SUPERIOR COURT OF JUSTICE - ONTARIO
Court File No.: C2833-2009
Date: 2013-09-05
RE: Her Majesty the Queen v. Nicholas Poitras
Before: M. Z. Charbonneau
Counsel:
Daniel O. Brisebois Counsel, for the Crown
James Foord Counsel, for the Appellant
Heard: August 26, 2013
ENDORSEMENT
[1] On January 18, 2012, Justice MacPhee of the Ontario Court of Justice convicted the appellant of assault contrary to section 266 of the Criminal Code. He suspended sentence and imposed on him a term of 18 months of probation.
[2] The appellant appeals both his conviction and the sentence imposed by the trial judge.
The Issue
[3] The appellant only raised one ground of appeal in support of his conviction, namely that the trial judge failed to provide sufficient reasons to enable an appellant court to review the conviction. More particularly the appellant submits that the trial judge’s reasons indicate that he convicted the accused either on the basis of the “deemed assault” provisions of section 38(2) of the Criminal Code or on the basis of the physical struggle for control of the vehicle. The appellant submits that the reasons are insufficient to understand on what basis the trial judge reached his decision. In any event, he submits that if the trial judge based the conviction on the basis of section 38(2) of the Criminal Code, he made an error of law, and if he convicted the accused on the basis of the struggle for the car, the verdict is unreasonable because the only reasonable conclusion on the evidence was that the struggle was consensual.
The Law
[4] In order to be successful on a charge of assault, the Crown must prove beyond a reasonable doubt that the accused intentionally applied force to the complainant without the complainant’s consent. A trial judge’s reasons need not be perfect but they must be sufficient to permit the accused and the appeal court to understand the reasoning of the trial judge in reaching his verdict.
Analysis
The Conviction Appeal
[5] There is no issue that the accused intentionally applied force to the complainant while attempting to leave with the motor vehicle. There was no need to revert to the deemed assault provisions of section 38(2) of the Criminal Code. Moreover, the evidence clearly supports a finding that the application of the force was not with the consent of the complainant.
[6] The trial judge made the following findings of facts which are clearly set out in his reasons:
The accused took steps to surreptitiously remove the vehicle from the possession of the complainant. (paragraph 6)
The accused decided to enforce his mother’s claim for the disputed vehicle instead of choosing the normal legal civil dispute resolution. (paragraph 8)
The vehicle had been in the complainant’s possession for a period of time and was the subject of a dispute between the complainant and his estranged wife who was the registered owner. (paragraph 9)
The accused took the law in his own hands and provoked a predictable confrontation with the complainant. (paragraph 12)
The complainant attempted to stop the accused and a physical jostling occurred in the interior of the vehicle. (paragraph 13)
During that jostling, the accused thrust, wrestled and moved about the complainant with considerable force. (paragraph 14 and 16)
[7] Although Crown Counsel made submissions in relation to section 38(2) of the Criminal Code, the trial judge did not refer to those provisions. It is clear that he was not finding the accused guilty on the basis of a “deemed assault” but rather based on his findings of facts that the accused had intentionally applied force to the father after having deliberately provoked a confrontation with the complainant.
[8] The trial judge clearly rejects the idea that what occurred here was a consensual fight. Rather he found the father was simply taking steps to prevent the accused from leaving with the vehicle which was his right to do. The accused, on the other hand, was using force against his father to realize his unlawful goal.
[9] I find that the trial judge’s findings of facts are fully supported by the evidence. Moreover, it is well established law that even the legal owner of a property cannot recover the possession of a chattel by using force. To use force in such circumstances will amount to an assault. In R. v. Doucette [1960] O.J. No. 547 at paragraph 7, the Court of Appeal adopts this passage in 3 Blackstone, Commentaries, pp. 3-4:
Recaption or reprisal is another species of remedy by the mere act of the party injured. This happens when any one hath deprived another of his property in goods or chattels personal, … in which case the owner of the goods … may lawfully claim and retake them wherever he happens to find them, so it be not in a riotous manner, or attended with a breach of the peace. The reason for this is obvious; since it may frequently happen that the owner may have this only opportunity of doing himself justice: his goods may be afterwards conveyed away or destroyed; … if he had no speedier remedy than the ordinary process of law. If therefore he can so contrive it as to gain possession of his property again without force or terror, the law favors and will justify his proceeding. But as the public peace is a superior consideration to any one man’s private property; and as, if individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons it is provided that this natural right of recaption shall never be exerted where such exertion must occasion strife and bodily contention, or endanger the peace of society.
[10] Applying that legal principle, the Court of Appeal in R. v. Doucette (supra) found the bailiffs who used force while attempting to recover a television set for the complainant guilty of assault. They were not absolved because the conditional contract they were acting upon gave them the right to recover the chattel in question.
[11] It is clear from his reasons that the trial judge was well aware of those legal principles and came to the conclusion that the principles enunciated in R. v. Doucette (supra)applied. The trial judge’s reasons are sufficient for appealable review and fully explain how he reached his conclusion.
[12] The appeal against the conviction is dismissed.
The Sentence Appeal
[13] An appellate court may only vary a sentence if it is clear the trial judge made an error in principle or that the sentence imposed is demonstrably unfit.
[14] The accused submitted to the trial judge that a discharge was the appropriate remedy. In rejecting this, the trial judge correctly reviewed the principles that apply to discharges. After having fully applied those principles to the relevant facts of the case, he came to the conclusion that a discharge was not in the public interest. He found that the actions of the accused in deliberately creating a confrontation made his actions grave and the degree of his responsibility considerable, notwithstanding the relatively minor consequences of the physical contact altercation. In coming to this conclusion, the trial judge took into account the high level of tension and conflict already in existence at the time of the offence. The goal of deterrence in those circumstances is certainly one the courts must keep in mind in determining a proper sentence.
[15] In all the circumstances, the sentence is not demonstrably unfit.
[16] The sentence appeal is therefore also dismissed.
M. Z. Charbonneau
Date: September 5, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Her Majesty the Queen
AND
Nicholas Poitras, Appellant
BEFORE: M. Z. Charbonneau
COUNSEL: Daniel O. Brisebois Counsel, for the Crown
James Foord Counsel, for the Appellant
ENDORSEMENT
M. Z. Charbonneau
Released: September 5, 2013