R. v. Thomas (J.L.), 2015 NSCA 112

• Judge: MacDonald, C.J.N.S., Beveridge and Scanlan, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: December 17, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSCA 112;(2015), 368 N.S.R.(2d) 207 (CA)

R. v. Thomas (J.L.) (2015), 368 N.S.R.(2d) 207 (CA);

    1160 A.P.R. 207

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. DE.039

Jahmal Leslie Thomas (appellant) v. Her Majesty the Queen (respondent)

(CAC 433623; 2015 NSCA 112)

Indexed As: R. v. Thomas (J.L.)

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Beveridge and Scanlan, JJ.A.

December 17, 2015.

Summary:

The accused was convicted of aggravated assault and assault with a weapon for an unprovoked stabbing of the victim. The accused was sentenced to 66 months' imprisonment for aggravated assault and two years' imprisonment (concurrent) for assault with a weapon. The accused appealed against conviction and sentence. At issue was the admission of the accused's statement to police, the reasonableness of the verdicts, whether the Kienapple principle precluded convictions for both offences arising out of the same act, and the fitness of the sentence.

The Nova Scotia Court of Appeal allowed the appeal to the limited extent of applying the Kienapple principle to judicially stay the assault with a weapon conviction. There was no error in admitting the accused's statement to the police and in convicting him of aggravated assault. The verdict was reasonable. The 66 month sentence was not unfit.

Criminal Law - Topic 80

General principles - Res judicata (multiple convictions for same subject matter precluded) - Circumstances when defence may be raised - The accused and victim accidentally bumped into each other - The accused stabbed the victim in the chest, causing serious injury requiring surgery - The trial judge convicted the accused of both aggravated assault and assault with a weapon - The Nova Scotia Court of Appeal held that the assault with a weapon conviction should have been judicially stayed on the basis of the Kienapple principle - The court stated that "there was but one wrong committed, an assault that wounded the victim. Granted, the [accused] used a weapon (the knife) to commit that assault, but in these circumstances the s. 267 charge is an alternative (and lesser) offence to the more serious offence of aggravated assault. It was an implicit particularization of the aggravated assault. Another way to look at it is that without the use of the weapon, the aggravated assault could not have been established. There is no additional element involved in the commission of the offence of assault with a weapon." - See paragraphs 55 to 87.

Criminal Law - Topic 5335

Evidence and witnesses - Confessions and voluntary statements - What constitutes a "threat" or "inducement" - [See Criminal Law - Topic 5355 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - An accused was questioned by police - The trial judge found that part way through the questioning, the police offered inducements which negated the voluntariness of the accused's statements - At trial, the trial judge excluded those statements made after the inducements, but admitted the prior statements, finding that they were made freely and voluntarily - The accused appealed, arguing that the entire statement should have been excluded - The Nova Scotia Court of Appeal dismissed this ground of appeal - The court rejected the accused's argument that the entire statement was involuntary because it was induced by cold, hunger and thirst - There was no merit to these allegations - Further, "a finding of an improper inducement does not have the retroactive effect of vitiating what may have transpired beforehand" - See paragraphs 13 to 21.

Criminal Law - Topic 5938

Sentence - Aggravated assault - The victim and accused accidentally bumped into each other - The accused pulled out a knife and stabbed the victim - The victim required hospitalization for surgery for a fractured rib, lacerated spleen and injury to his diaphragm - The attack was unprovoked - The accused had a history of violent crime - The trial judge sentenced the accused to 66 months' imprisonment for aggravated assault - The accused appealed, submitting that the sentence was demonstrably unfit - The Nova Scotia Court of Appeal dismissed the appeal - Although the sentence was at the higher end of the range, there was no error in principle and the sentence was not demonstrably unfit - See paragraphs 35 to 42.

Cases Noticed:

R. v. Oickle (R.F.) (2000), 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 2000 SCC 38, refd to. [para. 13].

R. v. Jack (B.G.) (1992), 76 Man.R.(2d) 168; 10 W.A.C. 168 (C.A.), refd to. [para. 20].

R. v. Roach (B.A.) (2011), 308 N.S.R.(2d) 38; 976 A.P.R. 38; 2011 NSCA 95, refd to. [para. 22].

R. v. Adams (P.F.) (2010), 291 N.S.R.(2d) 206; 922 A.P.R. 206; 2010 NSCA 42, refd to. [para. 36].

R. v. D.J.W. (2011), 314 B.C.A.C. 209; 534 W.A.C. 209; 2011 BCCA 522, disagreed with [para. 54].

R. v. Strawberry, [1995] A.J. No. 579 (C.A.), disagreed with [para. 54].

R. v. Basilio (2003), 163 O.A.C. 330; 175 C.C.C.(3d) 440 (C.A.), folld. [para. 54].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 55].

Connelly v. Director of Public Prosecutions, [1964] A.C. 1254, refd to. [para. 67, footnote 1].

R. v. Gee (1973), 14 C.C.C.(2d) 538 (Ont. C.A.), refd to. [para. 67, footnote 1].

R. v. Walsh (T.) (1996), 149 N.S.R.(2d) 169; 432 A.P.R. 169 (C.A.), refd to. [para. 67, footnote 1].

R. v. Prince, [1986] 2 S.C.R. 480; 70 N.R. 119; 45 Man.R.(2d) 93, refd to. [para. 68].

R. v. French, [1993] O.J. No. 1063 (C.A.), refd to. [para. 80].

R. v. Villon-Laverde (M.) (2003), 178 O.A.C. 241 (C.A.), refd to. [para. 80].

R. v. McGuigan, [1982] 1 S.C.R. 284; 40 N.R. 499, refd to. [para. 82].

R. v. Krug, [1985] 2 S.C.R. 255; 62 N.R. 263; 11 O.A.C. 187, refd to. [para. 82].

R. v. D.J.W. (2012), 436 N.R. 189; 328 B.C.A.C. 38; 558 W.A.C. 38 (S.C.C.), refd to. [para. 87].

Counsel:

Michael K. Power, Q.C., for the appellant;

Jennifer A. MacLellan, for the respondent.

This appeal was heard on September 28, 2015, at Halifax, N.S., before MacDonald, C.J.N.S., Beveridge and Scanlan, JJ.A., of the Nova Scotia Court of Appeal.

On December 17, 2015, MacDonald, C.J.N.S., and Beveridge, J.A., jointly delivered the following judgment for the Court of Appeal.