



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Walia, 2018 ONCA 197

DATE: 20180228

DOCKET: C62982

Hoy A.C.J.O. Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kamalpreet Walia

Appellant

Alan D. Gold and Laura Metcalfe for the appellant

Christopher Webb for the respondent

Heard: February 16, 2018

On appeal from the conviction entered by Justice M.
    Donohue of the Superior Court of Justice sitting with a jury, dated September
    22, 2016, and from the sentence imposed on December 1, 2016.

REASONS FOR DECISION

[1]

During an argument that had escalated into mutual spitting, t
he appellant hit her sister-in-law in the face with a glass causing
    a significant wound. As a result of this action, the appellant was charged with
    two offences: assault with a weapon, namely, a glass, contrary to s. 267(a) of
    the
Criminal Code

and aggravated assault by
    wounding, contrary to s. 268 of the
Criminal Code
.

[2]

At a jury trial that lasted nine days
    (including a
voir dire
and jury selection),
    the appellant did not dispute hitting her sister-in-law with a glass or
    wounding her. However, she maintained that she did not hit her sister-in-law
    intentionally; rather, the blow she struck was a reflexive reaction in response
    to her sister-in-law striking her in the face with a cell phone.

[3]

The jury found the appellant not guilty of
    assault with a weapon but guilty of aggravated assault.

[4]

The trial judge sentenced the appellant to
    twelve months' imprisonment plus one-year probation.

[5]

The appellant appeals her conviction and seeks
    leave to appeal sentence.

[6]

The appellant's primary argument on her conviction
    appeal is that the verdicts are inconsistent, rendering the guilty verdict for
    aggravated assault unreasonable.

[7]

We accept this submission. As we have said, there
    was no dispute at trial that the appellant hit her sister-in-law in the face
    with a glass and that the blow wounded her sister-in-law. The contested issue
    was whether the blow was reflexive or intentional.

[8]

To prove the appellant guilty of
    aggravated assault, the Crown had to prove the following elements beyond a
    reasonable doubt:

·

the appellant intentionally applied force to her
    sister-in-law;

·

her sister-in-law did not consent to the
    application of force;

·

the appellant knew her sister-in-law did not
    consent to the application of force;

·

the force applied by the appellant wounded her sister-in-law;
    and

·

a risk of bodily harm was objectively
    foreseeable in the circumstances.

[9]

To prove the appellant guilty of assault
    with a weapon, the Crown had to prove the following elements beyond a
    reasonable doubt:

·

the appellant intentionally applied force to her
    sister-in-law;

·

her sister-in-law did not consent to the
    application of force;

·

the appellant knew her sister-in-law did not
    consent to the application of force; and

·

in applying force to her sister-in-law, the
    appellant used a weapon.

[10]

Weapon is defined in s. 2 of the
Criminal
    Code

as:

any thing used, designed to be
    used or intended for use

a)

in
    causing death or injury to any person, or

b)

for the
    purpose of threatening or intimidating any
person

[11]

In the circumstances of this case, t
o prove the final
    element of assault with a weapon, the Crown had to prove only that the
    appellant
used
the glass to injure her sister-in-law
    and that injury was reasonably foreseeable in the circumstances:
R.
    v. Lamy
2002 SCC 25, 1 S.C.R 868, at paras. 11-16.

[12]

Given the evidence and issues at trial, a
    properly instructed jury could not render a verdict of guilty to the aggravated
    assault charge but not guilty to the assault with a weapon charge. It was
    conceded that the appellant struck her sister-in-law with a glass thereby
    wounding her. The wound was obviously an injury. Injury was reasonably
    foreseeable based from the appellant striking her sister-in-law in the face
    with a glass. The only live issue was whether the strike was reflexive or
    intentional.

[13]

The Crown submits that the verdicts are
    reconcilable because of a jury instruction that was favourable to the
    appellant.

[14]

Through her initial instructions and in response
    to questions, the trial judge told the jury that a glass can be used as a
    weapon if it is intended to be used to injure and that if a person meant to
    throw the glass, then the glass is a weapon. The Crown asserts that the trial
    judge erred in these instructions in two ways. First, she imposed a burden on
    the Crown to prove something in addition to what it was required to prove,
    namely, that the appellant
intended
to use the
    glass
to injure
her sister-in-law. Second, she
    referred to a requirement of mean[ing] to throw the glass when there was no
    evidence of
throwing

a glass in this case.

[15]

We do not accept the Crowns submissions that
    the jury verdicts can be reconciled because of the erroneous instructions given
    by the trial judge. The two charges in this case arose out of the same conduct
    by the appellant. It was the blow
with the glass
that caused the wound to the appellants face. The contested issue
    was whether the appellants action was a reflex. Although the trial judge gave
    some instructions that may be seen as favourable to the appellant, she also
    told the jury that whether the glass was a weapon comes back to whether you
    are satisfied that this was an intentional act or an involuntary act. There is
    no benefit to speculating about how the jury came to its inconsistent verdicts,
    whether by way of unprincipled compromise or in response to the flawed
    instructions.

[16]

Further, we note that in
R. v. J.F.
,
2008 SCC 60, 3 S.C.R. 215, at para. 23, Fish J., speaking for the
    majority, stated that the Crown cannot rely on improper instructions to which
    it acquiesced to reconcile unreasonable verdicts. Although he found no error in
    the jury instructions in that case, he noted the fundamental principle that verdicts
    are deemed inconsistent and therefore unreasonable as a matter of law if no
properly
instructed jury could reasonably have returned them both: "[i]mproper
    instructions do not make improper verdicts proper. Nor do they make
    inconsistent verdicts consistent" (at para. 23).

[17]

The Crown also asked that we order a new trial
    on the aggravated assault charge if we were to conclude that the verdicts are
    inconsistent. We do not consider this an appropriate case in which to do so.
    The Crown did not appeal the acquittal on the assault with a weapon charge. Similar
    to the conclusion this court reached in
R. v. Catton
, 2015 ONCA 13, 319 C.C.C. (3d) 99, at para. 25, if this court were
    to order a new trial on the aggravated assault charge, it would invite a repetition
    of the very inconsistency that led to the quashing of the conviction  on this
    appeal.

[18]

Based on the foregoing reasons, the appeal is
    allowed, the conviction for aggravated assault is set aside and an acquittal is
    entered.

[19]

Before leaving this matter, we observe that we
    can discern no obvious reason why the Crown proceeded with the less serious
    assault with a weapon charge in addition to the aggravated assault charge.
    Outcomes such as these could be avoided, and trials simplified and shortened, if
    the practice of proceeding with duplicative counts was avoided.

Alexandra Hoy
    A.C.J.O.

Janet Simmons
    J.A.

G. Pardu J.A.


