ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 114/13

DATE: 20140902

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Her Majesty The Queen v. Stanton David

BEFORE: K.L. Campbell J.

COUNSEL:
Kim Walker, for the Crown, appellant

Jacqueline An, for the accused, respondent

HEARD: May 13, 2014

ENDORSEMENT

[Summary Conviction Appeal]

A. Introduction

[1] On a summary conviction appeal, can the Crown challenge the acquittal of an accused on the basis that the trial judge erred in concluding that he or she was not satisfied beyond a reasonable doubt that the accused possessed the necessary mental element for the alleged criminal offence? At its essence, that is the issue raised on this appeal. For the reasons that follow, I find that in the absence of a constitutionally permissible statutory shift in the burden of proof, the presumption of innocence and the burden of proof on the Crown always permit a trial judge to have a “reasonable doubt” as to whether or not the accused possessed the necessary mens rea for the alleged offence. Accordingly, in the absence of any other error by the trial judge, acquittals based upon such conclusions cannot properly be challenged by the Crown on appeal.

B. The Factual Background

[2] The respondent, Stanton David, was tried by Mr. Justice J. Moore of the Ontario Court of Justice on a single charge of uttering a death threat, contrary to s. 264.1(1)(a) of the Criminal Code, R.S.C. 1985, chap. C-46.

[3] Essentially, the Crown alleged that, on November 7, 2012, while he was incarcerated at the Toronto Don Jail, the respondent threatened to kill a correctional officer named Jason Groeneveld, who was employed in that facility. The trouble began when the respondent became involved in a heated dispute with another correctional officer about whether he should be transferred from the medical unit to a regular unit within the jail. The respondent wanted to remain in the medical unit as he had undergone hernia surgery just a couple of days earlier. However, the jail doctor had cleared the respondent to return to a regular cell.

[4] This argument led to a physical confrontation between the respondent and a number of correctional officers, including Officer Groeneveld. At one point, Officer Groeneveld and some of the other correctional officers employed force to bring the respondent under control, and to place him in the “regular general population holding cell.” Once this was accomplished, and he was locked inside his new cell, the respondent allegedly readied himself for a fight with the officers. He began yelling and swearing at all of them, and invited them inside the cell to fight with him. During this angry tirade, the respondent allegedly expressed his “intent on killing an officer.”

[5] According to Officer Groeneveld, at one point, the respondent addressed him directly saying: “I see your face, you’re dead. I’ll be on the street. I’ll come right to the jail’s front door.” Officer Groeneveld testified that, while he has been the recipient of many threats from inmates in his nine years as a correctional officer, he took this particular threat seriously, as he thought that the respondent was dangerous and “intent [on] carrying out his threat.” Ultimately, the police were summoned and the respondent was charged.

[6] The respondent testified in his own defence. He explained that when he was physically restrained by the correctional officers and placed in the regular cell, he noticed that his surgical incision was bleeding. This caused him to become more frustrated and angry about the decision to move him from the medical unit, and he began screaming and cursing at the correctional officers. The respondent admitted that, while he was in this highly emotional state, he uttered the threat to Officer Groeneveld. The respondent testified, however, that he had “no intention” of acting on the threat, and he “never thought” the officer would “take it seriously.” He uttered the threat only because he was very angry and frustrated. He testified that he thought the officer would think he was “joking.” As the respondent explained, being injured and locked within the confines of the jail cell, he certainly could not immediately cause the officer any harm.

[7] At the conclusion of the evidence, defence counsel conceded that the Crown had established the actus reus of the offence (i.e. the uttering of the threat), but argued that the Crown had failed to establish the necessary mens rea of the offence. More specifically, defence counsel argued that the respondent’s utterance was just an “empty” or “idle threat” made out of anger and frustration, and that the respondent had not intended to intimidate Officer Groeneveld, nor had he meant for the threat to be taken seriously by the officer. The respondent had just been “venting” and had not uttered a “meaningful threat” to the officer. Defence counsel argued that the trial judge should at least have a “reasonable doubt” on that issue.

[8] The Crown argued, on the other hand, that the trial judge should be satisfied beyond a reasonable doubt that the respondent intended that his admitted threat to the correctional officer be taken seriously. The Crown noted that the offence did not also require proof of the respondent’s intention to follow through on the threat. The Crown argued that the respondent was not “joking” in uttering the threat to Officer Groeneveld, but rather, was trying to intimidate and scare the officer, and he “fully intended that [the threat] be taken seriously.”

[9] In his reasons for judgment acquitting the respondent, the trial judge noted that there was really no dispute between the parties that the alleged threat was, in fact, uttered by the respondent. As the trial judge indicated, the “real issue” in the case was “whether or not the Crown [had] proven beyond a reasonable doubt the mens rea of the offence” of threatening. In outlining the mental element of the offence, the trial judge quoted extensively from the Supreme Court of Canada decision in R. v. Clemente, 1994 49 (SCC), [1994] 2 S.C.R. 758. Further, the trial judge accurately reviewed all of the relevant evidence and the submissions of counsel. In the result, the trial judge concluded that the conduct of the respondent amounted to no more than mere “venting” on his part, and that the Crown, in all of the circumstances, had not proven beyond a reasonable doubt: (1) that the respondent intended his threatening words to be taken seriously; and (2) that, viewed objectively, the threat by the respondent could be taken seriously. In reaching this conclusion, the trial judge noted that the respondent was “in no position to do anything that day.”

[10] The Crown appeals against this dismissal of the information pursuant to s. 813(b)(i) of the Criminal Code. The Crown contends, essentially, that the acquittal of the respondent is an “unreasonable verdict” and that, in reaching this verdict, the trial judge misapprehended aspects of the evidence.

C. Analysis

1. The Offence of Threatening – The Required Mental Element

[11] The law is clear that in order to establish the necessary mental element of the offence of threatening, the Crown must prove beyond a reasonable doubt that the accused intended the uttered words, alleged to constitute the threat, to either intimidate the apparent target of the threat, or to be taken seriously by the apparent target. It is not necessary for the Crown to also prove that the accused intended to carry out the threat. Needless to say, this is a subjective standard. Moreover, in trying to ascertain the subjective intention of the accused, the trier of fact may draw reasonable inferences from the words and/or actions of the accused. See R. v. McCraw, 1991 29 (SCC), [1991] 3 S.C.R. 72, at pp. 82-83; R. v. Clemente, at pp. 761-762; R. v. O’Brien, 2013 SCC 2, [2013] 1 S.C.R. 7, at paras. 10-13; R. v. McRae, 2013 SCC 68, [2013] 3 S.C.R. 931, at paras. 17-19, 23.

[12] In the present case, the reasons for judgment demonstrate that the trial judge correctly understood this important element of the offence of threatening. The Crown does not contend otherwise. The Crown argues only that the trial judge should have concluded that this essential element of the offence had been established by the Crown with the requisite degree of certainty.

2. The Crown’s Statutory Right of Appeal

[13] According to s. 676(1)(a) of the Criminal Code, the Crown may appeal against a “judgment or verdict of acquittal” in indictable matters on “any ground of appeal that involves a question of law alone.” For many years, the law has been settled that, in indictable cases, this restrictive language prevents the Crown from launching appeals against acquittals on the basis of alleged factual errors, or from challenging the reasonableness of any verdict. See R. v. Sunbeam Corp., 1968 33 (SCC), [1969] S.C.R. 221, at pp. 230-238; R. v. Lampard, 1969 695 (SCC), [1969] S.C.R. 373, at pp. 379-381; R. v. Whynot (1983), 1983 3495 (NS CA), 9 C.C.C. (3d) 449 (N.S.C.A.), at pp. 450-451; R. v. Schuldt, 1985 20 (SCC), [1985] 2 S.C.R. 592, at pp. 610-611; R. v. Roman, 1989 113 (SCC), [1989] 1 S.C.R. 230, at pp. 231-232; R. v. B. (G.), 1990 115 (SCC), [1990] 2 S.C.R. 57, at pp. 69-71; R. v. Blundon (1993), 1993 7785 (NL CA), 84 C.C.C. (3d) 249 (Nfld.C.A.), at pp. 276-280; R. v. Tortone, 1993 57 (SCC), [1993] 2 S.C.R. 973, at pp. 985-987; R. v. Kent, 1994 62 (SCC), [1994] 3 S.C.R. 133, at p. 141-143.

[14] In summary conviction matters, however, the Crown’s right of appeal is framed more broadly. According to s. 813(b)(i) of the Criminal Code, in summary conviction matters, the Crown may appeal against any order that “dismisses an information.” This unqualified statutory language does not limit the grounds upon which such appeals may be taken. Therefore, under Part XXVII of the Code, the Crown is not restricted to appeals based upon questions of law alone, but may also appeal against acquittals based upon questions of mixed fact and law, or even questions of pure fact alone. See R. v. Century 21 Ramos Realty Inc. and Ramos (1987), 1987 171 (ON CA), 58 O.R. (2d) 737 (C.A.), at pp. 768-769; R. v. Multitech Warehouse (Manitoba) Direct Inc. (1995), 1995 6261 (MB CA), 102 Man.R. (2d) 141 (C.A.), at p. 149; R. v. Ash (1990), 1990 6500 (NL CA), 81 Nfld. & P.E.I.R. 1, [1990] N.J. No. 55 (Nfld.C.A.), at para. 51; R. v. Medicine Hat Greenhouses Ltd. and German (1981), 1981 ABCA 114, 26 A.R. 617 (C.A.), at para. 30; R. v. Labadie, 2011 ONCA 227, 105 O.R. (3d) 98, at paras. 49-51.

[15] Nevertheless, as Trotter J. noted in R. v. Carrano, 2011 ONSC 7718, [2011] O.J. No. 6031, at para. 4, this broad statutory right of appeal does not mean that summary conviction appeal courts are “permitted to simply substitute findings of fact or credibility findings for those made by a trial judge” and, essentially, retry the case. Rather, in order to properly reflect the “appropriate deference” that is required in reviewing the verdicts of trial courts, findings of fact may only be set aside if the reasons of the trial judge reveal the presence of “palpable and overriding error.” See also Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-37; R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at para. 9; R. v. Tiffin, 2008 ONCA 306, 232 C.C.C. (3d) 303, at paras. 22, 36, 41-43; R. v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) 270, at paras. 71-72; R. v. Wetzel, 2013 SKCA 143, 306 C.C.C. (3d) 306, at paras. 81-82, 86; R. v. Beharry, 2014 ONSC 848, [2014] O.J. No. 603, at paras. 15-19.

3. Acquittals Based on the Presumption of Innocence and the Crown’s Failure to Satisfy its Burden of Proof to Establish Guilt Beyond a Reasonable Doubt

[16] In the absence of some constitutionally permissible statutory exception, in all criminal cases the accused is presumed to be innocent and the burden of proof is cast upon the Crown to establish the alleged guilt of the accused beyond a reasonable doubt. This fundamental “golden thread” of the criminal law is constitutionally protected by s. 11(d) of the Canadian Charter of Rights and Freedoms. See Woolmington v. D.P.P., [1935] A.C. 462 (H.L.), at p. 481; R. v. Dubois, 1985 10 (SCC), [1985] 2 S.C.R. 350, at p. 357; R. v. Pearson, 1992 52 (SCC), [1992] 3 S.C.R. 665, at pp. 682-683, 687.

[17] Moreover, it is important to appreciate that an accused’s acquittal based upon the operation of the presumption of innocence and the Crown’s failure to satisfy this heavy burden of proof is not a finding of fact. Rather, it is a conclusion, based upon an assessment of the evidence, or the lack of evidence, in the particular case. It is reached when the Crown has not overcome the presumption of innocence and has failed to meet the applicable persuasive burden of proof beyond a reasonable doubt. Such conclusions are simply not generally amenable to appellate review at the behest of the Crown. This is so because such appeals would effectively require the appellate court to retry the case on the fundamental issue before the trial court.

[18] The Supreme Court of Canada has confirmed this point on a number of occasions. See R. v. Schuldt, at pp. 610-611; R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at para. 39; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 33; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 22. Most recently, in R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, Cromwell J., delivering the judgment of the unanimous court, at paras. 25-27, stated:

An acquittal (absent some fact or element on which the accused bears the burden of proof) is not a finding of fact but instead a conclusion that the standard of persuasion beyond a reasonable doubt has not been met. Moreover, as pointed out in R. v. Lifchus, … a reasonable doubt is logically derived from the evidence or absence of evidence. Juries are properly so instructed and told that they may accept some, all or none of a witness’s evidence …

The principle that it is an error of law to make a finding of fact for which there is no supporting evidence does not, in general, apply to a decision to acquit based on a reasonable doubt. As Binnie J. put it in R. v. Walker, …

A major difference between the position of the Crown and the accused in a criminal trial, of course, is that the accused benefits from the presumption of innocence. . . . [W]hereas a conviction requires the prosecution to establish each of the factual elements of the offence beyond a reasonable doubt, no such requirement applies to an acquittal which, unlike a conviction, can rest simply on the absence of proof.

The point was expressed very clearly in R. v. Biniaris, … “as a matter of law, the concept of ‘unreasonable acquittal’ is incompatible with the presumption of innocence and the burden which rests on the prosecution to prove its case beyond a reasonable doubt.”

[emphasis added – citations omitted]

4. The Application of These Principles in the Present Case

[19] Accordingly, it was for the trial judge in this case to determine, based upon all of the evidence, whether the Crown had established beyond a reasonable doubt that the respondent had the necessary mens rea of the alleged offence of threatening. The trial judge did engage in this analysis. After correctly articulating the nature of the mental element of the offence, and carefully and accurately reviewing the relevant evidence and the arguments of counsel, the trial judge effectively concluded that the Crown had not overcome the presumption of innocence in this regard and had not met its heavy burden of persuasion. The trial judge concluded that he was simply not satisfied beyond a reasonable doubt that the respondent intended his threatening words to be taken seriously. In short, the trial judge had a “reasonable doubt” on that key issue. Accordingly, the respondent was acquitted. It is not for an appellate court to subsequently revisit that issue at the behest of the Crown, and to potentially substitute its own view for that of the trial court.

[20] The Crown also argued that the trial judge had misapprehended some aspects of the evidence in this case. I disagree. I see no basis to interfere with the acquittal of the respondent based upon any alleged misapprehension of evidence on the part of the trial judge. See R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at pp. 538-541; R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466, at paras. 79-81; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.

D. Conclusion

[21] In the result, the appeal against acquittal is dismissed. An order shall issue accordingly.

Kenneth L. Campbell J.

Released: September 2, 2014