COURT FILE NO.: CR-11-0146

DATE: 2012-12-17

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen

Gordon Fillmore, for the Crown

• and -

Darren Troy Treleaven and Vincent Raymond Allaire,

Mary Bird, for the Accused Darren Troy Treleaven

David Bruzzese, for the Accused Vincent Raymond Allaire

Accused

HEARD: September 10, 11 & 12, 2012,

at Thunder Bay, Ontario

Mr. Justice D. C. Shaw

Reasons For Judgment (Delivered Orally)

[1] Darren Troy Treleaven and Vincent Raymond Allaire are charged with assault, contrary to s. 266 of the Criminal Code, and intimidation of a justice system participant, contrary to s. 423.1(1) of the Criminal Code.

[2] The charges relate to an assault on Christopher Boswell on the evening of April 23, 2011.

Evidence of the Crown

[3] The assault on Mr. Boswell arose out of his relationship with one Andrew Vukmanich. Mr. Boswell and Mr. Vukmanich had been friends for six or seven years. Mr. Boswell was also acquainted with Tony Lento. Mr. Boswell understood from what he had been told by Mr. Vukmanich and Mr. Lento that they both hung around with the Hells Angels. On one occasion, Mr. Boswell had gone with Mr. Vukmanich to the Hells Angels’ clubhouse in Thunder Bay.

[4] In early 2011, Messrs. Vukmanich and Lento were charged by the Thunder Bay Police with a number of offences, including extortion, uttering threats and conspiracy to traffick. Mr. Boswell provided information to the police, implicating Mr. Vukmanich. It was anticipated that Mr. Boswell and his girlfriend, Carrie Walsh, would testify as witnesses against Mr. Vukmanich and Mr. Lento. The charges were in fact disposed of without a trial and Mr. Boswell and Ms. Walsh were never called upon to testify.

[5] On the evening of April 23, 2011, before the charges had been disposed of, Mr. Boswell, Ms. Walsh and Mr. Boswell’s friend, Lance Pawluk, went to a shag at the Prosvita Hall in Thunder Bay. Ms. Boswell and Ms. Walsh had been drinking before they went. Mr. Pawluk, who was the designated driver and who was not drinking that evening, described Mr. Boswell as not anywhere close to intoxicated. He was of the opinion that Ms. Walsh was intoxicated. She described herself as slightly intoxicated when she came to the shag.

[6] Ms. Walsh testified that while the three of them stood in line to get into the shag she overheard the accused, Mr. Treleaven, say to a short, bald headed man wearing a “Security” T-shirt – “that’s the guy that put Andrew and Lento behind bars”. She said Mr. Treleaven was looking directly at Mr. Boswell when he said this. She turned to Mr. Boswell and told him that she thought he was going to get “jumped”. Mr. Boswell said to her that he did not think it was anything to worry about. Mr. Pawluk thought she was just being dramatic.

[7] Mr. Boswell, Ms. Walsh and Mr. Pawluk went into the hall. Mr. Boswell and Ms. Walsh drank alcohol, while Mr. Pawluk drank water. There were about 100 people in attendance. Ms. Walsh testified that she saw Mr. Treleaven, Mr. Allaire and the short, bald man, talking with a group of people at the side of the dance floor.

[8] Mr. Boswell and Ms. Walsh danced. Mr. Boswell then left her to go to the men’s washroom at the back of the building. No one else was in the bathroom when he entered. There was one stall with a toilet at the end of the bathroom. Mr. Boswell went into the stall and closed the stall’s door.

[9] Mr. Boswell finished using the facility and was standing up in the stall when Mr. Treleaven grabbled the stall door and pulled it off its hinges. Mr. Treleaven was significantly bigger than Mr. Boswell, standing approximately 5’ 8” tall and over 300 lbs to Mr. Boswell’s 5’ 4” and 180 lbs.

[10] Mr. Boswell recognized Mr. Treleaven as someone he had seen some time before at the Easy Home store, although he did not know Mr. Treleaven’s name.

[11] Without saying anything, Mr. Treleaven punched Mr. Boswell near his right eye. Mr.Treleaven then yelled, angrily, at Mr. Boswell about “ratting” on “Andrew”, and words to the effect of “how could you do it and get him into trouble”. Mr. Boswell testified that he knew who Mr. Treleaven meant by “Andrew”, namely Andrew Vukmanich, because Mr. Vukmanich had been a long time friend. Mr. Treleaven continued to hit Mr. Boswell six or seven times in the face and around his eyes and jaw. Mr. Boswell asked Mr. Treleaven “what would you do if your family had been threatened?”

[12] In cross-examination, Mr. Boswell stated he was unable to assess Mr. Treleaven’s sobriety. He denied the suggestion that Mr. Treleaven threw up in the stall.

[13] Also in cross-examination, Mr. Boswell testified that Mr. Treleaven did not make a threat against him or his family or tell him that he better not testify or that he should recant his story.

[14] Mr. Boswell heard Ms. Walsh yelling at him to get out. He walked past Mr. Treleaven in the doorway of the stall. He saw a short, bald man, wearing a Security T-shirt, by the sinks. He saw Mr. Allaire by the door. No one tried to stop him on his way out. He said Mr. Allaire was kind of out of the way and never said or did anything. The other, shorter man by the sinks, also said nothing to him. Although he had seen Mr. Allaire before, when Mr. Allaire worked for Courtesy Freight and he worked for Greyhound, he had no knowledge of him other than that, including whether Mr. Allaire knew either Mr. Vukmanich or Mr. Treleaven.

[15] Mr. Boswell said he did not really suffer any injuries other than a faint black eye. He said he was sore and was angry but did not feel anything else emotionally.

[16] Mr. Pawluk testified that he went into the washroom to relieve himself. He saw Mr. Allaire standing by the hand dryers, about five or six feet from the doorway to the bathroom and a shorter, bald man with a Security T-shirt near the privacy barrier to the stall. He saw that the stall door had been ripped off. He heard a scuffle in the stall. Mr. Pawluk asked the two men if they were there to fix the stall. Mr. Allaire told him to “piss and get out”.

[17] Mr. Pawluk testified that he recognized Mr. Boswell’s voice and said to the two men, “I think that’s my buddy in there.” Mr. Allaire said to him, “Get the fuck out.” Mr. Pawluk heard Mr. Boswell say the name “Andrew” and heard the other voice shouting that “they were not threatening your family”. Mr. Pawluk testified that during the argument that he heard from the stall, he did not hear anyone threaten anyone or hear Mr. Boswell call for help. He could not see anything in the stall. The bathroom was about 10 feet wide and 10 to 15 feet long.

[18] After Mr. Allaire told Mr. Pawluk to “Get the fuck out”, Mr. Pawluk left and told Ms. Walsh that Mr. Boswell was getting assaulted. He got a female bartender and a male bartender, William Chabot, to go back into the bathroom with him and Ms. Walsh. Mr. Pawluk testified that Ms. Walsh went in first, then he entered, followed by the male and female bartenders. He said Ms. Walsh grabbed Mr. Boswell and brought him out. As she was leaving, by the dryers, she said to Mr. Allaire “You should be ashamed of yourself “and threw a drink in his face. He said he saw Mr. Allaire motion to strike her, but he did not see her get hit. Mr. Pawluk said that Mr. Boswell’s face had a few red marks and was swollen in a few areas. He identified Mr. Treleaven as the person in the stall with Mr. Boswell.

[19] Mr. Chabot was a groomsman at the wedding of the couple who put on the shag. He was helping out at the shag, assisting the bar staff. He knew both Mr. Treleaven and Mr. Allaire. He testified that he was told by Ms. Walsh that her boyfriend was getting beaten up in the washroom. He went to the bathroom, with Ms. Walsh behind him. He saw Mr. Allaire and Jesse Woods at the door of the bathroom and asked what was going on. They told him nothing was happening. He did not see a bald man in a Security T-shirt in the bathroom. He said neither Mr. Allaire, whom he had known for 10 years, nor Mr. Woods were working security. Mr. Allaire had come to the shag with three members of the wedding party. Mr. Allaire resided in Alberta. Mr. Chabot walked by Mr. Allaire and Mr. Woods and got about 5 feet into the bathroom. He said Ms. Walsh went around him and about two feet past him. He said he then saw a shorter man come out of the stall, who walked by everyone. Ms. Walsh followed, yelling. Ms. Walsh was swearing at Mr. Allaire. Ms. Walsh turned around and threw a drink that hit Mr. Allaire and Mr. Woods.

[20] After Mr. Boswell and Ms. Walsh left, Reg Galbraith, who was associated with the Prosvita, came into the bathroom and asked what had happened to the stall door. Mr. Treleaven asked Mr. Galbraith if $60 would cover the door and Mr. Galbraith said that would do it. Mr. Treleaven gave Mr. Galbraith the money. Mr. Chabot noticed nothing unusual about Mr. Treleaven’s condition.

[21] Ms. Walsh testified that when she went to the washroom with the two bartenders and Mr. Pawluk, she found Mr. Allaire about 2 feet inside the doorway, with his arms crossed over his chest, his back against the wall, and his leg against the other wall, blocking the entrance. She said she told him “Excuse me, I need to get in”. She said he replied, “This is a men’s washroom”. She saw a bald man, with a Security T-shirt, at the sinks. She saw the stall door on the floor but could not see inside the stall. She heard scuffling. She heard Mr. Treleaven say “it wasn’t right” and Mr. Boswell say, “What if it was your family?” She said she tried to push past Mr. Allaire. He refused to move. Someone came behind her. She got through and yelled at Mr. Boswell to come with her. Mr. Boswell came out and Mr. Treleaven came out behind him. Mr. Boswell went out ahead of her. She was shoved. She threw a drink, directed at Mr. Allaire. She said she was punched in the back of the head, but could not see who did it. She said Mr. Allaire and Mr. Treleaven were behind her as she left.

[22] After they left the washroom, Mr. Boswell, Mr. Pawluk and Ms. Walsh went outside to Mr. Pawluk’s rented vehicle. Ms. Walsh telephoned the police from her cell phone. Mr. Pawluk testified that while they were waiting for the police, he saw Mr. Treleaven and Mr. Allaire leave the hall with some other people and walk across the parking lot. Ms. Walsh said she thought she saw Mr. Allaire and Mr. Treleaven get into a truck, but could not say this conclusively.

[23] Ms. Walsh described Mr. Boswell’s face after the incident as seeming puffy on the left side. He did not require medical attention.

[24] The police arrived shortly after Ms. Walsh’s call. After speaking to Mr. Boswell and Ms. Walsh, the police officers asked them to come to the police station, which they did.

[25] Sergeant Justin Dubuc of the Thunder Bay Police testified. Sgt. Dubuc was involved in laying the charges against Mr. Vukmanich and Mr. Lento and in receiving information from Mr. Boswell about those charges. It was Sgt. Dubuc whom Ms. Walsh called on her cell phone from the Prosvita parking lot. Sgt. Dubuc was part of the police Biker Enforcement Unit. After receiving Ms. Walsh’s call, he met with her and Mr.Boswell at the police station and received from them a description of Mr. Treleaven and Mr. Allaire. Sgt. Dubuc was familiar with Mr. Treleaven whom he had seen and spoken to previously at the Rockhouse bar in the company of known Hells Angels members, wearing a Hamilton Hells Angels support T-shirt.

[26] Sgt. Dubuc and two other officers went to the Prosvita Hall and arrested Mr. Treleaven and Mr. Allaire. Mr. Allaire was wearing a Winnipeg Hells Angels support T-shirt.

[27] Sgt. Dubuc testified that anyone can buy these T-shirts at any number of locations, including the Canadian Lakehead Exhibition. He agreed in cross-examination that throughout his 11 years on the Biker Enforcement Unit Mr. Allaire’s name had never come up. He testified that he had no information that Mr. Allaire knew Mr. Vukmanich, or that Mr. Vukmanich had been charged or that Mr. Boswell was a witness against Mr. Vukmanich. Sgt. Dubuc described the hierarchical structure of the Hells Angels, which ranges from an “associate”, at the bottom, through a “friend”, “hanger around”, “prospect”, and “full member” at the top.

[28] Kenneth Davis, who retired as a Sergeant of the Thunder Bay Police in October 2011, testified. In April 2011 he was the Supervisor of the Biker enforcement Unit in Thunder Bay. He testified, on consent, as an expert on biker organizations.

[29] Mr. Davis attended at the Prosvita Hall on the arrest of Mr. Treleaven and Mr. Allaire. He testified that Mr. Allaire was wearing a Winnipeg Hells Angel support T-shirt. He testified that a review of police records indicated that in 2001 Mr. Allaire’s vehicle, which had a Hells Angels support sticker on it, was seen at the Hells Angels clubhouse and that the vehicle, with the support sticker, was seen in 2004. There was nothing reported after 2004.

[30] Mr. Davis had observed Mr. Treleaven at the Rockhouse bar wearing a Hamilton Hells Angel support T-shirt. Based on his review of police records, Mr. Davis described Mr. Treleaven as an “associate” of the Hells Angels, that Mr. Vukmanich was a “hanger around” and Mr. Lento was a “friend” or “hanger around”. He testified that the Hamilton chapter of the Hells Angels is in charge of Hells Angels operations in Thunder Bay.

[31] In cross-examination, Mr. Davis agreed that, as an expert, he could not say that Mr. Allaire was closely associated with the Hells Angels, only that he had some form of a relationship, unknown. He had no reason to disbelieve the information that he received from Mr. Allaire that Mr. Allaire lived and worked in Fort McMurray.

Evidence of Mr. Treleaven

[32] Mr. Treleaven had known Mr. Vukmanich for about five years and had been fairly close with him. He knew Mr. Lento and some other Hells Angels members from his time working at a motorcycle shop when they would come in for parts for their bikes. He knew some other Hells Angels from meeting them at bars. He said he had run into some Hells Angels at the Rockhouse bar in December 2009 when they bought him a drink for his birthday. He said St. Dubuc was harassing him that night.

[33] He knew Mr. Allaire from their time working together at a bar as doormen from 1992 to 1994. He also worked at that time with Mark Burger, whom he identified as the short bald doorman at the Prosvita Hall on the night in question. He said he had no idea that Mr. Allaire would be at the Prosvita Hall. He said he had no contact with Mr. Allaire at the Hall other than to say hello and ask how he was doing.

[34] He said he had met Mr. Boswell at the Easy Home store in 2006. Mr. Treleaven had been helping a friend in the back of the store for about two weeks. He came out of the back of the store and saw Mr. Boswell talking to a salesman. Mr. Boswell had given his name to the salesman. Mr. Vukmanich was also at Easy Home at the same time and mentioned Mr. Boswell to him. Mr. Boswell was also a friend of one of the men who worked at Easy Home.

[35] Mr. Treleaven said he had seen Mr. Boswell once or twice after that occasion, in his capacity as a doorman at a bar.

[36] Mr. Treleaven said that after his girlfriend bought a bar - “Jack’s” - in 2009, he stopped associating with Mr. Vukmanich because he knew the Liquor Licence Board of Ontario disapproved of the Hells Angels at bars. He did not want his girlfriend’s liquor licence to be jeopardized. He asked Mr. Vukmanich and Mr. Lento not to come to Jack’s and they complied. He agreed that if they had continued to come, it would have been hard to stop them.

[37] Mr. Vukmanich’s mother worked as a cleaner at Jack’s. Mr. Treleaven said she told him of the charges against Mr. Vukmanich, several months before April 23, 2011. Mr. Treleaven said that by this time he had cut all ties with Mr. Vukmanich. Two or three weeks later, Mr. Vukmanich’s mother got a full-time job elsewhere and left Jack’s.

[38] Mr. Treleaven said that someone at the Rockhouse bar, but not one of the Hells Angels, had told him that “Chris” was testifying against Mr. Vukmanich and Mr. Lento. He said he concluded that “Chris” was Mr. Boswell because, to his knowledge, Mr. Boswell was the only “Chris” that Mr. Vukmanich knew. He said that at the time he did not know whether the charges against Mr. Vukmanich had been completed or whether Mr. Boswell had or was going to testify.

[39] Mr. Treleaven testified that when he came to the Prosvita on April 23, 2011, with Mr. Woods and a woman, Carly, he was very intoxicated. He said he had started drinking around noon. He then went to a tattoo shop at 4:00 pm to have his neck tattooed. The only way he could do it was to drink to dull the pain. He said he consumed 40 oz. of vodka during the three hours it took to complete the tattoos. He said he had another three or four drinks of vodka at home. He went to the Prosvita at about 10:00 pm, where he had another one or two drinks.

[40] He said he went to the washroom at the Hall because he was feeling ill. He saw no one in the washroom. He was in a hurry to throw up. He did not know if anyone was in the stall or if the stall door was locked. He grabbed the top of the stall door at the top, pulled and the door came off its hinges as he tried to get in. He said the door was very flimsy. He said that at Jack’s he had to repair the stall doors on a regular basis and that he, himself, had previously accidentally torn a door off a bathroom stall. He did not first check to see if anyone was in the stall because he was in a hurry to throw up. When he realized there was a person in the stall, he pushed the person out of the way and threw up. He then recognized Mr. Boswell and made the connection that he was the witness against Mr. Vukmanich.

[41] Mr. Treleaven said he was angry because Mr. Boswell “ratted out” a friend. He testified that he believes people who inform on friends are “rats”. He believed that Mr. Boswell was Mr. Vukmanich’s friend. He asked Mr. Boswell why he would rat out Andrew and Tony. He recalled Mr. Boswell saying “What would you do if your family was threatened?” He did not recall telling Mr. Boswell that Mr. Vukmanich was not threatening his family. He testified that he did not know that Mr. Vukmanich was in fact threatening Mr. Boswell’s family. He did not recall all that was said because he was intoxicated. During this encounter, Mr. Boswell said nothing about testifying and neither did Mr. Treleaven. He said he had no knowledge of the status of the charges against Mr. Vukmanich and Mr. Lento. Mr. Treleaven said that he recalled pushing Mr. Boswell once, but not striking him, which, he added, did not mean that it did not happen and that he might have struck him. He said his hands were not sore the next day and that if he had hit Mr. Boswell, Mr. Boswell would have more than a red face. He said that after their argument, Mr. Boswell left first. Mr. Treleaven said he continued to throw up. He then relaxed, got his bearings and came out of the stall. He was not aware anyone else was in the bathroom until he saw Mr. Chabot and an older gentleman. He said to the older gentleman that he would pay for the door. He gave the older man approximately $60.

[42] He said that he and Mr. Allaire did not leave the Hall together. He said he left the Hall with Mr. Woods and Carly because he was sick.

[43] In cross-examination, Mr. Treleaven said it offends his moral code to rat on someone else and that, depending on the person involved, he would not go to the police if he had knowledge of a crime.

[44] He said that even if he knew Mr. Allaire was involved in this incident, he would not tell the court that Mr. Allaire was involved. He added the caveat that he did not know Mr. Allaire was involved.

[45] He denied talking to Mr. Allaire about Mr. Boswell. He denied Ms. Walsh’s allegation that he had said to Mr. Burger, “that’s the guy that put Andrew and Lento behind bars”. He denied that he knew Mr. Boswell was in the stall when he ripped off the stall door.

[46] Mr. Allaire did not testify.

[47] There were no other witnesses for the defence.

Submissions

(a) Mr. Treleaven

[48] Counsel for Mr. Treleaven acknowledged that there is no dispute (a) that Mr. Treleaven assaulted Mr. Boswell, (b) that the assault was violence against a justice system participant within the meaning of s. 423.1(2)(a) and (c) that the duty that Mr. Boswell was going to be performing was testimony against Mr. Vukmanich and Mr. Lento. Counsel submits that the issue is whether the Crown has proved beyond a reasonable doubt that Mr. Treleaven intended to cause fear in Mr. Boswell for the purpose of impeding him in the performance of his duties.

[49] Counsel submits that the evidence is consistent with Mr. Treleaven being angry that Mr. Boswell had “ratted out” Mr. Vukmanich. Counsel submits that while there was some limited evidence of a connection between Mr. Treleaven and Mr. Vukmanich, there was no evidence that Mr. Vukmanich or the Hells Angels asked for this to happen or that Mr. Treleaven was impressing them.

[50] Counsel submits that Mr. Treleaven should be convicted of assault and acquitted of intimidation of a justice system participant.

(b) Mr. Allaire

(i) The Charge of Intimidation of a Justice System Participant.

[51] Counsel for Mr. Allaire submits that the Crown has failed to prove beyond a reasonable doubt that Mr. Allaire knew that Mr. Boswell was a justice system participant. Counsel points to the fact that Mr. Allaire was visiting Thunder Bay from Alberta and that he had no connection before the shag with Mr. Treleaven, apart from working with him from 1992 to 1994. Counsel submits that there is no evidence that Mr. Allaire had any knowledge of what the dispute between Mr. Treleaven and Mr. Boswell was about. Counsel notes that after the incident, Mr. Treleaven left the Hall while Mr. Allaire remained, which, counsel submits, would not be the behaviour to be reasonably expected from an individual involved in a criminal offence.

[52] Counsel submits that the court cannot conclude from the evidence of Ms. Walsh, who saw Mr. Allaire and Mr. Treleaven briefly talking in the Hall with a group of people, that Mr. Allaire knew that Mr. Treleaven was going to assault Mr. Boswell with intent to provoke a state of fear in him in order to impede him from testifying.

(ii) The Charge of Assault

[53] Counsel for Mr. Allaire submits that there is no evidence of common intent. If Mr. Allaire is to be found guilty as a party, then the evidence must be that it was foreseeable that an assault was going to take place. Counsel submits that all the Crown’s witnesses said that one could not see into the stall, that there was only the sound of two men arguing and that no one was asking for help. Counsel submits that there is no evidence as to when Mr. Allaire came into the washroom with Mr. Treleaven or that he was there to see Mr. Treleaven pull off the stall door.

[54] Counsel submits that the evidence that Mr. Allaire told Mr. Pawluk to “piss and get out”, although it could be taken as preventing Mr. Pawluk from entering the stall, could be seen as preventing Mr. Pawluk from intervening in an argument where no threats were made. Counsel submits that everyone was listing to an argument between two people who knew Mr. Vukmanich, and that there is no evidence that anyone, including Mr. Allaire, was witnessing an assault. When Ms. Walsh called for Mr. Boswell to come out, he did, the argument ended and Mr. Boswell walked out.

(c) The Crown

(i) Mr. Treleaven

[55] The Crown submits that Mr. Treleaven’s version of events is “preposterous”. The Crown submits that Mr. Treleaven tore the door off the stall to terrify Mr. Boswell. The Crown points out that no one described Mr. Treleaven as particularly intoxicated, and no witness said they heard him vomit or smelled vomit.

[56] The Crown submits that the evidence is clear that Mr. Treleaven was aware that Mr. Vukmanich had been charged and that Mr. Boswell was a witness against him.

[57] The Crown submits that Mr. Treleaven’s evidence, that he knew Mr. Boswell from Easy Home, that he recognized Mr. Boswell only after he vomited and that he knew that Mr. Boswell was the only “Chris” whom Mr. Vukmanich knew, is not credible.

[58] The Crown submits that Mr. Treleaven knew who Mr. Boswell was and followed him into the washroom. The Crown points to the evidence of Ms. Walsh that on their way into the Hall, Mr. Treleaven said “that’s the guy who put Andrew and Lento behind bars”.

[59] The Crown submits that Mr. Treleaven had learned from Mr. Vukmanich that Mr. Boswell was a witness. The Crown also submits that when Mr. Treleaven said to Mr. Boswell that Mr. Vukmanich didn’t threaten his family, he must have obtained this information from Mr. Vukmanich.

[60] The Crown submits that the court should draw the inference that there was an intent on the part of Mr. Treleaven to provoke a sense of fear in Mr. Boswell to prevent him from testifying, in order to curry favour with the Hells Angels. The Crown points to Mr. Treleaven’s evidence that he asked Mr. Vukmanich and Mr. Lento not to show up at his girlfriend’s bar and they complied. This, the Crown submits, was a benefit they provided to Mr. Treleaven, leading Mr. Treleaven to respond by intimidating Mr. Boswell.

[61] In any event, the Crown submits, if the attack was because Mr. Boswell’s evidence against Mr. Vukmanich offended Mr. Treleaven’s code of conduct, the intent was still to discourage informers.

(ii) Mr. Allaire

[62] The Crown’s theory is that Mr. Allaire is a party to the offence under s. 21 of the Criminal Code.

[63] The Crown submits that Mr. Allaire was present in the washroom to dissuade people from getting involved in the stall or to control access to the washroom.

[64] The Crown submits that because Mr. Allaire and Mr. Treleaven had worked together as bouncers, they were bound together by an espirt de corps.

[65] The Crown submits that if Mr. Allaire was present other than by coincidence, the court should infer that there would have had to have been some communication as to why Mr. Treleaven was going to assault Mr. Boswell.

Discussion

[66] Section 2 of the Criminal Code defines a “justice system participant” as:

“(b) a person who plays a role in the administration of criminal justice, including …

(v) an informant, a prospective witness, a witness under subpoena and a witness who has testified.,”

[67] Section 423.1 provides that no person shall use violence against a justice system participant with the intent to provoke a state of fear in a justice system participant in order to impede him in the performance of his duties.

[68] Mr. Boswell comes within the definition of a “justice system participant” by reason of his status as an informant and as a prospective witness against Mr. Vukmanich and Mr. Lento.

Mr. Treleaven

[69] I am satisfied beyond a reasonable doubt, from Mr. Treleaven’s own testimony, that he knew Mr. Boswell was a justice system participant. I am also satisfied beyond a reasonable doubt that Mr. Treleaven used violence against Mr. Boswell by striking him in the face as Mr. Boswell testified and as was confirmed by Mr. Pawluk’s and Ms. Walsh’s description of Mr. Boswell’s face after the incident. Although Mr. Treleaven testified to pushing Mr. Boswell, in cross-examination he did not deny that he may have struck Mr. Boswell.

[70] The only issue as concerns this charge against Mr. Treleaven is, as correctly framed by his counsel, - has the Crown proved beyond a reasonable doubt that the violence used was intended to provoke a state of fear in Mr. Boswell, as a justice system participant, in order to impede him in the performance of his duties?

[71] In determining this issue, credibility findings have to be made. The rule of reasonable doubt applies to that issue. The required instruction from R. v. W.(D) 1991 CanLII 93 (SCC), 1991 63 C.C.C. (3d) 397 (S.C.C.) is well known:

“The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Secondly, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole: see R. v. Challice (1979), 1979 CanLII 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.); approved by R. v. Morin, supra, at p. 207.

Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”

[72] As regards the first step in the W.(D.) formula, I must not consider the accused’s version of events in isolation, as if the Crown has led no evidence. The evidence that favours the accused must be assessed in the context of all the evidence.

[73] The second step should be approached as set out by Binnie J., speaking for a unanimous Court, in R. v. S.(J.H.) (2008) 2008 SCC 30, 231 C.C.C. (3d) 302 (S.C.C.) at pp. 307 – 308:

“The precise formulation of the W. (D.) questions has been criticized …

As to the second question, some jurors may wonder how, if they believe none of the evidence of the accused, such rejected evidence may nevertheless of itself raise a reasonable doubt. Of course, some elements of the evidence of an accused may raise a reasonable doubt, even though the bulk of it is rejected. Equally, the jury may simply conclude that they do not know whether to believe the accused’s testimony or not. In either circumstances the accused is entitled to an acquittal.

… In light of these possible sources of difficulty, Wood J.A. in H. (C.W.) suggested in additional instructions:

I would add one more instruction in such cases, which logically ought to be second in the order, namely: “If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit”. [p.155]

In short, the W.(D.) questions should not have attributed to them a level of sanctity or immutable perfection that their author never claimed for them. [Italics of Binnie J., under-lining added]”

[74] The third step of W. (D.) is based on total rejection of the evidence for the defence.

[75] In assessing Mr. Treleaven’s evidence, I do not accept his version as to how he came to encounter Mr. Boswell in the washroom stall. I am satisfied that Mr. Treleaven recognized Mr. Boswell when Mr. Boswell, Mr. Pawluk and Ms. Walsh were lined up to get into the shag. I accept Ms. Walsh’s evidence that she saw and heard Mr. Treleaven identify Mr. Boswell. Both Mr. Boswell and Mr. Pawluk heard her express her concern, although they thought she was being dramatic.

[76] I do not accept Mr. Treleaven’s evidence that the reason he went into the washroom after Mr. Boswell entered was because he was about to be sick. If Mr. Treleaven is to be believed, he was so concerned about being sick that he ripped the stall door off, pushed Mr. Boswell aside and began to throw up in the stall, “heaving” as he described it. He said he vomited more than once. No one else in the bathroom, including Mr. Boswell, who was right beside him, or Mr. Pawluk who came in while Mr. Boswell and Mr. Treleaven were talking, or Mr. Chabot, or Ms. Walsh described seeing, hearing or smelling anything which would indicate that Mr. Treleaven has been vomiting. Mr. Boswell’s account of the encounter with Mr. Treleaven was not seriously challenged in cross-examination. Mr. Boswell expressly denied the suggestion put to him that Mr. Treleaven was vomiting in the stall. I accept Mr. Boswell’s evidence in its entirety. It was logical, consistent with other witnesses and, if anything, understated.

[77] If Mr. Treleaven had been as highly intoxicated as he described, it would seem unlikely, in the midst of his heaving sickness that he would recognize Mr. Boswell from his several short meetings in previous years, that he would associate Mr. Boswell with the only “Chris” whom he thought Mr. Vukmanich knew, as the Chris who had ratted Mr. Vukmanich out, and that he would then engage Mr. Boswell in a conversation about whether Mr. Vukmanich had threatened Mr. Boswell’s family. Mr. Treleaven also appeared to be quite able to assess and discuss with Mr. Galbraith, the cost of the damage to the stall door as he emerged from the stall. He made an appropriate payment on the spot. No witness testified that they observed that Mr. Treleaven was intoxicated, let alone highly intoxicated. Mr. Chabot testified that when he was in the washroom he noticed nothing unusual about Mr. Treleaven’s condition

[78] I also assess Mr. Treleaven’s credibility in the context of his admission in cross-examination that he would deny under oath that Mr. Allaire had been involved, even if Mr. Allaire had in fact been involved. In short, Mr. Treleaven acknowledged that he would be willing to lie to the court.

[79] I therefore dismiss the bulk of Mr. Treleaven’s evidence.

[80] That, of course, is not the end of the inquiry. Mr. Treleaven enters these proceedings presumed to be innocent. Regardless of my dismissal of his version of events, the presumption of innocence remains throughout the case until such time as the Crown has, on the evidence, proved beyond a reasonable doubt that Mr. Treleaven is guilty of all the essential elements of the offence. The burden of proving beyond a reasonable doubt the essential elements rests with the prosecution throughout the trial and never shifts to the accused. The court may believe all, none or some of a witness’ evidence. A trier of fact is entitled to accept part of a witness’ evidence and reject other parts and to accord different weight to different parts of the evidence that the trier of fact has accepted. Verdicts of guilty must not be based on choosing between defence evidence and the Crown’s evidence. The question is whether on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused. Hence, the steps of analysis suggested in W.(D.).

[81] Counsel for Mr. Treleaven refers to R. v. Cluney 2008 SKQB 240, affm’d on other grounds at 2009 SKCA 141, where Mills J., at para. 41 set out a three part test for a conviction under s. 423.1, each of which requires proof beyond a reasonable doubt:

“The Crown has to establish, firstly, that the accused engaged in conduct referred to in s. 423.1(a); secondly, that the accused did so with the intent to provoke a state of fear in the justice system participant; thirdly, that the purpose of provoking a state of fear was to impede the justice system participant in the performance of his duties.”

[82] In Cluney, Mills J. found that the Crown had not established beyond a reasonable doubt that the accused’s purpose in participating in the murder of an informat, who had provided information to the Crown and testified against the Hells Angels, was to impede the deceased in the performance of his duties. Mills J. held:

“I acknowledge that it is possible that the accused had in his mind that violence towards Simard (the deceased) would stop or change the testimony he was to give at the Halifax trial; however, the onus on the Crown to prove that beyond a reasonable doubt has not been satisfied. The Crown laid the groundwork to show in the circumstances of Simard’s death that the accused’s motive in participating in that death could have been for the purpose of contravening s. 423.1 of the Criminal Code, but as we know, that is not enough. Proof beyond a reasonable doubt has not been established.”

[83] To similar effect on the issue of the requisite intent is the decision of R. v. Noble 2009 MBQB 98, affm’d on other grounds at 2010 MBCA 60. At para. 48, C. Suche J. stated, with respect to intent:

“The mental element of this offence requires the Crown to prove beyond a reasonable doubt that the accused intended not just to cause fear in the complainant, but to do so for the purpose of impeding him in the performance of his duties.”

[84] C. Suche J. held that the Crown had proved the first component, namely causing fear to the complainant. However, she concluded otherwise on the second component. She stated:

“The evidence shows that the accused was aware that the complainant was so traumatized by the prior threat and the attempted home invasion that she was unable to work for some period of time. I can easily conclude that he was reckless as to whether the comment in issue would have this same result. However, there is no evidence that he said it for this purpose.”

[85] She held that the Crown had therefore not proved the essential elements of the charge of intimidation of a justice system participant.

[86] In the recent decision of R. v. Armstrong 2012 BCCA 248, the Crown on appeal contended that the third criterion listed in Cluney was in error. The Crown contended that it was required to prove only that the accused foresaw that, by threatening the justice system participant, a form of intimidation was likely to result that was sufficient to impede the person in the general performance of his duties, not that it had to prove this beyond a reasonable doubt.

[87] The British Columbia Court of Appeal did not accept the Crown’s submissions. It considered the words “in order to impede him” in s. 423.1 to be equivalent to the phrase “with intent to”. However, the Court emphasized that in determining the necessary intent that it was appropriate to apply the general rule from R. v. Chartrand, 1994 CanLII 53 (SCC), [1994] 2 S.C.R. 864, that a person who foresees that a consequence is certain or substantially certain to result from something that he did intends that consequence.

[88] Cluney, Noble and Armstrong are consistent. They stand for the proposition that to secure a conviction against Mr. Treleaven under s. 423.1, the Crown must prove beyond a reasonable doubt that:

(a) Mr. Treleaven used violence against Mr. Boswell (which I have found to be the case);

(b) that he used such violence with the intent to provoke a state of fear in Mr. Boswell, and;

(c) that he provoked a state of fear in order to, that is, with the intent to impede Mr. Boswell in the performance of his duties.

[89] The Crown submits that I should infer from Mr. Treleaven’s conduct and words that he intended to provoke a sense of fear in Mr. Boswell in order to dissuade him from testifying because Mr. Treleaven wanted to curry favour with the Hells Angels or, in the alternative, that his intent was to discourage informers.

[90] The evidence of Mr. Treleaven’s intent with respect to this element of the office is circumstantial.

[91] There is a distinction between conjecture or speculation, on the one hand, and an inference which has been properly drawn. Conjecture is a presumption based on the possibility or probability of a particular thing occurring without proof that it did occur. An inference is a conclusion reasonably drawn from facts established in evidence.

[92] In R. v. Griffin 2009 SCC 28, the Supreme Court of Canada held:

“33. We have long departed from any legal requirement for a “special instruction” on circumstantial evidence, even where the issue is one of identification: R. v. Cooper, 1977 CanLII 11 (SCC), [1978] 1 S.C.R. 860. The essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty.”

[93] I am satisfied that Mr. Treleaven intended to provoke a state of fear in Mr. Boswell when he, as a much larger man, suddenly ripped the door of the stall off its hinges and without warning began to strike Mr. Boswell in the face while accusing him of ratting out Mr. Vukmanich. His words and conduct support the inference that he foresaw the certainty, or at least the substantial certainty, of the consequences of provoking fear. That is a reasonable inference from the evidence.

[94] However, I am not satisfied that the Crown has proved, beyond a reasonable doubt that Mr. Treleaven provoked a state of fear in Mr. Boswell in order to, or with the intent to, impede Mr. Boswell in the performance of his duties as a justice system participant.

[95] Although I do not accept Mr. Treleaven’s evidence as to how he came to encounter Mr. Boswell in the washroom stall, I do not reject his evidence that it offends his personal code of conduct to inform on a friend.

[96] A rational inference can be drawn from the evidence that Mr. Treleaven attacked Mr. Boswell, not with the intent of dissuading him from testifying or to cause him to tailor his evidence, but rather because Mr. Treleaven was angry that Mr. Boswell had informed on their mutual friend. In my view, it would be speculation to conclude that Mr. Treleaven assaulted Mr. Boswell to curry favour with the Hells Angels. I acknowledge that the Crown’s alternative theory, that Mr. Treleaven intended to dissuade informers, is also a rational inference that can be drawn from the evidence. However, I cannot say beyond a reasonable doubt that it is the only rational inference that can be drawn.

[97] Mr. Boswell’s testified that Mr. Treleaven did not make a threat against him or his family or tell him that he better not testify as that he should recant his story to the police. Mr. Boswell’s evidence was that Mr. Treleaven angrily yelled at him about ratting on Andrew and asking how he could have done it to get Andrew in trouble.

[98] To paraphrase Mills J. in Cluney and C. Suche J. in Noble, it is possible that Mr. Treleaven had in his mind that violence against Mr. Boswell would stop or change his testimony or that he was reckless as to whether his conduct would have that result, but that is not enough. Proof beyond a reasonable doubt has not been established.

[99] Mr. Treleaven is therefore found guilty of the charge of assault and not guilty on the charge of intimidation of a justice system participant.

Mr. Allaire

[100] The Crown submits that Mr. Allaire is guilty of assault and intimidation of a justice system participant because he aided Mr. Treleaven to commit those offences.

[101] To find Mr. Allaire guilty, it is necessary for the Crown to prove beyond a reasonable doubt that Mr. Allaire knew that Mr. Treleaven intended to commit the specific offences and that Mr. Allaire went to or was present in the washroom when the offences were committed, with the intent of helping Mr. Treleaven to carry out the specific offences.

[102] Leaving aside my finding that Mr. Treleaven is not guilty of the intimidation offence, there is no evidence from which a rational inference can be drawn that Mr. Allaire knew that Mr. Boswell was a justice system participant or linking Mr. Allaire with an intent to provoke a state of fear in Mr. Boswell, as a justice system participant, in order to impede Mr. Boswell in the performance of his duties.

[103] Mr. Allaire is a long time resident of Alberta. He came to the shag, not with Mr. Treleaven, but with three members of the wedding party. There is no evidence to indicate that Mr. Allaire knew who Mr. Vukmanich or Mr. Boswell were, or that he knew that Mr. Boswell had given the police information about Mr. Vukmanich. He was seen by Ms. Walsh conversing with Mr. Treleaven at the shag, in a group of people, but there is no evidence that this conversation concerned Mr. Boswell or Mr. Vukmanich. While in line to get into the shag, Ms. Walsh overheard Mr. Treleaven point out Mr. Boswell to the short baldheaded man in a Security T-shirt but nothing links Mr. Allaire to this discussion.

[104] I find Mr. Allaire not guilty of the offence of intimidation of a justice system participant.

[105] With respect to the charge of assault, the significant evidence against Mr. Allaire is that he told Mr. Pawluk in no uncertain terms to get out of the washroom and that he impeded Ms. Walsh as she entered. I accept the Crown’s submissions that the only rational inference to draw from this conduct and from those words is that Mr. Allaire was intending to dissuade people from getting involved in what was happening in the washroom stall. However, what the Crown has proved that Mr. Allaire knew was happening in the stall is another matter.

[106] I am not satisfied that the Crown has proved beyond a reasonable doubt that Mr. Allaire knew that Mr. Treleaven intended to assault Mr. Boswell or that Mr. Allaire intended to help Mr. Treleaven accomplish that assault.

[107] I accept the submissions of counsel for Mr. Allaire that according to all Crown witnesses Mr. Allaire would not have been able to see into the stall from where he was standing. The witnesses for the Crown, who could not see into the stall, did not know themselves what was going on inside the stall, other than hearing a scuffle and an argument. There is no evidence as to when Mr. Allaire entered the washroom other than that Mr. Pawluk testified that Mr. Allaire was there when he entered. There is no evidence that Mr. Allaire came in with Mr. Treleaven or that he saw Mr. Treleaven rip the door off the stall or that he knew Mr. Treleaven intended to assault Mr. Boswell. No witness for the Crown testified that during the argument between Mr. Boswell and Mr. Treleaven that they heard any calls for help or anything to indicate that Mr. Boswell was being struck or that he was being threatened. Mr. Boswell testified that as he came out of the stall, Mr. Allaire was out of the way and never did or said anything. The nature of the injuries suffered by Mr. Boswell – a faint black eye and some puffiness on his face – do not force a conclusion that Mr. Allaire must have heard and known that an assault was taking place.

[108] Although I accept that Mr. Allaire intended to discourage Mr. Pawluk from staying in the washroom and Ms. Walsh from entering the washroom, I cannot say beyond a reasonable doubt that he did so in order that Mr. Treleaven could carry out an assault on Mr. Boswell. As pointed out in Justice Watts Jury Instructions on aiding, it is not enough that what the aider does or fails to do has the effect of helping another person commit the offence. The aider must intend to help the other person commit the offence. Actual assistance is necessary. In my view, there is not sufficient evidence that Mr. Allaire knew that an assault had or was taking place on which to safely found a conviction.

[109] Mr. Allaire is found not guilty of the offence of assault.

The Hon. Mr. Justice D. C. Shaw

Released: December 17, 2012