Court File and Parties

Court File No.: CR-17-593 Date: 2019 01 03 Ontario Superior Court of Justice

Between: Her Majesty the Queen Christina Sibian, for the Crown

- and -

Peter Korgbor Jason Rabinovitch, for the Accused

Heard: September 18, 20, 21, 24, 26, 28 and October 1, 2018

Reasons for Ruling (Transferred Intent)

Coroza J.

Overview

[1] Peter Korgbor was charged with stabbing Andrew Saah, thereby committing aggravated assault, and assaulting Andrew’s brother Jeffrey Saah with a weapon (a knife). On October 1, 2018, he was convicted by a jury of the aggravated assault on Andrew and acquitted of the assault with a weapon on Jeffrey.

[2] During deliberations, the jury asked the following question:

If the accused applied force to Andrew but he thought that the man he was applying force to was Jeffrey, could he be said to have intentionally applied force to Andrew? Does his potential misidentification of the victim relieve him of intent?

[3] After hearing submissions from both counsel, I told the jury that Mr. Korgbor’s potential misidentification of Andrew did not relieve him of the intent to stab Andrew and that the intention was transferred from one person to another.

Brief Summary of Facts

[4] Peter Korgbor and Natasha Biddy were once married to each other. In 2015, they were separated but nonetheless living in the same home in Brampton.

[5] Natasha met and began a relationship with Jeffrey Saah. There is evidence that this caused friction between Jeffrey and Mr. Korgbor.

[6] On December 16, 2015, Natasha and Mr. Korgbor were involved in a fight in their home. During this fight, Natasha called Jeffrey's cell phone.

[7] As a result of this call, Jeffrey went to Natasha's home with his brother Andrew and a friend, Mark Taylor, to check on Natasha’s well-being. When they arrived, Natasha answered the door but asked them to leave. Mr. Korgbor was not present. It was dark outside.

[8] Mr. Korgbor returned to the home on foot. The men were still present. As Mr. Korgbor was walking towards the home, Andrew testified that Mr. Korgbor called out: "Is that you Jeffrey?" At the time Mr. Korgbor said this, Andrew and Mark were located near their parked car in a visitors parking area. Mr. Korgbor was approaching this area. However, Jeffrey remained at the door of the residence.

[9] Andrew confronted Mr. Korgbor and said something back to him. Andrew testified that he said, “What about Jeffrey”. It is also clear that he came face-to-face with Mr. Korgbor. According to Mark, someone asked Mr. Korgbor, "Why are you hitting her?"

[10] As a result of this exchange of words, a confrontation between Mr. Korgbor, Andrew, Mark and Jeffrey took place.

[11] Andrew testified that after he said something to Mr. Korgbor, he was immediately stabbed in his left shoulder. Andrew then yelled out for Jeffrey, and Jeffrey left the porch area to confront Mr. Korgbor. According to Andrew, Mr. Korgbor started swinging at Jeffrey with a knife.

[12] Jeffrey testified that from the porch he could see Andrew and Mark make a sudden movement after Mr. Korgbor approached on foot. He then heard Andrew yell out, “He has a knife”. Mr. Korgbor then approached Jeffrey and slashed at him with a knife. Jeffrey testified that the knife hit him in the arm and broke. He received a cut to his arm.

[13] It is not disputed that a knife was recovered at the scene in two pieces.

[14] The defence did not present any evidence.

[15] During the pre-charge conference, counsel for Mr. Korgbor asked that I leave self-defence with the jury. I declined to do so because there was no air of reality to the claim of self-defence: see R. v. Korgbor, 2018 ONSC 5834.

[16] In his closing submissions to the jury, counsel for Mr. Korgbor was restricted to arguing that the Crown had not proven the charges beyond a reasonable doubt because they could not rely on the credibility and reliability of the Crown witnesses. Counsel focused his arguments on the inconsistencies of the Crown witness accounts. He also focused on the prior inconsistent statements given by each witness.

The Issue

[17] During deliberations, the jury sent a note. I will repeat the question again for ease of reference:

If the accused applied force to Andrew but he thought that the man he was applying force to was Jeffrey, could he be said to have intentionally applied force to Andrew? Does his potential misidentification of the victim relieve him of intent?

[18] I drafted a response to the jury. Prior to delivering the response, I discussed the response with counsel in the absence of the jury. After hearing the submissions of counsel, I decided to answer the question in the following way:

There are two questions in your note.

The first question in your note is that if Peter thought the man he was applying force to was Jeffrey Saah, could Peter be said to have intentionally applied force to Andrew?

The answer is no.

The second question in your note was: does Peter’s potential misidentification of the victim relieve Peter of intent?

The answer is that the misidentification does not matter. Our law holds that if the Crown satisfies you beyond a reasonable doubt that Peter intended to apply force to Jeffrey but was mistaken and applied it to someone else, he has still intentionally applied force even though his act takes effect upon Andrew. The law holds that his intention is transferred from one person to the other.

[19] After providing my answer, I instructed the jury to continue deliberating. The jury shortly returned with the verdicts. I promised counsel I would provide my written reasons for answering the question in the manner that I did at a later date. These are those reasons.

Positions of the Parties

[20] Mr. Rabinovitch for the defence argued that I should instruct the jury that the mens rea for aggravated assault made it necessary for the Crown to prove that Mr. Korgbor intended to commit an aggravated assault on Andrew Saah.

[21] The Crown objected to this proposal and argued that mens rea for aggravated assault did not include a specific victim and that the jury should specifically be told that the Crown did not have to prove that Andrew was the intended object of the crime and that a specific victim was not a necessary element to the offence of aggravated assault. The Crown argued that the offence would be complete if Mr. Korgbor intended to stab a person and if he executed his intention on a person.

Analysis

[22] In my view, the appropriate answer to the jury’s question was found in the doctrine of transferred intent. It is clear from the jury’s question that they were satisfied that Mr. Korgbor had the intention to commit the act of stabbing. The first question is prefaced with the remarks “if the accused applied force to Andrew”. The only evidence before the jury was that Andrew was stabbed. The fact that Andrew was stabbed was not seriously contested by the defence. The jury’s second question talked about the potential misidentification of Andrew. After considering the question, the doctrine of transferred intent is applicable in the circumstances of this case.

[23] The doctrine of transferred intent (or transferred malice or transferred fault) was reviewed by the Court of Appeal in R. v. Gordon, 2009 ONCA 170, 94 OR (3d) 1, at para. 42.

[24] Typically, a crime involves both mens rea and an actus reus. In most cases, including offences against the person, the mens rea and actus reus relate to the same victim: Gordon, at para. 71.

[25] However, the doctrine of transferred intent applies when an accused intended to injure one person (the intended victim), but instead the injury fell on another person (the actual victim) by accident: Gordon, at para. 42.

[26] Considered separately, each prospective crime lacks an essential part. The mens rea for the intended victim lacks an actus reus, and the actus reus for the actual victim lacks mens rea: Gordon, at para. 68.

[27] In combination, however, they amount to a whole crime through the application of the doctrine of transferred intent: Gordon, at para. 68. The doctrine of transferred intent takes the mens rea of an offence in relation to an intended victim and transfers it to the actus reus of the same offence committed upon the actual victim: Gordon, at para. 68. The intention is transferred from one person to another.

[28] The Supreme Court of Canada has also reviewed the concept of transferred intent in Droste v. R., [1984] 1 SCR 208, at p. 216. The Court cited the following comments of Professor Glanville Williams in Criminal Law, The General Part, 2nd ed. (London: Stevens & Sons, 1961), at p. 126, who describes the operation of this concept as follows:

Transferred intention (transferred malice) occurs when an injury intended for one falls on another by accident. In other words, if the defendant intends a particular consequence, he is guilty of a crime of intention even though his act takes effect upon an object (whether person or property) that was not intended. His “malice” (i.e. his intention) is by a legal fiction transferred from the one object to the other. The defendant is then treated for legal purposes as though he had intended to hit the object that he did hit, though in fact he did not have the intent, nor even was reckless as to it. [Emphasis added.]

[29] Therefore, to answer the question of the jury, I told the jury that it was open to them to find Mr. Korgbor guilty of a crime of intention (aggravated assault) even though his act (the stabbing) took effect upon a victim (Andrew) that was not intended. In other words, by invoking the concept of transferred intent, Mr. Korgbor is treated for legal purposes as though he had had intended to injure the person that he did injure, though in fact he did not have the intent to do it.

[30] It is true that there is some controversy in the case law as to whether a court should invoke the concept of transferred intent for assault charges (See: R. v. Irwin, (1998), 38 O.R. (3d) 689 (C.A.) at para. 6).

[31] In Irwin, the accused was charged with assault causing bodily harm contrary to s. 267 of the Criminal Code. Irwin and another man, G, were fighting on an outdoor patio. As they grappled, they fell over the victim, an innocent bystander who had nothing to do with the altercation. The trial judge rejected Irwin’s contention that he was acting in self-defence when he applied force to G, and found that the force which he applied to G caused G to knock the victim's chair over and thereby caused the victim's injury.

[32] While Irwin did not intentionally apply force to the victim, the trial judge applied the common law doctrine of transferred intent and convicted Irwin.

[33] On appeal, Doherty J.A. held that the more appropriate charge in the circumstances was not assault cause bodily harm but “unlawfully causing bodily harm” contrary to s. 269 of the Criminal Code. The Court of Appeal held it had the power under the Criminal Code to amend the indictment to substitute that offence for assault causing bodily harm and it did so.

[34] Mr. Rabinovitch relied on Irwin and submitted that the Court of Appeal has suggested that the doctrine of transferred intent does not apply in cases of aggravated assault. Respectfully, I do not read Irwin in this manner. While it is true that Doherty J.A. noted that the issue of transferred intent “raises difficult problems” he did not deal with the issue in his judgment and relied on the power to amend the indictment to a more appropriate charge (unlawfully causing bodily harm) to dismiss the appeal. I do not think that Irwin precludes me from instructing the jury that the concept of transferred intent can apply in this case.

[35] Let me now turn to the Crown’s argument – that aggravated assault does not require that the Crown prove that Mr. Korgbor have the intent against a specific victim- and the jury should be so instructed in response to their question. This submission does find support in the jurisprudence (See: R. v. Whittaker, 2007 ONCJ 14, at paras. 68-74).

[36] The Crown must prove the actus reus and the mens rea for aggravated assault. The Supreme Court of Canada has held that the mens rea for the offence is the mens rea for simple assault (intent to apply force intentionally or recklessly or being wilfully blind to the fact that the victim does not consent) plus objective foresight of the risk of bodily harm (See: R. v. Williams, 2003 SCC 41, at para. 22). I see nothing in the jurisprudence that would support Mr. Rabinovitch’s submission that the jury should be told that the Crown must prove that Mr. Korgbor intended to stab a specific person-Andrew Saah.

[37] The Crown’s argument also find support in Droste, where the Court held at p. 216:

The literature on transferred intent distinguishes between two kinds of situations in which the “wrong victim” suffers harm at the hands of the accused. The first, sometimes called “error in objecto”, involves a mistake by the perpetrator as to the identity of the victim. A gunman aims at and shoots a pedestrian on the street; the assailant thought the pedestrian was X, but in fact he is Y. There is little controversy that this sort of mistake as to the identity of the victim in no way affects the fact that the perpetrator has committed an intentional crime. It is the second “wrong victim” situation, sometimes called “aberratio ictus”, or more poetically, “a mistake of the bullet”, that has led to the controversy surrounding the doctrine of transferred intent. In this second situation the perpetrator aims at X but by chance or lack of skill hits Y. The appropriateness of assessing criminal liability as though the bullet had found its intended mark depends heavily upon one’s evaluation of the importance of the identity of the victim as an element of the offence in question. [Emphasis added.]

[38] However, I would add that the court in Droste does go on to hold (in the passage above) that the importance of identity of the victim as an element of the offence in question may matter in certain cases. In my view, the identity of Andrew Saah did take on some prominence in this case. I say this for the following reasons.

[39] First, the offence that Mr. Korgbor was charged with was aggravated assault contrary to s. 268 of the Criminal Code. This section makes it an offence to wound, maim, disfigure or endanger the life of a complainant. The count particularized Andrew as the complainant of that offence. This offence is to be contrasted with other offences, such as unlawful bodily harm pursuant to s. 269 of the Code, which makes it an offence to unlawfully cause bodily harm to any person. In my view, the manner in which the Crown proceeded in this case made the identity of the victim an important feature of this prosecution.

[40] Second, the circumstances of the offence make it clear that the identification of Andrew may have been an important consideration to the jury. Indeed, it is reflected in their question. This circumstances of the altercation include the following:

• It was dark.
• Prior to the stabbing, Mr. Korgbor is alleged to have said: “is that you Jeffrey?”
• There was a history of animosity between Jeffrey and Mr. Korgbor because Jeffrey was now dating Natasha. There was no history of animosity between Andrew and Mr. Korgbor.

[41] In my view, even if I adopted the Crown’s position and explained to the jury that the Crown did not have to prove that Mr. Korgbor intended to specifically stab Andrew Saah, the jury’s question – whether the misidentification relieved Mr. Korgbor of intent – would still be answered as being irrelevant. Therefore, nothing turns on adding the Crown’s submissions in the answer to the jury. I also believe it could confuse the jury given the circumstances of this case.

[42] It is for these reasons that I declined to instruct the jury in the manner that both parties requested. In my view, this was a case that invoked the doctrine of transferred intent.

Coroza J. Released: January 3, 2019