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The Ontario Court of Appeal upheld convictions for intimidation and criminal harassment, but set aside the breach-of-undertaking conviction on count four and ordered a new trial on that count.
The trial judge reasonably inferred specific intent as to one targeted witness from the appellant's recorded statements and the circumstantial evidence; the divergent verdicts were rationally reconcilable because the evidentiary cogency of intent differed between the two counts, therefore the conviction must be upheld and the appeal dismissed.
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Given the high gravity of intimidating a justice system participant, statutory primacy of denunciation and deterrence, the offender's extensive and continuous criminal history, limited mitigation and lack of remorse or rehabilitative evidence, a two-year custodial sentence is proportionate; the sentence must run consecutively to other non-life sentences per s.718.3(4) and case law, be concurrent with the existing life sentence, and include a primary DNA order and a custodial non-communication order to protect the victim; a CSO/community sentence is inappropriate under Proulx because public sa…
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The appeal is allowed and the guilty pleas are set aside because the appellant was not properly arraigned on one intimidation count and therefore could not validly be convicted of it; the uttering threat conviction should have been stayed under the Kienapple principle because the offences shared factual and legal nexus and the lesser offence added no distinguishing element; the plea inquiry was insufficient in the face of obvious red flags and admitted fresh evidence showing impaired capacity and inducement, such that maintaining the pleas would risk a miscarriage of justice; accordingly conv…
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The offence was serious and required denunciation and deterrence; a custodial sentence was warranted but could be served in the community under a Conditional Sentence Order. The appropriate sentence is 3 months custody under a conditional sentence followed by 24 months probation with mandatory counselling and reporting, balancing the offence gravity, victim impact, offender's mental health and addiction issues, and available sentencing principles.
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Judge found beyond a reasonable doubt that Mr. Lilly, approximately 50 feet from CO Hicks, loudly yelled phrases identifying Hicks as a 'snitch' and telling him to 'stop testifying' in the context of Hicks being subpoenaed for the Burnside 15 trials; the words were intended to be taken seriously, to provoke a state of fear in Hicks, and to impede him in the performance of his duties, thereby satisfying the elements of s.423.1(b) Criminal Code and warranting a conviction.
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The Court of Appeal held the trial judge provided sufficient reasons, properly applied the W.(D.) credibility framework and maintained the Crown's burden of proof; the evidence supported the conviction on the second count beyond a reasonable doubt, and the appeal is dismissed. The motion to set aside victim fine surcharges was dismissed as not properly before the court.
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The Court of Appeal dismissed an appeal from a conviction under s. 423.1 of the Criminal Code, holding the trial judge properly inferred subjective intent.
La Cour suprême restaure un arrêt des procédures accordé pour une atteinte grave à l’art. 7 de la Charte et précise la portée des pouvoirs d’appel sous le Code criminel.
The court found William Frederick James guilty of one count of intimidation of a justice system participant and one count of uttering threats, with a Kienapple stay on the duplicate count.
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