Court Information

Ontario Court of Justice

Date: June 26, 2017

Between:

Her Majesty the Queen

— and —

Jesse Rowe

Before: Justice B.M. Green

Heard: June 5, 2017

Reasons for Judgment Released: June 26, 2017

Counsel:

• Mr. Humphrey, for the Crown
• Mr. Richter, for the Defendant

Judgment

B.M. Green J.:

A. Introduction

[1] Mr. Rowe is charged with committing an assault on Kyle Arthur Loyst that caused him bodily harm and that he failed without reasonable excuse to comply with a term of his probation order, to wit, keep the peace and be of good behaviour.

[2] Counsel fairly conceded all facts with respect to the date, jurisdiction and the identity of his client. He also conceded that his client was bound by a probation order at the time of the alleged offences and that Mr. Loyst was the victim of an assault that caused him bodily harm. These admissions significantly assisted with focusing the trial on the specific issues for this Court's consideration. This type of conduct by informed and well prepared counsel should be both encouraged and commended.

[3] It was admitted that Mr. Loyst was assaulted in the cells of the Peterborough Court House. He was left in a pool of blood on the floor of the cell and his injuries required medical treatment. The assault was recorded by two different cameras in the cells. These recordings of the cell area are clear and provide a good visual representation of what occurred in the cells on the date alleged in the information. There is no dispute about what happened to Mr. Loyst, who the principals were in the assault on him and the physical actions of each of the individual detainees. Mr. Rowe did not take part in the assault on Mr. Loyst. Rather, it is alleged that he aided the principals in this assault by covering one of the cameras in the cell with his hand while Mr. Loyst was being assaulted. As a result, there are two specific issues to be decided:

i. Has the Crown established beyond a reasonable doubt the actus reus and mens rea of aiding the perpetrators to commit the offence of assault causing bodily harm; and

ii. Alternatively, even if the elements of the offence have been proven, has the Crown proven beyond a reasonable doubt that Mr. Rowe's actions were voluntary or the result of his free choice as opposed to involuntarily actions because he acted under duress of actual or implied threats of retaliation with no safe avenue of escape?

B. Evidence

Sgt. Gillis and the Visual Recordings

[4] The Crown called two witnesses to relate the unfolding of events on January 20th, 2017. The first witness, Sgt. Gillis is an experienced Officer who has been with the police force for more than 27 years. She currently acts as a Supervisor in the cells at the Court House.

[5] Sgt. Gillis explained that there is a "bull pen" or general cell that can accommodate a number of prisoners at one time. It is a large cell that has doors with bars that face the hallway and benches against each of the three remaining walls in a horseshoe type arrangement. The middle of the bull pen is a large open space and allows for the detainees to walk around inside the cell. There were two cameras that recorded all activities in the bull pen. If a person stood facing into the cell, one camera was on the upper left hand side of the wall with the cell doors. The second camera was on the upper right hand side of the rear wall facing out of the cell. Neither of the recordings captured the audio of the activities.

[6] Sgt. Gillis advised that there were two Special Constables assigned to monitoring the cells that day. One Officer was responsible for moving the detainees between the cells, court and the wagons. The other Officer was responsible for monitoring the cameras and watching the activities in the cells. It is obvious that any Officer walking by the bull pen would have a full view of the interior of the cell other than a small half wall that covered the toilet area. In addition, this Court can take judicial notice of the fact that the Peterborough Court house and the cell area is relatively small. The cells are so close to the courtrooms and offices that raised voices in the cell area can be heard in the courtrooms and the trial coordinator's office. As a result, it would be easy to hear disturbances and it would take very little time to respond to a crisis in the cells.

[7] The Crown introduced both visual recordings of the different angles captured by the cameras. There were seven males in the bull pen at the time of the assault on Mr. Loyst. Two of the detainees were not involved in what happened. As a result, their positions and movements are not relevant. Sgt. Gillis was able to identify each of the 5 other men in the cells including Mr. Rowe. She indicated that she was familiar with Mr. Rowe although she did not provide any significant details about how she knew him other than in a professional capacity.

[8] At the beginning of the recording that faced out of the cell, Mr. Loyst was sitting against the rear wall on a bench and Mr. Rowe was seated on the same bench to the left of Mr. Loyst. There were two men sitting on the bench against the wall to the left of Mr. Loyst who were identified by Sgt. Gillis as Peter Pople and Brandon Bellomo. Mr. Pople and Mr. Bellomo were the principal perpetrators of the assault on Mr. Loyst. Mr. Avery was seated against the wall to the right of Mr. Loyst. He was convicted of being a party to the offence of assaulting Mr. Loyst for trying to cover the camera at the rear of the cell area while Mr. Loyst was being assaulted.

[9] It is evident from a full review of both recordings that Mr. Loyst had no idea that he was in imminent danger. He can be seen causally talking to Mr. Bellomo and Mr. Pople at points and he appeared to be very relaxed. He laid down on the bench and completely stretched out with his hands behind his head. When he got up to walk around, his hands were tucked in his pockets. He did not appear to be in any distress or worried for his safety. Similarly, Mr. Rowe initially appeared to be relaxing on the bench beside Mr. Loyst. He was talking to Mr. Bellomo. They appeared to be quite amiable and fist pumped their hands together. He also stretched out and partially laid down on the bench while talking to the other occupants of the cell.

[10] As the recording progressed, Mr. Pople and Mr. Bellomo quickly became increasingly animated and restless. They moved around quite a bit, they can be seen talking and gesturing and even pretended to box with each other. Mr. Pople was also shadow boxing in the cell and Mr. Bellomo kicked at the air. Mr. Rowe appeared to get more pumped up as Mr. Pople and Mr. Bellomo became more animated. He got involved in the play fighting and threw a fake punch at Mr. Bellomo. He had a verbal exchange with Mr. Bellomo that did not appear to be aggressive but he removed his shirt and then put it back on. Shortly before the assault, Mr. Pople, Mr. Bellomo and Mr. Rowe also casually hung around the cell doors for a period of time talking to each other. Mr. Loyst did not get involved in the play fighting although he wandered around the cell at times.

[11] Throughout the recordings, Mr. Avery seemed to be agitated or anxious. He paced around the cell, going from one side to the other and spent time looking out the cell doors. As Mr. Pople and Mr. Bellomo were play fighting, they began to compare the length of their arms. Mr. Avery stepped in and gestured at them seemingly measuring whose arm was longer. In the minutes preceding the assault, Mr. Avery's legs were both shaking while he was seated and he was jittery.

[12] Around 2:00 p.m., all of the men in the cell began to converge around the cell doors. Sgt. Gillis explained that lunch was about to be served which was a bagel and a drink. Mr. Avery initially went to the back wall and stood up on the benches walking around on top of the bench close to the camera on the back wall. It is evident that he was anticipating that something was about to happen and he was positioning himself near the camera. Mr. Avery got back down and went to the cell doors along with all of the other inmates to get the lunches that were being handed out by the Court Officers. The progression of events from that point onwards is very important.

[13] At 2:03 p.m., Mr. Rowe took his lunch, returned to sit on a bench and started to eat. Next, Mr. Pople got his lunch and immediately put it down on a bench on the other side of the cell. Mr. Avery got his lunch, put it beside Mr. Pople's lunch and immediately returned to stand on the back bench around the camera. Mr. Rowe can be seen watching Mr. Pople's movements and he got back up and began walking around with his lunch in his hands near the front of the cell. Mr. Bellomo got his lunch next and finally, Mr. Loyst was handed his lunch. The following events occurred in quick succession:

2:03:11 Mr. Pople put his lunch down and walked back to the front of the cell. Mr. Rowe looked at Mr. Pople and then he got up from his bench carrying his lunch and walked towards the front of the cell. Mr. Avery put his lunch down beside Pople's and immediately got back up on the back bench near the camera.

2:03:32 Mr. Loyst was the last person to receive his lunch and he turned back into the cells.

2:03:40 Mr. Avery grabbed a jacket and tried to cover the camera but did not get it high enough so the full events were captured on the recording. At approximately the same time, Mr. Rowe moved toward the front of the cell underneath the camera and looked up towards the area where the camera was positioned. Mr. Avery and Mr. Rowe's movements appeared to be coordinated.

2:03:43 Mr. Pople sucker punched Mr. Loyst with considerable force just as Mr. Rowe was putting down his bagel and drink on a bench beside the front camera area. Mr. Rowe's back was turned so he could not see this initial attack on Mr. Loyst although he must have heard the blow.

2:03:45 As Mr. Rowe placed his hand over the camera at the front of the cell, he can clearly be seen turning his head and looking at Mr. Loyst being savagely beaten.

2:03:50 Mr. Rowe removed his hand just as the beating stopped.

2:03:54 Four uniformed officers appeared at the doors to the cell.

2:04:20 Mr. Rowe leaned over Mr. Loyst and appeared to check on him while he was lying in a pool of blood on the floor.

[14] The beating of Mr. Loyst was vicious and swift. Within a matter of seconds, Mr. Loyst was on the floor in a pool of blood. There did not appear to be any precipitating event or exchange of words prior to the first punch being thrown by Mr. Pople.

Mr. Avery's Account

[15] Mr. Avery was the next witness for the Crown's case. He has a criminal record that involves honesty offences but his credibility was not challenged by either Counsel in this case. His testimony was very compelling and he appeared to be trying to honestly relate what happened in the cells on that date from his perspective.

[16] Although Mr. Avery has been to jail in the past, he has not spent any significant periods of time in jail and there are substantial gaps in his record. He was not an institutionalized inmate or someone who had a lot of experience with custodial facilities. In addition, Mr. Avery suffered from depression, anxiety and post-traumatic stress disorder which made him particularly vulnerable to pressure from other inmates. He stated that while he was in custody, he was uncomfortable and he felt scared most of the time of the "characters" like Mr. Pople.

[17] Mr. Avery was familiar with Mr. Pople. They were housed on the same range at the Central East Correctional Centre (hereinafter referred to as CECC). He knew that Mr. Pople had a reputation for being very violent. Mr. Avery advised that Mr. Pople was one of the most violent inmates on his range and he believed that Mr. Pople had other like-minded friends in custody. He had personally seen Mr. Pople sucker punch and beat other inmates. He did not know either Mr. Bellomo or Mr. Rowe well. He just met Mr. Bellomo that day. He may have met Mr. Rowe once before but they were not housed on the same range which meant that Mr. Rowe was not housed on the same range as Mr. Pople. Mr. Avery could not provide the Court with any information about Mr. Rowe's custodial history or whether Mr. Rowe had spent time at CECC.

[18] Mr. Avery was asked why he tried to cover the camera. He replied that he was "a coward". He was asked if he knew that Mr. Pople and Mr. Bellomo were going to assault Mr. Loyst. Mr. Avery explained that he did not know that they were going to assault Mr. Loyst but he knew that they were going to take his lunch because they told him that they were going to do it earlier in the day. Of note, there is no evidence that Mr. Rowe was either present for this discussion or aware that this was the plan. Mr. Avery said that Mr. Pople and Mr. Bellomo told him to cover the camera and he did it because he was afraid that, if he didn't comply, he would suffer a similar fate to Mr. Loyst if not a worse one.

[19] The statements made by Mr. Bellomo and Mr. Pople to Mr. Avery that they were going to take Mr. Loyst's lunch were not admitted for the truth of their contents since it is hearsay evidence. Rather, the statements were introduced as proof that these statements were made and they provide evidence of Mr. Avery's state of mind. While I accept that Mr. Pople and Mr. Bellomo told Mr. Avery that they planned on stealing Mr. Loyst's lunch, I do not accept that this was the actual motive for this assault or that it had anything to do with theft of a lunch. It is obvious in the recordings that neither of the principals reached for or even tried to take Mr. Loyst's lunch. Mr. Pople forcefully punched an unsuspecting Mr. Loyst in the face immediately knocking him to the floor still clutching his bagel. While he was on the floor, they repetitively punched him and stomped on his head and face. Mr. Pople and Mr. Bellomo used the arrival of lunch as an apparently preplanned moment to attack Mr. Loyst. This was a calculated attack aimed at causing significant injury to Mr. Loyst in a minimum period of time.

[20] Mr. Avery advised the Court that he was not directly threatened by either Mr. Pople or Mr. Bellomo. Rather, the threat to his physical well-being was implicit in the request to cover the camera. He agreed with counsel's suggestions that there is a "culture of retribution" in custody that inmates will suffer serious repercussions at the hands of other prisoners for any perceived wrong-doings. Mr. Avery also agreed with the suggestion that an inmate cannot rely on the Correctional Officers for any protection. He described their ability to supervise the ranges as virtually "non-existent". He also didn't believe that seeking the assistance of the Court Officers was an option because he felt that they could not protect him from the retribution that would have ensued in the cell or back at the CECC. Mr. Avery was expressing his perspective of his personal experiences in custody. He clearly felt that, if he did not do what he had been instructed to do, he would suffer a beating as retribution.

[21] Mr. Avery was asked if he felt that by covering the camera it would somehow alter or contribute to Mr. Loyst's fate. He said that he did it because it made him feel safer. He didn't know if it would have made a difference with what happened to Mr. Loyst but he felt frustrated and flustered and his actions were the safest things to do to protect his own self interests.

[22] Counsel for Mr. Rowe did not call any evidence but urged the Court to rely on Mr. Avery's account of the duress that he felt and his perception of the realities of prison life to find that Mr. Rowe suffered a similar fear of retribution if he did not put his hand over the camera. To be clear, there is no evidence about Mr. Rowe's background, his experience in custody, his connections or familiarity with the other prisoners in that cell, his individual vulnerabilities or his strengths. In addition, Mr. Avery was not qualified as an expert witness about life in custody nor was he an experienced inmate who could provide this Court with evidence to find that there is a wide spread culture of retribution in custody or that every range in the CECC has a similar lack of supervision to what Mr. Avery experienced in his range. Mr. Avery offered his individual subjective perception and his experiences while incarcerated.

C. Legal Analysis of Party Liability

[23] It is trite law that a person may commit an offence by helping another person(s) to commit that offence. The Crown submits that Mr. Rowe aided Mr. Pople and Mr. Bellomo in the commission of an assault causing bodily harm by attempting to obscure the view of the interior of the cell and the identity of Mr. Loyst's assailants. In contrast, Counsel for Mr. Rowe urges the Court to find that, while his client may be guilty of attempting to obstruct justice, he was not a party to the assault on Mr. Loyst.

[24] First, the Crown must prove the actus reus of the offence that Mr. Rowe did something that helped Mr. Pople and Mr. Bellomo to commit the offence. The physical element required to prove that someone aided another in the commission of an offence has been very widely defined in the case law. In the seminal case of R. v. Dunlop, the Supreme Court found that:

Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principal offender; an act which facilitates the commission of the offence, such as keeping watch or enticing the victim away, or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit.

[25] It does not matter that the commission of the offence may still have occurred whether or not the aider participated in the offence. Similarly, the act that aids the principal in the commission of the offence does not necessarily have to occur before the commission of the offence, it can also occur during the commission of the offence. In R. v. Dooley, 2009 ONCA 910, the Ontario Court of Appeal stated that:

123 The authorities take a wide view of the necessary connection between the acts of alleged aiding or abetting and the commission of the offence. Any act or omission that occurs before or during the commission of the crime, and which somehow and to some extent furthers, facilitates, promotes, assists or encourages the perpetrator in the commission of the crime will suffice, irrespective of any causative role in the commission of the crime. The necessary connection between the accessory's conduct and the perpetrator's commission of the crime is captured by phrases such as "actual assistance or encouragement" or "assistance or encouragement in fact" or as the appellants argue, conduct that "has the effect" of aiding or abetting.

[26] In this case, the Crown does not have to prove that Mr. Rowe's action caused the assault or that the assault would not have occurred but for his involvement. Rather, all the Crown has to establish is that Mr. Rowe's action facilitated or assisted the principals with committing the assault. Unquestionably, the act of covering a security camera that is intended to allow Court Officers to monitor and record the activities of detainees in a cell during a vicious assault on another inmate could facilitate and aid the principals with committing that offence uninterrupted and potentially undetected.

[27] The more challenging factor that the Crown must establish is the mental element of aiding the commission of the offence of assault causing bodily harm. The Crown must prove two distinct mental elements. As noted by the Ontario Court of Appeal in R. v. Chambers, at paras. 37 and 38:

The mens rea of aiding and abetting has two elements: intent and knowledge. To be found liable as an aider or abettor, an accused must have intended to assist or encourage the perpetrator to commit the crime: Briscoe, at para. 16; Maciel, at para. 87; Helsdon, at para. 43.

An accused can only intend to assist or encourage in the commission of a crime if she knows which crime the perpetrator intends to commit. Therefore, the Crown must prove that an alleged aider or abettor knew that the perpetrator intended to commit the crime, although she need not know precisely how it will be committed: Briscoe, at para. 17; Maciel, at para. 89.

[28] In this case, there is evidence from which this Court can infer that Mr. Rowe intended to assist with the commission of a crime and that he knew that either Mr. Pople and/or Mr. Bellomo intended to commit a crime. If that was the extent of the evidence, it would not be sufficient to find him guilty of being a party to the offence that he is charged with committing. The Crown must prove beyond reasonable doubt that Mr. Rowe intended to assist with the commission of the crime that he is charged with as a party of assault causing bodily harm and that he knew that they intended to commit the crime that he is charged with as a party of assault causing bodily harm.

[29] There is one reported case with a similar fact scenario, R. v. Beguin, [2016] B.C.J. No. 1352 (B.C.P.C.). Mr. Beguin covered a camera recording the interior of a cell that he was sharing with another inmate twice with wet toilet paper. While the camera was covered, his co-accused damaged the interior of the cell. Justice Woods succinctly summarized the issue to decide as follows at paragraph 15:

Accordingly, in order to secure a conviction in the case at bar, the Crown must, inter alia, prove beyond a reasonable doubt that at the relevant time Mr. Beguin knew that Mr. Wright intended to inflict damage on Cell A28, or that he was wilfully blind as to Mr. Wright's intention to inflict that damage, and that in blocking the security camera lens with moistened toilet paper Mr. Beguin intended to assist Mr. Wright in causing that damage.

[30] Mr. Avery told the Court that Mr. Pople and Mr. Bellomo planned on stealing Mr. Loyst's sandwich. While Counsel suggested that this is evidence that they intended to commit a theft as opposed to an assault, it is reasonable to infer that Mr. Loyst was not going to willingly hand over his lunch to two other inmates. Considering Mr. Pople's reputation for violence and brutality, Mr. Avery knew that they intended to use whatever means necessary to accomplish their goal which would have included assaulting Mr. Loyst. There is however, no direct evidence that Mr. Rowe was aware of this plan, Mr. Pople's propensity for violence or that he was asked by either of the perpetrators to cover the camera.

[31] The only evidence from which this Court can infer Mr. Rowe's state of mind is what can be seen on the visual recordings of his conduct. In order to find Mr. Rowe guilty of being a party to the offence of assault causing bodily harm, the Crown must have proven beyond a reasonable doubt that his guilt is the only reasonable conclusion that can be drawn from the whole of the evidence. Please see: R. v. Villaroman, 2016 SCC 33. During a motion for a directed verdict, I expressed some concern about the availability of competing inferences. At that time however, I had not had the benefit of a frame by frame review of the two recordings with a focussed viewing of specifically Mr. Rowe's movements and conduct.

[32] Up until the lunches were delivered to the cells, both Mr. Loyst and Mr. Rowe seemed fairly relaxed and comfortable in the bull pen. They both engaged in discussions with other inmates and laid around on the benches. Mr. Rowe was joking around with Mr. Bellomo and Mr. Pople. He certainly did not appear to be frightened or intimidated by them. Once lunch was delivered, however, Mr. Rowe's conduct changed. He watched Mr. Pople put down his lunch and approach the area where Mr. Loyst was collecting his lunch. Mr. Rowe then repositioned himself near the camera in the front as Mr. Avery positioned himself directly underneath the camera in the back of the cell. From Mr. Rowe's behaviour, it is apparent that he knew something untoward that should not be seen or recorded was about to occur in the cell and he intended to assist the principals with whatever they planned to do by blocking the view of the interior of the cell. There is no evidence, however, of who told him that he should position himself under the camera or why he was told to do it.

[33] When Mr. Rowe first approached the corner of the cell and put down his food so he could step up on the bars, his back was turned to what occurred behind him. At that moment, there are a multitude of available inferences about his intent and knowledge. While the Crown submits that one available inference is that he knew that they were going to assault someone and intended to assist them with that crime, it is just as plausible that he was told by someone in the cell to cover the camera but not told why to do it or what was going to happen. He could have intended to assist with a theft, a mischief or any number of crimes. If that were the extent of the evidence, Mr. Rowe would be acquitted. However, a careful review of the timing of the unfolding of events and Mr. Rowe corresponding actions are particularly important in this case.

[34] Justice Woods' findings in R. v. Beguin at paragraph 45 were particularly helpful with deciding this case:

Mr. Beguin's actions in blocking the video link to Cell A28 came at a time when Mr. Wright's destructive spree was partway completed and straightaway after C.O. Dhutt had attended to investigate. That blocking of the video link thus occurred at a time when he (Mr. Beguin) was fully aware of what Mr. Wright had set about to do and had partially accomplished. That is to say, there is no room for argument that the knowledge element of the mens rea requirement for party liability is established on the evidence. Similarly, by replacing the moistened toilet paper almost immediately after removing it at C.O. Dhutt's direction, Mr. Beguin displayed a continuing, clear intention to frustrate North Fraser corrections staff's efforts to discover what might be happening in Cell A28 and to permit Mr. Wright to resume his destructive rampage for at least a while without the video link being available to permit those corrections staff to confirm their suspicions. In my judgment, that conduct evinces an intention on Mr. Beguin's part to assist and help Mr. Wright continue committing a mischief offence within the cell and, thus, supplies the second, intention element of mens rea for party liability. No other reasonable inference can be drawn from the facts I have found in this regard.

[35] A detailed review of the recordings provides much more information from which this Court can draw a singular reasonable inference. Seconds before Mr. Rowe put his hand over the camera, he must have heard the forceful blow being inflicted on the victim behind him. While he may not have initially known what the principals intended before he approached the camera, he knew that someone was being assaulted when he placed his hand on the camera. More importantly, as he was placing his hand over the camera, he is clearly captured looking back and witnessing Mr. Pople and Mr. Bellomo beating Mr. Loyst but he proceeded to place his hand on the camera until they stopped stomping on Mr. Loyst's head. Mr. Rowe's intention and knowledge to assist these principals with the specific offence of assault causing bodily harm crystalized at that moment when he witnessed Mr. Loyst being subjected to a vicious beating but he persisted with aiding the principles during the commission of this offence.

[36] The Crown does not have to prove that Mr. Rowe wanted Mr. Loyst to be beaten or hurt by the principals. As the Supreme Court of Canada found in R. v. Briscoe, 2010 SCC 13, at paragraph 16:

The mens rea requirement reflected in the word "purpose" under s. 21(1)(b) has two components: intent and knowledge. For the intent component, it was settled in R. v. Hibbert, [1995] 2 S.C.R. 973, that "purpose" in s. 21(1)(b) should be understood as essentially synonymous with "intention". The Crown must prove that the accused intended to assist the principal in the commission of the offence. The Court emphasized that "purpose" should not be interpreted as incorporating the notion of "desire" into the fault requirement for party liability. It is therefore not required that the accused desired that the offence be successfully committed (Hibbert, at para. 35).

[37] Similarly, while the intentions of the principals must be known by Mr. Rowe the Crown does not have to prove that he shared their intention to assault Mr. Loyst. In the Briscoe decision, the Supreme Court explained at paragraph 18 that:

The perpetrator's intention to kill the victim must be known to the aider or abettor; it need not be shared. Kirkness should not be interpreted as requiring that the aider and abettor of a murder have the same mens rea as the actual killer. It is sufficient that he or she, armed with knowledge of the perpetrator's intention to commit the crime, acts with the intention of assisting the perpetrator in its commission. It is only in this sense that it can be said that the aider and abettor must intend that the principal offence be committed.

[38] This entire incident took place within a matter of seconds and escalated quickly. There is no evidence that Mr. Rowe wanted Mr. Loyst to be hurt or that he shared the intentions of Mr. Pople and Mr. Bellomo. Quite the contrary, immediately after the beating, Mr. Rowe appeared to be concerned about his injuries. He approached him and appeared to comfort him. Nevertheless, the Crown has proven all of the essential elements of the offence of being a party to the assault on Mr. Loyst that caused him bodily harm.

D. Duress

[39] Counsel for Mr. Rowe submitted that even if the Court finds that Mr. Rowe acted as party to the crime of assault causing bodily harm, he should still be acquitted because the Crown has not proven beyond a reasonable doubt that his actions were voluntary. Mr. Rowe did not testify in his defence. Rather, Counsel is relying on Mr. Avery's evidence that he felt compelled to assist Mr. Pople with committing this offence or he would suffer the same fate if not worse. Mr. Avery did not feel like he had any other options to ensure his safety so he covered the camera because he was a "coward". Counsel urges the Court to infer from Mr. Avery's evidence that his client struggled with the same fears such that he acted under duress of threatened harm.

[40] In R. v. Aravena, [2015] O.J. No. 2019 at paras. 26 and 27, the Ontario Court of Appeal provided a concise outline of the defence of duress:

The elements of both the statutory and the common law defences of duress are helpfully summarized in Ryan, at para. 81.

There must be an explicit or implicit threat of present or future death or bodily harm. The threat can be directed at the accused or a third party.

The accused must reasonably believe that the threat will be carried out.

There is no safe avenue of escape. This element is evaluated on a modified objective standard.

A close temporal connection between the threat and the harm threatened.

Proportionality between the harm threatened and the harm inflicted by the accused. The harm caused by the accused must be equal to or no greater than the harm threatened. This is also evaluated on a modified objective standard.

The accused is not a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity conspiracy or association.

If the defence is available in law, and the evidence gives an air of reality to the defence, an accused is entitled to an acquittal unless the Crown disproves one or more of the essential elements of the defence on a reasonable doubt standard.

[41] There must be foundational evidence of duress before the burden of proof shifts to the Crown to prove beyond a reasonable doubt that one of the elements of the defence does not exist. There must be an "air of reality" to the defence. In R. v. Cinous, 2002 SCC 29, the Supreme Court explained that "a defence possesses an air of reality if a properly instructed jury acting reasonably could acquit the accused on the basis of the defence."

[42] In the circumstances of this case, there is absolutely no air of reality to the defence of duress. First, Mr. Avery is not an expert witness on prison culture nor has he spent significant periods of time in custody such that his experiences and perspectives would be evidence upon which the Court can rely to find that there is a wide spread culture of retribution urged by Counsel from which there is no meaningful escape. Moreover, there is no evidence that Mr. Rowe had been in custody for any significant periods of time before that day or that he would have been familiar with prison culture. Secondly, there is no evidence that Mr. Rowe was ever threatened implicitly or expressly or that he even felt threatened. Quite the contrary, he was recorded relaxing, conversing and amiably interacting with both Mr. Bellomo and Mr. Pople throughout the period of time leading up to the assault. Thirdly, Mr. Avery's feeling of compulsion were a product of his unique vulnerabilities and his first hand experiences with Mr. Pople's penchant for violence. There is no evidence that Mr. Rowe struggled with similar vulnerabilities and there is no evidence that he knew anything about Mr. Pople's reputation for violence. Finally, it is evident that a number of Court Officers responded to the cell within seconds of the attack on Mr. Loyst and removed him from the cell. Despite Mr. Avery's subjective belief that the Court Officers could not assist with protecting him, there is no evidence that Mr. Rowe did not have a safe avenue of escape. He could have sought the assistance of the Court Officers, made up a reason to be put in another cell or requested to be placed in protective custody if he felt threatened.

E. Conclusion

[43] The Crown has proven beyond a reasonable doubt that Mr. Rowe voluntarily acted as a party to the commission of the offence of an assault causing bodily harm and there is no air of reality to a defence that he acted under duress. As a result, Mr. Rowe is guilty of the first count of an assault causing bodily harm to Mr. Loyst. Furthermore, in so doing, Mr. Rowe is guilty of failing without reasonable excuse to comply with the terms of his probation order to keep the peace and be of good behavior.

Released: June 26, 2017

Signed: Justice B.M. Green