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(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:
- (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.
(2) For the purpose of subsection (1), the “proper administration of justice” includes ensuring that
(a) the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and
(b) justice system participants who are involved in the proceedings are protected
(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order. R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).
COURT OF APPEAL FOR ONTARIO
WEILER, BORINS and MACFARLAND JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
And
EMMANUYIL ROYZ
Appellant
Emmanuyil Royz, in person
Nadia E. Thomas for the respondent
Heard: May 12, 2008
On appeal from the conviction entered on May 18, 2006 by Justice Robert J. Desmarais of the Superior Court of Justice, sitting with a jury.
WEILER J.A.:
Background
Background
1Following a trial by judge and jury, the appellant was convicted of one count of extortion. He appealed that conviction and, acting on his own behalf, raised three grounds of appeal. Like Borins J.A., I would not give effect to any of these three grounds of appeal. Justice Borins, however, would allow the appeal in relation to a fourth ground raised by the panel. With respect, I disagree that the appeal should be allowed on the basis of this fourth ground and would therefore dismiss the appeal.
2Some brief background is necessary to appreciate the issues in appeal. Several years before the alleged extortion took place, the complainant and the appellant were jointly charged in a scheme to defraud the government. Initially the complainant lied to the police about her involvement. Subsequently, the complainant changed her position, cooperated with the police and provided a statement under oath to them. The charges against her were withdrawn. The appellant eventually pled guilty to his charges, was convicted and sentenced to a term of imprisonment.
3The complainant and her husband moved to Y and she obtained new employment. Some time after the appellant was released from prison, he telephoned the complainant and advised her that he had written a book about the investigation and that he planned on sending her a copy. Two days later, the book arrived with a covering letter containing the appellant’s phone numbers and indicating that he planned to begin distribution of the book in the community in one week. The appellant and the complainant met that week at which time the appellant told the complainant that people needed to pay for what had been done to him and that he was going to start with her. He told her that, in order to stop distribution, she would have to buy all of the ten thousand copies of the book that he had printed for $70,000. He warned her that if she did not purchase the “distribution rights”, as he phrased it, he would personally ensure that important people in her life received a copy of the book and that he would “ruin” her.
4This factual context gives rise to the four grounds of appeal. They are: (1) Whether the trial judge erred in his charge to the jury on extortion; (2) whether the tapes of the appellant’s telephone conversations with the complainant should have been admitted; (3) whether the verdict was unreasonable because the appellant did not threaten the complainant; and (4) whether the trial judge’s charge failed to adequately review the evidence and, in particular, a portion of the complainant’s cross-examination.
The Jury Charge on Extortion
The Jury Charge on Extortion
5The first ground of appeal is that the trial judge erred by failing to instruct the jury that “not every distasteful threat will constitute extortion” and that “the threat must go beyond that which a reasonable person in the circumstances of the accused would view as … legitimate”. The alleged omission is derived from the instruction to be given when threats are used by the accused to collect a legitimate debt: R. v. H.(A.) (2005), 2005 32566 (ON CA), 206 C.C.C. (3d) 233 (Ont. C.A. ) application for leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 526. In that case, Doherty J.A. held that a “threat”, as an element of the offence of extortion, does not need to be independently unlawful as long as it was made “without reasonable justification or excuse”. His conclusion followed from the language of the section creating the offence of extortion in the Criminal Code. As Doherty J.A. explained in H.(A.):
71Section 346(1) is broadly worded to criminalize threats of any kind made in an attempt to induce any person to do anything, if those threats are made with the intention of obtaining anything. The section is aimed at those who would use coercion to overcome the free will of others for the purpose of extracting some gain. [Citations omitted.]
72The broad prohibition in s. 346(1) is tempered by the availability of the defence of ‘reasonable justification or excuse’ …
In the context of addressing the defence of “reasonable justification or excuse”, Doherty J.A. made the following comments on which the appellant relies:
84When an accused charged with extortion has used threats in an attempt to collect a legitimate debt, the trier of fact must consider all of the circumstances, including the nature of the threat and the nature of the demand, to determine whether the Crown has proved beyond a reasonable doubt that there was no reasonable justification or excuse for the threat. In jury cases, trial judges will instruct juries that it is not every distasteful threat used to support a legitimate demand for repayment of a debt that will constitute extortion. The jury will be told that the threat must go beyond that which a reasonable person in the circumstances of the accused would view as a legitimate or warranted means of attempting to collect the debt.
6In the case at bar, there is no suggestion that the appellant was attempting to collect a legitimate debt and on this basis alone the decision in H.(A.) is not directly applicable.
7To the extent that the instruction from H.(A.) can be read as having general application to cases where the demand to which the threat relates constitutes legitimate business activity, the charge in this case was nevertheless adequate.
8In dealing with the nature of the threat, the trial judge told the jury that “to be a threat … whatever is communicated must be definite enough that a person of ordinary intelligence would understand it as a threat of injury.”
9The appellant’s demand was that the complainant purchase the distribution rights to his book; his threat was that he would disclose the contents of the book to important people in the complainant’s life in order to ruin her. Where the “demand” in an extortion case can be viewed neutrally – e.g., a demand to pay a legitimate debt or to purchase a legitimate product – the focus shifts to the means deployed by the accused to induce the complainant to comply. As is clear from H.(A.), the focus is on the “reasonable justification or excuse” part of the analysis and the inquiry is whether “the threat [goes] beyond that which a reasonable person in the circumstances of the accused would view as … legitimate” in relation to the demand.
10Although the trial judge did not use the precise language suggested by Doherty J.A. in H.(A.) when charging the jury, I am satisfied that the jury was adequately instructed on the defence of “reasonable justification or excuse”. The trial judge in this case correctly instructed the jury to focus not only on the demand made by the appellant but also on how he sought to obtain compliance and to measure both against the objective standard of reasonableness. The following passage from the charge is illustrative:
A reasonable justification or excuse is one that the law allows and is reasonable in all the circumstances of the case. The issue is not whether one thing in Mr. Royz’s entire course of conduct considered by itself may be justifiable or excusable. In other words, a reasonable justification or excuse relates not only to the demand made by Mr. Royz, but also to the making of the threats by which Mr. Royz sought to compel compliance with the demand … [T]he Crown must prove beyond a reasonable doubt that Mr. Royz had no such justification or excuse.
11The jury was correctly instructed to acquit the appellant if the Crown failed to prove beyond a reasonable doubt that his threat and demand, viewed together, lacked reasonable justification in all the circumstances of the case. Defence counsel, who had earlier cited the decision in H.(A.), supra, in support of his motion for a directed verdict, did not object to the trial judge’s charge in this regard. Thus, I would not give effect to this ground of appeal
Admissibility of the Audiotapes
Admissibility of the Audiotapes
12The second ground of appeal is that the trial judge erred in admitting the audiotape evidence. This ground of appeal also has no merit. At the conclusion of the evidence on the voir dire held to determine the admissibility of the tapes, counsel for the defence withdrew his objection to their admission into evidence. He conceded, and the trial judge ruled, that the complainant had taped the calls of her own volition. The only relevant police conduct was a mere suggestion, made when the complainant called the police, that the complainant keep some personal record of the conversations she had with the appellant.
13I see no basis to interfere with the trial judge’s factual findings on this issue and agree that, on those findings, it was open to him to find that the complainant was not acting as a state agent. I would not give effect to this ground of appeal.
Evidence of a Threat
Evidence of a Threat
14The third ground of appeal is that the verdict was unreasonable because the appellant did not threaten the complainant. The appellant’s argument is really an assertion that there was no evidence on an essential element of the charge of extortion, namely, the existence of a threat.
15The appellant’s submission that he did not threaten the complainant is based, in part, on her evidence in cross-examination. Counsel’s cross-examination of the complainant at trial elicited the admission that in the telephone conversations she had with the appellant she had not been threatened, that she knew she did not have to accept the appellant’s “offer” to buy the distribution rights to his book in the Y area and that, while she was fearful that her standing with her family, community and employer would be affected if she did not accept the “offer” and agree to a contract, she did not know for certain they would be.
16It was up to the jury to determine if the complainant’s evidence satisfied the legal definition of a “threat” contained in the jury charge. The complainant’s evidence could only bear on the presence or absence of the indicia of the legal definition of a “threat”; it could not, in itself, answer the legal question of whether the appellant’s conduct satisfied that definition.
17As already noted, a “threat” for the purposes of the extortion provision in s. 346(1) of the Criminal Code is very broad in scope and catches “threats of any kind made in an attempt to induce any person to do anything” as long as it is deployed “with the intention of obtaining anything”: H.(A.) at para. 71. [Emphasis added.] The legal definition of a threat contemplates “coercion employed to overcome the free will of others for the purpose of extracting some gain”: H.(A.) at para. 71.
18There was ample evidence upon which a properly instructed jury could find that a “threat” had been made within the meaning of s. 346(1). The appellant told the complainant that he would make sure that important people in her life found out about the past she wished to keep hidden unless she purchased his distribution rights; he told her he would ruin her. This conduct was coercive and clearly falls within the broad definition of a “threat” adopted in H.(A.). Indeed, Doherty J.A. expressly referred to this kind of conduct as a “threat”:
80… Some threats, while not per se unlawful (e.g., the threat to disclose some despicable act from one's distant past), will have a much more coercive effect than a threat to do something which is in and of itself unlawful (e.g., a threat to trespass on property). [Emphasis added.]
The appellant’s words could certainly be construed by the jury as being a threat to the complainant within the meaning of the Criminal Code.
The Trial Judge’s Omission to Review the Evidence in Detail
The Trial Judge’s Omission to Review the Evidence in Detail
19There is no issue that a functional approach is to be taken to the adequacy of a jury charge and a failure to review any of the evidence relevant to the positions taken by the parties on contested issues is not necessarily fatal. See R. v. Cipolla, 1965 168 (ON CA), [1966] 1 C.C.C. 179 (Ont. C.A. ), aff’d [1966] 1 C.C.C. 205 (S.C.C.); R. v. Dwyer (1977), 1977 1995 (ON CA), 35 C.C.C. (2d) 400 (Ont. C.A. ); R. v. Ambrose and Hutchison (1976), 1976 201 (SCC), 30 C.C.C. (2d) 97 (S.C.C.); R. v. Guyatt (1997), 1997 12525 (BC CA), 119 C.C.C. (3d) 304 (B.C.C.A.).
20More recently, in R. v. Daley (2007), 2007 SCC 53, 226 C.C.C. (3d) 1, the Supreme Court of Canada described the applicable legal test where the alleged error is the trial judge’s failure to discuss a particular piece of evidence in the jury charge:
55… [T]his Court adopted the reasoning of the Court of Appeal in R. v. Demeter (1975), 1975 685 (ON CA), 25 C.C.C. (2d) 417 (Ont. C.A.), at p. 436; aff'd on other grounds, 1977 25 (SCC), [1978] 1 S.C.R. 538, to the effect that non-direction on a matter of evidence constitutes a reversible error only where the single item of evidence in question is the foundation of the defence: see Young v. The Queen, 1981 55 (SCC), [1981] 2 S.C.R. 39, at p. 56 and Thériault v. The Queen, 1981 180 (SCC), [1981] 1 S.C.R. 336, at p. 344 (per Dickson J.) …
21The trial judge in this case did not undertake an extensive review of the evidence. Instead, in the context of reviewing the positions of the Crown and the defence, he described some of the evidence in support of their respective positions. For ease of reference, I provide the passages from the jury charge where the evidence is addressed:
In terms of the evidence that you have heard and the exhibits that have been filed, I do not intend to repeat all of it to you now, this has been a short trial and it should be relatively fresh in your minds, the theory of the Crown’s case is that Mr. R. communicated with [the complainant] with a view of obtaining up to seventy thousand dollars from her. The Crown maintains that even though [the complainant] may have had a choice of accepting to distribute Mr. R.’s book, that such choice was coerced from her through a threat of distribution within the Y area. The inference is that she could avoid that by entering into an agreement with Mr. R. to purchase distribution rights for that area.
[The complainant] testified she was fearful that the contents of the book … would come to the attention of her step-daughter, her step-daughter’s friends, her neighbours and most of all her employer. She feared for her livelihood, that her ability to provide for herself and others would be put in jeopardy. In support of the Crown’s theory [counsel] points out that, the note filed as Exhibit Number Two, referred to a one week deadline to read after which time the book would be distributed in Y.
Counsel for Mr. R. argues there was no extortion, that Mr. R. is a writer and that he sought to sell his book, giving [the complainant] the opportunity to acquire distribution rights within the Y area. In support of that contention reference is made to Mr. R.’s profession as a writer, publisher. That he was prepared to give [the complainant] more time, as well as reduce the original asking price. Ultimately, that he wanted a contract between the two of them and that she should see a lawyer in that regard.
Now that is a very brief summary of the Crown and defence positions. What is important is that your decision must of course be based on the totality of the evidence that you have heard and seen, including the exhibits that have been filed. And when coming to your individual conclusion as to the guilt or innocence of the accused you should make use of your good common sense and every day experience, and in line with that it is open to you to make reasonable inferences based on the evidence that you have heard, or indeed on the lack of evidence on any particular point.
22Justice Borins is of the opinion that the trial judge erred in not reviewing the evidence of the complainant where, in cross-examination, she stated on several occasions that the appellant never threatened her during her telephone conversations with him or in his written letter to her and also agreed that she did not know for certain that her employment and reputation would be affected if she did not comply with the appellant’s demand. In his opinion this evidence was central to the appellant’s defence and, he states at para. 63 of his reasons, “[it] represented a serious ground for exculpating the accused” or at the very least for raising a reasonable doubt.
23With respect, I disagree. When the extract from the complainant’s cross-examination is viewed in the context of the legal definition of a threat and of the complainant’s evidence as a whole it cannot constitute the foundation for the appellant’s defence.
24There are two reasons for my conclusion. First, the legal definition of a threat was never put to the complainant in cross-examination and any reasonable doubt held by the jury in this regard needed to relate to this legal definition As I attempted to underscore earlier in these reasons, the legal definition of a “threat” is broad and includes any conduct employed to induce any person to do anything or to overcome that person’s will with the intention of obtaining anything: H.(A.) at para. 71. Further, the jury had to apply the definition of a threat, as legally defined for them by the trial judge in his charge, to the evidence.
25Second, in order for a threat to exist the complainant did not have to know for certain that she would be harmed by the appellant’s disclosure of her past; exposure to potential serious harm is sufficient. In R. v. McLure (1957), 1957 485 (MB CA), 118 C.C.C. 192 (Man. C.A.), cited with approval in R. v. H.(A), at para. 80, the accused told the complainant he would sell a story to the newspaper providing details of the complainant’s recent conviction on a charge of disorderly conduct unless the complainant paid him $200. Justice Doherty commented on this case in the following terms:
Publication of the details surrounding the conviction had the potential to seriously harm the victim’s standing in the community and his employment. Applying the appellant’s analysis, the offence of extortion would not be made out because the accused was legally entitled to sell the story to the newspaper and a demand for payment in lieu of publication is not per se unlawful. However, the threat and the demand taken together constitute powerful intimidation calculated to overcome the free choice of even the strongest person.
26Bearing in mind the existing jurisprudence, the complainant’s admissions in cross-examination that the appellant had not threatened her and that she did not know for certain that harm would befall her if she did not comply with his demand, had limited evidentiary value and could not constitute the foundation for a defence.
27In charging a jury, a trial judge has a discretion to determine how far he or she should go in reviewing the evidence, keeping in mind factors such as the nature of the evidence, the number and complexity of the issues raised, the conduct of the trial and of counsel, including their closing addresses, and his or her assessment of the particular jury: Daley, supra at paras. 54-58.
28Three other considerations support my conclusion that the trial judge was not obliged to review the evidence pertaining to the complainant’s cross-examination in charging the jury. They are the length of the trial, the nature of the evidence, and the lack of any objection by defence counsel to the charge.
29The trial judge’s decision to omit a substantial review of the evidence was made in the context of a very short and simple trial. The evidence in this case took less than a day and a half to complete (including the voir dire) and would have been fresh in the minds of the jurors. There were only three witnesses – the complainant, her mother and the investigating officer. The appellant did not testify.
30The case at bar was not of the, “He said, She said,” variety. The issues were focused on the legal interpretation to be accorded to the complainant’s evidence. In this regard, two entirely consistent points emerged from her evidence. One, emphasized by Borins J.A. in the passages cited by him, is that the complainant agreed that the appellant never verbalized the specific harmful consequences to her that would follow from his disclosure of the book to important people in her life. In that sense, she agreed he never threatened her. The other is that in her examination-in-chief the complainant testified that the appellant promised to ruin her. In cross –examination she did not resile from this position as the following exchange indicates:
Q. And so … there may or may not be a threat there?
A. Except that what he said to me is I am going to ruin you.
Q. Well, okay, hold on. We have to remember that you couldn’t remember his exact words?
A. I remember that line. [Emphasis added.]
Having heard defence counsel’s extensive cross-examination of the complainant the previous day on the point about her “choice” to accept the appellant’s proposal to buy the distribution rights to his book, coupled with defence counsel’s closing submissions, and the trial judge’s charge – which expressly reviewed the positions of the Crown and the defence – the jury knew what the legal issues were and the charge adequately equipped them to deal with those issues, including whether or not they had a reasonable doubt the appellant had threatened the complainant.
31Defence counsel did not object to the manner in which the trial judge addressed the evidence or summarized the defence position. Nor did counsel ask the trial judge to review any specific part of the evidence for the jury. As aptly put by Lamer C.J.C. in R. v. Jacquard (1997), 1997 374 (SCC), 113 C.C.C.(3d) 1 (S.C.C.) at 37-38, “defence counsel’s failure to object to the charge says something about both the overall accuracy of the jury instructions and the seriousness of the alleged misdirections.”
32For these reasons, the trial judge was not required to review the evidence in greater detail in this case.
33I would dismiss the appeal.
“Karen M. Weiler J.A.”
“I agree J. MacFarland J.A.”
I
BORINS J.A. (Dissenting)
34The appellant Emmanuil Royz, was convicted by a court comprised of a judge and jury of the following offence:
He, on or about the 17th day of September, 2004, at the Town of Smiths Falls, in the said region, did attempt to induce X to pay him money, by threatening to distribute a book involving her to her family and people in her community if she did not pay him up to $70,000.00, contrary to Section 346(1.1)(b) of the Criminal Code of Canada.
Mr. Royz received a conditional sentence, which he has served. He appeals his conviction.
35This was an inmate appeal. Although Mr. Royz had the opportunity to have duty counsel argue his appeal, he elected to do so himself. In his factum, Mr. Royz reproduced lengthy portions of Ms. X’s testimony. As I understood his position, he relied on three submissions. First, he argued that he had not made any threat to Ms. X. He relied on her cross-examination, portions of which I will reproduce, in which she said that she had not been threatened. Second, he argued that the trial judge had failed to instruct the jury in accordance with paragraph 84 of R. v. Alexander (2005), 2005 32566 (ON CA), 206 C.C.C. (3d) 233 (Ont. C.A.); leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 526. Third, he objected to admissibility of tape recordings that Ms. X made of telephone conversations that she had with him.
36The Crown submitted that there was no merit to the appeal. It relied on Ms. X’s testimony that the appellant threatened to induce her to pay him up to $70,000 to halt the distribution of a book that he had written. The book described the involvement of Ms. X and the appellant in criminal conduct in the late 1990s. The book is entitled “I Am Not a Russian Mafioso”. The appellant is Russian. The Crown contended that the evidence disclosed that Mr. Royz threatened to distribute copies of the book to Ms. X’s family and to others in her local community if she did not buy the distribution rights to the book.
II
II
37The facts are drawn from Ms. X’s testimony. Mr. Royz and Ms. X have known each other since about 1986. They were close friends in 1996 while Ms. X was a project officer at Human Resources Development Canada in Ottawa responsible for funding job-training projects. Mr. Royz had received funding for one, or more, projects. In 1999 Mr. Royz and Ms. X were charged with 12 offences arising from Mr. Royz paying kickbacks to Ms. X and taking money from the project for his personal use while Ms. X did nothing to stop him. In consideration of her total co-operation with the RCMP, all of the charges against her were dropped and she paid restitution in the amount of $6,500. Mr. Royz pleaded guilty to one count of defrauding the federal government in the form of Human Resources Development Canada.
38Around 1999, Ms. X and her family moved to Y, where she obtained a new job. Neither her family, her friends nor her new employer were aware of her criminal charges. She had not heard from Mr. Royz since she left the Ottawa area until she received a telephone call from him on Monday, September 13, 2004. Over the next 11 days, negotiations took place between Ms. X and Mr. Royz about her purchase of the distribution rights in Y of Mr. Royz’s book.
39In the telephone call, Mr. Royz told her that he had written a book about “the case”, meaning the 1999 charges, and that he wanted her address so he could send her a copy of it. The book arrived a few days later. It contained this note from Mr. Royz: “You have one week to read the book, until Sept. 20, after Sept. 20 I will begin a distribution.” Although she “skimmed” the book, Ms. X did not read it. She telephoned Mr. Royz on Friday, September 17, 2004 and they agreed to meet that morning at a Tim Hortons in Smiths Falls.
40At the meeting, Mr. Royz told Ms. X that she had “ruined” him. He said her testimony was untrue, that people had to pay for what had been done to him, and he was going to start with her. He told her that he would sell her the 10,000 published copies of the book for $7 each, in return for which she would receive the exclusive rights to distribute it in Y. He wanted it to be a business arrangement that would be “above board and legal”, and he wanted lawyers to be involved. Mr. Royz said that if she did not agree, he would distribute the book to her step-daughters’ friends and teacher, her neighbours and her workplace. He said: “I will make your name mud in Y.” Ms. X told him that she did not have $70,000. When she suggested that she pay $300 each month, Mr. Royz said that it wasn’t enough, and asked for at least $1,000 each month. Because she wanted to buy time, Ms. X asked if she could give him a decision the next day, to which he agreed.
41After she left the meeting, Ms. X felt that she should talk to the police. She went into an OPP office where she spoke to an officer who told her that she should speak to the Smiths Falls police, which she did. She explained what had happened to Sgt. MacGillivray who advised her not to give him an answer and to just “see where he goes with this”. She was advised to tape future phone calls.
42On Saturday, September 18, 2004, Ms. X phoned Mr. Royz and said that she needed until the following Tuesday. He agreed, but wanted her to send him an e-mail by Monday that she was going to purchase the distribution rights of the book, otherwise on Tuesday he would begin to sell the book.
43On Monday, September 20, 2004, Mr. Royz phoned Ms. X and told her that in order to make everything official she had to register a business. It would be the business that would enter into the agreement with him. He explained that there was an income tax advantage in doing business through a company. They also discussed different forms of payment because Ms. X did not have the funds to pay what Mr. Royz was asking for. Mr. Royz proposed an initial payment of $5,000, followed by $3,000 before Christmas.
44Ms. X telephoned Mr. Royz early the next morning – Tuesday, September 21, 2004, but received a busy signal.
45Later the same day, they spoke again and agreed to meet on Friday, September 24, 2004. They agreed to speak the next day. However, Ms. X never intended to meet Mr. Royz. She informed Sgt. MacGillivray about this.
46On Wednesday, September 22, 2004, Ms. X sent the following e-mail to Mr. Royz:
As agreed, I, X will purchase the distribution rights to “I am (not) a Russian Mafioso” for the Y area. This agreement dates from September 2004 and ends December 2004 for a total of $8,000 to be distributed as follows: $5,000 on signing and $3,000 before December 25, 2004. A new agreement for 2005 will be negotiated at a later date.
47Later the same day, Mr. Royz sent an e-mail to Ms. X, with the following agreement attached, the wording of which was apparently dictated by Mr. Royz, that she was to sign and bring to the Friday meeting:
Ottawa
September 24, 2004
AGREEMENT
Between Russian Literary Association and X’s Enterprises
Russian Literary Association is giving to X’s Enterprises the exclusive right for distribution for the Y area, Ontario, the book “I am (not) a Russian Mafioso”. This agreement dates from September 24, 2004 and ends December 24, 2004 for a total of $8,000 to be distributed as: $5,000 on signing and $3,000 before December 24, 2004. A new agreement for 2005 will be negotiated at a later date.
On behalf of the Russian Literary Association Max Royz
On behalf of the X’s Enterprises X
48The final phone call was in the early morning of Friday, September 24, 2004 when Mr. Royz called Ms. X to change the time of the meeting, which was again to be at the Tim Hortons in Smiths Falls. Ms. X advised Sgt. MacGillivray that the time of the meeting had been changed. As earlier indicated, Ms. X did not attend the meeting. Sgt. MacGillivray went to the location of the meeting and conducted surveillance of Mr. Royz. No further communications between Ms. X and Mr. Royz occurred. A few weeks later, Mr. Royz was charged with the count of extortion of which he was convicted.
III
III
49Mr. Royz’s counsel conducted a thorough and effective cross-examination of Ms. X. She said that because Mr. Royz’s book contained about 90% of the statement that she gave to the R.C.M.P. in 2000 when she cooperated with them in their investigation, and because it contained the Crown’s disclosure, she was worried that if her employer read the book it might adversely affect her employment. She said that her employer “might have quite a different opinion of [her] and could cause [her] some harm”. She speculated that she could be fired. In short, she did not want the book to be distributed “so that people she worked with and people that she knew in Y would know about the incident”. However, she agreed that the book contained a true account of the incident and the charges against her.
50Ms. X agreed with defence counsel that Mr. Royz’s note that came with the book contained no demand or threat – it merely stated his intention to distribute it. She phoned Mr. Royz because she wanted to avoid the book’s distribution to her employer. However, she admitted that she was speculating about her employer’s reaction should he see the book. Therefore, she wanted to meet with Mr. Royz to see what he had in mind. As Ms. X put it: “I simply wanted to know where he planned on distributing it and how.”
51Ms. X said that she never had any intention of going through with Mr. Royz’s offer. However, she admitted that she was playing for time and that she was creating an expectation that she might accept the offer. She agreed that Mr. Royz never told her that she must accept it. He said that if she didn’t accept the offer, “I am a writer, I will try to sell my book, that’s all”. She agreed with defence counsel that Mr. Royz’s words did not contain a threat. She further agreed that the threat was in her mind as she was worried that her employer would read the book and “see [her] differently”. Finally, she agreed that Mr. Royz had made “no threat for [me] to do anything”.
52Ms. X admitted that in the several telephone conversations she had with Mr. Royz, that he made no threats to her. He never threatened to sell or distribute the book in Y “to her family and people in her community”, which is the charge alleged in the indictment. He always said that as a writer, he would sell his book.
53The following exchange took place between defence counsel and Ms. X:
Q. No, so there is not doubt in your mind at least, in the phone conversations there was no threat made to you?
A. No.
Q. There is no threat made to anyone?
A. No.
Q. No, there was discussions of an offer and the acceptance of the offer?
A. Yes.
Q. And the going back and forth about price?
A. Yes.
Q. Okay. He is not requesting that you do something, he is giving you the offer?
A. Yes.
Q. You don’t have to accept it?
A. No, I don’t.
Q. And you didn’t?
A. No, I didn’t.
Q. As was your right not to do?
A. Yes.
Q. Now, there was a lack of threat in the note, correct?
A. Yes.
Q. There was a lack of demand, no doubt?
A. Yes.
Q. Okay. And he asks you to register a company?
A. Yes.
Q. Okay, and when you register a company taxes are paid or…
A. Yes.
Q. Things are recorded?
A. Yes
Q. So there is nothing asked of you to hide anything?
A. No.
Q. I mean, if the offer was twenty-five cents a book…
A. Yes?
Q. …that is something you could afford?
A. Probably, yes.
Q. I guess it wouldn’t be so bad then, you could easily pay it and it would be over with?
A. Yes, I could easily pay it.
Q. But up to $30,000 dollars, you couldn’t afford it?
A. No.
54I would observe that in her testimony in chief, Ms. X did not say that Mr. Royz threatened her, while in her cross-examination she clearly said that he did not threaten her.
55Ms. X did not know if she would be fired if her employer read the book. She agreed that she was speculating, and admitted: “I don’t know what is going to happen.” She further agreed that “the ruin [she thought might occur] is really that [she did not] want people to know a true chapter of [her] life”.
56Defence counsel concluded his cross-examination of Ms. X in this way:
Q. He is an author?
A. Yes.
Q. Okay, and so he is perfectly entitled to seek out contracts?
A. Yes.
Q. And so really ultimately, we’re here because he gave you an offer and you didn’t want to take it?
A. Yes.
Q. You can enter into an agreement, because he has every right to distribute the book?
A. Yes, he does.
Q. So there is no doubt in your mind that you had an option?
A. Yes.
Q. Okay, you exercised your ability to not accept the offer?
A. Yes.
Q. Okay, so he did not compel you to do anything?
A. Yes.
Q. He didn’t compel you to act in any way, he left you an open – he left it open for you to take the offer or not? He is a writer as he stated in the conversations, he is going to distribute the book?
A. Yeah.
Q. That’s his living?
A. Yes.
Q. Okay, so, and you exercised, as is your right, to not accept the offer? He didn’t compel you to do one thing or the other?
A. Sorry, I don’t see it that way.
Q. Well, you didn’t take the offer?
A. I didn’t take the offer.
Q. So obviously he didn’t compel you to do it?
A. No.
Q. No. Okay, so for all you know they may have read it and thought nothing of it, or they may not have read it at all, it may not have gone to them?
A. I have no idea, no.
Q. So ultimately, an offer was presented and you refused.
A. Yes.
Q. And that’s the end of the story?
A. Yes.
57There was no evidence that Mr. Royz’s book came to the attention of Ms. X’s family, friends or employer.
IV
IV
58Mr. Royz did not testify. After his counsel unsuccessfully moved for a directed verdict, the trial judge delivered his instructions to the jury. The instructions were brief, covering only twenty-one pages of the transcript. After providing the usual introductory instructions, he dealt with reasonable doubt. He then spent seven pages explaining the four elements of the offence of extortion. In two brief paragraphs the trial judge reviewed the positions of the Crown and the defence, during which he very briefly touched on some of the evidence that was ostensibly in support of these positions. Then he gave his concluding instructions. Just before he outlined the positions of the parties, the trial judge said: “I do not intend to repeat all of [the evidence] to you now, this has been a short trial and it should be relatively fresh in your minds.” The trial judge, therefore, did not provide the jury with a thorough review of the evidence supporting the case for the Crown or the case for the defence.
V
V
59As I mentioned at the outset of my reasons, Mr. Royz relied on three grounds of appeal: (1) that he did not threaten Ms. X, as she stated in her cross-examination; (2) the trial judge’s failure to instruct the jury in accordance with R. v. Alexander; and (3) the admissibility of tape recordings of telephone conversations between himself and Ms. X. As a self-represented appellant, no doubt Mr. Royz did not know that because this was a jury trial this court could not give effect to his first ground of appeal unless he established that the verdict was unreasonable. In my view, this argument would not have succeeded. However, Ms. X’s evidence that she was not threatened by Mr. Royz is relevant to the consideration of what I believe is the real defect in the trial judge’s instructions – his failure to adequately review the evidence in support of the case for the defence and for the Crown. Because this was an inmate appeal where the appellant represented himself, in my view it is appropriate to consider this issue although not raised by the appellant. In my view, in the circumstance of this case, the court has an obligation to consider any reasonable ground of appeal available by the appellant, although not raised by him. I will deal with this ground before I consider the appellant’s remaining grounds of appeal.
60Three cases decided by the Supreme Court of Canada in a period of five months in 1952 and 1953 are regarded as the leading cases in support of the proposition that a trial judge has a duty to tell the jury the positions of the Crown and the defence, and review the evidence in support of their positions. The three cases are Azoulay v. The Queen (1952), 1952 4 (SCC), 104 C.C.C. 97 (S.C.C.); Kelsey v. The Queen (1953), 1953 5 (SCC), 105 C.C.C. 97 (S.C.C.); and Lizotte v. The Queen (1953), 1953 73 (SCC), 106 C.C.C. 1 (S.C.C.). Two subsequent cases Colpitts v. The Queen 1965 2 (SCC), [1966] 1 C.C.C. 146 (S.C.C.) and R. v. Jacquard (1997), 1997 374 (SCC), 113 C.C.C. (3d) 1 (S.C.C.) reiterated this proposition. It has also been reiterated in three recent decisions of this court: R. v. MacKinnon (1999), 1999 1723 (ON CA), 132 C.C.C. (3d) 545 (Ont. C.A. ); R. v. Maugey (2000), 2000 8488 (ON CA), 146 C.C.C. (3d) 99 (Ont. C.A. ); and R. v. Mahalingen (2006), 2006 12957 (ON CA), 208 C.C.C. (3d) 515 (Ont. C.A. ).
61In an off-quoted passage from Azoulay, at pp. 98-99 Taschereau J. stated:
The rule which has been laid down, and consistently followed is that in a jury trial the presiding Judge must, except in rare cases where it would be needless to do so, review the substantial parts of the evidence, and give the jury the theory of the defence, so that they may appreciate the value and effect of that evidence, and how the law is to be applied to the facts as they find them: Spencer v. Alaska Packers Ass’n, (1904), 1904 23 (SCC), 35 S.C.R. 362. As Kellock J.A. ( as then was) said in R. v. Stephen, 1944 104 (ON CA), [1944], 3 D.L.R. 656 at p. 655, O.R. 339 at p. 352, 81 Can. C.C. 283 at 293: “It is not sufficient that the whole evidence be left to the jury in bulk for valuation.” The pivotal questions upon which the defence stands must be clearly presented to the jury’s mind. [Emphasis in the original.]
62In Lizotte, at p. 4 Taschereau J. stated:
…No doubt, it is not imperative that the Judge describe in detail each and every one of the circumstances that surrounded a crime, but still it is necessary that he place before the jury all that is revealed by the witnesses, either for the Crown or for the defence, which could be a serious ground for exculpating the accused: Azoulay v. The Queen, 1952 4 (SCC), 104 Can. C.C. 97, [1952] 2 S.C.R. 495; Kelsey v. The Queen, 1953 5 (SCC), 105 Can. C.C. 97, [1953] 1 S.C.R. 220. See Lord Goddard C.J. in R. v. Clayton-Wright (1948), 33 Cr. App. R. 22 at p. 29. [Emphasis added.]
63Based on the authorities to which I have referred, it is the duty of the trial judge in instructing the jury to explain the position of the defence, and to review the evidence essential in arriving at a just conclusion in respect to the defence. This is particularly important in this case where in cross-examination Ms. X repeated many times that she had not been threatened by the appellant. This evidence was central to Mr. Royz’s defence and represented a serious ground for exculpating the accused. At the very least, a properly instructed jury should have been told that this evidence was sufficient to create a reasonable doubt. I would add that in rare cases, where the facts and the issues are simple and the trial has been brief, and where it would be needless to do so, failure to comply with this duty may not result in a reversible error: R. v. Dwyer (1997), 1977 1995 (ON CA), 35 C.C.C. (2d) 400 (Ont. C.A.). This is not one of those rare cases. I acknowledge, as well, that trial judges must be given considerable latitude in fashioning a jury charge that is appropriate to the circumstances of the case.
64Because the issue of the inadequacy of the trial judge’s instructions was raised by the court subsequent to the hearing of the appeal, counsel for the Crown and Mr. Royz were asked to provide submissions on this issue. The Crown submitted that given the brief trial of one and a half days, the simple nature of the case, as well as the trial judge’s fair summary of the defence position and his brief reference to the evidence, as in Dwyer, it was not necessary for him to summarize the evidence in any greater detail than he did.
65I do not agree. As I have indicated, this is not one of those rare cases in which it was needless for the trial judge to review the evidence in support of the defence. While it was likely that in his closing submissions to the jury, counsel for Mr. Royz raised this issue, counsel’s submissions are not a substitute for what a trial judge is required to do. The trial judge plays a special role in a jury trial and his words usually carry more weight with the jury than those of counsel. As stated by Taschereau J. in Lizotte, it is necessary for the trial judge to place before the jury all the evidence “which could be a serious ground for exculpating the accused”. Clearly, Ms. X’s testimony given in cross-examination was capable of exculpating Mr. Royz. She did not perceive anything that was said to her by Mr. Royz to be a threat to distribute the book – which is the threat alleged in the indictment.
66I would, therefore, set aside the appellant’s conviction and order a new trial.
VI
VI
67As for the second ground of appeal, the appellant submitted that in instructing the jury about the elements of extortion the trial judge failed to comply with the view of Doherty J.A. para. 84 of R. v. Alexander:
84When an accused charged with extortion has used threats in an attempt to collect a legitimate debt, the trier of fact must consider all of the circumstance, including the nature of the threat and the nature of the demand, to determine whether the Crown has proved beyond a reasonable doubt that there was no reasonable justification or excuse for the threat. In jury cases, trial judges will instruct juries that it is not every distasteful threat used to support a legitimate demand for repayment of a debt that will constitute extortion. The jury will be told that the threat must go beyond that which a reasonable person in the circumstances of the accused would view as a legitimate or warranted means of attempting to collect the debt. [Emphasis added.]
68As I understand his position, the appellant submits that in instructing the jury on the Crown’s obligation to prove that there was not reasonable justification or excuse for an alleged threat, the trial judge was required to tell the jury that not every distasteful threat will constitute extortion and that the threat must go beyond that which a reasonable person would view as legitimate.
69In my view, the appellant has placed too broad an interpretation on Doherty J.A.’s comments. The issue in Alexander evolved from the defendant’s threat to send a letter to the complainant’s employer concerning her character in an attempt to collect an outstanding debt owed by the complainant to the wife of the defendant. The issue was whether a “legally permissible threat” to collect a “legitimately owed debt” could constitute extortion. Doherty J.A. considered the issue in the context of whether this might present a reasonable justification or excuse, the focus being the means used to collect a legitimate debt. He said that there are such situations where the means used to collect such a debt goes beyond what could reasonably be regarded as warranted or legitimate. Thus, Doherty J.A.’s comments in para. 84 are limited to the use of threats in an attempt to collect a legitimate debt.
70I would add one further thought. Extortion is a complex offence consisting of four elements. Using a standard form jury instruction, the trial judge gave a seven page explanation of each of the elements. In my view, it would have been helpful for the jury had he reviewed the evidence in relation to each of the elements after he explained each element. Because of what I would characterize as the significant nature of the evidence in this case, particularly Ms. X’s cross-examination, reviewing the evidence in this way would have helped the jury focus on whether what occurred constituted extortion.
VII
VII
71The third ground of appeal was based on the appellant’s position that the tape-recordings made by Ms. X of the telephone conversations between her and him were inadmissible. There is no merit to this ground of appeal.
VIII
VIII
72For the foregoing reasons, I would allow the appeal, set aside the conviction and order a new trial.
RELEASED: August 14, 2008 “S. Borins J.A.”
“KMW”
