Criminal law ‑‑ Appeal ‑‑
Accused acquitted of conspiring and of obstructing justice ‑‑
Crown’s appeal limited to questions of law ‑‑ No mistake of law ‑‑
Logical conclusion by the trial judge ‑‑ Criminal Code, s.
605(1) (a).
Criminal law ‑‑ Extortion ‑‑
Money requested without violence or menaces does not amount to extortion.
Appellant Rousseau was charged (1) with conspiring
with a police officer to attempt to obstruct justice, (2) with attempted
obstruction of justice, and (3) with extortion. The accused, a lawyer,
represented three persons suspected of stealing and of receiving stolen goods;
two of these persons worked for the security company responsible for protecting
the businesses where the thefts occurred. The attempted obstruction of justice
and the conspiracy arose from the fact that the accused allegedly agreed with
the police officer responsible for the investigation that fewer charges be laid
in return for money obtained from his clients. The accused allegedly committed
the extortion through a request for $10,000, made to the lawyer of the security
company, to avoid bad publicity for the company. The accused undertook to have
the charges against the company's employees quietly dropped. The judge of the
Court of Sessions of the Peace acquitted the accused on the three charges. He
considered that the accused's guilt was not established beyond all reasonable
doubt. The Court of Appeal allowed the Crown's appeal on the first count only
and found the accused guilty of conspiracy. Rousseau appealed the judgment of
the Court of Appeal on the first count, and the Crown on the second and third
counts.
Held: The appeal by
Rousseau should be allowed. The appeal by the Crown should be dismissed.
The Court of Appeal erred in quashing the acquittal
and in finding the accused guilty of conspiracy. The Crown's appeal, which was
governed by s. 605(1) (a) of the Criminal Code, was limited to
grounds "that involved a question of law alone". The doubt
entertained by the trial judge concerning the existence of a conspiracy had to
be purely a matter of conjecture and have no basis whatever in the evidence for
it to amount to an error of law. In the case at bar, the actions and statements
of both the accused and the police officer supported the notion that such a
conspiracy existed, but this was not the only logical possibility and one
cannot say, as did the Court of Appeal, that "to consider any possibility
other than the existence of a conspiracy between the accused and the police
officer was purely conjectural". The trial judge was not convinced beyond
all reasonable doubt of the existence of such a conspiracy. In view of the
evidence adduced at trial, one cannot say that such a doubt amounts to an error
of law.
The trial judge, moreover, did not err in finding
that the accused's guilt was not established beyond all reasonable doubt on the
count of attempted obstruction of justice. The doubt entertained by the judge
is not purely a matter of conjecture and has basis in the evidence.
Finally, the fact that someone asks another person
for a sum of money for committing an unlawful act which might be helpful to
that other person does not constitute extortion within the meaning of s. 305 of
the Criminal Code . The accused did not attempt to induce the
security company to give him money by threats, accusations, menaces or
violence.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34, ss. 127(2) [as am. by R.S.C. 1970 (2nd
Supp.), c. 2, s. 3; 1972 (Can.), c. 13, s. 8], 305(1), 423(1)(d),
605(1)(a).
APPEALS from a judgment of the Quebec Court of
Appeal1 which dismissed an appeal by the Crown concerning the counts
of attempted obstruction of justice and extortion, and allowed an appeal
concerning the count of conspiracy. Appeal by Rousseau allowed. Appeal by the
Crown dismissed.
1 Que. C.A., No. 200‑10‑000102‑819,
January 20, 1983.
Raynold Bélanger, Q.C.,
for Rousseau.
Claude Haccoun,
for the Crown.
English version of the judgment of the Court
delivered by
1. Lamer
J.‑‑Appellant Rousseau was acquitted by a judge of the Court
of Sessions of the Peace on a charge consisting of three counts, namely,
conspiring with a police officer in an attempt to obstruct justice, attempted
obstruction of justice and extortion. The Crown appealed the judgment and the
Quebec Court of Appeal dismissed the appeal on the counts of attempted
obstruction of justice and extortion; however, it allowed the appeal on the
first count and found Rousseau guilty of conspiracy. Rousseau appealed to this Court
on the first count, and the Crown did likewise on the second and third counts.
2. In my view, Rousseau's appeal should
succeed and that of the Crown should be dismissed.
Facts
3. Both the trial judge and the Court of
Appeal related and analysed the facts in great detail in their judgments. I do
not think it is necessary for me to do so in this judgment. I need only say the
following. Rousseau is a lawyer. Three of his clients were involved in theft
and receiving. Two of them worked for the security company which had the
contract to protect the businesses where the thefts occurred.
4. The attempted obstruction of justice and
conspiracy for that purpose arose from the fact that Rousseau allegedly agreed
with the police officer responsible for the investigation of these crimes, a
man named Asselin, to lay charges only for a part of them and to conceal the
identities of the perpetrators from the authorities as to the remainder, in
return for money obtained from his clients, money which Rousseau claimed was to
be shared with the police officer.
5. The extortion was allegedly committed by
a request made by the lawyer Rousseau to the lawyer of the security company for
the sum of $10,000 to avoid publicity which, in connection with events
involving employees, would have been bad for the company. The lawyer Rousseau
allegedly said that he would be able to have the charges quietly dropped. The evidence
of this request for money rested simply on the testimony of the company's
lawyer.
6. The evidence relating to the other two
counts is more complicated. Essentially, it consisted of conversations which
Rousseau had with his clients, related at the trial by two of them, a
discussion between Rousseau and the police officer, and finally statements made
by the police officer to Rousseau's clients.
7. The trial judge disposed of the second
and third counts quite briefly, saying simply that [TRANSLATION] "The
evidence does not support a guilty verdict on counts 2 and 3." However, he
undertook a meticulous and exhaustive analysis of the evidence on the charge of
conspiracy. The following passage summarizes his analysis:
[TRANSLATION]
The evidence did not establish any agreement between Rousseau and Asselin in
the presence of any other person. The content of the conversations which
Rousseau may have had with Michel Hébert, Laurent Cyr, Boucher or Mr. Delisle,
and which Asselin may have had with Cyr and Hébert, is so vague as to the
intent of Rousseau and Asselin that the Court cannot definitely conclude that
there was an agreement between Rousseau and Asselin to attempt to obstruct the
course of justice by ensuring that Hébert and Cyr would only be charged with
the theft of cigarettes.
Count 3: Extortion
8. The Court of Appeal disposed of the
third count by saying
[TRANSLATION] The fact
that someone asks another person for a sum of money for committing an unlawful
act which might be helpful to that other person does not constitute extortion
within the meaning of section 305(1) Cr.C.
and that
[TRANSLATION] . . . however
the approach made by respondent to A.D.T. Security System Inc. is described,
respondent did not attempt to induce this company to give him the sum of
$10,000 by threats, accusations, or violence.
9. I concur with the Court of Appeal and
would dismiss the appeal of the Crown on this count without further comment.
Count 2: Attempt to Obstruct Justice
10. The Court of Appeal dismissed the Crown's
appeal on the following ground:
[TRANSLATION] . . . by
"ensuring in return for the sum of $6,000 that Michel Hébert and Laurent
Cyr would only be charged with the theft of cigarettes", respondent did
not commit the offence specified in section 127(2) Cr.C., since respondent was
not responsible for deciding on the nature of the charges to be laid against
his clients. Respondent also could not be found guilty of the charge of
obstructing justice under sections 21 and 22 Cr.C., as Asselin's accomplice,
since the evidence did not establish that Asselin in fact committed the
indictable offence of obstruction.
11. I concur with the Court of Appeal that, in
order for Rousseau to commit the crime specified in s. 127(2), it was not
sufficient for him to give an undertaking to his clients that they "would
only be charged with the theft of cigarettes". He had to perform some act
which would have amounted "to attempting in any manner" to obtain
this result for them. However, it was not necessary that Asselin in fact
attempted to obstruct justice. It sufficed that the suggestion be made to him
by Rousseau.
12. The trial judge considered that the
accused's guilt was not established beyond a reasonable doubt. I have read the
evidence and I believe that he did not, in so concluding, commit an error of
law. Indeed, this is an appeal by the Crown from an acquittal, covered by s.
605(1) (a) of the Criminal Code , which limits the appeal to
grounds "that involve [...] a question of law alone". For the doubt
entertained by the judge to amount to an error of law it must be the result of
conjecture and have no basis whatever in the evidence. I have read the
evidence, and such is not the case. For reasons which I will expand upon when
considering the first count hereinafter, the trial judge had a reasonable doubt
as to Asselin's participation in the matter. Moreover, this is the only
possible explanation, in view of Rousseau's acquittal on the count of
conspiracy. For this reason, therefore, I would dismiss the appeal of the Crown
on count 2.
Count 1: Conspiracy
13. The Crown worded the indictment as
follows:
[TRANSLATION] Between
October 1, 1979 and January 30, 1980, at Ste‑Foy and at Québec, district
of Québec, did conspire with Mr. Raymond Asselin to commit an indictable
offence not provided for in section 423 (a), (b) and (c) of the Criminal
Code , to wit: wilfully attempting to obstruct the course of justice, thereby
committing an indictable offence specified in section 423 (d) of the Criminal
Code .
14. It should be noted that the accused's
clients are not mentioned as parties to the conspiracy. The Crown therefore had
to establish that Rousseau and the police officer Asselin had conspired
together.
15. The trial judge said he had a reasonable
doubt as to the existence of such a conspiracy between Rousseau and Asselin. He
did not appear to be satisfied by the evidence of statements made by the lawyer
to his clients, asking them for $6,000 for himself and the police to ensure
that charges would not be laid for some of the thefts and that the sentence
would be light for the remainder. In view of police officer Asselin's
statements and actions, the trial judge also seems not to have been persuaded
beyond all reasonable doubt of the latter's participation in the conspiracy
between the lawyer and his clients, if one existed.
16. The Court of Appeal was well aware, in
view of s. 605(1) (a), of the limits beyond which it could not substitute
its opinion for that of the trial judge and override the doubt entertained by
the Court as to the accused's guilt, quash his acquittal and find him guilty.
Writing for the Court, Beauregard J.A. felt that to consider any possibility
other than the existence of a conspiracy between the accused and Asselin was
purely conjectural. If he was right, there would have been an error of law and
the Court of Appeal would have been fully justified in reversing the trial
judgment.
17. With respect, I do not think he was
correct in this regard.
18. It is clear, and there was no reason for
the trial judge to doubt this (and his observations tend to support this
interpretation, though one cannot be absolutely sure), that the lawyer Rousseau
suggested to his clients, as he did to the security company's lawyer, that he
could "fix" the matter. It is clear that Rousseau suggested to his
clients that he was conspiring with officer Asselin. I share the view of
Beauregard J.A. that only conjecture could support a doubt in that regard. The
question remains, however, whether there was a conspiracy between Rousseau and
the police officer Asselin; indeed, one must not loose sight of the fact that
Rousseau is not charged with conspiracy with his clients but with police
officer Asselin. Asselin's actions and statements tend to support the existence
of such a conspiracy, but I do not think it is possible to go beyond this
assertion and say that this was, beyond all reasonable doubt, the only logical
conclusion.
19. The evidence could easily support
certainty as to the existence of a conspiracy between Rousseau and the police
officer, but its weight was not such that any doubt in this regard would
constitute an error of law. First, there was no direct evidence as to the
nature of the statements allegedly made by the lawyer to the police officer. At
best, it can only be inferred from the observations made by the officer to the
lawyer's clients and from his conduct in the matter. Furthermore, at the
conclusion of his judgment, Bilodeau J., who has considerable experience in the
practice of the criminal law and police operations, reveals his true thoughts
in the following observations:
[TRANSLATION]
The Court has no doubt that Mr. Rousseau wished to take advantage of the
situation and of the circumstances to obtain money.
The
Crown is bound by the wording of the indictment.
The
circumstances are consistent with guilt, but I am not persuaded beyond all
doubt that they are inconsistent with any other logical solution.
20. In reading the evidence, one finds certain
references to the possible existence of a network of receivers, and others
suggesting that the police were to some extent ready to deal with the
"small fry" in order to get to the "big guys". This is a
possibility which undoubtedly had some effect on Bilodeau J.'s belief as to the
criminality of the police officer's participation in the lawyer's scheme; it
explains his reference to the fact that the lawyer wished to "obtain
money" by defrauding his clients and to the constraints imposed on the
Crown by its choice of the charge. It is possible, and this is the possibility
which created a doubt in the mind of Bilodeau J., that Rousseau converted into
money for his own benefit and at the expense of his clients advantages which
the police were willing to offer in exchange, not for money, but for
information regarding the leaders of the network in the interests of the
administration of justice. This possibility may not be one which would have
created in the minds of all a doubt as to Asselin's illegal participation in a
conspiracy, but in view of the evidence as a whole I cannot say that to
entertain such a doubt constitutes an error of law.
21. I would therefore allow the appeal of
Rousseau, quash the judgment of the Court of Appeal and restore the acquittal
entered by the trial judge; I would dismiss the appeal by the Crown.
Appeal by Rousseau allowed. Appeal by the Crown dismissed.
Solicitor for Rousseau: Raynold Bélanger, Québec.
Solicitor for the Crown: Claude Haccoun, Montréal.
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