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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;
(b) on application made by the victim, the prosecutor or any such witness, make the order; and
(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.
(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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;
(b) on application of the victim or the prosecutor, make the order; and
(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.
(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.
(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall
(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;
(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and
(c) in any event, advise the prosecutor of their duty under subsection (3.2).
(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have
(a) informed the witnesses and the victim who are the subject of the order of its existence;
(b) determined whether they wish to be the subject of the order; and
(4) An order made under this section does not apply in either of the following circumstances:
(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or
(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.
(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.
486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,
(a) the person knowingly failed to comply with the order;
(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and
(c) a warning to the individual is not appropriate.
(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.
Court of Appeal for Ontario
Date: 20231227 Docket: COA-22-CR-0486
Paciocco, George and Dawe JJ.A.
BETWEEN
His Majesty the King Respondent
and
R.M. Appellant
Counsel: R.M., acting in person Brad Greenshields, appearing as duty counsel Caitlin Sharawy, for the respondent
Heard: December 4, 2023
On appeal from the convictions entered on November 16, 2022, by Justice Clayton Conlan of the Superior Court of Justice, sitting with a jury.
Dawe J.A.:
[1] The appellant appeals his convictions on a charge of attempted abduction of his young son, K.D., contrary to s. 280(1) of the Criminal Code, R.S.C. 1985, c. C-46, and a charge of assaulting another young boy, T.A., contrary to s. 266 of the Criminal Code.
[2] The appellant was also charged in a separate count with having attempted to abduct K.D. a day earlier, but the jury found him not guilty on this count. The jury also found the appellant guilty on two further counts alleging that he had assaulted and forcibly seized K.D., contrary to s. 266 and s. 279(2) respectively, during the second attempted abduction, but the trial judge conditionally stayed these charges pursuant to the Kienapple principle: see Kienapple v. The Queen, [1975] 1 S.C.R. 729.
[3] The appellant represented himself on his appeal, but was assisted by duty counsel, Mr. Greenshields, who raised two main arguments on the appellant’s behalf. Mr. Greenshields also indicated that he would be making a third argument in relation to the appellant’s conviction on the charge of assaulting T.A., but he did not fully develop this argument in his oral submissions.
(1) The alleged misdirection on the actus reus of attempted abduction (Count 5)
[4] First, Mr. Greenshields argues that the trial judge erred in relation to the attempted abduction charge by failing to instruct the jury in accordance with s. 24(2) of the Criminal Code, which provides that when an accused is charged with attempting to commit a criminal offence, thereby committing an offence under s. 24(1):
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.
[5] As Martin J.A. explained in R. v. Breese (1984), 12 C.C.C. (3d) 491, at p. 510 (Ont. C.A.):
Under s. 24 it is for the jury to find what acts were done by the accused and the intent with which they were done. It is for the judge to decide whether the acts, if the jury find them to have been done by the accused, go beyond mere preparation and constitute an attempt. Accordingly, the jury should be instructed that if they find the accused did certain acts (found by the trial judge to go beyond mere preparation) with the intention of committing the offence alleged that constitutes an attempt to commit the offence [the “Breese charge”].
[6] It is common ground that the trial judge did not give the jury an instruction along these lines. That is, he did not give the jury any direction about which of the specific acts the appellant was alleged to have committed on either of the two days in issue, December 11 and 12, 2018, would constitute acts “go[ing] beyond mere preparation” that would amount to an attempt to commit the offence of abduction, if the jury was satisfied beyond a reasonable doubt that those acts occurred.
[7] Instead, he left it to the jury to decide whether the actus reus of attempt had been proved. The approach the trial judge took to his instructions on the attempted abduction charges was to essentially take the standard Ontario model jury instructions for the completed offence of abduction and insert the word “attempt”, without explaining further what the Crown had to prove to establish an attempt. Crown counsel at trial (not Ms. Sharawy) pointed out this omission, but then suggested to the trial judge that it might not matter, because “it's ultimately up to [the jurors] to decide whether or not what happened amounts to an attempt”. Unfortunately, this latter submission was erroneous, since s. 24(2) of the Criminal Code deems this question to be one of law that must be decided by the trial judge.
[8] For the Crown, Ms. Sharawy argues that the trial judge’s jury instructions were nevertheless functionally adequate in the circumstances here, because it would have been clear to the jury that if the appellant did the things he was alleged to have done on December 12, 2018, and that he also acted for the purpose of abducting his son, his acts would have gone beyond mere preparation. She also points out that the jury acquitted the appellant of the attempted abduction charge relating to the December 11, 2018, incident.
[9] For two different reasons, I am not prepared to give effect to the Crown’s arguments on this ground.
[10] First, Parliament has determined that the question of whether a particular act goes beyond “mere preparation to commit the offence” and is not “too remote to constitute an attempt to commit the offence”, is one of law that must be decided by the trial judge. By instead leaving this issue to be decided by the jurors, the trial judge committed a legal error.
[11] In most situations, the legal correctness of a jury charge must be assessed by considering its functional adequacy: see, e.g., R. v. Goforth, 2022 SCC 25, 415 C.C.C. (3d) 1, at paras. 20-22. However, I am not persuaded that this approach applies when, as here, the impugned charge fails to comply with a mandatory requirement of the Criminal Code. Under s. 24(2) of the Criminal Code, the question of which of the appellant’s alleged acts would, if proved, amount to an attempt to commit the offence of abduction was a question of law that had to be decided by the trial judge. His instructions instead left this to the jurors to decide for themselves. In my view, this was an error of law.
[12] If I were satisfied that this error caused the appellant no prejudice, his appeal could potentially have been dismissed by invoking the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. However, “it is not open to an appellate court to apply the curative proviso on its own motion”: R. v. P.G., 2017 ONCA 351, 138 O.R. (3d) 343, at para. 13 (citation omitted), and the Crown has not invited us to do so, disclaiming reliance on the proviso. In my view, this precludes me from taking this approach here, even if it was otherwise appropriate.
[13] Second, I am also not persuaded that the error was necessarily inconsequential in the particular circumstance here, or that the charge was otherwise functionally adequate, given that material facts about what happened were in dispute.
[14] The Crown’s case on the second attempted abduction charge was based on an incident that occurred outside the appellant’s son’s school on December 12, 2018. It was alleged that the appellant had first approached another boy, T.A., and took hold of his arm, apparently after mistaking him for his son, K.D. The appellant then loosened his grip, and T.A. pulled his arm away and ran off. This was the basis for the assault charge in relation to T.A., on which the appellant was also convicted.
[15] The Crown alleged further that the appellant then approached his son K.D., took hold of K.D.’s arm, and tried to pull K.D. towards his parked car. Multiple witnesses testified that they saw the appellant holding K.D.’s arm, and the appellant did not dispute that he had done this. The further allegation that he had tried to pull his son towards his car was based both on K.D.’s evidence and the testimony of one other eyewitness.
[16] I agree that if the jury was satisfied beyond a reasonable doubt that the appellant had in fact both grabbed his son’s arm and pulled him towards the parked car, and was also satisfied that he did these things with the intention of abducting his son, his acts would in law have gone beyond mere preparation and would have constituted an attempt to commit the offence of abduction.
[17] However, the appellant, who represented himself at trial, disputed that he had been trying to pull his son towards his car. He urged the jury to instead prefer T.A.’s evidence that there had been no cars parked nearby, arguing that T.A. was a more reliable witness, whose “mind is not poisoned by fear-mongering”. Moreover, in his jury charge the trial judge noted that K.D. had acknowledged when cross-examined by counsel who had been appointed under s. 486.3(1) of the Criminal Code that while he “felt like [the appellant] was trying to pull him towards a car”, he could not “remember anything about the car”.
[18] I cannot dismiss the trial judge’s failure to instruct the jury in accordance with s. 24(2) of the Criminal Code as of no consequence by assuming that the jury must necessarily have accepted the evidence that favoured the Crown’s position on the disputed question of whether the appellant tried to pull K.D. to his car.
[19] It may well be that if the trial judge had instructed the jury in accordance with s. 24(2) of the Criminal Code, he would have directed the jury that the appellant’s grabbing of his son’s arm would also constitute an act going beyond mere preparation to commit the offence of abduction, if the jury was also satisfied beyond a reasonable doubt that the appellant did this act intending to commit this offence. However, the trial judge’s instructions did not communicate this to the jury or give the jurors any real explanation of what the Crown had to prove to establish an attempted abduction. This provides a further reason why the curative proviso cannot apply, even leaving aside the legal error in leaving the issue to the jury to decide. It also undermines the Crown’s submission that the jury charge was sufficiently functional despite the absence of the Breese charge.
[20] A further complication is that since this appeal has proceeded as an inmate appeal, we do not have a complete trial transcript. While the record that we do have suggests that there may not have been any real dispute at trial about whether the appellant grabbed K.D.’s arm, I cannot be entirely certain of this. If the Crown had sought to rely on the curative proviso, it would have been the Crown’s burden to establish that the trial judge’s error was harmless, and the incompleteness of the record would have weighed against the Crown.
[21] In summary, I cannot apply the curative proviso in this case absent a request from the Crown. Even if it were open to me to do so in this case, I am not satisfied on the record before me that the lack of proper instruction on the actus reus of attempt in accordance with s. 24(2) of the Criminal Code caused no prejudice to the appellant. Moreover, even had the failure to give the Breese charge not been a legal error, I could not have dismissed this ground of appeal on the basis that the jury charge was functional.
[22] In view of my conclusion on this ground of appeal, it is unnecessary for me to consider or address Mr. Greenshields’ further argument that the trial judge also erred in his instructions to the jury about the mens rea of the offence of attempted abduction.
(2) The alleged misdirection regarding the unlawful confinement charge (Count 4)
[23] Mr. Greenshields’ second argument is that the trial judge erred in his response to a question from the jury about the essential elements of the offence of unlawful confinement, which was charged in Count 4. Since the trial judge ultimately stayed this charge under Kienapple in view of the appellant’s conviction on the attempted abduction charge in Count 5, this ground of appeal will only assume practical significance if the appellant is successful on his first ground of appeal, such that his conviction on Count 5 must be set aside.
[24] The trial judge initially instructed the jury that “[c]onfinement is an unlawful restriction on liberty for a significant period of time”. Mid-way through its deliberations, the jury submitted a question to the trial judge in which the jurors “request[ed] help defining a ‘significant period of time’”. After consulting with Crown counsel and amicus curiae, the trial judge provided the following response:
Number one, an unlawful confinement must be for a significant period of time, not a substantial period of time.
Number two, what is significant depends on the circumstances of the case.
Number three, there are no minimum time requirements for an act of unlawful confinement.
Number four, there is no particular time during which the restraint or confinement must continue.
[25] Mr. Greenshields does not contend that anything in the trial judge’s answer was legally incorrect, but argues that his answer did not go far enough. In particular, while the jurors were told that the “significance” of the duration of K.D.’s alleged confinement “depends on the circumstances of the case”, they were not specifically told which circumstances might matter, or given any direction about how they could use these circumstances to measure the degree of significance in this case.
[26] Mr. Greenshields also refers to this court’s decision in R. v. Ally, 2022 ONCA 558, 417 C.C.C. (3d) 1, where, at para. 109, this court emphasized that the offence of unlawful confinement does not have a “minimum temporal component”. He argues that the principle that emerges from Ally is that trial judges should not overemphasize temporal considerations when instructing juries on the actus reus of unlawful confinement, because the question of whether a particular action qualifies as a “confinement” depends more on its qualitative impact on the person’s liberty than on its temporal duration.
[27] While I agree that a more fulsome answer that addressed these latter points might have been preferable, I am not persuaded that the trial judge’s answer was functionally inadequate. I reach this conclusion for two main reasons.
[28] First, the jury’s question was expressly framed as a question about the meaning of “significant period of time”. The trial judge’s answer, which focused on the temporal aspect of “significant”, was accordingly responsive to the question that had been asked. He also did not say anything that would have discouraged the jurors from asking further questions if they were still unsure about how to assess the significance of the appellant’s alleged confinement of his son in the overall circumstances of this case: see, e.g., R. v. Layton, 2009 SCC 36, [2009] 2 S.C.R. 540, at para. 33.
[29] Second, I am satisfied that the jury would not have had difficulty understanding how “the circumstances of the case” bore on the issue of the significance of the alleged unlawful confinement. Multiple eyewitnesses testified that the appellant had grabbed his son’s arm, and that he only let go after one of the witnesses pried off his fingers. There also does not seem to be any real dispute that K.D. was “screaming and hysterical”. In his closing jury address, the appellant acknowledged that K.D. had been screaming and kicking but sought to characterize his interaction with his son as justified in the circumstances because he was the boy’s father. I am satisfied that the trial judge’s instructions adequately equipped the jurors to assess the live issues that were before them on this count.
[30] Accordingly, I would not give effect to this ground of appeal.
(3) The trial judge’s instructions with respect to the charge of assaulting T.A. (Count 2)
[31] Although Mr. Greenshields did not fully develop his third argument concerning the trial judge’s instructions to the jury about the assault charge in Count 2, relating to T.A., he provided the panel with two cases, including this court’s decision in R. v. Irwin (1998), 38 O.R. (3d) 689 (C.A.), that have noted the “difficult problems” presented by applying the common law doctrine of transferred intent to the offence of assault: Irwin, at p. 692.
[32] Although the trial judge told the jury that the appellant’s position was that “whatever happened between him and [T.A.] was an accident, not a crime”, there does not seem to have been any suggestion in this case that his physical contact with T.A. was unintentional. Rather, the appellant’s position seems to have been that he had lawful authority to use corrective physical force against his own son, K.D, and that his physical contact with T.A. happened because he mistakenly believed that T.A. was his son.
[33] I agree with Ms. Sharawy that in this factual context the common law doctrine of transferred intent had no application. The appellant was not claiming that he had applied physical force to T.A. accidentally, in the sense of unintentionally, while he was grabbing or attempting to take hold of his son, K.D. Rather, he was claiming that he had made a mistake of fact that led him to use force against the wrong boy. This mistake of fact would only afford him a defence if he had indeed had some lawful authority for using force against K.D.
[34] While it might perhaps have been preferable for the trial judge to have given the jury more detailed instructions about what it meant for the appellant’s application of force to T.A. to have been “not by accident”, I am satisfied that the instructions that he did give were functionally adequate in the circumstances of this case. By finding the appellant guilty on the charges of assaulting and unlawfully confining K.D. (Counts 3 and 4), the jury was evidently satisfied beyond a reasonable doubt that the appellant did not have lawful authority to use force against K.D., because he was not K.D.’s legal custodial parent. This conclusion also eliminated any defence the appellant might potentially have had with respect to the assault charge against T.A., based on the possibility that he had made a mistake about T.A.’s identity. In this context, the trial judge was correct to instruct the jury, as he did, that the appellant’s use of force against both boys had to be “not by accident” in the sense of having been done “intentionally” and “on purpose”.
[35] I accordingly see no basis for disturbing the appellant’s conviction on the charge of assaulting T.A. in Count 2.
(4) Other grounds advanced by the appellant
[36] The appellant filed a lengthy factum in which he made additional arguments. The main thrust of these arguments seems to be that the appellant does not accept the legitimacy of the family court order that awarded custody of K.D. to his mother. I am satisfied that none of these arguments has any legal merit.
(5) Disposition
[37] The appellant was sentenced to an effective sentence of 12 months imprisonment on the second attempted abduction charge (Count 5), which was reduced to 4 months imprisonment going forward after the trial judge gave the appellant credit for the equivalent of 8 months pre-sentence custody. He also sentenced the appellant to 30 days concurrent on the charge of assaulting T.A. (Count 2). The trial judge entered conditional stays on the charges of assaulting and unlawfully confining K.D. (Counts 3 and 4), on the basis that the acts underlying these charges were also the basis for the charge in Count 5. The custodial sentences were to be followed by three years probation.
[38] The appellant has now fully served the custodial portion of the sentence and did not appeal against the sentence imposed.
[39] Section 686(1)(b)(i) of the Criminal Code permits this court to dismiss an appeal when:
[T]he court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment.
[40] Section 686(3) of the Criminal Code provides further that in this situation the court “may substitute the verdict that in its opinion should have been found”. This includes lifting a conditional stay imposed pursuant to Kienapple: see, e.g., R. v. Breton, 2016 ONCA 425, at para. 14. This court may then either affirm the sentence passed by the trial court, impose a different sentence warranted by law, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.
[41] In the circumstances here, I am satisfied that the appropriate remedy is to quash the appellant’s conviction on the attempted abduction charge in Count 5 and substitute a conviction on the charge of unlawfully confining K.D. in Count 4, by lifting the conditional stay of this charge that was entered by the trial judge on this count. It is in the interests of justice to do so, given that the appellant has already served the full custodial sentence for that offence, and it would not be in the public interest to retry him. Since the assault and unlawful confinement charges in Counts 3 and 4 were based on the same physical act – the appellant’s grabbing of K.D.’s arm – I would not disturb the conditional stay of Count 3 entered by the trial judge.
[42] I would also affirm the sentence passed by the trial court, which I find to be a fit sentence in relation to the charges of unlawful confinement and assault on which the appellant now stands convicted. In particular, I am satisfied that the s. 109 weapons prohibition order, which the trial judge imposed “on the attempted abduction conviction”, is also fully justified on the basis of the conviction that is now being entered on the unlawful confinement charge, which is also an offence captured by s. 109(1)(a) of the Criminal Code. I would also not disturb the probation order imposed by the trial judge.
[43] The trial judge made a DNA order in relation to both the assault and attempted abduction charges, which are both secondary designated offences. The offence of unlawful confinement is a primary designated offence: see R. v. J.J.R. (2003), 181 C.C.C. (3d) 7 (Ont. C.A.). In these circumstances, I would not disturb the DNA order, other than by amending it to properly reflect the offences on which convictions have now been entered.
[44] In all other respects, the appellant’s conviction appeal is dismissed pursuant to s. 686(1)(b)(i).
Released: December 27, 2023 “D.M.P” “J. Dawe J.A.” “I agree. David M. Paciocco J.A.” “I agree. J. George J.A.”