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. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

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 File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20220912 DOCKET: C69113

van Rensburg, Coroza and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

A.A. Appellant

Counsel: Mindy Caterina, for the appellant Samuel Greene, for the respondent

Heard: August 24, 2022

On appeal from the conviction entered by Justice Katherine B. Corrick of the Superior Court of Justice, on November 13, 2019, with reasons reported at 2019 ONSC 6554, and from the sentence imposed on June 17, 2020, with reasons reported at 2020 ONSC 3802.

Reasons for Decision

[1] The appellant was convicted of several offences against the complainant who was his former partner and the mother of his children. The offences occurred against a background of the complainant having tried for over a year to end the relationship and the appellant’s repeated displays of what the trial judge called “spiteful behaviour”.

[2] On November 1, 2017, the complainant and the children were living apart from the appellant in an apartment. While the children were at school and daycare, the appellant arrived unannounced and followed the complainant into the apartment. With one hand he sprinkled drops of an ignitable fluid in the complainant’s hair, while in his other hand he held a cylinder torch, with a pipe that emitted a blue flame 3.5 to 4 inches long. The complainant twisted around, pushed the appellant, and ran out of the apartment calling for help. She went inside a neighbour’s apartment, where the two pushed the door shut against the appellant and called 911. When the police arrived, they noticed smoke coming from the complainant’s apartment, where the appellant had started fires in four separate locations. The appellant was charged with various offences, including the attempted murder of the complainant.

[3] After trial by judge alone, the appellant was acquitted of attempted murder. In respect of the events of November 1, 2017, he was convicted of aggravated assault, arson endangering life, and arson endangering property. In respect of events occurring earlier in 2017, he was convicted of mischief to private property, uttering a death threat, and voyeurism. He received a global sentence of eight years’ imprisonment, less credit for time served. A sentence of two years consecutive was allocated to the aggravated assault conviction. The appellant appeals only his conviction for aggravated assault, asserting that he ought to have been found guilty of common assault, in which case he seeks a substantial reduction in his sentence.

[4] For the reasons that follow, the conviction appeal is dismissed, and it is unnecessary to address the sentence appeal.

[5] The appellant makes two related arguments on his conviction appeal. Referring to the definition of aggravated assault under s. 268(1) of the Criminal Code (“Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant”), the appellant contends that the aggravated assault conviction is unreasonable because (a) the trial judge did not make a finding that the complainant’s life was endangered; and (b) the evidence did not support such a finding. In other words, the actus reus of the offence of aggravated assault was not made out on the evidence in this case.

[6] We do not give effect to these arguments.

[7] As both parties acknowledge, the focus at trial in relation to the appellant’s assault on the complainant was on the attempted murder charge. In her reasons, under the heading “Attempted Murder and Aggravated Assault”, the trial judge concluded that she was not satisfied beyond a reasonable doubt based on the circumstantial evidence that the appellant had the specific intent to kill the complainant on November 1, 2017. Although he went to the apartment that morning to torch it, there was no evidence that he knew the complainant would be present: she had deviated from her usual morning routine, with which the appellant was very familiar, and had returned home after dropping the children at school and daycare rather than continuing to school herself. The trial judge stated that she had also considered how easily the appellant could have burned the complainant if that had been his intention, as he had the accelerant and torch handy as he followed her into the apartment. The trial judge then turned to the aggravated assault charge, and she stated, at para. 107:

Given the findings of fact that I have made, I am satisfied beyond a reasonable doubt that [the appellant] is guilty of aggravated assault. [The complainant] did not consent to having flammable liquid poured on her. Wounding, maiming or disfiguring [the complainant] was an objectively foreseeable consequence of pouring a flammable liquid on [the complainant’s] hair while holding a lit torch an arm’s length away from her: R. v. Godin, [1994] 2 S.C.R. 484.

[8] The appellant contends that in this brief passage, which is the only part of the trial judge’s reasons that addresses aggravated assault, there is no mention of endangerment of life, which was the focus of the Crown’s brief submission in relation to the aggravated assault charge. Instead, according to the appellant, the trial judge’s route to conviction for aggravated assault was wounding, maiming or disfiguring. As a result, the conviction cannot be sustained because there was no evidence of actual injury to the complainant, and the trial judge did not make any finding of endangerment of life.

[9] We do not agree. In the context of the submissions of counsel at the trial, the trial judge, in this passage, was addressing the mens rea for aggravated assault. The Crown asserted that the appellant’s conduct endangered the complainant’s life, and there was no argument to the contrary by defence counsel at trial. Rather, defence counsel’s focus was on the appellant’s intention in putting flammable liquid in the complainant’s hair and holding a lit torch near her. The trial judge did not, in error, conclude that the actus reus of the offence was made out on the basis of actual wounding, maiming or disfiguring. That said, the trial judge did not directly make a finding that the conduct of the appellant endangered the complainant’s life. Accordingly, it is necessary to consider whether the other findings of the trial judge, together with the evidence at trial, support the conviction for aggravated assault.

[10] The appellant asserts that, based on the evidence at trial, there was no actual endangerment of the complainant’s life. Only a few drops of a flammable substance were placed on the complainant’s hair, and the torch could not conceivably have lit her hair on fire when held an arm’s length away. The appellant argues that his conduct was consistent with simply wanting to scare the complainant, and that there was no crystallization of the risk before the complainant ran away.

[11] The Crown’s position is that the evidence fully supported a finding that the appellant committed the actus reus of aggravated assault because his conduct endangered the complainant’s life. The Crown contends that whether the appellant’s intention was only to scare the complainant is irrelevant. The risk the appellant created must be assessed in the entire context, which included the surprise attack and a physical struggle between the two in an enclosed space. This was a dynamic situation over which the appellant had little control. The appellant created inherently dangerous circumstances where there was a realistic possibility of death.

[12] The actus reus of aggravated assault depends on its consequences – in this case endangerment of life – and not the intention of the accused. In the HIV non-disclosure cases this court has held that a “realistic possibility” of HIV transmission, as opposed to a “speculative or negligible risk” will suffice to endanger life: see, for example, R. v. Boone, 2019 ONCA 652, 56 C.R. (7th) 432, at para.130. The parties agree that this is the applicable standard in any case of aggravated assault.

[13] We agree with the Crown that the realistic risk threshold is met in this case. Even if the appellant was intending to only frighten the complainant, there was a real, and not merely a speculative or negligible, possibility that the complainant’s hair would be lit on fire, thereby endangering her life. We reject the suggestion that there was no plausible ignition scenario because of the amount and nature of the flammable liquid identified in the complainant’s hair and the distance at which the appellant was holding the lit torch. The appellant and the complainant were engaged in a physical struggle and the situation was dynamic. The appellant created a dangerous situation, surprising the complainant at close range in an enclosed space, where he had little control over how close to the flame she would come. The actus reus of aggravated assault was made out on the evidence. As suggested in the trial judge’s reasons, the mens rea of aggravated assault was also made out. In addition to the mens rea of common assault, there was a risk of bodily harm to the complainant from the appellant’s dangerous conduct that was objectively foreseeable to a reasonable person.

[14] For these reasons the appeal is dismissed.

“K. van Rensburg J.A.”

“S. Coroza J.A.”

“J. George J.A.”