2003 MBCA 46, 2003 MBCA 46

IN THE COURT OF APPEAL OF MANITOBA B E T W E E N : Docket: AR02-30-05449 ) R. A. Saull HER MAJESTY THE QUEEN ) for the Applicant ) (Appellant) Applicant ) ) T. J. Killeen - and - ) for the Respondent ) R. P. Sweeney RODNEY PATRICK SWEENEY ) ) (Accused) Respondent ) S. L. Chapman ) for the Respondent A N D B E T W E EN: ) S. E.

Kirton ) Docket: AR02-30-05450 ) HER MAJESTY THE QUEEN ) ) Chambers motions heard: (Appellant) Applicant ) January 30, 2003 ) - and - ) ) Decision pronounced: SHANE EDWARD KIRTON ) March 25, 2003 ) (Accused) Respondent ) KROFT J.A. 1 This judgment is in response to a Crown application for an extension of time to permit appeals from the acquittals of both accused.

The charges, as originally laid, were that on June 29, 2000 “in committing an assault upon Mario Felice Adamo [they] did unlawfully endanger the life of Mario Felice Adamo and did thereby commit aggravated assault.” 2 The events that gave rise to the two indictments occurred in a “club house,” where the accused members of a gang are said to have beat up on another member. They used an aluminum baseball bat. 3 The trial began in mid-May 2002, and proceeded intermittently until October 21, 2002.

The judge then came to the conclusion that she could not find either accused guilty of aggravated assault under s. 268(1) of the Criminal Code (the Code ) because there was insufficient medical evidence to establish that Adamo’s life was ever endangered.

However, she acquitted each of them of the original charges and pronounced each of them guilty of assault causing bodily harm under s. 267 of the Code . 4 In the affidavits supporting these motions, Crown counsel claims that immediately after the verdicts were pronounced, he formed an opinion that the trial judge had failed to consider evidence which supported the charge of endangering of life and that he ought to appeal the acquittals. He did not, however, say anything about communicating such an intention to either opposing counsel or to colleagues in his department.

Neither did he commence any preparations to pursue such a course of action. He decided instead to wait until after sentences had been imposed before consulting with, or seeking approval from, one of the seniors in his office. According to his deposition, it was his opinion that such appeals should not be filed until after sentencing had taken place. 5 On November 25, 2002, before the commencement of submissions on sentence, counsel for both accused brought motions asking the trial judge to reconsider her earlier guilty verdicts and reduce them from assault causing bodily harm to ones of simple assault.

Motions by accused persons to amend verdicts are not common, but in the circumstances of this case, the applications were appropriate and the trial judge was correct to have responded to them prior to sentencing.

6 Counsel for the accused began the submissions to the Court of Queen’s Bench judge by asserting that a judge has jurisdiction to reopen and reconsider any finding of guilt (in this case it would be guilty of assault causing bodily harm) until after sentencing is complete.

If the judge has not imposed sentence, he or she is still seized of the trial and has a discretion to continue the proceedings, or to declare a mistrial. 7 The essential thrust of the submissions was that the verdicts of guilty of assault causing bodily harm should be set aside and substituted by verdicts of simple assault because assault, but not assault causing bodily harm, were included offences in the charges against both accused as presented at the trial. 8 At this point, I am including several paragraphs from the accused’s written submissions in support of their motions in the Court of Queen’s Bench to amend the following verdicts.

In my view, it was a clear and accurate presentation: 4. It is agreed that assault causing bodily harm and simple assault are both included offences in a general, unparticularized charge of aggravated assault contrary to

section 268 of the Criminal Code . R. v. Soluk , [ (2001), 2001 BCCA 519 (CanLII) , 46 C.R. (5 th ) 380 (B.C.C.A.) ] See also: R. v. Horsefall (1990) 1990 CanLII 1039 (BC CA) , 61 C.C.C. (3d) 245 (B.C.C.A.) 5. This is because the bodily harm is necessarily included in three of the four ways an aggravated assault can be committed: wounding, maiming or disfiguring. However, bodily harm is not an included element in the fourth way of committing an aggravated assault: endangering life.

Just an assault simpliciter is included in some but not all of the ways in which robbery can be committed, so also assault causing bodily harm is included in three of the four ways in which an aggravated assault may be committed .

On reasoning parallel to that in Luckett [ (1980), 1980 CanLII 185 (SCC) , 50 C.C.C. (2d) 489 ], since three of the four ways of committing an aggravated assault are wounding, maiming, or disfiguring and since the infliction of bodily harm is included in each of those three ways of committing an aggravated assault , this is sufficient to conclude that the lesser offence is included in the greater offence as described in the enactment.

A person charged with aggravated assault which is not further particularized in the Information or Indictment must know that each of the four ways of committing an aggravated assault have been put in issue, and is therefore also on notice that the necessary component of each of those four ways have also been put in issue. R. v. Soluk , supra , at para 16 6. It is respectfully submitted our Indictment is not one of aggravated assault “which is not further particularized in the Information or Indictment” as in Soluk .

Our Indictment rather is particularized with only the one mode of aggravated assault – endangering life – and therefore assault causing bodily harm is not a lesser included offence. see: R. v. Soluk , supra, at para 16 : “… the infliction of bodily harm is included in each of those three ways of committing an aggravated assault …” [but not the fourth involved here.] and see: R. v. DeFreitas (1999), 1999 CanLII 14071 (MB CA) , 132 C.C.C. (3d) 333 (Man.

C.A.) , at para 13 : “I … agree … that bodily harm was not a necessary prerequisite of endangerment to life.” 9 Here, instead of leaving all of the elements named in the Code for the consideration of the court, the drafter of the indictments chose to significantly narrow the charge to the single allegation that each accused “did unlawfully endanger the life” of the victim. “Wounding,” “maiming,” or “disfiguring” were omitted as elements of the offence.

Once the trial judge found that there was no evidence of endangering life, the only conviction that she could have imposed was guilty of assault simpliciter . 10 The issue to be resolved in these motions would not likely have arisen if the original indictments had charged the accused by using the all-inclusive words with which s. 268(1) of the Code begins (that is, that each did “commit an aggravated assault”).

It was neither necessary nor useful for the Crown to isolate only one of the four possible components of the offence and thereby restrict the scope of the allegation to an assault which “endangers the life” of the victim. It eliminated “wounding,” “maiming,” and “disfiguring” as elements of the offence. Therefore, when the judge concluded that there was no evidence that life had been endangered, the only other conviction that could have been imposed by her was guilty of assault simpliciter .

In the circumstances, it is no surprise that the interlocutory motion to amend the original verdict was allowed. 11 After the verdicts were amended on November 25, 2002, submissions on sentence were presented by counsel, the penalties were imposed, and the trial was complete.

Both the original acquittals and the original convictions had been changed. 12 In his affidavits, Crown counsel went on to depose that he thereupon “formed the intention to appeal both the ruling on the motions and the sentences,” but that “due to other matters that required my attention, I did not take any action until the 11 th of December, 2000.” On that day, he says that he consulted with one of the departmental general counsel and that several days later he received approval to proceed.

He then recites that sometime during the week of December 16, it was brought to his attention that he “might have a problem with the time period during which an appeal can be filed with regard to the acquittal of October 21, 2002.” Accordingly, notices of application for leave to appeal were given on December 23, 2000, and notices of application for extension of time to appeal the acquittals and the amended acquittals were filed the next day. Twenty-nine days had elapsed after the amended verdicts had been entered (i.e.

November 25, 2000), but more than two months since the original verdicts. 13 The affidavits then conclude with the following statement: That I then discussed this issue with others. Opinions were divided on this issue. Out of an abundance of caution I decided to ask for

leave to extend the time to appeal. 14 Notwithstanding some of the reservations which I have expressed about the handling of the prosecution by Crown counsel, I have concluded that the notices of intention to appeal were in fact filed within the 30 days prescribed by the rules of the court and that to deal with the application for more time would be to deal with what is hypothetical or moot. The fact is that the Crown was not yet out of time when it gave its notices on December 23 and 24, 2002. 15 To grant the relief requested when it is not required is useless and contrary to the doctrine regarding mootness.

As stated by Sopinka J. in Borowski v. Canada (Attorney General) , 1989 CanLII 123 (SCC) , [1989] 1 S.C.R. 342 (at p. 353): The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case.

This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. 16 The orders requested are denied. As to what might now follow, the court will make no comment. __________________________ J.A.