Date: 20030306
Docket: A-5-02
Ottawa, Ontario, March 6, 2003
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
NADON J.A.
BETWEEN:
JOHN McCOY
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT
The appeal is allowed with costs, the decision of the Trial Division judge dated December 7, 2001 is set aside and, proceeding to deliver the judgment that he should have delivered, the application for judicial review is allowed with costs. The decision of the Disciplinary Board dated February 22, 2001, is set aside.
"Alice Desjardins"
J.A.
Certified true translation
Suzanne Gauthier, C. Tr., LL.L
Date: 20030306
Docket: A-5-02
Neutral Citation: 2003 FCA 118
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
NADON J.A.
BETWEEN:
JOHN McCOY
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Hearing held at Montréal, Quebec, February 6, 2003.
Judgment delivered at Ottawa, Ontario, March 6, 2003.
REASONS FOR JUDGMENT: LÉTOURNEAU J.A.
CONCURRING: DESJARDINS J.A.
NADON J.A.
Date: 20030306
Docket: A-5-02
Neutral Citation: 2003 FCA 118
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
NADON J.A.
BETWEEN:
JOHN McCOY
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1] Did the Trial Division judge (the judge) err when he endorsed the decision of a Disciplinary Board (the Board) by which the Board convicted the appellant of being disrespectful or abusive toward an officer of the Correctional Service of Canada (the officer) in a manner that was likely to provoke him to be violent? It is necessary to answer this question in the affirmative because the conviction was contrary to law. And it was unlawful for the reasons that I will expand on later. But first, a brief reminder of the facts, the applicable legal framework and the context in which the incident alleged against the appellant occurred.
Facts and procedure
[2] The appellant, Mr. McCoy, is an inmate in the Port-Cartier Institution in Quebec. On November 16, 2000, he appeared before a disciplinary court on a charge laid by correctional officer Pelletier. He was convicted and ordered to pay a fine of $15. Once the sentence was pronounced, the appellant turned to the officer and allegedly told him: "[translation] You owe me $15 and I am going to make sure you give it to me." Later, during his testimony in the present proceedings and in his affidavit filed in the Trial Division record, the officer reports the following words: "[translation] You owe me $15 and you must pay me": see the affidavit, paragraph 7, at page 31 of the Appeal Book and the transcript of the testimony, ibid., at page 36. I will retain the latter formulation, therefore, since the conviction is based on it.
[3] After these words were spoken, the officer asked the appellant if they were threats. The appellant confirmed that they were threats. The officer then reported the incident in an offence report. The appellant was consequently charged with a disciplinary offence under paragraph 40(g) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the Act).
[4] I reproduce paragraphs 40(g) and (h) since the argument before the Board and the judge is somewhat confused as a result of the preeminence given to the "threat" factor:
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(g) is disrespectful or abusive toward any person in a manner that is likely to provoke a person to be violent;
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g) agit de manière irrespectueuse ou outrageante envers toute personne au point d'inciter à la violence;
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(h) fights with, assaults or threatens to assault another person;
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h) se livre ou menace de se livrer à des voies de fait ou prend part à un combat;
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[5] At the conclusion of the hearing on this offence, held February 22, 2001, the appellant was convicted of being disrespectful or abusive toward an officer in a manner likely to provoke a person to be violent, in accordance with the language of the charge laid under paragraph 40(g) of the Act.
[6] The appellant appealed this disciplinary decision by way of judicial review to the Trial Division of the Federal Court. The judge hearing the application dismissed it. He upheld the verdict, and hence this appeal.
Decision of the judge hearing the application for judicial review
[7] A reading of the decision discloses that the judge agreed with the disciplinary court's conclusion that the appellant's words constituted a threat. The judge later says he feels "that a reasonable person would have regarded the words said by the plaintiff as a genuine threat, that is, action that was disrespectful or abusive towards a corrections officer and likely to provoke him to be violent." He hastens to add, and rightly so, that inciting to violence does not necessarily imply that violence occurred.
[8] To arrive at this conclusion of the reasonable person, the judge singled out the following circumstances surrounding the pronouncement of these words. He lists them in paragraph 9 of his decision, and I will confine myself to reproducing them in full.
[9] It is also important to consider the context of the words allegedly said by the plaintiff: (1) they were said to a corrections officer as they were leaving a disciplinary court; (2) the plaintiff assured the corrections officer they were indeed threats; (3) they were said in a maximum security penitentiary where there is considerable tension between inmates and representatives of the prison authorities; and (4) no serious or credible explanation was given by the plaintiff to justify his remarks.
Analysis of the decision
[9] With respect, I think the Board's decision, upheld by the judge, is contrary to law because at least one of the ingredients of the offence, the actus reus, has not been proved.
Ingredients of the offence
[10] The actus reus of the offence under paragraph 40(g) of the Act consists in the fact of engaging in an action that is not simply disrespectful but is actually so disrespectful that it is going to provoke the person who is on the receiving end to engage in violence. I leave aside the word "abusive" since this aspect of the offence is not at issue and in any event it is hard to see how the appellant's words could justify this attributive adjective. In other words, the offence requires a marked degree of disrespect, a provocation to violence and a causal relationship between the disrespect and the provocation: the action must be so disrespectful as to be "likely to" provoke a violent reaction, even if, in fact, violence does not occur. The English text, "in a manner that is likely to provoke", likewise confirms this necessity that the conduct be sufficiently disrespectful to provoke a violent reaction.
Evidence in support of the conviction
[11] In the case at bar, the appellant's action took the form of the following words, referred to earlier, but which I repeat for practical purposes:
[translation] You owe me $15 and you must pay me.
In themselves, there is nothing in these words that is discourteous or, to use the dictionary definition of the word "irrespectueux", necessarily "impertinent", "insolent" or "irrévérencieux": Le Nouveau Petit Robert, 1993, page 1359 ["disrespectful": "Want of respect, courteous regard, or reverence" - Oxford English Dictionary, 2nd ed.]. They establish the existence of a debt and the debtor's obligation to pay it. However, the officer did not perceive the words as formulated here as a lack of respect, but rather as a threat in the context in which they were uttered, as the appellant confirmed, but without specifying what kind of threat was involved. Need it be said that, as a general rule, a threat is an indication or a manifestation of danger and it is expressed by words of a nature that differs from those that characterize irreverence.
[12] At the hearing before the Board, the officer stated in the course of his testimony that the appellant had repeated these words to him several times and in a threatening way. The appellant, for his part, told the Board that his intention through his words was to exercise his legal remedies in order to recover this money. It is true that at the time when he uttered the words for which he is criticized, the appellant could dispute internally and potentially in the Federal Court the conviction and sentence issued against him. In any event, as is apparent from the transcript of the proceedings, Appeal Book, page 44, the Board did not believe the appellant's explanation:
[translation]
BY THE CHAIRPERSON:
You have some remedies with the services when you don't have all the rights or you are not granted something. But I would be surprised if you were to apply to a court to request your fifteen dollars ($15) from Mr. Pelletier, if you would get it, and that a judge would give you a hearing.
The Board concluded that there were threats, apparently within the meaning of paragraph 40(h), i.e. assaults, but convicted the appellant under paragraph 40(g) of the Act.
[13] I do not think the Board or the judge necessarily equated a threat with a lack of respect toward the person in question. It all depends, of course, on the words uttered, the nature of the threat, its legitimacy and the context in which it is made. I am prepared to admit that in the circumstances the Board could conclude that the appellant's words, while seemingly innocuous, did constitute a threat of assault within the meaning of paragraph 40(h) and that this threat could perhaps be evidence of disrespectful conduct toward the officer and the authority he represents. But, with respect, I do not think the evidence establishes that this conduct was disrespectful in a manner that was likely to provoke the officer to be violent.
[14] The parties at the hearing in this Court perpetuated this confusion by constant reference to the allegation of threats and to the Supreme Court of Canada precedents in R. v. McGraw, [1991] 3 S.C.R. 72 and R. v. Clemente, [1994] 2 S.C.R. 758. In both these judgments, the Supreme Court held that to prove a threat it was necessary to establish whether the accused had the intent to intimidate, or whether his or her words were meant to be taken seriously. This determination of the accused's intent must, absent an explanation by the accused, be determined objectively from the words used, the context in which they were spoken, and the person to whom they were directed: R. v. Clemente, supra, page 762 (emphasis added). In other words, absent an explanation by the accused, the words should be viewed in an objective way and the meaning attributed to the words should be that which a reasonable person would give to them: R. v. McGraw, supra, page 88. The need for this objective approach is of less importance when an accused chooses to testify and his explanation is not believed. The accused's intent can be assessed from his testimony without necessarily having to resort to the assessment of a reasonable person.
[15] In the case at bar, the charge, I repeat, is not one of threats, but rather of being disrespectful or abusive in a manner that was likely to provoke the officer to whom the words were uttered to be violent. Now, both the officer and the accused testified. The officer at no time declared or stated that he had felt he was the object of disrespect. Furthermore, nowhere in his testimony did he state that he had been or that there was reason to be provoked to violence. The only passage in the transcript that refers to this crucial element in the actus reus of the offence is found at page 38 of the Appeal Book. It results from the cross-examination by the appellant's counsel, in which counsel asked the officer if he wasn't actually the one who, by some words, had provoked the appellant to use violence. The exchange took this form:
[translation]
BY MR. FRANCIS PELLETIER:
The first threat that he made was in the Disciplinary Court. And the (inaudible) part, it was not at mine, it was outside the office of the Disciplinary Court, between the detention gate, detention area, and the office of the Disciplinary Court. There was Mr. Jean-Marie (inaudible) who was there, and Mr. Michel Tremblay who was present.
BY MR. GAUDRAULT:
(Inaudible).
BY MR. FRANCIS PELLETIER:
As I said before, I didn't remember, but I wouldn't think so.
BY MR. GAUDRAULT:
And what you said, did it incite to violence?
BY FRANCIS PELLETIER:
No, not at all, I did not incite to violence. It was he who made threats.
[Emphasis added]
[16] The prosecution had the burden of proving beyond a reasonable doubt the ingredients of the offence:
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43. (3) The person conducting the hearing shall not find the inmate guilty unless satisfied beyond a reasonable doubt, based on the evidence presented at the hearing, that the inmate committed the disciplinary offence in question.
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43. (3) La personne chargée de l'audition ne peut prononcer la culpabilité que si elle est convaincue hors de tout doute raisonnable, sur la foi de la preuve présentée, que le détenu a bien commis l'infraction reprochée.
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In my humble opinion, there is a complete lack of evidence on an essential ingredient of the offence. In the circumstances, it would be inappropriate to infer that a reasonable person would have felt he was the object of disrespect and provoked to violence when the person to whom the remarks were directed testified and did not state or did not wish to state under oath that such was the case. Had the officer stated, with plausible explanations, how and why he had felt provoked to violence by the words that were uttered and had he been believed, there would be no resort to the reasonable person in order to determine this question. Conversely, had he stated, with plausible explanations, how and why he had not felt provoked to violence in the circumstances and had he been believed, there still would be no resort to the reasonable person in order to decide the question. So I do not see why it would be necessary to resort to this concept in order to determine the question in the abstract when the principal party involved did in fact testify without providing any evidence on this essential element and when it was the prosecution's duty to provide such evidence. In short, it would be unfair to fill in the omissions and deficiencies in the evidence by speculating on what would have been the perception of a reasonable person.
[17] I would have this to add. Correctional officer Pelletier is a professional who is trained in coping with a prison environment with inmates who have diversified and complex profiles. Like other professionals operating in such conditions, he is trained to stay calm and cool in the face of jibes, irreverent comments, frustration and even threats. His reaction in this case indicates that he acted as a professional and displayed the conduct that is expected of him. His behaviour is indicative of an individual who did not feel he was provoked to violence and who acted in accordance with the standards by writing a report on a threat offence. As we know, this is ultimately not the offence that the appellant was charged with, and evidence of an essential ingredient of the offence under paragraph 40(g) was not presented.
[18] In view of the conclusion I have reached, it is unnecessary to decide on the merit of certain criticisms made of the judge in relation to the judicial notice he took of certain facts.
[19] For these reasons, I would allow the appeal with costs and set aside the decision of the Trial Division judge dated December 7, 2001, and, proceeding to deliver the judgment that he should have delivered, I would allow the application for judicial review with costs and set aside the decision of the Disciplinary Board dated February 22, 2001.
"Gilles Létourneau"
J.A.
"I concur with these reasons
Alice Desjardins J.A."
"I concur with these reasons
M. Nadon J.A."
Certified true translation
Suzanne Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
APPEAL DIVISION
SOLICITORS OF RECORD
DOCKET: A-5-02
STYLE: JOHN McCOY v. THE ATTORNEY GENERAL OF
CANADA
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: February 6, 2003
REASONS FOR JUDGMENT: LÉTOURNEAU J.A.
CONCURRING: DESJARDINS J.A.
NADON J.A.
DATE OF REASONS: March 6, 2003
APPEARANCES:
Daniel Royer FOR THE APPELLANT
Sébastien Gagné FOR THE RESPONDENT
SOLICITORS OF RECORD:
Daniel Royer FOR THE APPELLANT
LABELLE, BOUDRAULT, COTE ET ASSOCIÉS
434 Ste-Hélène Street
Montréal, Quebec H2Y 2K7
Sébastien Gagné FOR THE RESPONDENT
Quebec Civil Matters Branch
Department of Justice Canada
284 Wellington Street, Room SAT-6037
Ottawa, Ontario K1A 0H8
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