ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 406/12

DATE: 2013-06-26

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Gerald Laurin

Respondent

Alexander D. Kurke, for the Crown

Michael Haraschuk , for the Respondent

HEARD: June 24, 2013

DECISION ON CERTIORARI APPLICATION

r.d. Gordon j.:

Overview

[1] Following his preliminary hearing, the Applicant was committed to stand trial on one count of assault causing bodily harm contrary to s. 267(b) of the Criminal Code of Canada and one count of unlawfully causing bodily harm contrary to section 269 of the Criminal Code of Canada. Pursuant to section 574(1)(b) of the Criminal Code of Canada, the charge of extortion by violence was added to the indictment.

[2] This Application was brought to quash all three counts in the indictment and to replace them with a single count of simple assault.

Background

[3] The charges arise out of a dispute over a cold laser therapy restorative hair machine (the “machine”). The Applicant operates a business through which he sells such machines. He made an agreement with Gail Tober, who owns a beauty salon, to sell her the machine and to accept payment over time. An agreement was signed by which Ms. Tober was to make monthly payments and in the event of default of two consecutive payments, the agreement would be void and the Applicant would be entitled to return of the machine.

[4] By March 16, 2012, Ms. Tober was in default of two consecutive payments. On that day, the Applicant and his wife attended at the beauty salon to collect the machine. Ms. Tober’s daughter, Megan White, was tending the business that day. Ms. Tober’s husband, Eric was also at the business premises.

[5] The Applicant and his wife retrieved the machine and left the building. Outside, they were confronted by Eric Tober, who tried to prevent them from leaving with it. Mr. Tober and the Applicant both had a hold on the machine and were arguing. Mr. Tober testified that Mr. Laurin threw him to the ground and started kicking him, at which point he let go of the machine. Ms. White saw part of the altercation and gave the following account:

A. …Now at this point, I’m standing on the front porch. I can see both of them standing there. They both have a hold on the hair machine and they’re both – my dad, at that point, was shaking. He was – there was something happening at that point from what I can tell. I’m not a doctor. And that’s when I went, I said I’m gonna call mom. I went in the building and called my mother right away.

Q. Okay. Now, at that point, when you were observing your father you did see
him shaking.

A. Yes.

Q. What colour was his face at that point?

A. His face was a pinkish colour, like a – just like a regular, regular – like a –
you know, if your adrenalin is going and your face gets a little bit pink, you
know, per se.

[6] Ms. Tober attended the premises soon after and testified that she saw the Applicant standing over her husband with a knee in his back, hitting him in the back of the head three times with his right hand. She told the Applicant to get off of her husband and he did so. Mr.Tober had difficulty standing up and was non-responsive to her questions. His face appeared to be hanging on the right side. He was taken to the hospital where he remained for two months. He was unable to talk for two weeks. He still limps and has issues with his right arm. He can barely write his name. While in hospital, his teeth turned black and had to be removed. He continues to have severe headaches and has some heart trouble. Before this incident, Mr. Tober was said to be in good health.

[7] No medical evidence was led at the preliminary hearing other than the evidence of Mr. and Mrs. Tober.

The Position of the Applicant

[8] Although the Applicant concedes there was sufficient evidence of the assault and bodily harm a to warrant committal, he takes the position that the evidence was not sufficient to establish that the bodily harm was caused by the assault and that the preliminary hearing judge failed to consider all of the evidence.

[9] With respect to the charge of extortion, the Applicant contends that because the alleged assault took place after the Applicant had retrieved the machine, it could not have been done with “the intent to obtain something”, which is an essential element of the offence.

The Position of the Crown

[10] The Crown is of the view that the evidence as adduced allows for the common sense inference that the bodily harm was caused by the alleged assault and that committal was proper.

[11] With respect to the extortion charge, the Crown argues that when the assault took place, neither the Applicant nor Mr. Tober had sole possession of the machine and the assault was for committed for the purpose of obtaining control over it.

The Applicable Law

[12] In the case of R. v. Arcuri 2001 SCC 54, [2001] 2 S.C.R. 828, the Supreme Court of Canada provided the following concise summary of the applicable law:

(21) The question to be asked by a preliminary inquiry judge under section 548(1) of the Criminal Code is the same as that asked by a trial judge considering a defence motion for a directed verdict, namely, “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”: Shephard, supra, at p. 1080; see also R. v. Monteleone, 1987 16 (SCC), [1987] 2 S.C.R. 154, at p. 160. Under this test, a preliminary inquiry judge must commit the accused to trial “in any case in which there is admissible evidence which could, if it were believed, result in a conviction”: Shephard, at p. 1080.

(22) The test is the same whether the evidence is direct or circumstantial: see Mezzo v. The Queen, 1986 16 (SCC), [1986] 1 S.C.R. 802, a pp. 842-43; Monteleone, supra, at p. 161. The nature of the judge’s task, however, varies according to the type of evidence the Crown has advanced. Where the Crown’s case is based entirely on direct evidence, the judge’s task is straightforward. By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true: see Watt’s Manual of Criminal Evidence (1998), at par 8.0 (“[d]irect evidence is evidence which, if believed, resolves a matter in issue”); McCormick on Evidence [page 840] (5th ed. 1999), at p. 641; J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at par. 2. 74 (direct evidence is witness testimony as to “the precise fact which is the subject of the issue on trial”). It is for the jury to say whether and how far the evidence is to be believed: see Shephard, supra, at pp. 1086-87. Thus if a judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge’s task is complete. If there is direct evidence as to every element of the offence, the accused must be committed for trial.

(23) The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt’s Manual of Criminal Evidence, supra, at par. 9.01 (circumstantial evidence is “any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue”); McCormick on Evidence, supra, at pp. 641-42 (“[c]ircumstantial evidence…may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion”). The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonable support an inference of guilt.

(29) …However, where the Crown’s evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence (ie. Including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty.

(30) In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge’s task is to determine whether, if the Crown’s evidence is believed, it would be reasonable for a properly instructed jury to infer guilty. Thus, the task of “limited weighing” never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inference to be drawn from the circumstantial evidence.

[13] The same principles would apply to an assessment of whether the charge of extortion, included in the indictment by the Crown following the preliminary hearing, should stand.

[14] In the recent case of R. v. Ashkani, 2013 ONCA 351, the Ontario Court of Appeal held that scientific proof of causation is not required and common sense inferences from the facts may suffice to establish the causal link between an assault and the complainant’s injury.

Analysis

Re Charges of Assault Causing Bodily Harm and Unlawfully Causing Bodily Harm

[15] The Applicant submits that on consideration of the whole of the evidence, it cannot reasonably be inferred that Mr. Tober’s injuries were caused by the alleged assault upon him. In particular, he points to two pieces of evidence which he says were not considered by the judge and which make the inference incapable of being reasonably drawn: First, the evidence of Gail Tober that Mr. Tober did not have any cuts, bruises or abrasions to his head, face or neck following the alleged assault; and second, the evidence of Ms. White that, prior to the assault taking place, she observed her father to be shaking and his face turning pink. That evidence, says the Applicant, infers that Mr. Tober was not injured as a result of the alleged assault, but as a result of some other medical condition. He argues that in light of this evidence a reasonable jury, properly instructed, could not infer that the injuries were the result of the alleged assault, and that to do so would amount to speculation.

[16] I disagree. Mr. Tober was, before this incident, a reasonably healthy man. Immediately following the incident he suffered from injury which the Applicant concedes would amount to bodily harm. The common sense inference that this incident led to these injuries is reasonable. Although I agree that the evidence may also support the inference that the injuries were caused by some other medical condition for which the Applicant is not responsible, it is not the role of the preliminary hearing judge to weigh competing inferences [see R. v. Quinn, ONCA 642].

Re The Charge of Extortion

[17] The essence of extortion is the improper use of force or influence to keep someone from acting of their own free will.

[18] Count 3 of the Indictment alleges that Mr. Laurin did, without reasonable justification or excuse and with intent to obtain control of a hair-growing machine, by violence induced or attempted to induce Mr. Tober to release to him the machine. As drafted, the following are the essential elements of the offence:

(1) That he induced or attempted to induce Mr. Tober to release the machine to him;

(2) That he used violence to do so;

(3) That by such violence he intended to obtain control of the machine; and

(4) He had no reasonable justification or excuse for his conduct.

[19] The Applicant argues that he had obtained possession and control of the machine peaceably and it was not until he was confronted by Mr. Tober that the alleged violence ensued. It follows that the alleged violence was not “to obtain” control of the machine, but to regain or maintain control of it and accordingly, there is no evidence to establish the third essential element of the offence.

[20] I disagree. Although Mr. Laurin may well have had physical possession of the machine at one point in time, the evidence established that Mr. Tober put his hands on the machine and by doing so gained a measure of control over it. At that moment in time, regardless of who was in the right, both had physical possession of part of the machine. Mr. Laurin, is then alleged to have used violence to gain control of that part of the machine possessed by Mr. Tober. There was direct evidence that Mr. Laurin induced Mr. Tober to release the machine to him; there was direct evidence that violence was used; there was evidence from which it would be reasonable to infer that by such violence Mr. Laurin intended to obtain control and possession of the machine; and there was evidence from which it would be reasonable to infer that there was no reasonable excuse or justification for his conduct.

[21] In the circumstances, this count is properly included in the indictment.

Conclusion

[22] The application is dismissed.

The Honourable Mr. Justice Robbie D. Gordon

Released: June 26, 2013

COURT FILE NO.: 406/12

DATE: 2013-06-26

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Gerald Laurin

DECISION ON CERTIORARI APPLICATION

R.D. GORDON J.

Released: ** June 26, 2013**