



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Breton, 2016 ONCA 425

DATE: 20160601

DOCKET: C58374

Simmons, van Rensburg and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jean Claude Breton

Appellant

Joseph Di Luca, for the appellant

Michael Perlin, for the respondent

Heard: November 25, 2015

On appeal from the convictions entered on September 13,
    2013 and the sentences imposed on December 5, 2013 by Justice A.L. Guay of the Ontario
    Court of Justice.

Benotto J.A.:

Overview

[1]

The appellant was convicted of robbery, possession of a weapon for a
    purpose dangerous to the public peace (weapons dangerous) and three counts of
    breaching probation orders in connection with his involvement in a drug
    transaction. The charge of aggravated assault was stayed under
R. v.

Kienapple
, [1975] 1 S.C.R. 729
.

[2]

His co-accused, Ashley Labonte, was convicted of robbery and accessory
    to an attempted robbery, the latter of which was stayed under the
Kienapple
principle.

[3]

The appellant and Labonte both appealed their convictions and sentences.
    The two appeals were heard together. The reasons are being released together
    and are intended to be read together. The facts with respect to the convictions
    are set out in the reasons for my decision on the Labonte appeal: see
R. v.
    Labonte
, 2016 ONCA 426.

Robbery

[4]

In the Labonte appeal, I concluded that the trial judge provided
    insufficient reasons, by failing to make the findings of fact necessary to find
    Labonte guilty of robbery in the manner particularized by the Crown, such that
    a new trial was required.

[5]

I set aside Labontes conviction for robbery and the stay of her
    conviction for accessory to an attempted robbery and ordered a new trial.

[6]

The Crown submits that if this court allows the appellants appeal from
    his robbery conviction, then this court should either remit the aggravated
    assault charge back to the trial judge to enter a conviction and sentence, or this
    court should enter a conviction for aggravated assault pursuant to its powers under
    s. 686(8) of the
Criminal Code
, R.S.C. 1985, c. C-46.

[7]

For the reasons that follow, I would dismiss the appeal pursuant to s.
    686(1)(b)(i) of the
Criminal Code
, which allows this court to dismiss
    the appeal where it is of the opinion that the appellant, although not properly
    convicted on a count or part of the indictment, was properly convicted on
    another count or part of the indictment. I would quash the conviction on
    robbery, lift the stay on the aggravated assault charge, enter a conviction for
    aggravated assault and, pursuant to s. 686(3)(b), remit the matter back to the
    trial judge  for sentencing on aggravated assault.

Aggravated Assault

[8]

The appellant testified that when Courtemanche leaned into the car,
    stabbed Labonte and tried to engage the handbrake, he wrestled the knife away
    and stabbed Courtemanche in an effort to defend Labonte.

[9]

The trial judge rejected this evidence for several reasons, all of which
    were available to him on the evidence. Further, the trial judge made findings
    of fact in relation to the essential elements of aggravated assault. He found
    that the appellant unabashedly admitted to stabbing Courtemanche eight times.
    He also found that Courtemanche was wounded as a result. The trial judge made a
    finding of guilt on the aggravated assault count and stayed that charge.

[10]

At
    trial, the appellant sought to rely on the Defence of Person provisions in s.
    34 of the
Criminal Code.
These provisions came into force in March 2013,
    after the events in question. The trial judge implicitly acceded to the
    submission to have the provisions apply retrospectively. Instead of applying
    the previous s. 37, the trial judge applied the new s. 34. After the trial,
    this court held in
R. v. Bengy
2015 ONCA 397, 325 C.C.C. (3d) 22, that
    the provision does not apply retrospectively. In any event, as counsel agreed
    on appeal, the key factual inquiry governing the application of the new
    provision and the previous self-defence provisions is the same:  was the force
    used defensive and proportionate to the threat at hand. The trial judge
    rejected the defence on both bases.

[11]

The
    provision applied by the trial judge states:

34

(1)
A
    person is not guilty of an offence if

(a)
they believe on reasonable grounds that
    force is being used against them or another person or that a threat of force is
    being made against them or another person;

(b)
the act that constitutes the offence is
    committed for the purpose of defending or protecting themselves or the other
    person from that use or threat of force; and

(c)
the
    act committed is reasonable in the circumstances.

[12]

This
    defence is only available, as per s. 34(1)(c), if the actions of the appellant
    were reasonable in the circumstances. Section 37 provided that the defence was
    only available if no more force than was necessary to prevent the assault or
    the repetition of it was used. Further, the force could not be excessive. The
    appellant submitted that the trial judge erred in concluding that he had the
    time to extricate himself, and get out of the car. Even if the trial judge
    erred factually with respect to this issue, his ultimate finding was based on
    proportionality. The trial judge concluded that  even if the appellants
    evidence was accepted in its entirety  once he wrestled the knife from
    Courtemanche, stabbing him eight times was disproportionate to the threat he
    posed. In short, his conduct went far beyond what could be considered
    reasonable or necessary in the circumstances pursuant to either s. 34 or s. 37.

[13]

I
    see no error in the trial judges consideration of this defence.

[14]

Under
    s. 686(3)(b) of the
Criminal Code
, this court has the power to
    substitute the verdict that should have been found by the trial judge.
    Accordingly, I would quash the conviction for robbery, lift the stay and enter
    a conviction on the aggravated assault charge.

Weapons Dangerous

[15]

In
    convicting the appellant for possession of a weapon for a purpose dangerous to
    the public peace, the trial judge said this:

It is clear that the knife (a flick
    knife) used to stab John Courtemanche was the property of, or, at a very
    minimum, in the possession of Jean-Claude Breton. As such, possession of this
    weapon at the time of the commission of the offence fulfills the criteria for a
    conviction under section 88 of the
Criminal Code of Canada
.

[16]

The
    basis for the conviction was the use of the knife during the aggravated
    assault. This was a finding open to the trial judge. However, in light of the
    conviction that has now been entered for aggravated assault, the
Kienapple
principle
should be applied to stay that
    charge, along with its corresponding sentence of 12 months imprisonment.

Sentence

[17]

As
    a result of my conclusions, there is no reason to consider the appellants
    sentence appeal except to point out that  as conceded by the Crown  the
    appellant should have received enhanced credit of 1.5 days for each day spent in
    pre-trial custody (a reduction of 178 days), pursuant to
R. v. Summers
,
    2014 SCC 26, [2014] 1 S.C.R. 575.

Disposition

[18]

I
    would dismiss the appeal pursuant to s. 686(1)(b)(i) of the
Criminal Code
.
    In doing so, I would quash the appellants conviction for robbery, lift the
    conditional stay on the charge of aggravated assault, enter a conviction for
    aggravated assault, enter a stay on the weapons dangerous conviction, and remit
    the matter back to the trial judge for sentencing on the aggravated assault
    conviction, pursuant to s. 686(3)(b). The appellants convictions on three
    counts of breach of probation stand, along with the sentences imposed in
    relation to those convictions.

Released: June 1, 2016

M.L. Benotto J.A.

I agree Janet
    Simmons J.A.

I agree K. van
    Rensburg J.A.


