R. v. Felteau

R. v. Felteau Collection Decisions of the Court of Appeal Date 2010-12-03 Neutral citation 2010 ONCA 822 Docket numbers C52189 Judges Doherty, David H.; Feldman, Kathryn N.; Juriansz, Russell G. Subject Criminal Decision Content 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 purpose of subsection (1), the “proper administration of justice” includes ensuring that. (a) the interests of the 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, 171, 172, 172.1, 173, 212, 271, 272 or 273 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, reference to the circumstances of the case, the reason for not making an order. R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a). CITATION: R. v. Felteau, 2010 ONCA 822 DATE: 20101203 DOCKET: C52189 COURT OF APPEAL FOR ONTARIO Doherty, Feldman and Juriansz JJ.A. BETWEEN: Her Majesty the Queen Respondent and Corey Leonard Felteau Appellant Benita Wassenaar, for the appellant Jason H. Gilbert, for the respondent Heard: November 29, 2010 On appeal from the acquittal entered by Justice J.D. Nadelle of the Ontario Court of Justice, dated April 27, 2010. ENDORSEMENT [1] Mr. Felteau appeals his conviction on two counts of breaching his bail recognizance (counts two and three) and three counts of breaching three different probation orders (counts four to six). Count two alleged that Mr. Felteau breached his bail recognizance by indirectly communicating with Ms. G., his former probation officer. The Crown alleged that the appellant communicated a threat to Ms. G. through Mr. Gemmell, a health care worker. [2] The breaches of court orders alleged in counts three to six all alleged that the appellant had failed to keep the peace and be of good behaviour by threatening his former probation officer, Ms. G. [3] This court allowed an appeal by the Crown from the appellant’s acquittal on a charge of threatening bodily harm against Ms. G. (count one) and entered a conviction on that count (C52121). That conviction means that the appellant breached his obligation to keep the peace and be of good behaviour. The appeal from the convictions on counts three through six fail. [4] The alleged breach of the recognizance in count two is a different matter. That breach, as indicated above, alleged indirect communication with Ms. G. It was the Crown’s contention that the appellant conveyed the threat to Mr. Gemmell knowing that Mr. Gemmell would cause that threat to be conveyed to Ms. G. In fact, Mr. Gemmell conveyed the threat to a third party who conveyed it to Ms. G. [5] Counsel agree that the charge of communicating indirectly with Ms. G. contrary to a bail order is a mens rea offence. There is some disagreement as to the exact nature of the mens rea. [6] Counsel for the appellant contends that the trial judge misapprehended the appellant’s evidence given on cross-examination and erroneously based a finding of wilful blindness on what was in fact a concession by the appellant that, with the benefit of hindsight, he could see that the threat would be made known to Ms. G. [7] Although the trial judge makes reference to wilful blindness at one point in his reasons, reading the reasons as a whole in the context of the evidence, we are satisfied that the trial judge found that Mr. Felteau actually knew that the threat would inevitably be conveyed to its intended target, Ms. G. Making a statement to a third party knowing that it will certainly be conveyed to another person constitutes indirect communication with that other person. The conviction stands. [8] Mr. Felteau also appeals the sentences imposed for the various breaches of court orders. The question of the appropriate sentences is addressed in the Crown’s related appeal (C52121). As is evident from the reasons on that appeal, we dismiss the appellant’s appeal from the sentences imposed in respect of counts two to six. “Doherty J.A.” “K. Feldman J.A.” “R.G. Juriansz J.A.”