NOVA SCOTIA COURT OF APPEAL
Citation: R. v. Barrett, 2004 NSCA 38
Date: 20040312
Docket: CAC 195228
Registry: Halifax
Between:
John Robert Barrett
Appellant
v.
Her Majesty the Queen
Respondent
Judges: Glube, C.J.N.S.; Cromwell and Fichaud, JJ.A.
Appeal Heard: December 9, 2003, in Halifax, Nova Scotia
Held: Appeal allowed in part per reasons for judgment of Cromwell, J.A.; Glube, C.J.N.S. and Fichaud, J.A. concurring.
Counsel: Warren K. Zimmer, for the appellant
Dana Giovannetti, Q.C., for the respondent
Reasons for judgment:
[1] The appellant claims that his convictions for threatening serious bodily harm, extortion and aggravated assault are unreasonable. His appeal therefore engages our responsibility to determine, with due deference to the findings at trial, whether the convictions are ones that a reasonable trier of fact, acting judicially, could have entered.
[2] I would allow the appeal in part. While, in my view, the threatening conviction should stand, the evidence at trial could not reasonably be found to support the convictions for extortion and aggravated assault. Those convictions should be set aside.
II. OVERVIEW OF THE FACTS:
[3] The appellant worked for Russell Landscaping. He prepared bids and collected payment for landscaping jobs which were done by Dave Russell, Sr., his son, David, Jr. and others who worked for them.
[4] Mr. and Mrs. Clarke wanted their yard hydro-seeded and contacted the appellant. He arranged for another firm to do the hydro-seeding. Russell Landscaping paid that firm and the Clarkes paid Russell Landscaping. The grass did not take. Mr. Clarke contacted the appellant in the spring of the following year and arranged for some additional landscaping work to be done and, Mr. Clarke thought, to get the yard re-seeded. The work was begun. There were some problems and they were mostly corrected. But the lawn was not re-seeded. This is where the trouble started.
[5] When the appellant asked for payment, Mr. Clarke pointed out that there had been no re-seeding. The appellant said there would be no re-seeding. Mr. Clarke advised the appellant that he was withholding the price of the hydro-seeding job. The appellant then asked Mr. Clarke “what if some guys arrive at your house (or on your doorstep) tonight?” Mr. Clarke asked, “to do what, tear up the work they did?” and the conversation ended. The appellant advised Dave Russell, Sr. that the Clarkes were not going to pay. Russell said he would look after it. He did.
[6] That evening at supper time, Dave Russell, Sr., his son Dave Russell, Jr., and Ronnie Trafford arrived by truck at the Clarkes. The Russells went to the door and Trafford remained by the truck. As soon as Mr. Clarke opened the door, Dave Russell, Sr. said words to the effect “what the fuck do you mean you’re not paying us the money”. Mr. Clarke only had time to say “no” before he was punched by Dave, Jr. making him fall to the ground where he was kicked, suffering serious injuries. The Russells and Trafford then drove away, but not before Russell, Sr. yelled to Mr. Clarke words to the effect that “tell the cops, you’re fucking dead.”
[7] The Clarkes decided to pay the bill. They contacted the appellant and arranged for him to come to their place of business. The Clarkes asked that Dave Russell, Sr. also come. Shortly after 9:00 the morning after the beating, the appellant and Russell, Sr. went to the shop and received the money without anything being said. While the appellant maintained that he knew nothing of the beating at this time, the judge found as a fact that he did.
[8] The appellant was charged with three offences: aggravated assault by wounding Mr. Clarke (Criminal Code of Canada, R.S.C. 1985, c. C-46, s. 268); threatening to cause serious bodily harm to Mr. Clarke (s. 264.1); and, extortion by violence of Mr. and Mrs. Clarke to pay $1,135.00, the amount of the disputed hydro-seeding (s. 346(1.1)).
III. REASONS OF THE TRIAL JUDGE:
[9] The trial judge, Coughlan, J., convicted on all three counts.
[10] On the threat charge, the judge held that the appellant’s words “What if some guys show up at your house (or your doorstep) tonight?”, examined in the context in which they were spoken and having regard to the person to whom they were directed, conveyed a threat of bodily harm to a reasonable person.
[11] With respect to the aggravated assault charge, the judge’s reasoning is less clear. The Crown submitted at trial that the judge should infer that the appellant sent the Russells out to beat up Mr. Clarke – that is, that the appellant directed the Russells to do so. The inference was supported, said the Crown at trial, by several facts. The appellant was the bill collector. He threatened that “some guys” would arrive at the Clarkes’ home that night. He called Mr. Russell, Sr. telling him that the Clarkes were not going to pay and, within a few hours, the Russells appeared at the Clarkes’ house and beat Mr. Clarke.
[12] Apparently accepting the Crown’s submission, the trial judge found that the appellant was a party to the offence of aggravated assault on two bases. First, he concluded that the appellant abetted the persons who actually assaulted Mr. Clarke (falling within s. 21(1)(c) of the Criminal Code). Second, the judge found that the appellant had an intention in common to carry out the unlawful purpose of extorting money from Mr. and Mrs. Clarke and knew or should have known that the aggravated assault was a probable consequence of carrying out that unlawful purpose (therefore falling within s. 21(2) of the Code). These conclusions, particularly that there was a common intention, appear to be based on the inference that the appellant had directed Mr. Russell to go to the Clarkes and do whatever it took to make sure they paid.
[13] As for the extortion charge, the trial judge found that the offence was made out because the appellant had threatened Mr. Clarke and violence had been done to Mr. Clarke to induce the Clarkes to pay money to Russell Landscaping.
IV. SCOPE OF REVIEW:
[14] This Court may allow an appeal in indictable offences like these if of the opinion that “... the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence.”: s. 686(1)(a)(i). In applying this section, the Court is to answer the question of whether the verdict is one that a properly instructed jury (or trial judge), acting judicially, could reasonably have rendered: Corbett v. The Queen, [1975] 2 S.C.R. 275 at 282; R. v. Yebes, [1987] 2 S.C.R. 168 at 185; R. v. Biniaris, [2000] 1 S.C.R. 381 at para. 36.
[15] The appellate court must recognize and give effect to the advantages which the trier of fact has in assessing and weighing the evidence at trial. Recognizing this appellate disadvantage, the reviewing court must not act as if it were the “thirteenth juror” or give effect to its own feelings of unease about the conviction absent an articulable basis for a finding of unreasonableness. The question is not what the Court of Appeal would have done had it been the trial court, but what a jury or judge, properly directed and acting judicially, could reasonably do: Biniaris at paras. 38 - 40.
[16] However, the reviewing Court must go beyond merely satisfying itself that there is at least some evidence in the record, however scant, to support a conviction. While not substituting its opinion for that of the trial court, the court of appeal must “... re-examine and to some extent reweigh and consider the effect of the evidence.”: Yebes at 186. As Arbour, J. put it in Biniaris at para. 36, this requires the appellate court “... to review, analyse and, within the limits of appellate disadvantage, weigh the evidence...” so as to examine the weight which the evidence could reasonably bear.
[17] In this case, the evidence of the appellant’s guilt in relation to the extortion and aggravated assault charges is entirely circumstantial. The question arises, therefore, of how the reasonable verdict test is to be applied in light of the requirement that where evidence is entirely circumstantial, the accused’s guilt must be the only rational conclusion to be drawn from the circumstantial evidence.
[18] Yebes, a leading case on the reasonable verdict test on appellate review, was a case of circumstantial evidence. One of the points argued before the Supreme Court of Canada was that the Court of Appeal had failed to apply the correct test in reviewing the reasonableness of a conviction where the evidence against the appellant was entirely circumstantial. Responding to this submission, McIntrye, J. for the Court stated that in applying the unreasonable verdict test, the appellate court must re-examine and to some extent reweigh and consider the effect of the evidence. This process, he said, will be the same whether the case is based on circumstantial or direct evidence. However, he pointed out that the Court of Appeal had “... rejected all rational inferences offering an alternative to the conclusion of guilt” and that it was “... therefore clear that the law was correctly understood and applied.”: at 186. In Yebes , the Court acknowledged that evidence of motive and opportunity alone could not meet this standard unless the evidence reasonably supported the conclusion of exclusive opportunity: see 186 - 190.
[19] I would conclude that while the test for whether a verdict is reasonable is the same in all cases, where the Crown’s case is entirely circumstantial, the reasonableness of the verdict must be assessed in light of the requirement that circumstantial evidence be consistent with guilt and inconsistent with innocence: see Yebes at page 185 where this formulation was said to be the equivalent of the requirement that the circumstantial evidence be inconsistent with any rational conclusion other than guilt. This was summed up by Low, J.A. in R. v. Dhillon (2001), 158 C.C.C. (3d) 353 (B.C.C.A.). At para 102, he stated that where the Crown’s case is entirely circumstantial, the appellate court applying the unreasonable verdict test must determine “... whether a properly instructed jury, acting judicially, could have reasonably concluded that the only rational conclusion to be reached from the whole of the evidence is that the appellant...” was guilty.
V. ISSUES:
[20] While the appellant puts forward a number of specific points, the basic submission is that each of these convictions is not reasonably supported by the evidence. The main issues for decision, therefore, are these: 1. Could the judge reasonably conclude that the appellant’s words were a threat of serious bodily harm? 2. Could the judge reasonably conclude that the appellant was a party to the offence of aggravated assault? and, 3. If so, is the extortion conviction reasonable?
VI. ANALYSIS:
1. The Threat Conviction:
[21] The appellant was charged with threatening to cause serious bodily harm. The judge found that when Mr. Clarke told the appellant that he would be withholding the amount of the re-seeding, the appellant said “What if some guys arrive at your house (or on your doorstep) tonight?” The issue at trial was whether these words were and were intended to be a threat of serious bodily harm. The trial judge found that the only reason that some guys would come to see Mr. Clarke at night, as the appellant told him, would be to cause him serious bodily harm. On appeal, the appellant says that the evidence does not reasonably support that conclusion.
[22] I cannot accept this submission. While the language used by the appellant is capable of more than one interpretation, the meaning which the judge attached to it is one which he, acting judicially, could reasonably conclude beyond a reasonable doubt was what the appellant intended. The fact that Mr. Clarke took it as a threat, not of bodily harm, but to either repossess some of the material or damage his property is relevant evidence, but is not dispositive on this point. As Cory, J. said in R. v. McCraw, [1991] 3 S.C.R. 74 at para. 42, the words are to be viewed objectively. The fact that the victim does not perceive them to be a threat of bodily harm, while relevant, is not fatal to the prosecution because it need not prove that the victim appreciated that he was being threatened: R. v. MacDonald (2002), 170 C.C.C. (3d) 46; O.J. No. 4657 (Q.L.)(Ont. C.A.) per Doherty, J.A. at para. 27; McCraw at para. 40. It is irrelevant to our task on appeal that we might not have reached the same conclusion as the trial judge. His was a conclusion that a reasonable trier of fact, acting judicially, could have reached. I therefore would dismiss the appeal in relation to the threat conviction.
2. The Aggravated Assault Conviction:
[23] I turn next to the conviction for aggravated assault.
[24] There is no doubt that the Russells badly beat Mr. Clarke. The issue at trial concerning the appellant was whether he was a party to this offence. As noted, the trial judge found that the appellant was a party by virtue of both s. 21(1)(c) and s. 21(2) of the Code.
[25] On appeal, the Crown conceded that the judge’s conclusion under section 21(2) of the Code cannot be sustained because it is unreasonable. As the Crown points out, there is an alternative rational conclusion that the appellant simply abetted the Russells and did nothing further so that he did not form an intention in common with them. Because of this concession with respect to s. 21(2), it is only necessary to consider the reasonableness of the judge’s finding under s. 21(1)(c).
[26] Section 21(1)(c) provides:
21. (1) Every one is a party to an offence who
...
(c) abets any person in committing it.
[27] Liability as a party under s. 21(1)(c) requires proof of two main elements. The prohibited act (the “actus reus”) is the act of “abetting” the principal. Abetting includes encouraging, instigating, promoting or procuring the crime to be committed: R. v. Greyeyes, [1997] 2 S.C.R. 825 at para. 26. The mental element (the “mens rea”) requires that the abettor be shown to have acted with the intention of encouraging, instigating, promoting or procuring the principal to commit the offence: Greyeyes at para. 38; R .v. Kirkness, [1990] 3 S.C.R. 74 at 104. With respect to the offence of aggravated assault, the abettor need only be proved to have had objective foresight that the principal would inflict bodily harm: R. v. Cuadra (1998), 125 C.C.C.(3d) 289; B.C.J. No. 1299 (Q.L.) (B.C.C.A.) and R. v. Vang (1999), 132 C.C.C. (3d) 32; O.J. No. 91 (Q.L.)(Ont. C.A.). To convict in the present case, therefore, the trial judge had to be persuaded beyond reasonable doubt that: (1) the principal committed the offence of aggravated assault; (2) the appellant encouraged, instigated, promoted or procured the commission of that offence; (3) the appellant intended his acts or omissions to do so; and, (4) the appellant ought to have known that the principal would inflict bodily harm.
[28] There was no issue at trial concerning the first element; it was clear that at least Mr. Russell, Sr. had committed the offence of aggravated assault. The issues of proof as regards the party liability of the appellant concerned the remaining three elements.
[29] My understanding of the judge’s reasons, particularly given his finding of common intention under s. 21(2), is that he accepted the Crown’s position at trial; that is, he inferred that the appellant had directed the Russells to beat Mr. Clarke.
However, the Crown concedes on appeal that this conclusion is not reasonably sustainable on the evidence. The record does not reasonably allow the inference, exclusive of other rational inferences, that the appellant overtly directed the Russells to carry out the assault. The Crown, therefore, does not seek to uphold the conviction as an abettor to the aggravated assault on that basis.
[30] The Crown theory on appeal is that the appellant instigated the offence. He did this, it is submitted, because he told Mr. Russell that the Clarkes were not going to pay knowing that Mr. Russell would react with violence. The judge’s conclusion on s. 21(1)(c) is supportable, says the Crown, on the basis that the appellant “opened the lion’s cage, knowing what the lion would do.” The focus of debate on appeal, therefore, is whether the record could reasonably be considered as supporting the inferences that by telling Mr. Russell that the Clarkes were not going to pay, the appellant intended to, and did, instigate Mr. Russell’s commission of the aggravated assault on Mr. Clarke and ought to have known that Mr. Russell would inflict bodily harm on Mr. Clarke.
[31] The Crown acknowledges that usually an employee, such as the appellant, who merely advises his employer that an account is not going to be paid, could not be seen as having encouraged his employer to use violence to collect it. However, the Crown submits that this is not the usual situation. Here, goes the argument, the appellant lied to his employer about the Clarkes’ intention. The appellant’s evidence was that he told Mr. Russell that he “... didn’t think the Clarkes were going to pay...”. The true state of affairs, as the appellant knew, was that Mr. Clarke intended only to withhold the amount relating to the hydro-seeding. The Crown says that the only rational inference is that the appellant lied to Mr. Russell about the true nature of the Clarkes’ position so that Mr. Russell would be inflamed into action against them, while at the same time shielding the appellant from any blame by his employer for the misunderstanding about who would pay for the hydro-seeding. Further, says the Crown, the evidence that the appellant “probably” knew about Mr. Russell’s violent record and knew that he “wasn’t good with people” support the inference that the appellant had objective foresight that Mr. Russell would inflict bodily harm.
[32] While the Crown submits that this approach is consistent with the trial judge’s reasoning, I cannot accept that it is. There is nothing in the judge’s reasons or in the submissions made to him at trial to support the view that he followed this line of reasoning. The Crown in essence is inviting us to find that the verdict is reasonable on an entirely new basis that, so far as we can tell, played no part in the judge’s reasoning. Although I have reservations about the propriety of doing so when reviewing a judge’s reasons for decision, I will assume without deciding that such an approach is acceptable.
[33] The question, then, is whether the circumstantial evidence could reasonably support the conclusion beyond reasonable doubt that the appellant, by telling Mr Russell that the Clarkes were not going to pay, instigated, and intended to instigate, the commission of the aggravated assault by Mr. Russell and ought to have known that he would inflict bodily harm.
[34] With respect, the answer is no. The fact that the appellant probably knew about Mr. Russell’s convictions for violent offences and that he was not good with people does not reasonably support a finding beyond reasonable doubt that by advising Mr. Russell that the Clarkes were not going to pay, the appellant ought to have known that Mr. Russell would inflict bodily harm. Nor does the evidence reasonably support a finding beyond reasonable doubt that the difference between the Clarkes not wanting to pay anything as the appellant told Mr. Russell and the true situation that they intended to withhold only the amount of the hydro-seeding was intended by the appellant to, or that it in fact did, inflame Mr. Russell to violence. In short, the record here does not reasonably support the conclusions that the untruth, if such it be, had any impact on Mr. Russell’s approach to the Clarkes, or that the appellant intended it to do so or that he ought to have known that Mr. Russell would inflict bodily harm.
[35] In my respectful view, having examined the evidence and, to the extent required, reweighed it in light of appellate disadvantage, a reasonable trier of fact, acting judicially, could not reasonably be convinced beyond reasonable doubt that the appellant, by misstating to Mr. Russell the Clarkes’ intentions with respect to payment, abetted Mr. Russell in the commission of an aggravated assault. I would therefore allow the appeal on that count and in its place enter an acquittal.
3. The extortion charge:
[36] The Crown properly concedes that if the aggravated assault conviction falls, so does the extortion conviction. The indictment charged the appellant with extortion by violence, not by threats. If he is not guilty of the aggravated assault, he cannot be convicted of extortion by violence. It follows that I would also set the extortion conviction aside and enter an acquittal on that count.
VII. DISPOSITION:
[37] In the result, I would uphold the threat conviction, but set aside the convictions on the other counts and enter acquittals with respect to them.
Cromwell, J.A.
Concurred in:
Glube, C.J.N.S.
Fichaud, J.A.