



WARNING

The President of the panel hearing
    this appeal directs that the following should be attached to the file:

An order restricting publication in
    this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7),
    (8) or (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an order is made under section
    486.4, on application of the prosecutor in respect of a victim or a witness, or
    on application of a victim or a witness, a judge or justice may make an order
    directing that any information that could identify the victim or witness shall
    not be published in any document or broadcast or transmitted in any way if the
    judge or justice is of the opinion that the order is in the interest of the
    proper administration of justice.

(2)     On application of the prosecutor in respect
    of a justice system participant who is involved in proceedings in respect of an
    offence referred to in subsection (2.1), or on application of such a justice
    system participant, a judge or justice may make an order directing that any
    information that could identify the justice system participant shall not be
    published in any document or broadcast or transmitted in any way if the judge
    or justice is satisfied that the order is in the interest of the proper
    administration of justice.



[1]

(2.1) The offences for the purposes of subsection (2) are

[2]

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13,
        or a serious offence committed for the benefit of, at the direction of, or in
        association with, a criminal organization;

[3]

(b) a terrorism offence;

[4]

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or
        22(1) of the
Security of Information Act
; or

[5]

(d) an offence under subsection 21(1) or section 23 of the
Security
        of Information Act
that is committed in relation to an offence referred to
        in paragraph (c).



(3)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding judge or
    justice or, if the judge or justice has not been determined, to a judge of a
    superior court of criminal jurisdiction in the judicial district where the
    proceedings will take place; and

(b) provide notice of the application to the
    prosecutor, the accused and any other person affected by the order that the
    judge or justice specifies.

(5)     An applicant for an order shall set out the
    grounds on which the applicant relies to establish that the order is necessary for
    the proper administration of justice.

(6)     The judge or justice may hold a hearing to
    determine whether an order should be made, and the hearing may be in private.

(7)     In determining whether to make an order, the
    judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk
    that the victim, witness or justice system participant would suffer harm if
    their identity were disclosed;

(c) whether the victim, witness or justice system
    participant needs the order for their security or to protect them from
    intimidation or retaliation;

(d) societys interest in encouraging the
    reporting of offences and the participation of victims, witnesses and justice
    system participants in the criminal justice process;

(e) whether effective alternatives are available
    to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the
    proposed order;

(g) the impact of the proposed order on the
    freedom of expression of those affected by it; and

(h) any other factor that the judge or justice
    considers relevant.

(8)     An order may be subject to any conditions
    that the judge or justice thinks fit.

(9)     Unless the judge or justice refuses to make
    an order, no person shall publish in any document or broadcast or transmit in
    any way

(a) the contents of an application;

(b) any evidence taken, information given or
    submissions made at a hearing under subsection (6); or

(c) any other information that could identify the
    person to whom the application relates as a victim, witness or justice system
    participant in the proceedings.
2005, c. 32, s.
    15; 2015, c. 13, s. 19

486.6 (1)  Every person who fails to comply with an
    order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken
    against any person who fails to comply with the order, the publication in any
    document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Horner, 2018 ONCA 971

DATE: 20181203

DOCKET: C64031

Simmons, Huscroft and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Horner

Appellant

Richard Litkowski, for the appellant

Andrew Cappell, for the respondent

Heard: June 19, 2018

On appeal from the conviction entered on April 26, 2017
    and the sentence imposed on June 2, 2017 by Justice Sharon Lavine of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[6]

The appellant and the complainant had been in an intimate relationship
    for approximately two years. They did not live together, and both describe the
    relationship as having its ups and downs. On the morning of July 7, 2015, the
    complainant sent the appellant a text message, telling him that she needed to
    distance herself from him and wanted only to be friends. The appellant then
    drove to the complainants house intent on speaking with her. He was both
    uninvited and unwelcome. He took the complainants children for a walk to a
    nearby store while the complainant was busy with a business client who had just
    arrived.

[7]

When the appellant returned with the children, the client had left. The
    appellant and complainant resumed their discussion, which quickly became
    heated. Things did not proceed the way the appellant would have liked. The
    complainant asked him to leave. The appellant took a knife from a kitchen
    drawer and then walked into the back room where the complainant was standing. Their
    accounts as to what happened next diverge significantly.

[8]

The appellant testified that he had the knife at his side and raised in
    front of him when he entered the back room. The trial judge rejected the
    appellants evidence that he intended to hold the knife to his heart to dramatically
    communicate his pain at the complainants rejection, with the intention of
    saying that she might as well cut [his] heart out. The trial judge also
    rejected a number of other aspects of the appellants account of the events. The
    trial judge accepted the complainants evidence that she had her back to the
    appellant and turned at some point to find him holding out the knife and
    advancing towards her. The complainant was fearful. She attempted to take the
    knife from the appellant, grabbing his hand with hers. The two fell to the
    floor and struggled over the knife. The complainants hands were badly cut during
    the struggle. Following the struggle, she ran to the back yard, and the
    appellant attempted to follow her. The appellant subsequently left the home.

[9]

The trial judge accepted the appellants testimony that he did not take
    the knife from the drawer with the intention of using it to harm the
    complainant.

[10]

The
    trial judge convicted the appellant of assault with a weapon, but acquitted him
    of aggravated assault, uttering a threat to cause death, and possessing a
    weapon for a purpose dangerous to the public peace. The trial judge imposed a sentence
    of thirteen months custody less four months credit for pre-trial house arrest.

[11]

The
    Crown did not appeal any of the acquittals. The appellant appeals both
    conviction and sentence.

[12]

With
    respect to conviction, the appellants primary ground of appeal is that the
    verdict was unreasonable. His argument was made on two bases: (1) the evidence
    did not support the conclusion that he intended to threaten the complainant
    with the knife and the trial judge never made such a finding; and (2) the trial
    judge returned inconsistent verdicts  convicting the appellant of assault with
    a weapon while acquitting him of possession of a weapon for a purpose dangerous
    to the public peace.

Analysis

(1)


Mens rea
for assault with a weapon

[13]

As
    the trial judge correctly noted, a person commits an assault when that person
    threatens by an act or gesture to apply force to another person if he has, or
    causes that person to believe on reasonable grounds that he has, present
    ability to effect his purpose:
Criminal Code
, s. 265(1)(b). The trial
    judge found that the
actus reus
of the offense of assault with a
    weapon was made out by the appellants 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.

[14]

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.

[15]

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 appellants intention to threaten, and not in the
    intention to carry out that threat:
R. v. Horncastle
(1972)
,
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 appellants 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.

[16]

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.

(2)

Inconsistent verdicts

[17]

The
    appellant argues the verdict was unreasonable because conviction for assault
    with a weapon is inconsistent with the trial judges decision to acquit the
    appellant for possession of a weapon for a purpose dangerous to the public
    peace contrary to s. 88(1) of the
Criminal Code
. Section 88(1) of the
Criminal Code
provides:

Every person commits an offence who carries or possesses a
    weapon  for a purpose dangerous to the public peace or for the purpose of
    committing an offence.

The offence thus has two elements:

1)

The accused possessed
    a weapon; and

2)

The purpose of that
    possession was one dangerous to the public peace.

(See
R. v. Kerr
, 2004 SCC 44, [2004] 2 S.C.R.
    371, at para. 24.)

[18]

The
    trial judge concluded that the appellant could not be convicted of this offence
    because she was not satisfied that the purpose for which Mr. Horner took
    possession of the knife was one dangerous to the public peace.

[19]

For
    the appellant to succeed on this ground of appeal, it is not sufficient that he
    establish that the conviction and the acquittal are inconsistent verdicts.
    Where an inconsistent verdict results from a legally unsound acquittal and the
    factual findings on the acquittal are not inconsistent with the factual
    findings on the conviction, an appellate court is not required to set aside the
    conviction, even if the Crown did not appeal the acquittal:
R. v. Plein
,
    2018 ONCA 748, at paras. 46-47, 49, 51.

[20]

The
    apparent inconsistency in this case is rooted in the trial judges finding on
    the weapons dangerous charge that it was not established that when the
    appellant took possession of the knife, he had formed an intention to use the
    knife in a manner dangerous to the public peace. There are, it seems to us, three
    possible bases that could have led the trial judge to this conclusion. Although
    it would have been preferable had the trial judge specified which basis she had
    in mind, we are content that none of them present a necessary conflict with the
    findings of fact on the conviction.

[21]

The
    first potential basis for the acquittal is that the trial judge concluded that
    the appellant had not formed the intention to threaten the complainant when he
    picked up the knife, or at any time prior to the moment he actually threatened
    her. This would present no legal or factual inconsistency between the
    conviction for assault and the acquittal for possession of a weapon for a
    dangerous purpose. For the latter offence, on our understanding, the Crown must
    prove the accused had possession of the weapon and formed the intention to use
    if for a dangerous purpose
prior
to its actual use: see
R. v.
    MacDonald
(2002), 170 C.C.C. (3d) 46 (Ont. C.A.) at paras. 28-32.

[22]

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.

[23]

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), 71 Sask. R. 297 (C.A.)
,
at para. 6;
R. v. Howard
(1985), 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), 11 C.C.C.
    (3d) 546 (Alta. C.A.), at p. 555.

[24]

On
    the reasons given, it is not apparent which of these three conclusions formed
    the basis for the trial judges conclusion. Nevertheless, it is clear that none
    of them involve an acquittal on the basis of inconsistent factual findings. On
    the first basis, there would be no legal or factual inconsistency. On the
    second and third bases, the inconsistency would be the result of an error of
    law concerning the requirements to convict for possession of a weapon for
    dangerous purpose. As an appeal of the acquittal is not before us, we are not
    required to isolate the trial judges potential paths of reasoning any further.
    It is sufficient that we determine that any inconsistency would not have been the
    result of inconsistent factual findings.

[25]

In
Plein
, this court held there is no legal principle that requires 
    that inconsistent verdicts can never be left to stand: para. 49. Where an
    accused person seeks to set aside an inconsistent conviction, the accused has
    put the reasons for that inconsistency in issue. Where a court concludes that
    the acquittal appears legally erroneous and the conviction sound in light of
    the trial judges factual findings, the court can take the frailty of the
    acquittal into account in determining whether to allow the appeal from
    conviction:
Plein
, at paras. 47, 51. Accordingly, even if the verdicts
    were inconsistent, which is not clear to us, that inconsistency would be based
    on an error of law by the trial judge concerning the requirements to convict
    for possession of a weapon for dangerous purpose. The acquittal would thus be legally
    erroneous and the conviction sound.

(3)

Uneven scrutiny

[26]

The
    appellant also argues that the trial judge did not adequately scrutinize the
    complainants evidence, specifically her denial that she coached her children
    before they were interviewed by police. The appellant argues that the
    complainant clearly lied about this in her testimony at trial, and the trial
    judge erred by not addressing how this impacted her credibility.

[27]

We
    do not agree. The complainants testimony about what she said to the children
    is not entirely clear. There is, however, no obvious contradiction between the
    complainants testimony that she did not tell the children about what happened
    inside the house, and the childrens statements that she told them about what
    happened outside the house. In any event, the trial judge was alive to the complainants
    credibility issues and canvassed them thoroughly.

(4)

Sentence Appeal

[28]

The
    appellant was sentenced to 13 months custody less 4 months credit for the 22
    months of house arrest prior to trial and sentencing. The Crown had sought 18
    months custody followed by two years probation. The defence asked for a
    suspended sentence and one year of probation.

[29]

The
    appellant argues that the trial judge failed to give sufficient weight to the
    principle of restraint; that is, in failing to consider all available sanctions
    short of incarceration, particularly given that the appellant is a first time
    offender. Also, the appellant argues that the trial judge gave insufficient
    credit for the strict bail conditions imposed on the appellant during the 22
    months house arrest.

[30]

We
    do not agree. The appellant has not identified any error of principle in
    sentencing. This was a case of domestic violence which left the complainant
    with a significant injury and has had a traumatic impact on both her and her
    young children. A sentence that emphasized denunciation and deterrence was
    entirely appropriate. Neither was there any error in the credit given for
    pre-trial custody.

Disposition

[31]

The
    appeals from conviction and sentence are dismissed.

Janet Simmons
    J.A.

Grant Huscroft
    J.A.

B.W. Miller J.A.


