Court of Appeal for Ontario
CITATION: R. v. Labonte, 2016 ONCA 426
DATE: 20160601
DOCKET: C58216
Simmons, van Rensburg and Benotto JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Ashley Labonte
Appellant
Michael W. Lacy and Anida Chiodo, for the appellant
Michael Perlin, for the respondent
Heard: November 25, 2015
On appeal from the convictions entered on September 13, 2013 and the sentences imposed on December 5, 2013 by Justice A.L. Guay of the Ontario Court of Justice.
Benotto J.A.:
Overview
[1] A drug transaction took place outside a bar in Sudbury, Ontario. One of the parties to the transaction was stabbed eight times and was left bleeding on the sidewalk.
[2] At trial, there were two competing versions of events. The complainant claimed he was purchasing drugs from the appellant, who was in a parked car. He said that when he gave the appellant his money, she and the co-accused tried to drive away without giving him the drugs. He dove into the car through the passenger window to try to engage the parking brake and was stabbed eight times by the co-accused.
[3] The appellant and the co-accused claimed that the complainant was not the purchaser of the drugs, but the seller. They said that when the appellant paid the complainant, he counted the money and unexpectedly attacked them through the car window. The co-accused stabbed the complainant to defend the appellant. Both the appellant and the co-accused denied the complainant’s allegation of robbery.
[4] The trial judge reviewed the contradictory evidence and found that the appellant and her co-accused had created a plan to rip off the complainant to settle a prior debt.
[5] The trial judge convicted the appellant and her co-accused of robbery and other related offences. In doing so, he did not turn his attention to the counts as particularized by the Crown. The appellant and her co-accused both appeal their convictions and sentences. The two appeals were heard together. The reasons are being released together and are intended to be read together: see R. v. Breton, 2016 ONCA 425.
[6] For the reasons that follow, I would allow the appeal and order a new trial.
Facts
[7] The appellant, Ashley Labonte, was 26 years old at the time of the events in question. She had been involved in the drug trafficking trade for at least two years. The co-accused, Jean Claude Breton, was her boyfriend.
[8] On the evening of December 4, 2012, the appellant and Breton were parked in a car outside the Nickel City Hotel, a bar in Sudbury, Ontario. In the driver’s seat was the appellant’s friend, Natalie Ross. They were waiting to conduct a drug transaction with the complainant, John Courtemanche.
[9] There was conflicting evidence about almost every aspect of the drug transaction, including (1) how the meeting was arranged; (2) who was selling drugs and who was buying drugs; (3) what type of drug was being sold; (4) how much money was being paid; and (5) who initiated the violence.
[10] In any event, it was clear that some sort of drug transaction or rip-off was underway. It was also clear that Courtemanche was stabbed eight times by Breton. Breton claimed that he did this to defend the appellant.
(1) Evidence of Courtemanche
[11] The Crown’s case against the appellant and Breton was primarily based on Courtemanche’s testimony.
[12] Courtemanche testified that he had no dealings with the appellant before the drug transaction. Yet, he said that she called him on December 4, 2012 in order to sell him $50 worth of crack cocaine outside the Nickel City Hotel.
[13] Courtemanche’s friend, Alain Rheaume, drove him to the Nickel City Hotel to meet the appellant. There, Courtemanche saw Natalie Ross, whom he knew. She was parked in her yellow two-door car. Ross waved Courtemanche over.
[14] He approached the passenger side of the car, where the appellant was sitting. He did not see anyone in the back seat of the car. He said that the appellant took his $50 and someone from inside the car said “go.” When he heard this, he thought he was getting ripped off, so he dove into the car through the open passenger window and “jammed the car into park” with the parking brake.
[15] Courtemanche then felt what he thought was punching from behind. He heard “go, go” again. Ross put the car in drive and he reached inside again to “put it into park.” He said he then “got three more shots to the head”. As he was struggling to get his money back, he grabbed “a few things”.
[16] The Crown alleged that Breton had leaned over from the back seat and stabbed Courtemanche eight times and that in doing so, Breton accidentally stabbed the appellant once in the hand. Ross was then successful in driving off, leaving Courtemanche bleeding on the sidewalk.
[17] Courtemanche suffered three lacerations to his head, three stab wounds to his back and two stab wounds to his arm. One of the stab wounds perforated his left lung and another perforated his left kidney, necessitating its removal.
(2) Evidence of the Appellant and Breton
[18] The appellant and Breton testified that Courtemanche was the drug dealer and that the product being sold was fentanyl patches – not crack cocaine.
[19] The appellant testified that in the afternoon of December 4, 2012, Courtemanche called her to say he had fentanyl patches for sale. She had bought fentanyl patches from him before. On one occasion he “shorted” her one patch, so he owed her one more. They agreed on the phone that he would give her three patches for the price of two (the average price is about $150 per patch; she would pay $300 for three patches). They agreed to meet outside the Nickel City Hotel around 8:30 p.m.
[20] The appellant and Breton were given a ride in Ross’ car to the Nickel City Hotel. The car was a small two-door with tinted windows. Ross was driving. The appellant was in the back seat and Breton was in the front.
[21] When they arrived at the Nickel City Hotel, the appellant and Breton switched seats because she felt she would not be able to conduct the deal from the confines of the back seat. She also wanted Courtemanche to see her, because she was the one who arranged the deal with him and he did not know who Breton was.
[22] The appellant phoned Courtemanche when she arrived. He approached the car and handed the appellant the three fentanyl patches. She gave him $300 cash. She then gave the patches to Breton in the back seat.
[23] Courtemanche counted the money and then “freaked out and attacked” her. He stabbed her in the hand with his knife and tried to engage the parking brake to prevent the car from leaving. Breton was able to wrestle the knife away from Courtemanche and stabbed him in an effort to defend the appellant.
[24] The appellant denied that the transaction had anything to do with cocaine and denied ripping off Courtemanche.
[25] Breton testified that when the appellant handed Courtemanche the money all “hell broke loose.” Courtemanche jumped through the window of the car, began attacking the appellant and going “crazy.” He was pulling her hair and hitting her. Breton said he told Ross to “drive”.
[26] Breton said that Courtemanche had the knife and he tried to get it out of Courtemanche’s hand. He said that he grabbed Courtemanche’s wrist and managed to wrestle the knife away.
[27] With the knife in his hand, Breton was trying to push Courtemanche out of the car. He was not trying to stab him, merely trying to protect the appellant – his girlfriend. He was not even aware that he had stabbed Courtemanche as Courtemanche was not reacting at all. Breton was afraid for the appellant’s life.
[28] Breton also testified that the transaction had nothing to do with crack cocaine. After the events and before the police arrived, he smoked a strip of one of the fentanyl patches because he was shaken and had been hit in the face.
(3) Other Evidence
[29] Fentanyl patches and a “shank” were found in Courtemanche’s jacket. Courtemanche said this was “impossible” and that the transaction had “nothing to do with fentanyl.” No crack cocaine was found on anyone’s clothes or in the car.
[30] Rheaume testified that he heard the car revving and the driver shout, “just don’t do that.” He then saw Courtemanche on the ground.
[31] Samantha Jean, a patron having a smoke outside of the bar, heard the car revving and saw it move forward, stop, then reverse. She heard the sound of a parking break and heard a man yell, “why do you got to do me like that?” Courtemanche was in the window of the car when it started to drive away. He was bleeding. She also testified that when Courtemanche fell out of the vehicle, she saw money fall to the ground. Someone came from across the street and picked it up. She did not see how much money there was.
[32] Ross testified that she picked up the appellant around 8:15 pm on December 4, 2012. The appellant asked Ross to take her and Breton to the Nickel City Hotel. As she pulled up, the appellant was on the phone and waved Courtemanche over. She did not recall if anyone switched seats in the vehicle, but confirmed that the appellant was in the front seat.
[33] Ross knew Courtemanche by his street name “Frenchy”. Courtemanche came towards the car. Ross testified that Courtemanche had a short conversation with the appellant. Without warning, she heard the appellant say “what the hell?” and then Courtemanche unexpectedly jumped into the car through the passenger window. Breton, in the back seat yelled “drive”. Ross tried to get away but Courtemanche kept forcing the car into park. Breton was trying to get Courtemanche off of the appellant.
[34] According to video surveillance, the entire transaction took place in approximately one minute. (The trial judge incorrectly said 37 seconds as trial counsel had not adverted to the fact that the video did not run continuously but rather every half second.)
The Charges Against the Appellant
[35] As the result of these events, in addition to some unrelated charges, the appellant was charged with robbery. She was also charged with being an accessory to an attempted robbery by Breton. The Crown particularized the robbery charge against the appellant and Breton as involving a theft of money from Courtemanche.
Trial Judge’s Reasons
[36] The trial judge released written and oral reasons simultaneously. It appears as though he read his written reasons aloud, but added oral comments not found in the written reasons. To the extent that the transcript differs from the written reasons, I rely on the transcript.
[37] The trial judge began his reasons by describing the accused and the charges they were facing. He said the appellant and Breton were charged with the robbery of Courtemanche and that the appellant was also charged as an accessory to a robbery of Courtemanche. He did not refer to the particulars in the information.
[38] Despite the submission from defence counsel that Breton’s identity was in issue, the trial judge found that the appellant and Breton were clearly the two persons involved in the failed drug transaction.
[39] The trial judge found that the appellant and Courtemanche knew each other from past drug deals and agreed to meet on the evening of December 4, 2012. He did not make a finding of fact as to who arranged the meeting as it was his view that it did not really matter.
[40] The trial judge effectively rejected Courtemanche’s testimony that the subject of the drug transaction was the purchase of $50 worth of crack cocaine as he found it highly unlikely for the appellant and Breton to have come all the way from the outskirts of the city for a $50 drug deal.
[41] Further, as no cocaine was found in the car or on any of the parties involved in the drug deal the trial judge found that the evidence supported the appellant’s contention that the drug deal was for fentanyl patches. He did not however make a specific finding to that effect.
[42] Nor did he make a finding of fact as to who was selling and who was buying the drugs. Consequently, he also did not make a finding of fact as to what, if anything, was stolen from Courtemanche – money or drugs.
[43] The trial judge went on to conclude that the appellant and Breton had planned all along “to settle in a roundabout manner John Courtmanche’s debt to her and in the process ‘rip him off.’” He also found that the appellant brought Breton along as “muscle” for security and that the violence that ensued was not unexpected.
[44] With respect to the stabbing of Courtemanche, the trial judge did not accept Breton’s evidence. He found that:
• Had Courtemanche been the aggressor, he could have easily inflicted a number of deadly wounds on the appellant, rather than just cut her hand;
• The appellant’s hands were in the air for much of the struggle. It made most sense that she was accidentally stabbed by Breton, rather than by Courtemanche, who was essentially leaned over in her lap;
• If Breton wrestled the knife from Courtemanche, he would have had to grab the blade, yet he suffered no cuts to his hands; and
• Courtemanche could not have been the aggressor while he was trying to prevent them from driving away.
[45] The appellant was convicted of robbery and sentenced to 30 months’ imprisonment. She also received a consecutive term of six months’ imprisonment for other unrelated property offences and offences against the administration of justice, in relation to which there is no issue on appeal. The trial judge simply stayed the charge he described as being an accessory to robbery based on the principles in R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729 without giving any reasons relating to that charge. (On appeal it is undisputed that, having entered a conviction for robbery, the trial judge should not have stayed a count in which the appellant was charged as an accessory to the very robbery of which she was convicted.)
[46] Breton was also convicted of robbery and was sentenced to 60 months’ imprisonment, given his more violent role in the offence and his criminal record. Additionally, Breton was convicted of three counts of breach of probation and possession of a weapon for a purpose dangerous to the public peace, for which he was sentenced to 12 months’ imprisonment, consecutively. Breton’s charge of aggravated assault was stayed on the basis of the Kienapple principle.
Issues on Appeal
[47] At the hearing of the appeal, the appellant framed her argument primarily as an unreasonable verdict, but wove errors by the trial judge into that argument that she argues led him to an unreasonable verdict. She submitted that his reasons are insufficient, internally inconsistent and unreasonable; the findings of fact were based on speculation; and he reversed the burden of proof.
[48] The respondent submits that the verdict was reasonable – the reasons were sufficient and there were no palpable and overriding errors or reversals of the burden of proof.
Analysis
[49] I will begin with the appellant’s submissions as to unreasonable verdict. I do not agree that the test has been met. A conviction for the charge of robbery as particularized could reasonably be rendered by a properly instructed jury, acting judicially, on the evidence as a whole and having regard to the findings of the trial judge. However, I have concluded that a new trial is necessary because the trial judge’s reasons are insufficient and fall short of fulfilling their functional requirements. Accordingly, I would allow the appeal and order a new trial. It is therefore not necessary to address the appellant’s sentence appeal.
(1) Unreasonable Verdict
[50] The test to be applied by an appellate court in determining whether a verdict is unreasonable or cannot be supported by the evidence has been explained by the Supreme Court of Canada. In R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, at p. 186, McIntyre J. wrote for the court:
The Court must determine on the whole of the evidence whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. While the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the Court must re-examine and to some extent reweigh and consider the effect of the evidence.
[51] In R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, the court further explained that this test imports both an objective and a subjective assessment. The reviewing court looks at the sufficiency of the evidence objectively to determine if it is capable of supporting the verdict and then, using the lens of judicial experience, weighs the evidence to determine whether the verdict is supportable on any reasonable view of the evidence. This test has been subsequently applied by the Supreme Court of Canada (R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3; R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180; R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746) and by this court (R. v. Smith, 2016 ONCA 25, [2016] O.J. No. 144)
[52] There is a slightly expanded scope of review for unreasonableness in judge alone cases. As recently explained by Watt J.A. in Smith at para 75:
In cases tried without a jury, the unreasonableness analysis required under R. v. Beaudry involves scrutiny of the logic of the judge’s findings of fact or inferences drawn from the evidence admitted at trial: R. v. Sinclair. Under this test, an appellate court can interfere where a trial judge draws an inference or makes a finding of fact that is:
i. plainly contradicted by the evidence relied upon by the judge for that purpose; or
ii. demonstrably incompatible with evidence that is not otherwise contradicted or rejected by the trial judge (citations omitted).
[53] The test articulated in R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190 is a narrow inquiry as to whether a trial judge’s conclusion or verdict can be seen from the reasons to have been reached illogically or irrationally.
[54] A Beaudry error will only be found in exceptional cases where the reasoning process of the trial judge is so irrational, or so at odds with the evidence, that it vitiates the verdict — even though that verdict is available on the evidence as a whole. In these rare cases, an appellate court will be justified in concluding that the verdict itself is unreasonable. However, a new trial should be ordered, rather than an acquittal, where the verdict discloses “evidence capable of supporting a conviction”.
[55] When the reviewing court is considering the verdict in a judge alone trial, there is another element: deference must be shown to the trial judge’s credibility findings provided that they are supported by and compatible with the evidence: R. v. R.P., at para. 12.
[56] I now apply these principles to the case before the court.
[57] Pursuant to the Yebes/Biniaris test a verdict of guilt was available. There was evidence from Courtemanche that he had been robbed of money. The trial judge rejected Courtemanche’s evidence that the subject matter of the transaction was a $50 crack cocaine deal but did not reject his evidence in its entirety. Rejection of Courtemanche’s evidence on the subject matter of the transaction did not preclude a trier of fact from finding that there was a theft of money with proximate violence.
[58] Even in light of – and showing deference to – the trial judge’s credibility findings, I conclude that a trier of fact could reasonably render a conviction on the robbery charge. In particular:
• Courtemanche testified that the appellant grabbed his money but did not give him any drugs – although the trial judge rejected Courtemanche’s evidence as to the subject matter of the transaction ($50 crack cocaine), he did not reject this aspect of Courtemanche’s evidence;
• the trial judge accepted Courtemanche’s perception that he was being ripped off and his reaction as consistent with that belief;
• the appellant gave evidence, which was not rejected by the trial judge, that she intended to pay Courtemanche less money than three Fentanyl patches were worth – from that and other evidence, the trial judge drew an inference that the appellant planned to settle an outstanding drug debt with Courtmanche and in the process rip him off;
• witnesses supported the complainant’s evidence that he was grabbing at the hand brake to stop the car from leaving;
• Courtemanche described grabbing a few things as he exited the vehicle the second time;
• there was witness evidence that money fell out of the vehicle;
• witnesses heard the utterances of “go, go” and “why do you got to do me like that”;
• witnesses saw the car drive away leaving Courtemanche on the ground;
• Courtemanche suffered eight serious stab wounds in contrast to a minor puncture wound suffered by the appellant;
• two fentanyl patches were found behind a piece of foil in a cigarette package in Courtemanche’s jacket; and,
• Breton admitted to using one fentanyl patch prior to arrest and was found in possession of two fentanyl patches later on in the evening in question.
[59] In summary, a conviction for robbery of money is not an unreasonable verdict. The real issue is the trial judge’s reasons which do not make the necessary findings of fact in relation to the charge as particularized by the Crown. I now turn to that issue.
(2) Insufficient Reasons
[60] The trial judge failed in his reasons to make findings relating to the charge as particularized such that the basis of the conviction is unclear and the reasons fall short of fulfilling their functional requirements: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 28 & 56.
[61] The Information reads as follows:
Jean Claude BRETON and Ashley LABONTE … did steal MONEY from John COURTEMANCHE and at the time thereof did use violence to John COURTEMANCHE, contrary to Section 344(b) of the Criminal Code. [Emphasis added.]
[62] The Crown particularized the robbery charge to state that it involved stealing money through the use of violence. In these circumstances, the Crown could not rely on attempted theft and had to prove that money was stolen to make out the charge as particularized. It is a fundamental principle of criminal law that the offence, as particularized in the charge, must be proved: see R. v. Saunders, 1990 1131 (SCC), [1990] 1 S.C.R. 1020, at 1023. This principle is grounded in fairness, as it permits the accused to be reasonably informed of the transaction alleged against him or her and allows the preparation of a full defence and a fair trial: see R. v. Sadeghi-Jebelli, 2013 ONCA 747, 313 O.A.C. 257, at para. 24.
[63] As already noted, the trial judge rejected Courtemanche’s evidence that the transaction was for $50 in exchange for crack cocaine. He did not make a finding of fact as to what, if anything, was actually stolen from Courtemanche. His reasons do not make it clear whether – according to the scheme – the appellant and Breton stole Courtemanche’s money or his fentanyl patches. This finding is also not implicit in the trial judge’s reasons because he did not make a finding of fact as to who was the buyer and who was the seller in the drug transaction. In the absence of such fact finding, the decision of this trial judge is incapable of proper judicial scrutiny on appeal.
[64] Faced with conflicting versions of the intended transaction and the ensuing events, the trial judge was obliged to make findings, supported by the evidence that demonstrated a pathway to conviction for the charge as particularized. In his reasons, the trial judge never adverted to the charge as particularized and never made findings that would support it. In fairness to the trial judge, counsel did not advert to the charge as particularized in their submissions.
[65] The Crown argued that the trial judge was not required to identify what was stolen. I do not agree. The Crown made the nature of the stolen property germane both in the charge and throughout the trial.
[66] I would therefore allow the appellant’s appeal of her conviction for robbery and order a new trial.
Disposition
[67] I would set aside the appellant’s conviction for robbery and the stay of her conviction for accessory to an attempted robbery and order a new trial.
[68] The appellant’s unrelated convictions for the property offences under s. 354(1) of the Criminal Code, R.S.C. 1985, c. C-46, stand, along with the six month sentence for those offences.
Released: June 1, 2016
“M.L. Benotto J.A.”
“I agree Janet Simmons J.A.”
“I agree K. van Rensburg J.A.”