



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Seip, 2021 ONCA 101

DATE: 20210219

DOCKET: C67573

MacPherson, van Rensburg and
    Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marcel Seip

Appellant

Marcel Seip, acting in person

Danielle Robitaille, appearing as duty
    counsel

Jeffrey Wyngaarden, for the respondent

Heard: February 9, 2021 by
    video conference

On appeal from
    the conviction entered on May 21, 2019 and the sentence imposed on October 9,
    2019 by Justice Diane M. Lahaie of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant Marcel Seip appeals his conviction
    and sentence for the offences of using a restricted or prohibited firearm in a
    kidnapping with intent to confine, break and enter, aggravated assault, assault,
    possession of a firearm while prohibited by reason of an order under s. 109 of
    the
Criminal Code
, R.S.C. 1985, c. C-46, breach of recognizance, and
    two counts of uttering threats to cause death.

[2]

The trial judge made the following findings
    relevant to this appeal:

·

The appellant participated in a home invasion
    and kidnapping with an accomplice to collect a $300 drug debt. The appellant
    was the mastermind and principal driving force of the home invasion and
    kidnapping. He knew his accomplice had a gun and decided it was time to be
    taken seriously regarding the money owed to him.

·

The appellant asked his girlfriend to knock on
    the door of the home as a decoy. She knew nothing about the accuseds plan in
    advance.

·

The door was opened by an 18-year-old high
    school student who lived at that address with his mother. The appellant and the
    accomplice barged in and the accomplice shot the student in the arm. The trial
    judge found that the accomplice put the gun to [the students] forearm and
    shot him. The bullet travelled through his arm and into the arm of the
    accomplice.

·

The appellant and the accomplice threatened to
    kill or harm the five occupants if they called the police, and did so again
    when they screamed with fear.

·

The appellant punched the individual who owed
    the drug debt in the face. Then, the appellant and the accomplice kidnapped him
    to force him to get the money to repay the debt. Eventually he escaped.

·

The trial judge found that although the
    appellant and the accomplice discussed and intended to use the gun as part of
    the home invasion, she was not prepared to find beyond a reasonable doubt that
    the plan was to shoot the gun into the student or anyone else. The trial judge
    was left in doubt by the evidence of the appellants girlfriend, that the gun
    went off when the student flinched after opening the door, and because in
    shooting the student the accomplice shot himself, which suggested the gun might
    have been fired accidentally. The trial judge therefore acquitted the appellant
    of discharging a firearm with intent to wound, but found him guilty of
    aggravated assault.

·

The appellant was sentenced to a global sentence
    of 10 years in jail, less 866 days credit for pre-sentence custody, and various
    ancillary orders.

[3]

On the conviction appeal, duty counsel argues
    that because the trial judge acquitted the appellant of discharging a firearm
    with intent to wound, she could not convict the appellant of aggravated
    assault. She asserts that the trial judges conclusion that she could not find
    beyond a reasonable doubt that the shooting was intentional precluded any
    finding of an intentional application of force needed to convict him for
    aggravated assault. Duty counsel submits that if the aggravated assault
    conviction is set aside, a global sentence around 6 to 7 years would be more
    appropriate. No other argument was made in relation to the sentence appeal.

[4]

We do not accept this submission. In our view,
    the trial judge was entitled to find the appellant guilty of aggravated assault
    in the circumstances.

[5]

Section 268(1) of the
Criminal Code
provides:

Every one commits an aggravated assault who
    wounds, maims, disfigures or endangers the life of the complainant.

[6]

The essence of aggravated assault is captured by
    Morris Manning and Peter Sankoff in
Manning, Mewett & Sankoff 
    Criminal Law
, 5th ed. (Toronto: LexisNexis, 2015), at p. 998:

The most serious type of assault short of
    homicide is called aggravated assault, which occurs when a person wounds,
    maims, disfigures or endangers the life of another. Conduct of this sort is
    punishable by imprisonment for up to 14 years. The elements of the offence are
    fairly well established. In addition to proving the basic requirements for an
    assault, it must also be shown that one of the prohibited consequences  wounding,
    maiming, disfiguring or endangering  was caused by the assault.
Although it
    is not necessary to prove that the accused intended those consequences in all
    cases, the Crown must demonstrate that the conduct was at least objectively
    likely to cause bodily harm
. [Emphasis added.] [Footnotes omitted.]

[7]

The
mens rea
for aggravated assault is
    the
mens rea
for the offence of assault coupled with objective
    foreseeability of harm. As Cory J. stated in
R. v. Godin
, [1994] 2
    S.C.R. 484, at p. 485:

The
mens rea
required for s. 268(1)
    of the
Criminal Code
, R.S.C., 1985, c. C-46, is objective foresight of
    bodily harm. It is not necessary that there be an intent to wound or maim or
    disfigure. The section pertains to an assault that has the consequences of
    wounding, maiming or disfiguring.

[8]

Here, the trial judge found the accomplice put
    the gun to the students arm. This intentional act was an assault. Even if the
    accomplice did not intend to shoot the student, the trial judge was entitled to
    find that the resulting injury was objectively foreseeable as a result of this
    assault, and was thus an aggravated assault. The trial judge was also entitled
    to find that the appellant was a party to this offence. He was the mastermind
    of the home invasion and knew his accomplice had a gun and intended to use it
    in the crime. We therefore see no error in the following analysis and
    conclusion of the trial judge:

[The appellant] was a party to the offence of
    aggravated assault committed against [the student]. The
mens rea
of
    this offence is objective foresight of bodily harm. The Crown need not show
    that an accused alleged to be a party to the offence of aggravated assault had
    any greater
mens rea
than the actual perpetrator and, in particular,
    need not show an objective foresight of the specific wounds resulting from the
    assault. (
R. v. Vang
(1999), 132 C.C.C. (3d) 32 (Ont. C.A.), leave to
    appeal to S.C.C. refused;
R v. Cuadra
(1998), 125 C.C.C. (3d) 289
    (B.C.C.A.) I am convinced beyond a reasonable doubt that all the elements of
    this offence have been established.

[9]

The appellant also argues that the trial judge
    erred in her credibility findings. He says that he was waiting in the car
    downstairs and that he did not participate in the home invasion. The trial
    judge rejected the appellants evidence at trial, stating:

I reject the entirety of [the appellants]
    evidence because it is inconsistent and illogical. [The appellant] is not an
    honest man. He has a criminal history which includes convictions for crimes of
    dishonesty and breaches of court orders. That being said, it was his
    inconsistent evidence and version of events which made no sense which leads to
    my conclusion in regards to his evidence.

[10]

We see no error in the trial judges rejection
    of the appellants evidence. Nor do we see any error in how the trial judge
    evaluated the credibility of the other witnesses or in finding the appellant
    guilty.

[11]

Because the conviction appeal is dismissed,
    there is no basis for the sentence appeal. Leave to appeal the sentence is
    denied.

[12]

The appeal is dismissed.

J.C.
    MacPherson J.A.

K.
    van Rensburg J.A.

M.
    Jamal J.A.


