ONTARIO COURT OF JUSTICE
CITATION: R. v. Francis, 2019 ONCJ 181
DATE: 2019-04-02
Durham Region
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
SHANE FRANCIS
Before Justice B. Green
Heard on February 25th and 26th and March 1st, 2019
Reasons for Judgment released on April 2nd, 2019
Mr. S. O’Neill counsel for the Crown
The defendant Mr. Francis self-represented on his own behalf
Green J.:
A. Introduction
[1] Mr. Francis is charged with eight offences as a result of an incident that occurred on November 22nd, 2017. He represented himself during the trial. He was a capable advocate and addressed the Court, the Crown and the witnesses respectfully and cordially throughout the proceedings.
[2] The Crown called a series of witnesses to prove the charges against Mr. Francis beyond a reasonable doubt. Mr. Francis did not call any evidence in his defence. Rather, he directed the Court’s attention during submissions to the frailties in the Crown’s case and urged the Court to find him not guilty of certain counts that he argued the Crown failed to prove beyond a reasonable doubt. The Crown made forceful submissions that all of the counts on the Information were proven beyond a reasonable doubt.
[3] At the end of the trial, Mr. Francis did not take issue with many of the facts. He had a dispute with employees at a self-storage business. He went to the front doors of the office of that business while wearing a mask and armed with a baseball bat. He used the bat to strike the front glass doors while two employees and a customer were inside the office. He also used the bat to gesture at another person in the parking lot. Within a very short period of time, he retreated to his car and fled the scene. He was pursued by fully marked police cruisers with their emergency equipment activated and he did not stop for the police. The contentious issues for me to decide are whether Mr. Francis’ actions constitute the specific offences that he is charged with committing and, more particularly, whether the Crown has proven beyond a reasonable doubt that Mr. Francis possessed the necessary mens rea for each of the alleged offences.
[4] Since there is no direct evidence of Mr. Francis’ mental state, the Crown’s case depends entirely on circumstantial evidence to prove Mr. Francis’ intentions. As a result, it is essential to carefully review all of the relevant evidence to understand the context of these allegations and to decide whether the Crown has proven that the only reasonable inferences available from the evidence as a whole are consistent with guilt.[^1]
B. Facts and Summary Findings with respect to some Counts
i. The background:
[5] Mr. Francis attended the Smart Stop self-storage business in Pickering in November of 2017 to rent a storage locker. Ms. Eryca Helsden was employed there as the manager. She engaged Mr. Francis in a discussion about the terms of the rental agreement which included advising Mr. Francis that renters were prohibited from sleeping in the rental lockers. Mr. Francis rented the locker and he was given a number to input into a pin pad at the entrance to the facility which would enable him to access the locker area and attend his unit. The entrance to the facility where the pin pad is located is video monitored and there is an intercom to contact the front office.
[6] Ms. Helsden was familiar with the distinctive vehicle that Mr. Francis drove at the time. It was an older model car that had a broken window on the passenger side that was covered by a garbage bag or cardboard. As result, whenever she saw that car in the parking lot, she was alerted to Mr. Francis’ presence at the facility.
[7] After renting the storage locker, Mr. Francis attended his unit on two subsequent dates in November. On those occasions, Ms. Helsden had the opportunity to observe his behaviour while at the facility via the video monitoring system. She described him as exhibiting strange behaviour of walking or running around inside the facility, coming close to the office door and waving at the camera. She did not describe any conduct that was rude, menacing or in any way threatening towards the employees prior to the date of the incident but Ms. Helsden felt uncomfortable with Mr. Francis.
[8] During cross-examination, Ms. Helsden agreed that she told the police that Mr. Francis talked to himself. When Mr. Francis suggested to her that she had pre-judged him before the date of the incident, Ms. Helsden denied that she had any negative perceptions of Mr. Francis. I found her response to be disingenuous and inconsistent with some of her other responses and the way that she treated Mr. Francis on November 15th.
[9] On November 15th, Ms. Helsden observed Mr. Francis’ vehicle in the parking lot at the facility for approximately 2 hours. She felt that this was an unusual period of time to spend in a small storage unit so she went to check on whether something was wrong. During cross-examination, Ms. Helsden conceded that there was no typical time that a person spends in a locker unit. She agreed that there was no defined time limit that a renter could spend in their locker. It was also evident from Ms. Lecours’ evidence that Mr. Francis was in his locker during business hours. Nevertheless, Ms. Helsden took it upon herself to investigate Mr. Francis’ activities in his locker.
[10] It was late afternoon into the early evening by the time she attended Mr. Francis’ locker. She noticed that the door was closed but it was unlocked.[^2] She stood close by the locker so she could listen for any shuffling inside the unit but she did not hear anything from within. Instead of announcing her presence or knocking on the locker door, she “ran” to get another employee, Carolyn Lecours.
[11] Ms. Lecours was also called as a witness. Ms. Lecours’ account of how they ended up at Mr. Francis’ locker was very different from Mr. Helsden’s version of events. Ms. Lecours testified that they were conducting a routine facility walk through when they coincidentally noticed an unlocked unit. I do not accept that this was a routine check. Mr. Francis’ unit was targeted by Ms. Helsden because she thought he had been in there for too long and she suspected that he was sleeping in the locker.
[12] When Ms. Helsden and Ms. Lecours returned together to Mr. Francis’ locker, they immediately opened the door to his unit without any warning to him. Ms. Helsden claimed during cross-examination that her conduct was motivated by her responsibility to check on the well-being of renters. It was apparent to me that she was not concerned about Mr. Francis’ well-being at all. Rather, she chose to surprise Mr. Francis by opening the locker unannounced because she wanted confirmation of her suspicions.
[13] Ms. Helsden observed Mr. Francis lying down in a sleeping bag inside the unit. Understandably, when the locker door was opened without any notice, Mr. Francis began screaming and he wanted to know why they were in his storage locker. Ms. Helsden informed him that sleeping in the locker was prohibited so she evicted him without any discussion or warning. He was only permitted to collect a few of his items and he was instructed to leave the facility immediately. Ms. Helsden returned to the front office and notified her boss of the incident. Mr. Francis complied with this hasty eviction even though they still had some of his belongings but Ms. Helsden felt his behaviour was strange and she was not comfortable so she contacted the police.
[14] Ms. Lecours testified that when they entered the unit, Mr. Francis was acting irrationally and making random noises. They told him to “get out”. He left, got into his vehicle and drove to the front where he was staring at them through the window. They were afraid so they called police but then he drove away.
[15] Once Mr. Francis left the facility, Ms. Helsden felt that the police were not needed so they did not follow through with any complaint. Ms. Helsden deactivated Mr. Francis’ pin pad number that night so that he could not re-enter the storage facility and he could not access his locker or his belongings. She testified that she did not speak with Mr. Francis again after evicting him. She did not make any arrangements to return his property or refund the money that he invested in the storage locker. The employees did not see him again until November 22nd.
ii. The recollections of the employees on the date of the incident:
[16] A week after Mr. Francis’ eviction, on November 22nd, sometime after noon, Ms. Helsden was in the front office of the storage facility with Ms. Lecours and a customer, Mr. Zaida. The office had monitors with a live feed from the cameras around the facility which included the area with the pin pad. On the monitors, Ms. Helsden observed Mr. Francis drive up and stop at the entrance to the facility where the pin pad is located to gain access to the storage lockers. Mr. Francis began pushing the intercom button on the pin pad to communicate with the front office but Ms. Helsden chose to ignore his calls despite the fact that they still possessed Mr. Francis’ property and he could not access his locker. She described how he kept pushing the button to speak with them but she refused to answer his calls. During cross-examination, Ms. Helsden advised that she didn’t feel comfortable answering Mr. Francis on the intercom so she notified her manager instead. Stills from the video monitoring system were downloaded and introduced into evidence. Mr. Francis’ face was captured in the stills and he looked frustrated and angry[^3].
[17] Ms. Helsden became concerned so she instructed Ms. Lecours to lock the front doors to the office. Ms. Lecours described the front doors as two sets of glass doors. They watched on the camera as Mr. Francis backed his car away from the entrance to the lockers. Ms. Helsden saw Mr. Francis reverse to the far side of the parking lot. A minute or two later, she saw him exit his vehicle and he approached the front doors to the office wearing a face mask with a skull on it and carrying a baseball bat over his head. Mr. Francis immediately began to strike the window of the door with increasing force. Both Ms. Lecours and Ms. Helsden described being in fear for their lives while Mr. Francis was striking the glass door. Ms. Helsden, Ms. Lecours and the customer fled the front entrance area to another exit inside the office building that had a view of the parking lot.
[18] Ms. Lecours also described that she witnessed Mr. Francis immediately striking the window of the glass door as soon as he walked up to it with a lot of force. She said the force of the blow was so strong that the glass was “bowing” and she was surprised that it didn’t break.
[19] Ms. Helsden did not see Mr. Francis do anything with the bat other than holding it over his head and then striking the window. While Mr. Francis was hitting the door, neither Ms. Helsden nor Ms. Lecours could hear what Mr. Francis was saying or if he was saying anything at all. They could not tell where he was looking although the interior of the office would have been visible to Mr. Francis. He did not gesture at any of the occupants in the office in any way. Of particular note, neither Ms. Helsden nor Ms. Lecours saw Mr. Francis try to open the door. They both described him approaching it and immediately striking it. The whole incident of striking the window with the bat lasted maybe 30 seconds before they fled the front area of the office and went to the other exit.
[20] Ms. Helsden and Ms. Lecours had different recollections of what they observed after they fled to the other exit in the building. Ms. Helsden described how she watched Mr. Francis as he returned to his vehicle and took off the mask. He sat in the car and screamed at them through the passenger window. Mr. Francis then drove towards the building where they were standing inside the exit doors. He was swearing at them, gave them the finger, drove up on the wheelchair access ramp and drove away.
[21] Ms. Lecours recalled Mr. Francis returning to his vehicle and then he removed his mask. She also said that he tried to drive to the front of the building where they were standing but he stopped before he hit the glass. He was saying something to them but she couldn’t hear it and she saw him shaking his fist at them. She was specifically asked by the Crown whether she saw the bat when he was in his car and she replied that she couldn’t see it. After being given an opportunity to review her statement, she provided a contradictory response. She recalled that Mr. Francis was gesturing with the bat out the window of his car in a threatening manner.
[22] Ms. Helsden did not witness Mr. Francis doing anything with the bat once he returned to his vehicle. She said that he was using his hand to make a rude gesture. Ms. Lecours initially testified that Mr. Francis was shaking his fist and she didn’t see the bat once Mr. Francis returned to the vehicle. In light of this evidence, I do not accept that Mr. Francis gestured with the bat at these three complainants once he returned to his car.
iii. The customer inside the office:
[23] The Crown also called Mr. Zaida, the customer who was inside the office, as a witness. He was in the office to open an account when he noticed that the store manager and her colleague locked the office because something was wrong. A masked man attended the outside glass doors to the office and he believed that the man was shouting and yelling. He testified that the man initially tried to open the door but then he began striking the door with the bat. Mr. Zaida explained that he did not understand what was going on but his perception was that the man wanted to get inside. He felt that Mr. Francis was not trying to break the door but he was hitting it to show his anger.
[24] Mr. Zaida’s recollection of the masked man trying to open the door is inconsistent with Ms. Helsden’s account that Mr. Francis approached the door with the bat raised above his head and immediately struck the door. Ms. Lecours also said that Mr. Francis struck the door as soon as he approached it. A significant period of time has passed since the date of this incident and Mr. Zaida’s recollections, although honestly held, may be coloured by his perceptions of what was going on that day. As a result, I am left with a doubt with respect to this critical fact of whether Mr. Francis tried to open the door prior to striking it with the bat.
[25] I note that, even though both employees provided a dramatic account of Mr. Francis allegedly driving towards them at the exit door with his car, Mr. Francis is not charged with using his vehicle as a weapon. There is no evidence of how close he got to the exit door. In addition, both employees testified that Mr. Zaida accompanied them as they fled the front office. He would have been with them during this additional encounter but the Crown did not ask him what, if anything, he observed at the other exit door.
iv. Evidence of the truck driver:
[26] Mr. Motilal is a delivery truck driver who attended the storage facility on November 22nd to make a drop off. He was sitting in his truck making a phone call when he heard noises like someone hitting the ground or a railing and shouting. He looked in the direction of the noise and saw a masked man approaching him while wielding a baseball bat. The man looked at him, pointed the bat at him and started swearing. Although the masked man was initially about 30 feet away, he began to walk towards the truck and got closer to Mr. Motilal. While still holding the bat and pointing it at Mr. Motilal, the masked man told Mr. Motilal to “get the fuck out of here”. At that point, Mr. Motilal became scared and drove away. He felt threatened by the conduct of the masked man.
v. The police pursuit:
[27] Four police witnesses testified during the trial. The police received a dispatch to respond to a man smashing windows, making threats and that he tried to run at the complainants with his vehicle. They were also advised that the suspect was armed.
[28] Shortly after the call for service, Cst. O’Connor’s attention was drawn to a car driving through a parking lot of a Walmart at a high rate of speed. He realized it was the suspect vehicle and he began to follow it in his fully marked police cruiser. He activated his lights and sirens. As they approached an intersection, Officer O’Connor was directly behind Mr. Francis’ vehicle. It appeared to the officer that Mr. Francis was going to stop for a red light but then Mr. Francis ran through the red light. The officer continued to follow him and he reached speeds of approximately 65 km an hour in a 50 km an hour zone. Officer O’Connor followed him for approximately 2 kilometers with full lights and sirens activated but Mr. Francis failed to stop at any point.
[29] Durham Regional Police Air 1 helicopter responded to the call for assistance as well as a number of other officers who were all driving fully marked police vehicles with their lights and sirens fully activated. The other officers took over the pursuit from PC O’Connor. Three cruisers worked in tandem to try and force Mr. Francis off the road to prevent any further violence. Tactical officers were also called to respond to the pursuit. The police were advised that the allegations involved the suspect using his vehicle as a weapon and that he was armed so their response was commensurate to the level of danger that they believed he posed to the community.
[30] Officer McKinnon tried to engage in a rolling block to stop Mr. Francis but his driving became more erratic. He began weaving from side to side between two east bound lanes to prevent the officer from getting in front of him. Eventually, the officer was able to bump the back of Mr. Francis’ vehicle a couple of times with her cruiser until he eventually lost control and went up onto the grass along the roadside. The other police vehicles pinned him in so that there was no means of escape. With their guns drawn, Mr. Francis was removed from his vehicle and placed on the ground. The baseball bat, a receipt for the baseball bat and the mask were all located during a search incident to arrest.
[31] During his submissions, Mr. Francis argued that the police used excessive force by engaging in a high risk take down and pointing their guns at him. In these circumstances, I will summarily address any potential Charter issues. I find that the police response and the use of force options engaged were entirely justified by the information they received from dispatch. The police were trying to apprehend a fleeing suspect who they were informed was armed and dangerous. Their actions were responsive to that threat and appropriate. The police conduct did not in any way breach Mr. Francis’ constitutionally protected rights.
[32] In terms of the alleged offence, Mr. Francis did not take issue with the descriptions of his driving or that he failed to stop for the police. He disputed however, that the only reasonable inference from these facts was that he was trying to evade the police. He submitted that the Court can infer that he was simply too afraid to stop immediately in response to the police following him. First, I do not have any direct evidence of Mr. Francis’ state of mind at the time the police were following him. Secondly, whether or not his conduct was motivated by fear, Mr. Francis was fleeing a scene after he engaged in unlawful conduct and he was obviously trying to avoid being stopped by police by continuing to drive despite multiple attempts to get him to pull over. The Crown has presented overwhelming evidence of each of the essential elements of the offence of failing to stop for police, as soon as was reasonable in the circumstances, without a reasonable excuse and in order to evade the police. Accordingly, I find Mr. Francis guilty of count 1 on the Information.
vi. Evidence of pre-planning:
[33] The Crown introduced photographs of the bat.[^4] It still had the price tag attached to it. In addition, police seized a receipt while searching Mr. Francis incident to arrest that indicated the bat was purchased on November 22nd at 11:26 a.m. shortly before Mr. Francis drove to the storage facility.[^5] In light of how these employees treated Mr. Francis, I accept that he was angry with them or the company. The only available inference from purchasing the bat immediately prior to attending the storage unit and bringing a mask with him was that he planned to use the bat for some unlawful purpose.
vii. The mischief to the pin pad:
[34] After Mr. Francis left the scene, Ms. Helsden went to review the video footage and noticed that the screen went black at one point. The Crown introduced a photo of a black screen that states “NO VIDEO”[^6] and is dated November 22nd but it does not have a time stamp. Ms. Helsden went out to look at the pin pad and advised that it had been damaged and it looked like it had been hit with something.
[35] Neither of the employees related that they saw Mr. Francis damage the pin pad while they were watching him on the monitor. Ms. Helsden believed that it was not damaged prior to Mr. Francis’ attendance that day. She did not provide any details with respect to when she last checked the pin pad, the nature of the damage, the extent of the damage or the amount of the damage. It could have been a negligible amount of damage or it could have been a significant amount of damage. The Crown submitted that the photo was corroborative evidence that the pin pad was damaged in some significant way. The photo only establishes that the link to the video was lost at some time on November 22nd. It does not provide any evidence of what, if any, damage was done to the pin pad or how that impacted the link to the video feed.
[36] Count 6 of the Information specifically alleges a mischief that Mr. Francis willfully caused “damage” to the “pin pad”. The Crown has to prove beyond a reasonable doubt that Mr. Francis destroyed or damaged the pin pad beyond a de minimus amount. Without any proof of the amount of damage to the pin pad, the Crown has failed to prove an essential element of the offence beyond a reasonable doubt. Accordingly, I find that Mr. Francis is not guilty of Count 6 on the Information.
C. Legal Issues
[37] The perplexing legal issues in this case relate to the other counts on the Information that allege four separate counts of assault with a weapon against the two employees, the customer and the truck driver. In addition, Mr. Francis is charged with having his face masked while committing an indictable offence and possessing a weapon for the purpose of committing an offence. In order to make a decision on these Counts, I will review the guiding legal principles in a number of judgements as they apply to the unique facts in this case.
i. Assault with a weapon with respect to the complainants standing inside the office of the storage facility:
[38] Mr. Francis is charged with three counts of assault with a weapon with respect to each of the three complainants who were standing inside the locked office while he was striking the door with the baseball bat.
[39] I accept that Mr. Francis, while masked, approached the first set of double glass doors and immediately began striking the window of the door to the office building. It is important to note that there is absolutely no evidence that Mr. Francis knew that the complainants who evicted him were present in the office prior to the moment he approached the front doors. He did not speak to them in advance on the phone. They did not answer the intercom. He had only been there a few times and there was no evidence about when they worked or how many other employees worked in that office. While he was at the door, there is no evidence that Mr. Francis uttered any threats towards the complainants inside the office or gestured at them in any way or that he even acknowledged their presence or whether he even looked at them. I specifically find that he did not use the bat to gesture at these three complainants in any way that day. There is no evidence that he even damaged the door after striking it with the bat. Finally, the entire incident at the front door occurred within approximately thirty seconds and then he retreated to his car.
[40] I have no doubt that Mr. Francis’ conduct of covering his face with a mask with a skull on it, approaching the door and striking the entrance doors with a bat both frightened and intimidated the occupants of the office. Ms. Helsden broke down in tears while listening to her 911 recording and recalling the fear that she suffered during this attack. Each of the complainants credibly related feelings of being threatened and fearful. The Crown heatedly submitted that, considering all of these circumstances, Mr. Francis’ conduct amounts to an assault with a weapon with respect to each of the occupants in the office.
[41] The Crown was unable to provide me with a guiding case with similar facts. The only decision provided by the Crown was distinguishable. In addition, Mr. Francis is self-represented and he is not in a position to provide me with any precedents to support his argument. It is incumbent on this Court to ensure that Mr. Francis receives the benefit of a fair trial and that I consider all available legal arguments even though they were not specifically raised by the defendant or addressed by the Crown. I have to decide whether the Crown has proven beyond a reasonable doubt all of the essential elements of these three counts of assault with a weapon.
[42] The elements of the offence of assault with a weapon are set out in section 265 of the Criminal Code:
(1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
[43] Since Mr. Francis did not apply force directly or indirectly to any of the complainants, the question to be answered is whether his actions constituted a constructive assault contrary to section 265(1)(b) or whether he “accosted” the complainants while carrying a “weapon” contrary to subsection 265(1)(c).
[44] A “weapon” is defined in section 2 of the Criminal Code as follows:
“Weapon” means any thing used, designed to be used or intended for use
(a) in causing death or injury to any person, or
(b) for the purpose of threatening or intimidating any person
[45] While a bat is not designed to be used or intended for use as a weapon, if it was used for the purpose of threatening or intimidating any person, it meets the definition of a weapon. As a result, the circumstances in which this bat was wielded provides the essential context for the determination of whether Mr. Francis is guilty of these three counts of assault with a weapon.
ii. Constructive assault:
[46] An assault with a weapon contemplates not only an act of physically touching another person but also actions that induce another person to fear that they will be touched in circumstances where there are reasonable grounds to believe there is a “present ability” to effect this purpose.
[47] There are a number of helpful decisions that have considered whether a person is guilty of an assault with a weapon in circumstances wherein the defendant was holding an object during the course of an altercation without either gesturing with the object or using it. While each of these decisions are factually distinguishable, they assist with providing the guiding legal principles.
[48] In the recent decision of R. v. Horner, 2018 ONCA 971, [2018] O.J. No. 6917, the Ontario Court of Appeal addressed an appeal from a conviction for an assault with a weapon. Mr. Horner removed a knife from a kitchen drawer and approached his wife while they were embroiled in an argument. He did not gesture at her with the knife in any way or utter any threats to her. He held the knife in his hand. The victim felt threatened by his conduct and grabbed at the knife. A struggle ensued and she sustained significant injuries to her hands.
[49] Since the Appellant had not used the knife or even gestured with it, the Court of Appeal considered the definition of the actus reus and mens rea of assault with a weapon in this context at paragraphs 13 to 16:
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.
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.
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), 1972 CanLII 1320 (NB CA), 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.
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.
[50] Similarly, in R. v. Edgar, [2016] O.J. No. 1121, the Court of Appeal stated:
To commit a sexual assault, it was not necessary for the appellant to touch or even verbally threaten the complainant. A person's act or gesture, without words, force or any physical contact, can constitute a threat to apply force of a sexual nature, if it intentionally creates in another person an apprehension of imminent harm or offensive contact that affronts the person's sexual integrity. Coupled with a present ability to carry out the threat, this can amount to a sexual assault. See Criminal Code, R.S.C. 1985, c. C-46, ss. 265(1)(b) and (2); R. v. Cadden (1989), 1989 CanLII 2847 (BC CA), 48 C.C.C. (3d) 122 (B.C.C.A.); and R. v. Johnson, 2006 CanLII 37519 (Ont. S.C.). [emphasis mine]
[51] Finally, in R. v. Patrick, [2017] S.J. No. 486, the Saskatchewan Court of Appeal provided this helpful definition of what constitutes a “constructive assault”:
Section 265 envisions three possible means by which an assault can be committed. Subsection 265(1)(a) is concerned with an actual or direct assault on a person. This concept is understood to mean the intentional application of force, directly or indirectly, to a person without their consent.
However, as the trial judge correctly observed, actual contact does not need to take place for an assault to occur:
... The accused and his group were present with the intention to -- apparent intention to commit an assault and to use a weapon, which were knives, which were displayed. The assault is completed by any motion in the direction of the victim with the aggressive potential to carry out that assault or that violent act. And accordingly, there doesn't have to be actual contact between the accused and the victim.
An assault can also be constructive in nature. Thus, an assault can occur where:
a person attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, the present ability to effect his purpose (s. 265(1)(b))…..
And further at paragraphs 46 to 47:
Based on Campeau, it was unnecessary for the Crown to establish that the appellant had actually swung his knife at Mr. Lepine for purposes of s. 265(1)(b). It is enough for the accused to threaten to apply force by any "act or gesture" (here, pulling a knife, trying to stab Mr. Lepine and kicking the door) in a manner which causes the other person to believe, on reasonable grounds, that the accused has the present ability to effect his purpose, i.e., to apply that force (R v Paxton, 2016 ABCA 361 at para 48; leave to appeal refused [2017] SCCA No 114 (QL)).
Third, the evidence as a whole established that the appellant had attempted to or had threatened to apply force to Mr. Lepine and that Mr. Lepine reasonably believed the appellant had the ability to effect his purpose.
[52] Arguably, while there is no evidence that Mr. Francis intended to strike the complainants with the bat, this Court can infer from his conduct that his intention was to threaten the complainants with the bat and his act of carrying the bat, particularly while masked and aggressively striking the door, created an apprehension of imminent harm or offensive contact.
[53] There are, however, two significantly distinguishing facts in this case. First, there is more than one available reasonable inference from these facts. In order for the bat to meet the statutory definition of a “weapon” it had to be used for the purpose of threatening or intimidating a person. The complainants had precipitously evicted Mr. Francis and summarily deprived him of any access to his belongings. Mr. Francis would have been understandably upset with them or the business. Since there is absolutely no evidence that he knew that the specific employees who evicted him would be present in the office on November 22nd or that he knew they were there until after he masked and armed himself and there is no evidence that he even acknowledged their presence, another reasonable available inference from these facts is that Mr. Francis brought the bat and wore the mask because he intended to damage the property at the facility in retaliation for the way he was treated. He was not attempting or threatening to apply force to another person, rather, he was intending to and actually applied force to the property.
[54] Secondly, there was a set of locked, apparently thick, completely undamaged glass double doors between Mr. Francis and the complainants. Even if there is an inference that Mr. Francis intended to cause, at the very least, psychological harm through this menacing conduct, there is no evidence that he had the present ability to carry out any such perceived threats nor were there “reasonable grounds” for the complainants to believe that Mr. Francis had that ability in these circumstances.
[55] As a result, I find that the Crown has not proven beyond a reasonable doubt all of the essential elements of a constructive assault with a weapon contrary to section 265(1)(b) of the Criminal Code with respect to the three complainants inside the office.
iii. Accosting a person while openly carrying a weapon:
[56] I have also considered the alternative argument of whether Mr. Francis is guilty of these three counts of assault with a weapon because he was “openly” “carrying a weapon” while accosting or impeding another person contrary to section 265(1)(c) of the Criminal Code. It is important to consider what “accosts” means in this subsection.
[57] In R. v. Patrick, supra, the Court provided the following definition of accost at paragraph 49:
Fourth, even if the elements of an assault under s. 265(1)(b) had not been made out by the trial evidence, there was ample evidence for the trial judge to conclude the appellant had accosted Mr. Lepine with a weapon and thereby committed assault within the meaning of s. 265(1)(c). "Accost" means "approach or address" (R v Meszaros, 2013 ONCA 682 at para 47, 309 CCC (3d) 392, citing The Oxford English Dictionary, 2d ed, sub verba "accost"):
I do not think the use of the word "openly" in s. 265(1) (c) changes the analysis for these purposes. While "pulling out" or "displaying" a weapon for purposes of intimidation may constitute a use of that weapon, s. 265(1)(c) does not require an element of intimidation to be made out. It requires only that the person wearing or carrying the weapon "accost" (i.e., approach or address) or "impede" (i.e., obstruct or hinder) the victim.
[58] One inference from these facts is that Mr. Francis was approaching the complainants with the bat and he openly displayed this bat for the purpose of intimidating or threatening the complainants. Another equally plausible inference is that he intended and did approach the property for the purpose of causing damage to it, as opposed to the occupants who were inside the office. Since the Crown has failed to establish that the only reasonable inference from these facts is consistent with guilt for these specific charges, I find that the Crown has not proven these three counts of assault with a weapon beyond a reasonable doubt. Mr. Francis is acquitted of Counts 2, 3 and 7 as they relate to allegations of assaulting Mr. Helsden, Ms. Lecours and Mr. Zaida with a bat.
iv. Assault with a weapon with respect to the truck driver:
[59] Unlike the occupants of the office, the truck driver in the parking lot could hear what Mr. Francis was saying to him. I accept that Mr. Francis gestured with the bat directly at Mr. Motilal in a threatening manner while approaching him and wearing a mask. I accept that Mr. Francis was swearing at Mr. Motilal and telling him to get out of the area which caused Mr. Motilal to fear for his safety. There is ample evidence to find that Mr. Francis attempted or threatened, by an act or a gesture, to apply force to Mr. Motilal, in circumstances in which Mr. Motilal believed on reasonable grounds that Mr. Francis had the present ability to effect his purpose. As a result, I find Mr. Francis guilty of Count 4 on the Information of the assault with a weapon with respect to Mr. Motilal.
v. Wearing a face mask with intent to commit an indictable offence:
[60] Mr. Francis is also charged with having his face masked during this incident. There is no doubt that he put on a mask before he exited his car and he wore it as he was striking the glass doors and when he pointed the bat at Mr. Motilal. Section 351(2) of the Criminal Code states that “every one who, with intent to commit an indictable offence, has his face masked or coloured or is otherwise disguised is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years”. The Crown did not make any submissions about the essential elements of this offence.
[61] While I accept that the Crown has proven beyond a reasonable doubt that Mr. Francis wore a mask for an unlawful purpose, if Mr. Francis had a lawyer, he or she may submit that I should be left with a doubt as to what that purpose was in these circumstances. Arguably, there are a number of purposes for which Mr. Francis wore a mask. For example, Mr. Francis either wore a mask because he intended to cause damage to the property or he intended to intimidate and threaten the occupants. In R. v. Shay, [1976] O.J. No. 1004, the Ontario Court of Appeal addressed the difficulties with proving this offence when the Crown is unable to provide proof of the specific intended indictable offence:
The facts are that the complainant was in a telephone booth talking to someone on the telephone when the appellant approached with a handkerchief masking his face and then attempted to push open the door of the telephone booth while the complainant resisted his doing so and screamed loudly until help came for her.
The learned trial judge quite understandably on the evidence was unable to find which, if any, of several indictable offences the appellant may have had the intention to commit. The learned trial judge conceded he did not know whether the intent was robbery, indecent assault or "other indictable offence".
In our view, while the appellant is doubtless guilty of some offence for his conduct, to convict under the section under which he is charged, it is necessary for the Crown to prove beyond a reasonable doubt that the accused had an intent to commit one or more specific indictable offences. That proof being lacking in this case the appeal must be allowed, the conviction set aside and a verdict of acquittal directed to be entered.
[62] This case is factually distinguishable. The Crown has presented evidence that Mr. Francis was angry with the employees of the self-storage facility. He bought a bat within an hour of attending the facility. He brought the bat and a mask to the office and put on the mask as he exited the car and approached the doors to the front office. When he got to the glass doors, he immediately began striking them repeatedly with the bat with a significant degree of force. The only available inference from these facts is that he intended to cause damage to the glass doors. The Crown has proven beyond a reasonable doubt that he had his face masked with the intent to commit the indictable offence of mischief. As a result, I find Mr. Francis guilty of Count 5 on the Information.
vi. Possession of a weapon:
[63] Finally, Mr. Francis is also charged with possession of weapon. Section 88 of the Criminal Code states that:
88 (1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence.
[64] As noted earlier in these reasons, while a bat is not designed to be used or intended for use as a weapon, if a bat was used for the purpose of threatening or intimidating any person, it meets the statutory definition of a weapon. Even if Mr. Francis initially possessed the bat to cause damage to property, the occupants of the office would have been plainly visible to him at some point. He knew that his conduct would have been frightening to them. More importantly, he used the bat “for the purpose of” threatening or intimidating Mr. Motilal. As the Ontario Court of Appeal observed in R. v. Horner, supra at paragraphs 22 and 23:
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.
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), 1988 CanLII 5207 (SK CA), 71 Sask. R. 297 (C.A.), at para. 6; R. v. Howard (1985), 1985 CanLII 4516 (NB CA), 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.
[65] Whatever Mr. Francis’ initial intentions were when he took the bat out of the car, as his conduct escalated, his possession of the bat subsequently became dangerous to the public peace. The Crown has proven Count 8 beyond a reasonable doubt and I find him guilty of that offence.
D. Conclusion
[66] This was a troubling case. The manner in which the employees of this business treated Mr. Francis was unfair. He was singled out for investigation because they found him to be strange. They invaded his privacy while he was in a unit that he lawfully rented during business hours. Because of a perceived breach of the contract, he was immediately evicted and told to “get out”. He was also deprived of any access to his belongings and the complainant did not communicate with him about a refund of his rent. They also refused to answer the intercom when he tried to contact them. Whether or not the terms of the contract authorized this conduct, it was an overzealous response.
[67] The conduct of these employees however, does not justify or excuse Mr. Francis’ unlawful, hazardous and menacing behaviour. He terrified the two employees and frightened two uninvolved innocent bystanders. In addition, while this was not a high speed police pursuit, it commenced in a public parking lot outside of a store in the middle of the day. The pursuit continued for a significant period of time and Mr. Francis engaged in some erratic driving by weaving back and forth. The police officers risked their own well-being in order to push him off the road and prevent him from harming anyone. Mr. Francis’ failure to stop for the police endangered the lives and safety of members of the community and all of the officers involved in the pursuit.
[68] In conclusion, I find that the Crown has proven beyond a reasonable doubt that Mr. Francis is guilty of the following offences:
Count 1: Flight from police contrary to s. 249.1(1)
Count 4: Assault with a weapons contrary to s. 267(a) – Mr. Motilal
Count 5: Having his face masked contrary to s. 351(2)
Count 8: Possession of a weapon contrary to s. 88(1)
[69] I find that he is not guilty of the following offences:
Count 2: Assault with a weapon contrary to s. 267(a) – Ms. Lecours
Count 3: Assault with a weapon contrary to s. 267(a) – Ms. Eryka Helsden
Count 6: Mischief contrary to s. 430(4) with respect to the pin pad
Count 7: Assault with a weapon contrary to s. 267(a) – Mr. Zaida
Released: April 2nd, 2019
Signed: Justice B. Green
[^1]: R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33 (S.C.C.)
[^2]: Ms. Lecours testified that it was prior to closing time at 6 p.m. so it was probably between 5 and 6 p.m.
[^3]: Exhibit 1(d)
[^4]: Exhibit 5(a)
[^5]: Exhibit 6 – note the receipt had the value of the bat as $19.93 but with a saving of $20.06 which amounts to $39.99 the price that was indicated on the bat.
[^6]: Exhibit 4