ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-2838
DATE: 2014/08/08
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
JAMES JOSHUA CANTY
Appellant
Gary Nikota, for the Respondent
Frank Miller, for the Appellant
HEARD: February 27, 2014
Summary Conviction Appeal from the decision of Justice Rawlins dated February 7, 2013
LEITCH J.
[1] The appellant appeals against his conviction on February 7, 2013 by Rawlins J. of the Ontario Court of Justice of an assault contrary to s. 266 of the Criminal Code of Canada. He also appeals his sentence of a conditional discharge imposed on February 7, 2013 which required him to comply with a 12 month term of probation that included a condition that he take counselling as recommended by his probation officer and that he complete a full cycle of the Fresh Start Partner Assault Reform Program.
[2] The appellant seeks an order quashing the finding of guilt and the entering of an acquittal, or in the alternative, an order directing a new trial.
[3] The respondent seeks an order dismissing the appeal and upholding the decision of the trial judge.
Background Summary
[4] On March 20, 2012, the complainant and the appellant were separated but lived together in the family home with their three daughters. They continued to live together in the family home until July 28, 2012.
[5] During the morning of March 20, 2012, the complainant and the appellant were in the kitchen in the family home. The complainant had a tape recorder in her hand.
[6] There was an altercation between the complainant and the appellant. The complainant called the police who attended at the family home.
[7] The police did not lay any charges. The complainant privately laid a charge of assault which proceeded to trial on February 7, 2013.
Evidence at Trial
[8] The complainant testified in-chief that the appellant “grabbed” her hand and “placed” her right hand holding the tape recorder in his pocket. [line 18 and 26, p. 7 of the transcript]
[9] The complainant further testified that she was trying to get her hand free and she and the appellant “ended up being almost like a wrestling match”. [line 28 and 29, p. 7 of the transcript]
[10] The complainant testified that she was yelling at the appellant to give her hand back but he would not and somehow they both ended up on the floor. The complainant also testified that she let go of the tape recorder when it was in the appellant’s pocket and she was just trying to get her hand back out. [line 18 and 19, p. 9 of the transcript]
[11] She testified that the appellant threw his hand back and she was then able to get her hand free. The complainant described the appellant standing up and running out the front door. She then called the police.
[12] On cross-examination, the complainant indicated that she believed “the only reasons he assaulted” her was “because he wanted the tape recorder”. [line 29-31, p. 24 of the transcript]
[13] It was suggested to the complainant on cross-examination that she held up the tape recorder, that the appellant snatched the tape recorder from her hand and put it in his pocket; that she reached into his pocket to try and get the tape recorder and that her reaching in, led to the struggle for the tape recorder. She denied these suggestions. [line 22-32, p. 27 of the transcript]
[14] During his examination in-chief, the appellant testified that he “snatched” the tape recorder from the complainant’s hand, an action he regretted, and put the tape recorder into his pocket. He further testified “at that point she dove with both of her hands into my left pocket and started shouting” to their daughters to call the police. [line 23-25, p. 36 of the transcript]
[15] He also testified that he had his hand in his pocket and the complainant had her two hands in his pocket and they both fell down. He ultimately got up and ran off.
[16] The appellant denied ever putting his hands on the complainant or hitting her or striking her, or pushing her to the ground, but he acknowledged that they had a struggle and he was trying to leave the family home. [line 32, p.38; line 1-11, p. 39]
[17] The appellant further acknowledged on cross-examination that he had no business taking the tape recorder.
[18] In paragraph 7 of his factum, the crown notes that “in sum the appellant admitted that he had grabbed a tape recorder out of the complainant’s hand during the course of a domestic dispute. He had no right to do so. That is, he intended to dispossess her of it without having a legitimate property interest in that recorder.”
The Reasons of the Trial Judge
[19] After comments during submissions by appellant’s counsel at trial and other comments prefacing her reasons, which will be outlined below in relation to the ground of appeal relating to bias, the trial judge stated the following:
To say I had to grab it to prevent her from waving it in my face, you could have walked away. If I am waving something in your face and you do not want it waved in your face, you turn around and then I am waving it at the back of your head. And since you do not have eyes in the back of your head there is nothing waved in your face. Once you grabbed it from her, sir, that is assault, a non-consensual touching. It does not even require force and she was entitled to do what she did to try to get it back. So it is the whole scenario from beginning to end there is no de minimus about it. You were intent on her not getting it back so therefore I find you guilty of the offence of assault. [line 7-20, p. 51 of the transcript]
The Grounds of Appeal
Issue #1 - The Issue of Prejudgment and Bias - Did comments made by the trial judge cause a reasonable apprehension of bias, thereby causing a loss of jurisdiction?
[20] The appellant relies on three comments of the trial judge in relation to this issue.
[21] Firstly, the appellant notes that at the conclusion of the Crown’s case, the trial judge indicated that she would like to speak to counsel for a minute, noting that it was unusual and they could say no. Crown counsel stated that he would “prefer to leave the matter here”, which the trial judge indicated was fine and they would proceed. [line 14-26, p. 35 of the transcript]
[22] The appellant acknowledges that the trial judge’s invitation to meet in chambers, which was not accepted by the Crown, is not in and of itself “fatal” but such an invitation, suggests the trial judge had formed a preliminary view of the merits of the case before hearing the appellant’s evidence.
[23] The appellant notes, referencing R. v. 844781 Ontario Corporation, 1996 O.J. No. 4496 at para. 8, that resolution discussions midtrial will not necessarily give rise to a reasonable apprehension that the judge might not decide the case fairly or impartially if such discussions are conducted with an express emphasis on the judge’s resolve to maintain a willingness to adjudicate on all of the evidence and argument to be heard. As the appellant put it in para. 29 of his factum, “that, however is not what happened here. The invitation did not come with an assertion that the result was not already forming in the trial judge’s mind. This becomes clear when the offer is put into the context of the entirety of the proceeding”.
[24] The appellant asserts that credibility was very much in issue and the trial judge’s comment at the conclusion of the Crown’s case revealed that she had prejudged the issues and determined the facts before hearing from the appellant.
[25] Secondly, the appellant notes that when appellant’s counsel began her submissions by referencing “ W. D.” and asked the trial judge to accept the appellant’s evidence, the trial judge interrupted and stated,
THE COURT: Well you see, there is also case law, okay. If I have something that is so intrinsically part of my body such as a necklace, such as a purse, such as anything of that nature and someone tries to take it away from me or takes it away from me, that is potentially robbery, which is assault and theft; earrings, buds in your hear for earphones, your eyeglasses, okay.
MS. COPAT: Yes, Your Honour.
THE COURT: There is case law. This is not W.D. We know he grabbed it out of her hand, it was in her hand, not for the purpose of stopping her from waving it in his face, he took it and ran. That is assault and theft. That is potentially robbery. That is what robbery is, so what am I supposed to do?
MS. COPAT: Well, Your Honour, I…
THE COURT: He acknowledges that he took it. It was not his and it is theft. And I can convict on any included offence. Technically it is robbery. I can go on theft or assault. That is your choice. He had no right to take it. If he had his car keys in his hand and I grabbed them and I have no right to his car keys would that not be theft?
MS. COPAT: Correct, Your Honour.
THE COURT: And if I potentially injured his hand while I was doing that would that not be assault?
MS. COPAT: Correct, Your Honour.
THE COURT: And potentially robbery? I know the police would charge robbery because they like to go up. They always go up, we know that, okay. We know that. It is no different here. He had no right to even touch that phone.
MS. COPAT: I believe it was a recorder but correct, Your Honour. The police did attend, Your Honour, and they spoke to both parties, investigated.
THE COURT: That does not matter. No, you see, I just thought…
MS. COPAT: I know you did, Your Honour.
THE COURT: …whether the police charge or do not charge and the matter comes before me, it is my decision. They are not judges, they are not lawyers, they are police officers, okay. So if every time the police charge you just came and I guess they are guilty. The police charged him so he has to be guilty, they charged him. He has to be guilty. They charged him, right because they charged him? We do not do that here, that is why we have our trials. Anyway, let us hear what Mr. Schwalm [trial Crown Counsel] has. No W.D., we know what happened. Mr. Schwalm.
[line 22-31, p. 43; p. 44 and line 1-12, p. 45 of the transcript]
[26] The appellant asserts that the trial judge made “findings of fact based exclusively on personal judicial experience and judicial perceptions of applicable social context” which is stated to be improper by the Court of Appeal in R. v. Hamilton, 2004 5549 (ON CA), [2004] O.J. No. 3252 (Q.L.) (C.A.) at para. 126 referencing R. v. S. (R.D.).
[27] The appellant emphasizes that at the conclusion of argument by defence counsel, [without permitting defence counsel to make his submissions in my view] the trial judge made reference to next hearing from Crown Counsel and stated “No W. D. we know what happened”.
[28] Thirdly, the appellant notes that at the commencement of her oral reasons, the trial judge stated to the appellant.
I knew where we were going when we started, when it started off with, my husband and I were living separate and apart in the same house. I have been on the bench 20 years. When testimony starts at: three o’clock in the morning, after drinking a case of beer, I decided to go to my ex-girlfriend’s house to visit my two-year old child, right away I know, problem, problem, here we go. I can hear the start of the story and I know where we are going and as soon as we started that I know, okay, here we go because it does not happen. Tensions are high usually on a daily basis. I understand your reasons for not wanting to leave but to do this, and you have children, this will affect them for the rest of their lives. I hope the two of you make a lot of money because you have a lot of counselling ahead for those kids. Line 19-31, p. 50 and line 1-6 p. 51 of the transcript]
[29] The appellant bears the burden of establishing on a balance of probabilities that there is a reasonable apprehension of bias.
[30] The appellant’s position is that the three comments by the trial judge would cause a well-informed member of the community to find bias.
[31] Bias was not alleged at trial and the first time that the issue of bias was raised was on this appeal. However, the appellant’s position is that the fact that there was no objection by trial counsel is not fatal here because it is the combination of the statements by the trial judge together with her comment prefacing her reasons that raise the allegation of a reasonable apprehension of bias.
[32] As outlined in the appellant’s factum, the Ontario Court of Appeal in Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham (2000), 2000 16946 (ON CA), 51 O.R. (3d) 97 (C.A.) at pp. 130-1, reviewed the principles that apply to a claim of judicial bias, noting that the principles had recently been summarized by the Supreme Court of Canada in R. v. S. (R.D.) 1997 324 (SCC), [1997], 3 S.C.R. 484, 118 C.C.C. (3d) 353. The test involves a two-fold objective standard: the person considering the alleged bias must be reasonable and informed and the apprehension of bias must itself be reasonable.
[33] The threshold for a finding of actual or apprehended bias is high because a finding of bias negatively impacts the integrity of the entire administration of justice. The appropriate question in relation to this first ground of appeal is what would an informed person viewing the matter, realistically and practically and having thought the matter through, conclude. [See Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369 at p. 394, 68 D.L.R. (3d) 716, approved of by the Supreme Court of Canada in S. (R.D.).
[34] I cannot find that the comments of the trial judge pass the high threshold for a finding of bias. However, these gratuitous comments were unnecessary and unhelpful. One can understand that viewed collectively in hindsight they caused the appellant to question whether the trial judge had exhibited bias particularly when his counsel was essentially given no opportunity to make her argument at the conclusion of the case.
[35] I will next address the other grounds of appeal.
Issue #2 – Did the trial judge err in law in finding that the provisions of s. 38 of the Criminal Code defined an offence rather than merely creating a defence?
[36] At trial, Crown counsel began his submissions by making reference to s. 38 of the Criminal Code and submitted that the appellant in
“taking possession of the recorder from her is now deemed by law to be committing an assault in which case it triggers s. 38(1) allowing whatever action was taken in this case, according to the evidence you have, by Mrs. Canty to try to retrieve it and have it returned to her…he’s deemed by law to be committing an assault on the basis of his evidence alone…he got it out of her hands somehow and in order to do that he would have to, by the very definition of assault; the intentional application of force upon a person without that person’s consent, he would have to be committing the assault in order to take that device from her”. [line 17 – 24, p. 46 of the transcript; line 29 to 30, p. 36 of the transcript; line 29-31 p. 47 of the transcript; line 1-6, p. 48 of the transcript]
[37] The trial judge agreed with the submission by the Crown and commented as follows:
That is why I made the analogy with respect to the purse, the eye glasses, something that is in your possession, something in your pocket, your earrings, your phone, devices people could use, the buds-in, if somebody rips that off, that is an assault…that is an assault, it is in their possession. If it is something in your hand, it is in your hand. How do you get it out of their hand without assaulting them? How? [line 7-15, p. 48 of the transcript]
[38] The Crown went on to submit that the complainant had every right to defend her property and she acted reasonably.
[39] He concluded his submissions by stating that “it is, in effect, by law, according to strict definition although I’m not arguing that,…it is a theft with an assault in order to assist in committing the theft. So it is a robbery in strict technical terms”. [line 31, p.48 of the transcript, line 1-7, p. 49 of the transcript]
[40] The defence counsel at trial began her reply to comment on the Crown’s submission that the tape recorder was never recovered but was interrupted by the trial judge who indicated she was:
“not worried about the tape recorder not being recovered. When you asked the question about his grabbing the tape recorder out of her hand we were done…and when he agreed with that and testified to that, we were done. That is an assault you know. And basically there is no colour of right, the fact that it was never recovered does not make any difference and she had a right to try to get her property back. What right did he have to take her property and refuse to return it, tell me? [line 12-21, p. 49 of the transcript]
[41] Defence counsel at trial then asked the trial judge to consider what occurred in the range of de minimus and the trial judge responded:
“Oh I do not think what happened was in the range of de minimus while she is trying to get her property back because he could have just given it back to her, but no, let us put on a show for our daughters, shall we. That is far beyond the de minimus, what I heard going on and they are down on the floor in front of their children. That is not de minimus, I am sorry, okay. All he had to do was give it, wave it in her face, take it from him, let us have it, it is out of my face, away I go. It would not be in his face once he did that would it? [line 26-31, p. 49 of the transcript; line 1-7, p. 50 of the transcript]
[42] The appellant’s position is that the complainant was the first one to use force and she has a defence pursuant to s. 38 that permits her to use reasonable force to retrieve her possession. He further submits that the trial judge must have accepted the Crown’s submission that s. 38 makes out an assault. He notes however that it is not clear from the trial judge’s reasons whether she found him guilty on that basis. As a result the appellant has raised a fourth ground of appeal relating to the adequacy of the trial judge’s reasons for conviction asserting that they fail to identify the basis for her finding and are thus insufficient for adequate appellant review.
[43] With respect to this ground of appeal, I agree with the Crown that the only reference to s. 38 was during the submissions of the Crown and the trial judge made no reference to, nor did she utilize s. 38 in her reasoning. According to the Crown, there is no doubt that guilt was not based on s.38 but was based on the appellant’s physical act of grabbing the recording device.
[44] Indeed, while appellant’s counsel indicated at the hearing of this appeal that this ground of appeal was not abandoned, he did not address this ground given the Crown’s position.
[45] Considering those positions, I turn next to the third ground of appeal which relates to whether the trial judge erred in finding the appellant had committed an assault.
Issue #3 - Did the trial judge err in finding that the tape recorder was an object so integral to the person of the complainant that touching it was the equivalent to touching the complainant herself because the law does not recognize such a touching as an assault?
[46] The Crown asserts that this issue is the central issue on the appeal. It raises the question of whether grabbing the tape recorder from the complainant, as the appellant described during his testimony, is an assault within the meaning of s. 266 of the Criminal Code of Canada.
[47] The appellant submits that the trial judge took the position that grabbing the tape recorder from the complainant’s hand was an assault and theft. His position is that the heart of her decision was her statement that “once you grabbed it from her, sir, that is assault, a non-consensual touching. It does not even require force and she was entitled to do what she did to try to get it back…you were intent on her not getting it back so therefore, I find you guilty of the offence of assault [line 13-21, p. 51 of the transcript.]
[48] The appellant asserts that a touching that does not interfere with bodily integrity is not an assault and the evidence did not establish that there was any interference with her bodily integrity. He submits that the verdict is unreasonable because the taking of an object from a person in peaceable possession of it does not fit the definition of assault.
[49] On the other hand, the Crown’s position on the appeal is that the taking of a chattel out of the hand of another person is an application of force against that person. The Crown’s position was succinctly set forth in para. 34 of his factum as follows:
By statutory definition, under s. 265(1)(a), the force intentionally applied may be either direct or indirect. Whenever a person wants to take an object without permission, while it is held by a human hand, involves indirect or direct force to affect that taking. Without the use of force, the appellant would not have been able to successfully divest the complainant of her tape recorder. As well, the appellant’s physical act of grabbing the recorder from the complainant constitutes, as contemplated by s. 265(1)(b) a threat by act or gesture to apply force when he causes another person to believe he has the present ability to affect that purpose.
[50] The Crown emphasizes that the appellant admitted to grabbing the tape recorder from the complainant’s hand, without her consent, when he had no right to take it and he was not acting in self-defence. The crown focuses on the appellant’s intention to take the device from the complainant, the lack of consent and the fact that there was contact between the appellant and the tape recorder in the complainant’s hand.
[51] The Crown submits that the findings of the trial judge were well justified considering the evidence of what he described “as an unwanted physical interference with the person of the complainant” and her reasons for conviction were sufficient given what was in issue at the end of the trial.
[52] The Crown relies on the decision of R. v. Luckett, 1978, B.C.J. No. 1136 (B.C.C. A.); affirmed on appeal by the Supreme Court of Canada, 1990 145 (SCC), 1990, S.C.J. No. 34 for the proposition that taking an object from a person against their will fits within the definition of assault. However, in my view, that decision does not stand for such a proposition. It confirmed that the offence of common assault is included in the offence of robbery, which was the issue on the appeal, noting that an accused charged with robbery will know from the outset that he is faced with the charge of robbery and a charge of assault as well as of theft.
[53] The Crown also relies on a decision of the Albert Court of Appeal in R. v. Fleury, 1984, A.J. No. 946 for the proposition that taking an object from a person constitutes assault. However, I find these facts distinct from those before the court in Fleury where Mr. Fleury admitted he had snatched the victim’s purse, which was on a strap around her shoulder and when he yanked on her purse, the victim fell to the ground. On the crown appeal from the conviction for theft, the Court of Appeal concluded that there was an assault with intent to steal and convicted Mr. Fleury of robbery.
[54] The Crown also cites a number of authorities for the proposition that to constitute an assault, the force applied against a victim does not require any particular degree of force and any touching of the complainant in circumstances that interferes with her bodily integrity is sufficient. [R. v. A.Z., 2000 16976 (ON CA), 2000 O.J. No. 4080, (O.C.A.), R. v. Burden, 1981 355 (BC CA), 1981, 64 C.C.C. 2d 68, (B.C.C.A.) and R. v. Cadden, 1989 48 C.C.C. 2d 122, (B.C.C.A.)
[55] However, on this appeal, the issue is not the degree of force utilized by the appellant, but the fact that the physical act committed by the appellant was the act of grabbing the tape recorder from the complainant’s hand.
[56] An essential element of an assault is the intentional application of force to the complainant, which may be direct by using a part of his body, or indirect by using an object. In this case, in my view, there is no evidence that the appellant applied force directly or indirectly to the complainant.
[57] I am satisfied that the trial judge erred in law in convicting the appellant of an assault by finding that grabbing the recorder was a non-consensual touching and thus an assault.
[58] I find that the appellant’s conviction should be quashed and a new trial ordered.
[59] In view of this conclusion, I need not address the fourth ground of appeal, which related to the adequacy of the trial judge’s reasons.
“Justice L. C. Leitch”
Justice L. C. Leitch
Released: August 8, 2014
COURT FILE NO.: 13-2838
DATE: 2014/08/08
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
JAMES JOSHUA CANTY
Appellant
REASONS FOR JUDGMENT
Justice L. C. Leitch
Released: August 8, 2014