R. v. D.M.I., (2009) 478 A.R. 288 (PC)

• Judge: Semenuk, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: May 22, 2009
• Citations: (2009), 478 A.R. 288 (PC);2009 ABPC 127

R. v. D.M.I. (2009), 478 A.R. 288 (PC)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. AU.013

Her Majesty The Queen v. D.M.I. (080864788P1-01-001; 2009 ABPC 127)

Indexed As: R. v. D.M.I.

Alberta Provincial Court

Semenuk, P.C.J.

May 22, 2009.

Summary:

During a verbal argument with his common law wife, the accused allegedly threw a loaded utensil tray from the dishwasher at her. Either the tray or a piece of cutlery in the tray struck the wife in the forehead, causing a small laceration. The accused was charged with assault with a weapon. The accused denied having any intent to hit his wife, claiming that he threw it in front of her and that a piece of cutlery flew up and hit her (accident). The accused also argued that the Crown failed to prove that a "weapon" was involved.

The Alberta Provincial Court found the accused guilty.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 214.6

General principles - Common law defences - Accident - [See Criminal Law - Topic 1416 ].

Criminal Law - Topic 1123

Offences against public order - Weapons - General - What constitutes a weapon - [See Criminal Law - Topic 1416 ].

Criminal Law - Topic 1411

Offences against person and reputation - Assaults - Intention or mens rea - [See Criminal Law - Topic 1416 ].

Criminal Law - Topic 1416

Offences against person and reputation - Assaults - Assault with a weapon - During a verbal argument, the accused, standing at the bottom of the stairs, threw a loaded utensil tray from the dishwasher at his wife, who was at the top of the stairs - The tray struck the stairs in front of her - A utensil bounced up and struck the wife in the forehead, causing a laceration - The accused was charged with assault with a weapon - The accused pleaded accident and submitted that the Crown failed to prove the tray constituted a "weapon" - The Alberta Provincial Court found the accused guilty - The court stated that "'intentionally' is broad enough to catch an application of force by the accused to the victim, viewed as being 'reckless'. A 'subjective awareness' of the risk of causing injury or bodily harm is not necessary. ...  Section 265(1)(a) of the Code has also been interpreted as being broad enough to encompass an application of force by an accused to the victim, viewed as being both 'reckless' and 'indirectly' causing injury to the victim" - The court stated that "he applied force to the complainant, without her consent, by intentionally or recklessly throwing the utensil tray in her direction. Her being hit in the head was no accident. Although I have a reasonable doubt that the accused meant to hit her with the tray, he certainly meant to threaten her with it. The tray and cutlery in the tray are weapons within the meaning of section 2 of the Code because the accused intended those things to be used as such. The fact that she was hit in the head by a piece of cutlery that either flew out of the tray, or bounced up off the stairs and hit her, is of no consequence. Hitting the complainant with a piece of cutlery was objectively foreseeable".

Cases Noticed:

R. v. George (1960), 128 C.C.C. 289 (S.C.C.), refd to. [para. 97].

R. v. Starrat (1972), 5 C.C.C.(2d) 32 (Ont. C.A.), refd to. [para. 97].

R. v. Horncastle (1972), 4 N.B.R.(2d) 821; 8 C.C.C.(2d) 253 (C.A.), refd to. [para. 97].

R. v. Deakin (1974), 16 C.C.C.(2d) 1 (Man. C.A.), refd to. [para. 97].

R. v. Wolfe (1974), 20 C.C.C.(2d) 282 (Ont. C.A.), refd to. [para. 97].

R. v. Delaney, [1989] Y.J. No. 182 (Terr. Ct.), refd to. [para. 97].

R. v. Nurse (D.W.) et al. (1993), 61 O.A.C. 128; 83 C.C.C.(3d) 546 (C.A.), refd to. [para. 97].

R. v. Kemp (J.A.) (1993), 107 Sask.R. 304; 1993 CarswellSask 116 (Q.B.), refd to. [para. 97].

R. v. Vandergraaf (M.G.) (1994), 95 Man.R.(2d) 315; 70 W.A.C. 315; 93 C.C.C.(3d) 286 (C.A.), refd to. [para. 97].

R. v. Davis (M.) (1995), 170 A.R. 238 (Prov. Ct.), refd to. [para. 97].

R. v. Mooney, 1997 CarswellOnt 4433 (C.J.), refd to. [para. 97].

R. v. Emans (A.) (2000), 135 O.A.C. 338; 35 C.R.(5th) 386 (C.A.), refd to. [para. 97].

R. v. Abbaya (F.E.) (2000), 289 A.R. 82 (Prov. Ct.), refd to. [para. 97].

R. v. Foti (A.) (2002), 166 Man.R.(2d) 269; 278 W.A.C. 269; 7 C.R.(6th) 278 (C.A.), refd to. [para. 97].

R. v. Goudey (C.R.) (2007), 258 N.S.R.(2d) 201; 824 A.P.R. 201 (S.C.), refd to. [para. 97].

R. v. A.L., 2007 CarswellNun 26 (C.J.), refd to. [para. 97].

R. v. Richard (1992), 110 N.S.R.(2d) 345; 299 A.P.R. 345; 72 C.C.C.(3d) 349 (C.A.), refd to. [para. 118].

R. v. McLeod (1993), 84 C.C.C.(3d) 336 (Yuk. C.A.), refd to. [para. 118].

R. v. Lamy (E.) (2002), 284 N.R. 311; 162 C.C.C.(3d) 353 (S.C.C.), refd to. [para. 119].

R. v. Hill (1974), 1 N.R. 136; 14 C.C.C.(2d) 505 (S.C.C.), refd to. [para. 123].

R. v. Mathisen (P.J.) (2008), 242 O.A.C. 139 (C.A.), refd to. [para. 124].

R. v. Sutherland (D.L.) (1993), 113 Sask.R. 193; 52 W.A.C. 193; 84 C.C.C.(3d) 484 (C.A.), refd to. [para. 127].

R. v. D.W. (1991), 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397 (S.C.C.), refd to. [para. 131].

R. v. C.L.Y. (2008), 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 131].

R. v. C.J.L. (2004), 190 Man.R.(2d) 177; 335 W.A.C. 177; 197 C.C.C.(3d) 407 (C.A.), refd to. [para. 132].

R. v. Lake (P.E.) (2005), 240 N.S.R.(2d) 40; 763 A.P.R. 40; 203 C.C.C.(3d) 316 (C.A.), refd to. [para. 133].

Authors and Works Noticed:

Ewaschuk, Eugene G., Criminal Pleadings and Practice in Canada (2nd Ed.), para. 21.0030 [para. 124].

Counsel:

M. Engley, for the Crown

R. Snukal, for the accused.

This case was heard at Calgary, Alberta, before Semenuk, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on May 22, 2009.