



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Poitras, 2015 ONCA 475

DATE: 20150625

DOCKET: C57956

Cronk, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicholas Poitras

Appellant

James Foord, for the appellant

Mary-Ellen Hurman, for the respondent

Heard: June 19, 2015

On appeal from the decision of the Summary Conviction
    Appeal Court, dated September 5, 2013, by Justice Michel Z. Charbonneau of the
    Superior Court of Justice, dismissing the appeal from the conviction entered on
    January 18, 2012 by Justice Bruce E. MacPhee of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant seeks leave to appeal from a Summary Conviction Appeal
    Court (SCAC) decision dismissing his appeal from conviction for assault.

[2]

At the conclusion of oral argument, this court granted leave to appeal
    and allowed the appeal, for reasons to follow.  These are those reasons.

[3]

The test for leave to appeal to this court from a decision of the SCAC
    is an exacting one.  Leave may only be granted in one of two circumstances: i)
    where there is an arguable question of law that has significance to the
    administration of justice beyond the four corners of the case; or ii) where
    there appears to be a clear error of law, even if it cannot be said that the
    issue is one of general importance:
R. v. R.(R.)
(2009), 234 C.C.C.
    (3d) 463 (Ont. C.A.).

[4]

During oral argument, the focus of the appellants proposed appeal was
    significantly narrowed.  As argued, the appellant makes two main submissions. 
    First, he contends that the trial judge erred, in effect, by failing to address
    and make an explicit finding on the
actus reus
for the common assault
    alleged.  Second, the appellant maintains that the SCAC judge erred by stating,
    without elaboration or analysis, that the trial judge clearly reject[ed] the
    idea that what occurred here was a consensual fight.

[5]

Crown counsel acknowledges that if the trial judge failed to determine
    that the Crown had established the
actus reus
for the alleged assault,
    this error would support the granting of leave to appeal to this court under
    the second part of the leave test articulated above.  We agree.

[6]

On our review of the record, it is unclear whether the
actus reus
of the offence charged was established at trial.  The trial judge made no
    explicit finding that the encounter between the appellant and his father was a
    non-consensual incident.  His reasons suggest that he found the appellant
    guilty of assault because he concluded that the appellant had acted unwisely in
    asserting his mothers claim to possession of a former family car.  Although
    the trial judge clearly held that the appellant initiated the attempt to retake
    possession of the car, he made no finding that the jostling and pushing that ensued
    in the front seat of the car when the father tried to retake the car keys and
    his son resisted those efforts, was non-consensual or that the appellant
    actually assaulted his father.

[7]

In these circumstances, the SCAC judge erred when he concluded that the
    trial judge had made a finding that the encounter between the appellant and his
    father was a non-consensual fight.  This error warrants intervention by this
    court.  The trial judge made no finding as to the
actus reus
of the
    assault  namely, that any force applied by the appellant occurred in the
    context of a non-consensual fight.

[8]

Accordingly, in the unusual circumstances of this case, leave to appeal
    is granted, the appeal is allowed and a new trial is ordered.  We note that the
    appellant has abandoned his sentence appeal.  Since the appellant has served his
    sentence  18 months probation  the Crown may wish to consider whether a new
    trial would be in the interests of justice.

E.A. Cronk J.A.

G. Pardu J.A.

M.L.
    Benotto J.A.


