



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ferdinand, 2018 ONCA 836

DATE: 20181018

DOCKET: C64206

Sharpe, Lauwers and van Rensburg JJ.A.



BETWEEN

Her Majesty the Queen

Appellant

and

Nerville Ferdinand

Respondent

Christopher Webb, for the appellant

Kristin Bayley, for the respondent

Heard and released orally: October 3, 2018

On appeal from the acquittal order of Justice Michael Brown
of the Superior Court of Justice, sitting with a jury, dated July 22, 2017.



REASONS FOR DECISION

[1]

The Crown appeals a verdict of acquittal on a charge of
aggravated assault. The respondent was charged with attempted murder,
aggravated assault and several firearms offences.
The charges arose from
a dispute during which the respondent brandished a handgun. The gun was fired
causing serious injury to Tristan Kelly, the respondents friend.

[2]

The theory of the Crown was that the respondent intended to shoot
another individual standing near Kelly and that the doctrine of transferred
intent made the respondent liable for attempted murder or, in the alternative,
for aggravated assault and discharging a firearm with intent.

[3]

The respondents defence was that the gun fired accidentally and that he
had waved it to scare those present into calming down.

[4]

The respondent was found guilty of three firearms offences, and acquitted
on the charge of discharging a firearm with intent and aggravated assault. Three
charges were stayed pursuant to the
Kienapple
principle. The jury
failed to reach a verdict on attempted murder and charges under s. 244(1) and
s. 244.2(1)(b).

[5]

The trial judge refused the Crowns request to charge the jury on
liability for assault through a threat of application of force pursuant to s.
265(1)(b) of the
Criminal Code
which provides that a person commits
assault when he or she threatens, by act or gesture, to apply force to another
person if he has or causes that other person to believe on reasonable grounds
that he has present ability to affect his purpose. The Crown argued on the
appellants version he had threatened to apply force to another person and that
the
actus reus
for assault was made out when the respondent threatened
the use of force by taking out and waving the gun.

[6]

The trial judge refused to charge the jury in that manner for two
reasons. First, he ruled that the request was inconsistent with the Crowns
primary contention that the shooting was intentional. Second, the trial judge
thought that charging the jury on potential liability pursuant to s. 265(1)(b)
would unduly complicate the instruction.

[7]

On this appeal, the respondent effectively concedes that the trial
judges ruling cannot stand. First, the Crown was not required to prove assault
according to one specific theory. The application of s. 265(1)(b) arose from
the respondents own evidence and the Crown was entitled to have the jury
instructed that even if it accepted that evidence, there remained an available
legal route to liability for aggravated assault.

[8]

While the trial judge has a discretion to avoid undue complexity in a
jury instruction, the Crown was legally entitled to have the jury instructed
that while accepting the respondents version would mean that he should be
acquitted of attempted murder, it did not exclude a conviction for aggravated
assault.

[9]

We do not accept the respondents position that the appropriate remedy
in these circumstances is to dismiss the appeal but to allow aggravated assault
to be put to the jury on the new trial as an included offence: see
R. v.
McKay
, [2005] 3 S.C.R. 725, at 727 which in our view excludes this
possibility.

[10]

Accordingly,
we conclude that the appropriate remedy is to allow the appeal, to set aside
the acquittal on aggravated assault and to direct a new trial.

Robert J. Sharpe J.A.

P. Lauwers J.A.

K. van Rensburg J.A.


