R. v. Clark (M.B.),

• Judge: A. Mcleod,Hunt,O'Brien
• Neutral Citation: 2008 ABCA 271
• Citation: 2008 ABCA 271,(2008), 433 A.R. 363 (CA),433 AR 363,(2008), 433 AR 363 (CA),433 A.R. 363
• Date: 10 June 2008
• Court: Court of Appeal (Alberta)

R. v. Clark (M.B.) (2008), 433 A.R. 363 (CA);

      429 W.A.C. 363

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. AU.005

Her Majesty the Queen (respondent) v. Michael Brian Clark (appellant)

(0701-0269-A; 2008 ABCA 271)

Indexed As: R. v. Clark (M.B.)

Alberta Court of Appeal

Hunt and O'Brien, JJ.A., and A. Mcleod, J.(ad hoc)

August 6, 2008.

Summary:

Clark was convicted of a number of offences arising from an incident in which he confined the complainant and assaulted her in various ways. He appealed his convictions for administering a noxious thing, contrary to s. 245(b) of the Criminal Code, using an imitation firearm in the commission of an assault, contrary to s. 85(2), and using a weapon (a pellet gun) in committing an assault, contrary to s. 267(a).

The Alberta Court of Appeal dismissed the appeal.

Criminal Law - Topic 82

General principles - Res judicata (multiple convictions for same subject matter precluded) - Bars to raising the defence - Clark was convicted of a number of offences arising from an incident in which he confined the complainant and assaulted her in various ways, including shooting her point-blank on the forehead and each side of the neck with a pellet gun - He appealed his convictions for using an imitation firearm in the commission of an assault, contrary to s. 85(2) of the Criminal Code, and using a weapon (a pellet gun) in committing an assault, contrary to s. 267(a) - Clark asserted that the conviction under s. 85(2) should be stayed because it duplicated his conviction under s. 267(a) - The Alberta Court of Appeal dismissed the appeal - There was an obvious factual nexus between the two offences - The question of a legal nexus did not involve comparing the "common elements", but rather whether the offences had distinct, additional or distinguishing elements - That question was answered affirmatively here - Section 267(a) required a weapon, which could be any of a variety of weapons, while s. 85(2) required a firearm - This conclusion was in accord with the jurisprudence which indicated that when two firearm offences were charged, one was generally stayed according to the Kienapple rule - However, where the two offences either did not specify the method by which the offence was committed (e.g. aggravated assault) or specified the use of a generic weapon, Kienapple usually did not apply - See paragraphs 24 to 36.

Criminal Law - Topic 1176

Offences against public order - Firearms - Using firearm while committing indictable offence (incl. imitation) - Clark was convicted of a number of offences arising from an incident in which he confined the complainant and assaulted her in various ways, including shooting her point-blank on the forehead and each side of the neck with a pellet gun - He appealed his conviction for using an imitation firearm in the commission of an assault, contrary to s. 85(2) of the Criminal Code - The Alberta Court of Appeal dismissed the appeal - The court rejected the argument that s. 85(2)'s purpose was to punish those who traumatized others by using an imitation firearm and that, because the complainant knew that the pellet gun was not a real firearm, she was not traumatized - Even if s. 85's purpose was as narrow as Clark suggested, there was no evidence that the complainant was not traumatized - Further, it was inappropriate to read words into s. 85 - The provision was not ambiguous - When an accused used an imitation firearm while committing an indictable offence, he or she was guilty - There was no reference to a victim's knowledge - See paragraphs 15 to 23.

Criminal Law - Topic 1332

Offences against person and reputation - Administering noxious thing - Intent - Clark was convicted of a number of offences arising from an incident in which he confined the complainant and assaulted her in various ways, including pouring motor oil over her face - He appealed his conviction for administering a noxious thing, contrary to s. 245(b) of the Criminal Code, asserting that the motor oil was not "administered" but rather poured over the complainant, and, further, that the trial judge had made no finding that the oil satisfied the dictionary definition of "noxious" - The Alberta Court of Appeal dismissed the appeal - Nothing in s. 245(b) suggested that the accused had to intend that the substance be taken internally in order to meet the requirement of "administer" - The intent portion of s. 245(b) concerned aggrieving or annoying the victim - Further, context was all important in determining whether a substance was noxious as required by s. 245(b) - Here, the trial judge noted that a lubricant intended for automobiles was a noxious substance when thrown in a person's face deliberately - The evidence supported her conclusion - See paragraphs 5 to 14.

Cases Noticed:

R. v. McCraw, [1991] 3 S.C.R. 72; 128 N.R. 299; 49 O.A.C. 47, refd to. [para. 7].

R. v. Burkholder (1977), 2 A.R. 119; 34 C.C.C.(2d) 214 (C.A.), refd to. [para. 8].

R. v. Tan, [1985] 1 W.W.R. 377; 35 Sask.R. 74 (C.A.), dist. [para. 9].

R. v. Verma (P.) (1996), 98 O.A.C. 63; 31 O.R.(3d) 622 (C.A.), refd to. [para. 12].

R. v. Rousseau (C.) (1991), 43 Q.A.C. 81; 70 C.C.C.(3d) 445 (C.A.), refd to. [para. 12].

R. v. Scott (T.B.) (2000), 136 B.C.A.C. 161; 222 W.A.C. 161; 145 C.C.C.(3d) 52; 2000 BCCA 220, refd to. [para. 16].

R. v. Steele (A.), [2007] 3 S.C.R. 3; 365 N.R. 141; 244 B.C.A.C. 89; 403 W.A.C. 89; 2007 SCC 36, refd to. [para. 16].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81, refd to. [para. 18].

R. v. McKay, [2006] B.C.W.L.D. 6123; 2006 BCPC 471, refd to. [para. 21].

R. v. Peazer, 2003 WL 24257633; 2003 CarswellOnt 8084 (Sup. Ct.), refd to. [para. 21].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 26].

R. v. Prince, [1986] 2 S.C.R. 480; 70 N.R. 119; 45 Man.R.(2d) 93; 33 D.L.R.(4th) 724, refd to. [para. 27].

R. v. McGuigan, [1982] 1 S.C.R. 284; 40 N.R. 499; 134 D.L.R.(3d) 625, refd to. [para. 29].

R. v. Krug, [1985] 2 S.C.R. 255; 62 N.R. 263; 11 O.A.C. 187; 21 C.C.C.(3d) 193, refd to. [para. 30].

R. v. Switzer (1987), 75 A.R. 167 (C.A.), refd to. [para. 31].

R. v. Carlson (1984), 57 A.R. 218 (C.A.), appld. [para. 32].

R. v. Griffin (D.R.A.) (1996), 83 B.C.A.C. 124; 136 W.A.C. 124; 111 C.C.C.(3d) 567 (C.A.), refd to. [para. 33].

R. v. Osbourne (C.A.) (1994), 75 O.A.C. 315; 21 O.R.(3d) 97; 94 C.C.C.(3d) 435 (C.A.), refd to. [para. 33].

R. v. Kinnear (R.) (2005), 199 O.A.C. 323; 198 C.C.C.(3d) 232 (C.A.), refd to. [para. 33].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 85(2)(a), sect. 267(a) [para. 25].

Authors and Works Noticed:

Sullivan, Ruth, Statutory Interpretation (2nd Ed. 2007), pp. 49, 50 [para. 20]; 53 [para. 7].

Counsel:

J.B. Hawkes, Q.C., for the respondent;

H. Wolch, Q.C., for the appellant.

This appeal was heard on June 10, 2008, by Hunt and O'Brien, JJ.A., and A. Mcleod, J.(ad hoc), of the Alberta Court of Appeal. The court delivered the following memorandum of judgment on August 6, 2008.