Court File and Parties
COURT FILE NO.: CR-15-70000089-0000 DATE: 20160517 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – Joel Coveny Defendant
Counsel: Elizabeth Jackson, for the Crown D. Sid Freeman, for the Defence
HEARD at Toronto: April 25, 2016
Low J.
1At the close of the Crown’s case, defence brought a motion for a directed verdict on Count 2 of the indictment.
2On Count 2 of the indictment, Mr. Coveny was charged that he did without lawful authority and with intent to provoke a state of fear in a justice system participant, namely His Honour Justice Bruce Young, in order to impede that person in the performance of his duties, used violence or threatened to use violence against His Honour Justice Bruce Young, a justice system participant, contrary to s. 423.1(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46.
3As there had been significant, but unavoidable delays in bringing the trial to a conclusion, I granted the motion on April 25, 2016 with reasons to follow. These are the reasons.
4The actus reus of this offence is the use of violence or the threat of use of violence.
5There are three mental states engaged in this offence: first, the intention to use violence against Justice Young or, alternatively, the intention to make a threat to use violence against Justice Young; second, the intent in doing so to cause a state of fear in Justice Young; third, the purpose of impeding Justice Young in the performance of his duties.
The actus reus
6Nothing was uttered by Mr. Coveny until the incident was concluded and he was subdued by court officers. At that time he said words to the effect that he was done and that he was sorry. There was thus no verbal threat.
7The actus reus must therefore be found in an act of violence against Justice Young or an action which constitutes a non-verbal threat against Justice Young.
8There is no evidence that Mr. Coveny came into contact with Justice Young. It does not appear from the evidence that he got closer than about 7 feet away from Justice Young. Accordingly, he did not commit an act of physical violence.
9The actus reus must therefore be found in an interpretation of Mr. Coveny’s action as a threat against Justice Young. Mr. Coveny leapt out of the prisoner’s box, stumbled and fell, picked himself up and made his way up to the dais, across the dais, down the other side and to the window adjacent the dais which he broke with his bare hands all the while being pursued and handled by court officers numbering from one in the first instant to at least three at the end.
10There are variations in the evidence as to the minute details of his journey, but the trajectory is not in dispute. By the time Mr. Coveny got to the bottom of the stairs adjacent to the window, Justice Young had placed himself in counsel’s area of the courtroom. Mr. Coveny did not turn right toward Justice Young. He turned left to the window.
11Justice Young testified that Mr. Coveny was headed straight toward him after he leapt out of the box. He testified that he assumed that Mr. Coveny was looking where he was going and therefore at him. He did not testify that Mr. Coveny looked at him specifically.
12It is an agreed fact that it is possible to make an escape through the window that Mr. Coveny broke. The evidence shows that the most direct route to the window is across the dais.
13More than one of the court officers testified that he got the impression that Mr. Coveny was trying to escape.
14Whether the actus reus is made out depends on whether the jury, properly instructed, could conclude beyond a reasonable doubt that the physical action was a non-verbal threat of violence against Justice Young as opposed to an attempt to escape.
15The action itself is ambiguous. That the run was part of an attempt to escape through the window is a logically plausible explanation for the action.
16The evidence was entirely circumstantial. There were two logically plausible inferences that could be drawn from Mr. Coveny’s action, one of which was innocent vis-à-vis the offence alleged at count 2. In that situation, the jury, instructed in a manner consistent with the principle in Hodge’s case, could not convict as the existence of an inference which is not consistent with guilt is sufficient to form reasonable doubt (see R. v. Griffin, 2009 SCC 28 at para 33 - 36; R. v. Arcuri, 2001 SCC 54 at para 27 - 34).
Mens Rea
17Even if the actus reus could be found to be made out beyond reasonable doubt, I am of the view that the jury could not on the evidence find beyond reasonable doubt the requisite mens rea of a purpose to impede Justice Young in the performance of his duties.
18There was no evidence that Mr. Coveny knew or expected that his action was at least substantially certain to impede Justice Young in the performance of his duties other than fleetingly. While it is unnecessary that the action of the accused have the actual effect of impeding the justice participant in the performance of his duties, I note that there was no evidence that Mr. Coveny’s action had the effect of doing so. There was an interruption of the court proceedings lasting just over one minute while the incident took place, but there is no evidence that Justice Young was not able to continue with his duties thereafter. Justice Young himself was able and willing to carry on. That proceedings could not continue in Court 116 that afternoon was attributable to the fact that pepper spray had been used by court officers and that there was a broken window.
19The offence of use of violence or threat of violence against a justice participant for the purpose of impeding the participant’s performance of his or duties is not directed, in my view, at mere creation of a nuisance that may interrupt a proceeding. At the point at which Mr. Coveny made his run, his matter had been concluded. Justice Young had already made the detention order. There remained no duty to be performed in relation to his matter that he could hope to influence one way or the other by his action.
20If Mr. Coveny’s purpose was to express anger, that is a different purpose from that of impeding Justice Young in the performance of his duties. This is a specific intent offence (see R. v. Armstrong, 2012 BCCA 248 at para. 50). The denial of bail could conceivably trigger a state of anger and thus trigger the action. The offence is not made out by mere proof of anger. The offence requires proof of the specific purpose of impeding the justice participant in the performance of his duties, a purpose which may or may not be accompanied by anger and is a state of mind conceivably existing even in the absence of anger.
21Therefore even if the jury were able to conclude beyond reasonable doubt that the intent existed to threaten Justice Young by his physical action and thus to cause fear, there remains an ambiguity of purpose in doing so. The jury could only speculate in the circumstances as to whether the action was an expression of anger or whether it was for the specific purpose of impeding Justice Young in the performance of his duties. Again as the evidence is entirely circumstantial, the jury instructed in a manner consistent with Hodge’s case, could not convict.
22For the foregoing reasons, the motion for directed verdict was granted.
Low J.
Released: May 17, 2016