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. 486.5(1), (2), (2.1), (3), (4), (5),
    (6), (7), (8) or (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an order is made
    under section 486.4, on application of the prosecutor in respect of a victim or
    a witness, or on application of a victim or a witness, a judge or justice may
    make an order directing that any information that could identify the victim or
    witness shall not be published in any document or broadcast or transmitted in any
    way if the judge or justice is of the opinion that the order is in the interest
    of the proper administration of justice.

(2)     On application of the prosecutor
    in respect of a justice system participant who is involved in proceedings in
    respect of an offence referred to in subsection (2.1), or on application of
    such a justice system participant, a judge or justice may make an order
    directing that any information that could identify the justice system
    participant shall not be published in any document or broadcast or transmitted
    in any way if the judge or justice is satisfied that the order is in the
    interest of the proper administration of justice.

(2.1) The offences for the purposes of
    subsection (2) are

(a) an offence under section 423.1,
    467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the
    benefit of, at the direction of, or in association with, a criminal
    organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1)
    or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of Information Act
;
    or

(d) an offence under subsection 21(1)
    or section 23 of the
Security of Information Act
that is committed in
    relation to an offence referred to in paragraph (c).

(3)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding
    judge or justice or, if the judge or justice has not been determined, to a
    judge of a superior court of criminal jurisdiction in the judicial district
    where the proceedings will take place; and

(b) provide notice of the application
    to the prosecutor, the accused and any other person affected by the order that
    the judge or justice specifies.

(5)     An applicant for an order shall
    set out the grounds on which the applicant relies to establish that the order
    is necessary for the proper administration of justice.

(6)     The judge or justice may hold a
    hearing to determine whether an order should be made, and the hearing may be in
    private.

(7)     In determining whether to make
    an order, the judge or justice shall consider

(a) the right to a fair and public
    hearing;

(b) whether there is a real and
    substantial risk that the victim, witness or justice system participant would
    suffer harm if their identity were disclosed;

(c) whether the victim, witness or
    justice system participant needs the order for their security or to protect
    them from intimidation or retaliation;

(d) societys interest in encouraging
    the reporting of offences and the participation of victims, witnesses and
    justice system participants in the criminal justice process;

(e) whether effective alternatives are
    available to protect the identity of the victim, witness or justice system
    participant;

(f) the salutary and deleterious
    effects of the proposed order;

(g) the impact of the proposed order on
    the freedom of expression of those affected by it; and

(h) any other factor that the judge or
    justice considers relevant.

(8)     An order may be subject to any
    conditions that the judge or justice thinks fit.

(9)     Unless the judge or justice
    refuses to make an order, no person shall publish in any document or broadcast
    or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information
    given or submissions made at a hearing under subsection (6); or

(c) any other information that could
    identify the person to whom the application relates as a victim, witness or justice
    system participant in the proceedings.
2005, c.
    32, s. 15; 2015, c. 13, s. 19

486.6 (1) Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty,
    an order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. France, 2018 ONCA 1052

DATE: 20181219

DOCKET: C64020

Feldman, MacPherson and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joel France

Appellant

Joel France, in person

Nathan Gorham, for the appellant

Benita Wassenaar, for the respondent

Heard and released orally: December 10, 2018

REASONS FOR DECISION

[1]

The appellant seeks leave to appeal the sentence of nine years imposed
    by the trial judge, following a guilty plea to unlawful act manslaughter based
    on failing to seek medical attention for a distressed child. The plea was based
    on an agreed statement of facts. It was agreed that the failure to seek medical
    attention was the significant cause of the two year old childs death. The
    trial judge conducted a
Gardiner
Hearing to make findings regarding:
    (1) whether the appellant assaulted the mother; (2) whether he repeatedly
    assaulted the child; and, (3) whether he inflicted the blow that caused the
    fatal injury. The trial judge answered yes to the first two but could not make
    a determination with respect to the third factor.

[2]

The appellant submits that in sentencing him the trial judge made
    palpable and overriding errors not grounded in the evidence which she used as
    aggravating factors. She found that the appellant had decided not to take the
    child to the hospital to protect himself from blame for the multiple injuries
    to the child and that he had inflicted most of the wounds on the child. He also
    argues that the sentence imposed was disproportionate to the six year sentence
    that the mother received.

[3]

We do not accept these submissions. The trial judge held a lengthy
Gardiner
Hearing and wrote careful, detailed reasons for her findings on that hearing
    and for her sentence. The findings she made were open to her on the evidence.
    The Crown submits that the overriding consideration for the trial judge was
    that the appellant moved in with the mother, dominated her and the child, and
    within a short time, the child who had been healthy and fine became horribly
    injured and abused and died of sepsis because his injuries were neglected.

[4]

The
Criminal Code
aggravating factors based on the childs
    young age, the breach of trust and assaults on the mother, were also very
    important to the trial judge.

[5]

With respect to the disparity in the sentence received by the mother, we
    note that her sentence was based on a joint submission and she was also being
    deported. Also based on the trial judges findings of the appellants role in
    dominating the mother and the child, the disparity in the two sentences does
    not amount to an error. Parity does not require the imposition of equal
    sentences, see
R. v. Flowers
, 2010 ONCA 129.

[6]

In the result, while leave to appeal is granted, the appeal is
    dismissed.

K.
    Feldman J.A.

J.C.
    MacPherson J.A.

I.V.B.
    Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Harlowe, 2018 ONCA 1037

DATE: 20181213

DOCKET: C65597

Feldman, MacPherson and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John James Joseph Harlowe

Appellant

John James Joseph Harlowe, in person

Margaret Bojanowska, for the appellant

Andrew Hotke, for the respondent

Heard: December 10, 2018

APPEAL BOOK ENDORSEMENT

[1]

The appellant will be released on
    December 21, 2018 on these charges. He is subject to an order prohibiting him
    from contacting his mother, the victim of the offence now, and as part of his
    18 month probationary term. The appellant would like that condition to be
    removed. We cannot do that without the appellants mothers consent. She has
    been contacted and has not responded. However, he can raise the issue again
    with his probation officer. Accordingly, the appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hersi, 2018 ONCA 1082

DATE: 20181224

DOCKET: C61690 & C62005

Juriansz, Benotto and Trotter
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohamed Hersi and Guled Mahadale

Appellants

Catriona Verner, for the appellant Hersi

R. Craig Bottomley, for the appellant Mahadale

Elise Nakelsky, for the respondent

Heard: December 20, 2018

On appeal from the convictions entered on May 1, 2015, and
    the sentence imposed on Mohamed Hersi on September 4, 2015, by Justice Robert
    A. Clark of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellants were charged with gang-related criminal offences,
    including trafficking in firearms and drugs. They were both members of a
    criminal organization known as YBK (Young Buck Killers). The gang was based in
    Toronto, but their activities extended to the western provinces.

[2]

Hersi was convicted of trafficking a firearm, possession of a firearm,
    trafficking drugs, conspiracy to traffic drugs, all in connection with a
    criminal organization. Mahadale was convicted of trafficking of a firearm for
    the benefit or in association with a criminal organization. They both challenge
    their convictions. Hersi also seeks leave to appeal his sentence.

Trafficking a Firearm

[3]

Both appellants argue that the trial judge erred in his instructions to
    the jury on the trafficking charges. Section 99 of the
Criminal Code
creates
    the following offence:

99. (1)
Every person commits an offence who

(a)
manufactures or
    transfers, whether or not for consideration, or

(b)
offers to do anything
    referred to in paragraph (a) in respect of

a prohibited firearm, a restricted firearm..

[4]

In
R. v. Murdock
(2003), 176 C.C.C. (3d) 232 (Ont. C.A.), trafficking
    by offer was discussed in the context of drug offences. Doherty J.A. said, at
    p. 238, that the offence of trafficking by offer is made out if the accused
    intends to make an offer that will be taken as a genuine offer by the
    recipient.  He further stated, at p. 236: Provincial appellate courts have
    repeatedly held that where an accused is charged with trafficking by offer, the
    Crown is not required to prove that the accused actually intended to go through
    with the offer and sell or otherwise provide the thing that is offered. This
    definition of trafficking by offer was applied in the context of s. 99 of the
Criminal
    Code
in
R. v. Duncan
, 2015 ONCA 928, 332 C.C.C. (3d) 347, at
    para. 92.

[5]

Neither appellant argues that the verdicts are unreasonable. Instead,
    they argue that the jury was misdirected. We disagree.

[6]

Mahadale argues that the trial judge improperly told the jury that, in
    his testimony, he admitted to offering to transfer a firearm, essentially inviting
    the jury to convict. In our view, the trial judge merely summarized Mahadales
    evidence. Mahadale had acknowledged that he uttered the words captured by the
    wiretaps but testified that he never intended to provide a firearm to the
    person with whom he was communicating. In his closing address, his trial
    counsel (not Mr. Bottomley) repeated this evidence and submitted that it was
    never her clients intent to go through with the transaction. As noted above,
    an intention to follow through with an offer is not an element of the offence,
    and the denial of such an intention is not, in itself, exculpatory. Given the
    state of the record, the jury was left to determine whether Mahadale intended
    his words to be taken as a genuine offer. It was open to the jury to find that
    he did. The function of the jury was not usurped by the trial judges
    instructions.

[7]

Hersi also argues that the trial judge erred in his instructions to the
    jury on trafficking. Hersi concedes he made an offer and that it was genuine,
    but says that at the time he made the offer he was not able to transfer a
    firearm. He submits that his intercepted communications showed that he first
    needed to acquire a firearm in order to make the transfer.

[8]

The submission fails because actual access to a firearm is not an
    element of the offence under s. 99. The intercepts show that the other party to
    the discussion, Gardner, wanted Hersi to acquire the gun. He said words like,
    Yeah deal with that and Yeah co-all him pleaseI need something right now.

[9]

Again, counsel does not assert that the jurys verdict was unreasonable.
    We would dismiss this ground of appeal.

Territorial Jurisdiction

[10]

Hersi
    argues that the trial judge erred by failing to instruct the jury that they
    could only consider offences that were committed in Ontario, thereby running
    afoul of s. 478 of the
Criminal Code
, which provides: Subject to this
    Act, a court in a province shall not try an offence committed entirely in
    another province.

[11]

We
    do not accept this argument. In this case, none of the offences for which Hersi
    was convicted was committed entirely in another province; they were truly
    interprovincial nature, each with a connection to Ontario. They involved concerted
    criminal activity by YBK, a Toronto-based gang, that was branching out to the
    western provinces. With each of the counts, there was a meaningful link to
    Ontario.

[12]

This
    ground of appeal is dismissed.

The Co-Conspirators Exception to the Hearsay Rule

[13]

Hersi
    argues that the trial judges instructions on this hearsay exception were
    deficient because he failed to provide the jury with examples of how the
    exception applied.

[14]

We
    note that no objection is taken to the substantive content of the trial judges
    instructions on this issue, which were given more than once. The trial judge
    illustrated this hearsay exception in a general way during his discussion of
    voice identification. Considered as a whole, the instructions properly equipped
    the jury to deal with this body of evidence.

Inadmissible Hearsay

[15]

Hersi
    argues that the trial judge erred in admitting hearsay evidence in an intercept
    in which an individual referred to Hersi as H. His counsel argued that this
    utterance made the critical link in the wiretaps between the use of H and
    Hersi.

[16]

The
    trial judge admitted the evidence on the basis that it would not be used for
    its truth, but only to establish the state of mind of the declarant. We see no
    error in this analysis. We also observe that the link between H and Hersi is
    found elsewhere in the record. Consequently, even if the evidence was wrongly
    admitted, the impact was inconsequential: s. 686(1)(b)(iii).

Sentence

[17]

Hersi
    was sentenced to a total term of 13 years imprisonment. At the time of the
    offences, he was 22 years old. He had prior findings of guilt as a youth and convictions
    as an adult for offences of violence. After the offences in this case, he was
    sentenced in Saskatchewan to a four-year penitentiary term for drug offences in
    connection with YBK, which he completed before the imposition of the 13-year
    sentence.

[18]

Hersis
    counsel submits that the trial judge erred by sentencing him for offences
    committed outside of Ontario. For the reasons stated above on the issue of
    territorial jurisdiction, we do not accept this argument.

[19]

Nor
    do we accept the submission that the trial judge failed to take into account
    the principle of totality in relation to the Saskatchewan sentence. In his
    reasons, the sentencing judge specifically referred to the totality principle
    and declined to impose a shorter sentence because the Saskatchewan sentence
    arose out of an entirely separate proceeding. In our view, he was correct to
    do so. That sentence had already been served, months before the sentencing in
    this case. The sentence imposed was proportionate to Hersis moral culpability;
    it was also necessary to deter and denounce the extremely serious offences
    committed in the name of a violent criminal organization.

Disposition

[20]

The
    appeals against conviction are dismissed.

[21]

Hersis
    application for leave to appeal sentence is granted, but the appeal is
    dismissed.

R.G. Juriansz J.A.

M.L. Benotto J.A.

Gary T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hoare, 2018 ONCA 991

DATE: 20181205

DOCKET: C63025

Hourigan, Pardu and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Hoare

Appellant

Lawrence Greenspon, for the appellant

Michael Perlin, for the respondent

Heard and released orally: December 3, 2018

On appeal from the conviction entered on May 25, 2015 and
    the sentence imposed on January 13, 2016 by Justice Robert Wadden of the
    Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of attempted murder and attempt to overcome
    resistance by suffocation. The victim of the offences was his wife. He was
    sentenced to 11 years in custody.

[2]

The trial Crown submitted that an order should be made pursuant to s.
    743.21 of the
Criminal Code
prohibiting the appellant from having any
    communication with his children, notwithstanding any family law proceedings.
    Defence counsel at trial submitted that any such order under s. 743.21 should
    be made subject to any family court orders. The sentencing judge imposed an
    absolute prohibition on contact with the children during the custodial portion
    of the sentence. The propriety of that order is the only issue on appeal.

[3]

The appellant submits that the sentencing judge erred in principle in
    failing to recognize the division of responsibility between different
    specialized regimes that govern the relationships between parents and their
    children. Specifically, the sentencing judge should have permitted the family
    court or the Childrens Aid Society to determine the nature of his relationship
    with his children. In addition, the appellant submits that the reasons were
    inadequate and the sentence was unfit.

[4]

We would not give effect to these submissions.

[5]

The judge was not obliged to make his order under s. 743.21 conditional
    on an order made by the family court or any CAS proceedings. He was entitled to
    make the order that he did protecting the children as third parties. Moreover,
    his reasons and the record amply demonstrate why the order was made. This was an
    horrific act of violence that had a direct impact on the well-being of the
    children. It was clearly in their best interests that the family have a cooling
    off period to heal and regain some normalcy in the children's lives.

[6]

In addition, the childrens best interests are inextricably linked to
    their mothers well-being. She was left physically, emotionally and financially
    devastated by the attack. In these circumstances, it was in the best interests
    of the children that a family law proceeding be avoided during the custodial
    portion of the appellants sentence.

[7]

In short, there was no error in principle and the sentence was fit.

[8]

The conviction appeal is dismissed as abandoned. Leave to appeal
    sentence is granted, but the sentence appeal is dismissed.

C.W.
    Hourigan J.A.

G.
    Pardu J.A.

Harvison
    Young J.A.


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. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7),
    (8) or (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an order is made under section
    486.4, on application of the prosecutor in respect of a victim or a witness, or
    on application of a victim or a witness, a judge or justice may make an order
    directing that any information that could identify the victim or witness shall
    not be published in any document or broadcast or transmitted in any way if the
    judge or justice is of the opinion that the order is in the interest of the
    proper administration of justice.

(2)     On application of the prosecutor in respect
    of a justice system participant who is involved in proceedings in respect of an
    offence referred to in subsection (2.1), or on application of such a justice
    system participant, a judge or justice may make an order directing that any
    information that could identify the justice system participant shall not be
    published in any document or broadcast or transmitted in any way if the judge
    or justice is satisfied that the order is in the interest of the proper
    administration of justice.

[1]

(2.1) The offences for the purposes of subsection (2) are

[2]

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13,
        or a serious offence committed for the benefit of, at the direction of, or in
        association with, a criminal organization;

[3]

(b) a terrorism offence;

[4]

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or
        22(1) of the
Security of Information Act
; or

[5]

(d) an offence under subsection 21(1) or section 23 of the
Security
        of Information Act
that is committed in relation to an offence referred to
        in paragraph (c).

(3)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding judge or
    justice or, if the judge or justice has not been determined, to a judge of a
    superior court of criminal jurisdiction in the judicial district where the
    proceedings will take place; and

(b) provide notice of the application to the
    prosecutor, the accused and any other person affected by the order that the
    judge or justice specifies.

(5)     An applicant for an order shall set out the
    grounds on which the applicant relies to establish that the order is necessary for
    the proper administration of justice.

(6)     The judge or justice may hold a hearing to
    determine whether an order should be made, and the hearing may be in private.

(7)     In determining whether to make an order, the
    judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk
    that the victim, witness or justice system participant would suffer harm if
    their identity were disclosed;

(c) whether the victim, witness or justice system
    participant needs the order for their security or to protect them from
    intimidation or retaliation;

(d) societys interest in encouraging the
    reporting of offences and the participation of victims, witnesses and justice
    system participants in the criminal justice process;

(e) whether effective alternatives are available
    to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the
    proposed order;

(g) the impact of the proposed order on the
    freedom of expression of those affected by it; and

(h) any other factor that the judge or justice
    considers relevant.

(8)     An order may be subject to any conditions
    that the judge or justice thinks fit.

(9)     Unless the judge or justice refuses to make
    an order, no person shall publish in any document or broadcast or transmit in
    any way

(a) the contents of an application;

(b) any evidence taken, information given or
    submissions made at a hearing under subsection (6); or

(c) any other information that could identify the
    person to whom the application relates as a victim, witness or justice system
    participant in the proceedings.
2005, c. 32, s.
    15; 2015, c. 13, s. 19

486.6 (1)  Every person who fails to comply with an
    order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken
    against any person who fails to comply with the order, the publication in any
    document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Horner, 2018 ONCA 971

DATE: 20181203

DOCKET: C64031

Simmons, Huscroft and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Horner

Appellant

Richard Litkowski, for the appellant

Andrew Cappell, for the respondent

Heard: June 19, 2018

On appeal from the conviction entered on April 26, 2017
    and the sentence imposed on June 2, 2017 by Justice Sharon Lavine of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[6]

The appellant and the complainant had been in an intimate relationship
    for approximately two years. They did not live together, and both describe the
    relationship as having its ups and downs. On the morning of July 7, 2015, the
    complainant sent the appellant a text message, telling him that she needed to
    distance herself from him and wanted only to be friends. The appellant then
    drove to the complainants house intent on speaking with her. He was both
    uninvited and unwelcome. He took the complainants children for a walk to a
    nearby store while the complainant was busy with a business client who had just
    arrived.

[7]

When the appellant returned with the children, the client had left. The
    appellant and complainant resumed their discussion, which quickly became
    heated. Things did not proceed the way the appellant would have liked. The
    complainant asked him to leave. The appellant took a knife from a kitchen
    drawer and then walked into the back room where the complainant was standing. Their
    accounts as to what happened next diverge significantly.

[8]

The appellant testified that he had the knife at his side and raised in
    front of him when he entered the back room. The trial judge rejected the
    appellants evidence that he intended to hold the knife to his heart to dramatically
    communicate his pain at the complainants rejection, with the intention of
    saying that she might as well cut [his] heart out. The trial judge also
    rejected a number of other aspects of the appellants account of the events. The
    trial judge accepted the complainants evidence that she had her back to the
    appellant and turned at some point to find him holding out the knife and
    advancing towards her. The complainant was fearful. She attempted to take the
    knife from the appellant, grabbing his hand with hers. The two fell to the
    floor and struggled over the knife. The complainants hands were badly cut during
    the struggle. Following the struggle, she ran to the back yard, and the
    appellant attempted to follow her. The appellant subsequently left the home.

[9]

The trial judge accepted the appellants testimony that he did not take
    the knife from the drawer with the intention of using it to harm the
    complainant.

[10]

The
    trial judge convicted the appellant of assault with a weapon, but acquitted him
    of aggravated assault, uttering a threat to cause death, and possessing a
    weapon for a purpose dangerous to the public peace. The trial judge imposed a sentence
    of thirteen months custody less four months credit for pre-trial house arrest.

[11]

The
    Crown did not appeal any of the acquittals. The appellant appeals both
    conviction and sentence.

[12]

With
    respect to conviction, the appellants primary ground of appeal is that the
    verdict was unreasonable. His argument was made on two bases: (1) the evidence
    did not support the conclusion that he intended to threaten the complainant
    with the knife and the trial judge never made such a finding; and (2) the trial
    judge returned inconsistent verdicts  convicting the appellant of assault with
    a weapon while acquitting him of possession of a weapon for a purpose dangerous
    to the public peace.

Analysis

(1)

Mens rea
for assault with a weapon

[13]

As
    the trial judge correctly noted, a person commits an assault when that person
    threatens by an act or gesture to apply force to another person if he has, or
    causes that person to believe on reasonable grounds that he has, present
    ability to effect his purpose:
Criminal Code
, s. 265(1)(b). The trial
    judge found that the
actus reus
of the offense of assault with a
    weapon was made out by the appellants advancing on the complainant with a
    knife. That is, by his actions, the appellant communicated to the complainant a
    threat to use the knife to assault her. The appellant argues, however, that the
    trial judge failed to make a finding that the appellant had the requisite
    intent to threaten the complainant.

[14]

As
    the appellant points out, the trial judge found that the appellant did not have
    the intention of actually using the knife to harm the complainant. But as
    explained below, it is apparent from the reasons that the trial judge was using
    harm in the narrow sense of causing bodily harm, and not in a broader sense
    that includes non-bodily harm, such as psychological harm caused by
    threatening.

[15]

Thus,
    the finding that the appellant did not have the intention of using the knife to
    harm the complainant is not dispositive of whether the appellant had the
    intention of
threatening
the complainant with the knife. The relevant
mens
    rea
lies in the appellants intention to threaten, and not in the
    intention to carry out that threat:
R. v. Horncastle
(1972)
,
8
    C.C.C. (2d) 253 (N.B.C.A.), at p. 262.

Although the trial judge did not
    expressly state that the appellant held the knife with the intention of
    threatening the complainant, her finding in that regard can be discerned from a
    reading of her decision as a whole. She rejected the appellants explanation
    that he only intended to hold the knife to his heart to communicate the pain of
    his rejection. She queried why, if the appellant thought there was a
    misunderstanding, he testified that he said nothing to the complainant to allay
    her fears as they struggled over control of the knife.

[16]

On
    the facts as found by the trial judge, there was simply no inference to be
    drawn other than this: when the appellant advanced on the complainant with the
    knife it was a threat to apply force. The act of holding a knife can itself
    constitute a threat: see
R. v. Edgar
, 2016 ONCA 120, 344 O.A.C. 399,
    at para. 10. That the appellant may not have intended to follow through on the
    threat and cause physical harm to the complainant is irrelevant. The trial
    judge made no error in concluding that the appellant intended to threaten the
    complainant with the knife.

(2)

Inconsistent verdicts

[17]

The
    appellant argues the verdict was unreasonable because conviction for assault
    with a weapon is inconsistent with the trial judges decision to acquit the
    appellant for possession of a weapon for a purpose dangerous to the public
    peace contrary to s. 88(1) of the
Criminal Code
. Section 88(1) of the
Criminal Code
provides:

Every person commits an offence who carries or possesses a
    weapon  for a purpose dangerous to the public peace or for the purpose of
    committing an offence.

The offence thus has two elements:

1)

The accused possessed
    a weapon; and

2)

The purpose of that
    possession was one dangerous to the public peace.

(See
R. v. Kerr
, 2004 SCC 44, [2004] 2 S.C.R.
    371, at para. 24.)

[18]

The
    trial judge concluded that the appellant could not be convicted of this offence
    because she was not satisfied that the purpose for which Mr. Horner took
    possession of the knife was one dangerous to the public peace.

[19]

For
    the appellant to succeed on this ground of appeal, it is not sufficient that he
    establish that the conviction and the acquittal are inconsistent verdicts.
    Where an inconsistent verdict results from a legally unsound acquittal and the
    factual findings on the acquittal are not inconsistent with the factual
    findings on the conviction, an appellate court is not required to set aside the
    conviction, even if the Crown did not appeal the acquittal:
R. v. Plein
,
    2018 ONCA 748, at paras. 46-47, 49, 51.

[20]

The
    apparent inconsistency in this case is rooted in the trial judges finding on
    the weapons dangerous charge that it was not established that when the
    appellant took possession of the knife, he had formed an intention to use the
    knife in a manner dangerous to the public peace. There are, it seems to us, three
    possible bases that could have led the trial judge to this conclusion. Although
    it would have been preferable had the trial judge specified which basis she had
    in mind, we are content that none of them present a necessary conflict with the
    findings of fact on the conviction.

[21]

The
    first potential basis for the acquittal is that the trial judge concluded that
    the appellant had not formed the intention to threaten the complainant when he
    picked up the knife, or at any time prior to the moment he actually threatened
    her. This would present no legal or factual inconsistency between the
    conviction for assault and the acquittal for possession of a weapon for a
    dangerous purpose. For the latter offence, on our understanding, the Crown must
    prove the accused had possession of the weapon and formed the intention to use
    if for a dangerous purpose
prior
to its actual use: see
R. v.
    MacDonald
(2002), 170 C.C.C. (3d) 46 (Ont. C.A.) at paras. 28-32.

[22]

A
    second basis would be a finding that the appellant lacked the intention to
    threaten at the moment he took possession of the knife, coupled with the legal
    error that for the purposes of the possession offence, the only relevant moment
    in time is the time at which possession begins. In
Kerr
, Bastarache
    and Major JJ. found that accused persons who initially possess a weapon with a
    non-dangerous purpose may be convicted if their purpose subsequently becomes
    dangerous: at para. 24.

[23]

A
    third basis would be the legal error that the intention to threaten another
    person with a weapon does not satisfy the purpose dangerous requirement. But in
Kerr
, LeBel and Arbour JJ. held that it is a purpose dangerous to the
    public peace to intentionally threaten to do an act which is likely to cause
    harm or puts another person in fear of harm: para. 91. Similarly, appellate
    courts have consistently held that the intention to possess a weapon for the
    purpose of threatening another person satisfies the purpose dangerous
    requirement: see
MacDonald
, at paras. 28-32;
R. v. Brooks
(1988), 71 Sask. R. 297 (C.A.)
,
at para. 6;
R. v. Howard
(1985), 65 N.B.R. (2d) 76 (C.A.), at para. 5;
R. v. Howlett
, 1987
    CarswellBC 1086 (C.A.), at para. 11;
R. v. Calder
(1984), 11 C.C.C.
    (3d) 546 (Alta. C.A.), at p. 555.

[24]

On
    the reasons given, it is not apparent which of these three conclusions formed
    the basis for the trial judges conclusion. Nevertheless, it is clear that none
    of them involve an acquittal on the basis of inconsistent factual findings. On
    the first basis, there would be no legal or factual inconsistency. On the
    second and third bases, the inconsistency would be the result of an error of
    law concerning the requirements to convict for possession of a weapon for
    dangerous purpose. As an appeal of the acquittal is not before us, we are not
    required to isolate the trial judges potential paths of reasoning any further.
    It is sufficient that we determine that any inconsistency would not have been the
    result of inconsistent factual findings.

[25]

In
Plein
, this court held there is no legal principle that requires
    that inconsistent verdicts can never be left to stand: para. 49. Where an
    accused person seeks to set aside an inconsistent conviction, the accused has
    put the reasons for that inconsistency in issue. Where a court concludes that
    the acquittal appears legally erroneous and the conviction sound in light of
    the trial judges factual findings, the court can take the frailty of the
    acquittal into account in determining whether to allow the appeal from
    conviction:
Plein
, at paras. 47, 51. Accordingly, even if the verdicts
    were inconsistent, which is not clear to us, that inconsistency would be based
    on an error of law by the trial judge concerning the requirements to convict
    for possession of a weapon for dangerous purpose. The acquittal would thus be legally
    erroneous and the conviction sound.

(3)

Uneven scrutiny

[26]

The
    appellant also argues that the trial judge did not adequately scrutinize the
    complainants evidence, specifically her denial that she coached her children
    before they were interviewed by police. The appellant argues that the
    complainant clearly lied about this in her testimony at trial, and the trial
    judge erred by not addressing how this impacted her credibility.

[27]

We
    do not agree. The complainants testimony about what she said to the children
    is not entirely clear. There is, however, no obvious contradiction between the
    complainants testimony that she did not tell the children about what happened
    inside the house, and the childrens statements that she told them about what
    happened outside the house. In any event, the trial judge was alive to the complainants
    credibility issues and canvassed them thoroughly.

(4)

Sentence Appeal

[28]

The
    appellant was sentenced to 13 months custody less 4 months credit for the 22
    months of house arrest prior to trial and sentencing. The Crown had sought 18
    months custody followed by two years probation. The defence asked for a
    suspended sentence and one year of probation.

[29]

The
    appellant argues that the trial judge failed to give sufficient weight to the
    principle of restraint; that is, in failing to consider all available sanctions
    short of incarceration, particularly given that the appellant is a first time
    offender. Also, the appellant argues that the trial judge gave insufficient
    credit for the strict bail conditions imposed on the appellant during the 22
    months house arrest.

[30]

We
    do not agree. The appellant has not identified any error of principle in
    sentencing. This was a case of domestic violence which left the complainant
    with a significant injury and has had a traumatic impact on both her and her
    young children. A sentence that emphasized denunciation and deterrence was
    entirely appropriate. Neither was there any error in the credit given for
    pre-trial custody.

Disposition

[31]

The
    appeals from conviction and sentence are dismissed.

Janet Simmons
    J.A.

Grant Huscroft
    J.A.

B.W. Miller J.A.