



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(1), (2), or (3) of the
Criminal Code
shall continue. 
    These sections of the
Criminal Code
provide:


486.
(1)
Any proceedings against an accused shall be held
    in open court, but the presiding judge or justice may order the exclusion of
    all or any members of the public from the court room for all or part of the
    proceedings if the judge or justice is of the opinion that such an order is in
    the interest of public morals, the maintenance of order or the proper
    administration of justice or is necessary to prevent injury to international
    relations or national defence or national security.


(2)
For the purposes of subsection (1), the proper
    administration of justice includes ensuring that

(
a
)
the interests of witnesses under the age of
    eighteen years are safeguarded in all proceedings; and

(
b
)
justice system participants who are involved in
    the proceedings are protected.

(3)
If an accused
    is charged with an offence under section 151, 152, 153, 153.1, 155 or 159,
    subsection 160(2) or (3) or section 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 212, 271, 272, 273, 279.01, 279.011, 279.02 or 279.03 and the prosecutor
    or the accused applies for an order under subsection (1), the judge or justice
    shall, if no such order is made, state, by reference to the circumstances of
    the case, the reason for not making an order. R.S., 1985, c. C-46, s. 486;
    R.S., 1985, c. 27 (1st Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4th
    Supp.), s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9;1993, c. 45, s. 7;1997, c. 16,
    s. 6;1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34,
    133;2002, c. 13, s. 20;2005, c. 32, s. 15, c. 43, ss. 4, 8;2010, c. 3, s.
    4;2012, c. 1, s. 28.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D.W., 2015 ONCA 662

DATE: 20150930

DOCKET: C59378

Strathy C.J.O., MacPherson J.A. and Speyer J. (
Ad
    Hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

D.W.

Appellant

Brian A. Callender, for the appellant

Shawn Porter, for the respondent

Heard: September 28, 2015

On appeal from the conviction entered on June 20, 2014 and
    the sentence imposed on September 22, 2014 by Justice Wolfram Tausendfreund of
    the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

Following a short trial before Tausendfreund J. of the Superior Court of
    Justice, the appellant D.W. was convicted of three offences  assault, mischief
    in relation to property, and failure to comply with conditions of an
    undertaking. The appellant received a global sentence of 45 days incarceration
    and two years probation for these offences. He appeals the conviction and
    sentence.

Conviction

[2]

Two of the offences arose from an altercation the appellant had with his
    16-year-old daughter C.W. at their home. The appellant became very angry with
    C.W. after listening to a voicemail message from another relative. He decided
    to evict C.W. from the house immediately, even though it was night and the
    house was in a rural area. C.W. packed her belongings in several garbage bags
    and moved them to the front door. She had called an aunt to come pick her up.
    Near the door, the appellant grabbed C.W.s arm and pushed her towards the
    door. He then threw her computer out the door onto the porch. This conduct led
    to the convictions for assault and mischief in relation to property.

[3]

The appellant contends that, once the appellant ordered C.W. to leave
    the house, she was a trespasser and he was entitled to use reasonable force to
    remove her.

[4]

We do not accept this submission. C.W. was hardly a trespasser. She is
    the appellants daughter and had lived in the family home for several months.
    She had packed her belongings and moved them to the front door and was waiting
    for her aunt to arrive. Although the appellant did not apply a great deal of
    force, there was no need for any. Accordingly, as the trial judge found, s. 41
    [of the
Criminal Code
] is not a safe haven for the accused on these
    facts.

[5]

The appellant contends that there is no evidence that the computer was
    damaged when he threw it through the door onto the porch.

[6]

We are not persuaded by this submission. The trial judge reviewed the
    location of and rationale for the appellants action. He concluded: I accept
    that the accused willingly damaged that computer, in a pique of anger, by
    throwing it. In our view, he was entitled to draw this inference.

[7]

The third offence related to an undertaking that bound the appellant not
    to communicate with his daughter H.W. except with the permission from CAS
    Kingston or L.W. The appellant attempted to get a message to H.W. at school
    without one of these permissions, but through a third party.

[8]

On appeal, the appellant submits that communication with H.W. through
    the CAS or L.W. is indirect communication. His attempt to communicate with H.W.
    through a third party was also indirect communication. Accordingly, his conduct
    was legal; as expressed in his factum: [T]his is a distinction without a
    difference. All three options involve a certain amount of
indirect
    communication
and were equally acceptable.

[9]

We disagree. The undertaking specifically authorizes communication by
    the appellant with his daughters through two intermediaries  the CAS and the
    daughters aunt. The appellant cannot dream up and employ his own intermediary
    because he doesnt like or trust the CAS and the aunt.

Sentence

[10]

The
    appellant contends that his sentence (45 days incarceration) was
    disproportionate to the gravity of the offence.

[11]

We
    disagree. The 14-day and one-day consecutive sentences for assault and mischief
    in relation to property are light. The 30-day sentence for breach of an
    undertaking is also reasonable, especially bearing in mind that the appellant
    has eight previous convictions for non-compliance with various court orders.

[12]

In
    light of the fresh evidence relating to the appellants motorcycle accident
    that caused a serious back injury, we accept the appellants counsels request
    that the appellant may commence serving the remainder of his sentence on
    January 2, 2016.

Disposition

[13]

The
    appeals from conviction and sentence are dismissed.

G.R. Strathy C.J.O.

J.C. MacPherson J.A.

C.M. Speyer J. (ad hoc)


