a party to the offence of aggravated assault committed against [the student]. The mens rea of this offence is objective foresight of bodily harm. The Crown need not show that an accused alleged to be a party to the offence of aggravated assault had any greater mens rea than the actual perpetrator and, in particular, need not show an objective foresight of the specific wounds resulting from the assault. (R. v. Vang (1999), 132 C.C.C. (3d) 32 (Ont. C.A.), leave to appeal to S.C.C. refused; R v. Cuadra (1998), 125 C.C.C. (3d) 289 (B.C.C.A.) I am convinced beyond a reasonable doubt that all the elements of this offence have been established.

[9] The appellant also argues that the trial judge erred in her credibility findings. He says that he was waiting in the car downstairs and that he did not participate in the home invasion. The trial judge rejected the appellant’s evidence at trial, stating:

I reject the entirety of [the appellant’s] evidence because it is inconsistent and illogical. [The appellant] is not an honest man. He has a criminal history which includes convictions for crimes of dishonesty and breaches of court orders. That being said, it was his inconsistent evidence and version of events which made no sense which leads to my conclusion in regards to his evidence.

[10] We see no error in the trial judge’s rejection of the appellant’s evidence. Nor do we see any error in how the trial judge evaluated the credibility of the other witnesses or in finding the appellant guilty.

Conclusion

[11] Because the conviction appeal is dismissed, there is no basis for the sentence appeal. Leave to appeal the sentence is denied.

[12] The appeal is dismissed.

"J.C. MacPherson J.A."

"K. van Rensburg J.A."

"M. Jamal J.A."