Court of Appeal for Ontario

Date: 2017-07-20 Docket: C62374

Judges: Hoy A.C.J.O., Simmons and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

Cody Boast Appellant

Counsel

Michael Dineen, for the appellant

Cody Boast, appearing in person

Jennifer Epstein, for the respondent

Heard: July 10, 2017

On appeal from the conviction entered on May 11, 2016 by Justice Jonathan Brunet of the Ontario Court of Justice.

Reasons for Decision

[1] Among other counts, the appellant was charged that in Ottawa, between December 17, 2014 and January 1, 2015, he did wrongfully and without lawful authority, for the purpose of compelling the complainant to abstain from doing something that the complainant had a lawful right to do, namely proceed in public without fear, intimidate by threats that punishment would be inflicted on the complainant contrary to s. 423(1)(b) of the Criminal Code.

[2] The trial judge found the appellant guilty of attempting to intimidate, contrary to s. 423(1)(b), and, given that finding, also found him guilty of two counts of breach of probation alleging failure to keep the peace and be of good behavior at the relevant time.

[3] Section 423(1)(b) provides as follows:

423(1) Every one is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable on summary conviction who, wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing,

(b) intimidates or attempts to intimidate that person or a relative of that person by threats that, in Canada or elsewhere, violence or other injury will be done to or punishment inflicted on him or her or a relative of his or hers, or that the property of any of them will be damaged

[4] We agree with Duty Counsel that the appellant's conviction under s. 423(1)(b) cannot stand. As a result, we allow the appeal and acquit the appellant on all counts.

[5] As Duty Counsel argues, the accused's purpose in attempting to intimidate the complainant is one of the essential ingredients of the offence created by s. 423(1)(b) of the Criminal Code and the onus rests upon the Crown to prove the accused's purpose beyond a reasonable doubt: see R. v. Branscombe (1956), 25 C.R. 88, [1956] O.J. No. 374 (C.A.).

[6] The trial judge stated that the elements of s. 423(1)(b) had been proven beyond a reasonable doubt. However, in support of that conclusion, the trial judge pointed only to: (a) two aggressively worded text messages and (b) an in-person encounter (the look on the appellant's face as he held his arms out to his sides when he encountered the complainant on the street). These could be characterized as attempts to intimidate the complainant (a means of committing the offence set out in s. 423(1)(b)).

[7] There was no direct evidence of the purpose of the appellant's conduct and the trial judge did not explain how the alleged purpose of the appellant's conduct necessarily flows by inference from the circumstances. The trial judge found that the appellant's actions did not make the complainant fearful. Further, the record disclosed that, in the past, the complainant and the appellant had been good friends and that there was an intervening text, conveying Christmas wishes. In the face of these facts, and the trial judge's finding that the appellant's actions did not make the complainant fearful, the evidence equally supports that the complainant may have had another purpose in sending the texts – namely what the trial judge found was the actual effect of the appellant's actions: to vex, disquiet or annoy the complainant, a person with whom the appellant was quite familiar. Based on the whole of the evidentiary record, and in the light of the trial judge's findings, we are not persuaded that the evidence permitted the trial judge to conclude beyond a reasonable doubt that the purpose of the appellant's conduct was to compel the complainant to abstain from proceeding in public without fear – the alleged purpose of the appellant's conduct as framed in the information and an essential element of the offence.

[8] In the absence of evidence capable of establishing the appellant's alleged purpose beyond a reasonable doubt, the s. 423 conviction cannot stand, and, consequently, neither can the two breach of probation convictions which rise and fall on the s. 423 conviction.

[9] Given that we dispose of the appeal on this basis, it is unnecessary for us to determine whether, as Duty Counsel argues, "to proceed in public without fear" is not something that the complainant "has a lawful right to do" within the meaning of s. 423(1)(b).

[10] We observe, however, that the alleged purpose of the appellant's conduct was not to compel the complainant from abstaining from "proceeding in public", full stop; the addition of the words "without fear" may be significant. To "proceed in public without fear" could be equated with being free from intimidation. Thus, arguably, the appellant was found guilty of attempting to intimidate the complainant for the purpose of intimidating him. We question whether this is what is contemplated by s. 423(1)(b), which specifically requires, as an essential ingredient, in addition to a finding that the accused attempted to intimidate a person, that the attempted intimidation have been "for the purpose of compelling another person to abstain from doing anything that she has a lawful right to do".

[11] That said, this issue was raised in the context of an in-person appeal, conducted with the assistance of Duty Counsel. Because we have disposed of the appeal on other grounds, we are not inclined to address this issue of statutory interpretation. We do not have the assistance of a full record, which would disclose whether this issue was raised at trial, or written argument.

[12] Finally, we do not accept the Crown's argument that uttering threats to cause bodily harm is an included offence under s. 423(1)(b) as particularized in the information.

Alexandra Hoy A.C.J.O.

J.M. Simmons J.A.

David M. Brown J.A.