DATE: 20040318

DOCKET: C35551

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. ALBERT MALKA (Appellant)

BEFORE: DOHERTY, LASKIN and GILLESE JJ.A.

COUNSEL: Raymond Boggs for the appellant

Philip Perlmutter for the respondent

HEARD: February 12, 2004

ORALLY

RELEASED: February 12, 2004

On appeal from the conviction entered by Justice McLean, sitting with a jury, dated September 14, 2000.

E N D O R S E M E N T

[1] The appellant was charged with extortion, assault causing bodily harm and assault with a weapon. All three charges arose out of the same incident. The jury acquitted the appellant on the assault causing bodily harm and assault with a weapon charges, but convicted on the extortion charge.

[2] It is acknowledged that the Crown’s case on the extortion charge depended on the Crown proving that the complainant was physically assaulted by the appellant in connection with the demand made by the appellant for the return of certain money owed to him by the complainant.

[3] The Crown argues that as there was no instruction on the included offence of common assault, the acquittals on the two assault charges do not mean that the jury rejected the evidence that the appellant assaulted the complainant. The logic of this submission is impeccable, however, the problem is that there was no instruction given to the jury that the Crown had to prove a physical assault in order to establish extortion in the circumstances of this case. Instead, the jury was instructed in much more generic terms to the effect that extortion could be proved by way of “threats, accusations, menaces or violence”. On this evidence, that instruction was too broad. In particular, the trial judge’s repeated reference to “threats” as a basis for convicting on the extortion charge could well have suggested to the jury that words alone supported that charge. There was evidence of a heated verbal exchange between the appellant and the complainant.

[4] The Crown concedes that words alone could not establish extortion absent physical violence on the evidence in this case. The jury should have been so instructed.

[5] The non-direction amounts to misdirection requiring the quashing of the conviction and the direction of a new trial. We note that the appellant has fully served his sentence and it may well be that the Crown in the exercise of its discretion will determine that further proceedings are not in the best interests of justice. That is, of course, a decision for the Crown to make.

“Doherty J.A.”

“J.I. Laskin J.A.”

“E.E. Gillese J.A.”