Décision

Conway c. R.					2015 QCCA 1389
COURT OF APPEAL
CANADA
PROVINCE OF QUEBEC
REGISTRY OF			MONTREAL
No:	500-10-003316-054; 500-10-003337-050; 500-10-003338-058;
	500-10-003339-056; 500-10-003342-050; 500-10-003343-058;
	500-10-003344-056; 500-10-003345-053; 500-10-003346-051;
	500-10-003347-059
(700-01-051263-047)
DATE:	1er septembre 2015
CORAM:		THE HONOURABLE		ALLAN R. HILTON, J.A. PAUL VÉZINA, J.A. CLAUDE C. GAGNON, J.A.
No: 500-10-003316-054
STEWART CONWAY
APPELLANT - Accused
v.
HER MAJESTY THE QUEEN
RESPONDENT - Prosecutrix
No: 500-10-003337-050
BRADLEY GABRIEL
APPELLANT - Accused
v.
HER MAJESTY THE QUEEN
RESPONDENT - Prosecutrix
No: 500-10-003338-058
GARY GABRIEL
APPELLANT - Accused
v.
HER MAJESTY THE QUEEN
RESPONDENT - Prosecutrix

 

No: 500-10-003339-056

MILTON GABRIEL

APPELLANT - Accused

v.

HER MAJESTY THE QUEEN

RESPONDENT - Prosecutrix

No: 500-10-003342-050

HUBERT NELSON

APPELLANT - Accused

v.

HER MAJESTY THE QUEEN

RESPONDENT - Prosecutrix

No: 500-10-003343-058

ALLISTER NICHOLAS

APPELLANT - Accused

v.

HER MAJESTY THE QUEEN

RESPONDENT - Prosecutrix

No: 500-10-003344-056

FRANÇOIS PINSONNEAULT

APPELLANT - Accused

v.

HER MAJESTY THE QUEEN

RESPONDENT - Prosecutrix

No: 500-10-003345-053

TERRY YAXLEY

APPELLANT - Accused

v.

HER MAJESTY THE QUEEN

RESPONDENT - Prosecutrix

 

No: 500-10-003346-051

KEITH CREE

APPELLANT - Accused

v.

HER MAJESTY THE QUEEN

RESPONDENT - Prosecutrix

No: 500-10-003347-059

TEHANERAHTAHKWA (McDONALD) NELSON

APPELLANT - Accused

v.

HER MAJESTY THE QUEEN

RESPONDENT - Prosecutrix

JUDGMENT

I

INTRODUCTION

[1]           These consolidated appeals arise out of guilty verdicts returned on October 29, 2005 by a jury of the Superior Court, District of Terrebonne, at which the Honourable Madam Justice Nicole Duval Hesler (then a judge of the Superior Court) presided. The ten appellants and nine other accused were all charged with the following two counts in an indictment:

1. On January 12, 13 and 14, 2004 in Kanesatake, district of Terrebonne, did take part in a riot at or near the Kanesatake Mohawk Police Station (located at 91 Center Road in Kanesatake) committing thereby the indictable offence provided by sections 64 and 65 of the Criminal Code.

2. On or about January 12, 13 and 14, 2004 in Kanesatake, district of Terrebonne, did confine, imprison, or forcibly seize several individuals at the Kanesatake Mohawk Police Station, committing thereby the indictable offence provided by section 279(2)(a) of the Criminal Code.

[2]           Seven accused were convicted of both counts. Six others were convicted of the included offence of unlawful assembly (contrary to section 63 Cr. C.) of the rioting count, but acquitted of the forcible confinement count. The remaining six accused were acquitted of both counts.

[3]           Of the 10 appellants, Bradley Gabriel, Gary Gabriel, Hubert Nelson, Allister Nicholas and Terry Yaxley were convicted of both counts, while Stewart Conway, Keith Cree, Milton Gabriel, Tehanerahtahkwa Nelson McDonald and François Pinsonneault were found guilty of unlawful assembly.

[4]           The Court is also seized of Crown appeals of all but two of the accused who were acquitted of one or both offences (Deborah Étienne, Bertha Bonspille-Peltier, Nancy Gabriel, Angus Nelson, Mark Delisle, Stewart Conway, Keith Cree, Milton Gabriel, Tehanerahtahkwa Nelson McDonald and François Pinsonneault)[1] as well as appeals by Terry Yaxley, Allister Nicholas, Hubert Nelson, Bradley Gabriel and Gary Gabriel against the sentence the trial judge imposed on each of them.[2]

II

THE FACTS AND THE CONTEXT

[5]           Two events preceding January 12, 2004 precipitated those that gave rise to the charges.

[6]           First, the Grand Chief of the Kanesatake nation, James Gabriel, concluded an agreement in November of 2003 with the Government of Canada. It provided for a grant of $900,000 to support enhanced police involvement in curtailing what the Grand Chief and his supporters perceived to be the illegal production and distribution of marijuana on the reserve, associated with lax police reaction to the perceived illegality and failure to curtail the sale of contraband cigarettes. Rumours of such an agreement had begun to circulate, and, rightly or wrongly, many considered it to be an unjustified interference with the legitimate sale of tobacco products on the reserve.

[7]           Next, a majority of the seven-member Band Council, composed of Grand Chief James Gabriel and six other elected chiefs,[3] adopted a so-called "walk-around" resolution dated January 2, 2004 that was signed only by the Grand Chief and three other chiefs.[4] This resolution contemplated the removal of the interim Chief of Police, Tracy Cross, and, in effect, his demotion within the ranks of the police force.

[8]           It is important to note that this "walk-around" resolution was purposely kept secret from the three other chiefs on the Band Council.[5] The evidence showed that resolutions of this nature, which Band Council members would sign without their having been considered at a regularly scheduled or special Council meeting, were commonplace for uncontroversial items, but not for a decision of this magnitude. In fact, the three non-signatories only learned of the resolution's existence contemporaneously with the unfolding of the events that occurred later.

[9]           The resolution thus adopted contemplated the appointment of Terry Isaac as Chief of Police and Larry Ross as Assistant Chief of Police. Mr. Ross had previously served as Assistant Chief of Police and Acting Chief of Police before being removed from office on September 28, 2001.[6]

[10]        A further question would also arise impugning the legality of the January 2 resolution insofar as it discharged Tracy Cross and hired Terry Isaac as his replacement. The terms of a tripartite agreement dated August 19, 1999 between the Mohawk Council of Kanesatake and the governments of Quebec and Canada concerning the establishment and maintenance of a police force in Kanesatake was open to the interpretation that the Band Council had no jurisdiction to adopt the resolution.[7]

[11]        Section 5.1 of that agreement contemplated the maintenance in place of the Kanesatake Mohawk Police Commission by the Band Council "in order to ensure the independence" of the Kanesatake Police Force, as well as its "orientation" and the establishment of its "goals, objectives, priorities and management policies and for overseeing its administration". Section 5.3 was open to the interpretation that only the Police Commission, and thus not the Band Council, was empowered to hire and fire police officers by providing that the Commission's responsibilities included "all decisions relating to hiring and dismissal of members of the police force, as well as ultimate responsibility for disciplinary measures against members of the police force".

[12]        Rumours began to circulate in early January of 2004 of the signing of the November 2003 agreement and the imminent implementation of a major RCMP operation on the territory. On January 7, these rumours led the three non-signatory Band Council members to issue a press release in inflammatory terms decrying the "secret deal", severely criticizing Grand Chief James Gabriel for his role in the matter and announcing the establishment of 24-hour patrols having gone on "high alert against a looming assault on the community".

[13]        The stage was thus set for the arrival on the morning of January 12 of some 67 heavily armed police officers from other native bands, including Larry Ross, to enter and take possession of the Kanesatake police station, and to relieve Tracy Cross of his duties. The swift and vociferous reaction of many residents to their arrival on the reserve is what led to the charges and the lengthy jury trial in the Superior Court.

[14]        The evidence for the Crown consisted of eye-witness and related testimony as well as lengthy video recordings, the two most relevant of which were taken from inside the police station where the incoming police officers were gathered, and from the enclosed exterior area immediately adjacent to it. As soon as the incoming police officers arrived at the police station, they were confronted by several residents, including many of the appellants. To say they were upset and hostile would be an understatement, given the elevated degree of anger the preceding events had generated among certain members of the community.

[15]        As a result, the planned police operation could not be implemented, although Tracy Cross was filmed inside the police station being formally relieved of his duties, without incident.

[16]        The incoming forces were nevertheless forced to remain within the confines of the police station. They were prevented from leaving by the assembled crowd, many of whom threatened their safety should they have attempted to leave. There were very clear menacing utterances directed towards them that were invitations to do physical battle. Many of those proffering such threats were wielding sticks or bats to create the obvious impression that they would be used as weapons against those forced to remain inside the police station should they decide to venture outside the enclosure.

[17]        In addition, police vehicles inside the enclosure were damaged, and the fencing was forcibly kicked from time to time in a show of anger and evident disapproval. The departure from the enclosure was prevented not only by the presence of the crowd but eventually by the strategic positioning of a truck, a bulldozer and a backhoe. There was also evidence to the effect that at some stages the crowd prevented food from being delivered to those inside the police station.

[18]        On the evening of January 12, Chief Steven Bonspille, one of the Band Council members who had not signed the impugned resolution, arrived at the police station and tried to persuade Terry Isaac and his complement of police officers to leave on the basis of the illegality of the resolution appointing him. Mr. Isaac refused, and later that evening, the residence of Grand Chief James Gabriel was set ablaze.[8] Finally, after essentially having been confined against their will in the Kanesatake police station since their arrival on January 12, Terry Isaac and his fellow police officers were permitted to leave on January 14 pursuant to an agreement between the three dissident chiefs and the provincial ministry of public security.

II

GROUNDS OF APPEAL

[19]        The appellants have submitted three grounds of appeal.[9] They are:

(1) The trial judge erred in law by refusing to instruct the jury of the application of section 21 of the Criminal Code.

(2) The trial judge erred by giving two separate definitions of the term "tumultuously", an essential element of the offences of riot and unlawful assembly.

(3) The trial judge erred in law by not declaring a mistrial and/or not giving appropriate instruction to the jury concerning inflammatory, illegal and highly prejudicial remarks made by Crown counsel during his address to the jury.

III

ANALYSIS AND DISCUSSION

[20]        It is useful to note at the outset that despite the large number of accused, their defence was essentially a collective one. The same strategy has been adopted in appeal.

[21]        Reduced to its most simple expression, the defence of all of the accused was based on justification of their conduct.

(1) The trial judge erred in law by refusing to instruct the jury of the application of section 21 of the Criminal Code.

[22]        Insofar as relevant, the offences with which the appellants were charged or convicted as an included offence are in the following terms:

Count One:

Unlawful assembly   63. (1) An unlawful assembly is an assembly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner or so conduct themselves when they are assembled as to cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they   (a) will disturb the peace tumultuously; or   (b) will by that assembly needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously.   Lawful assembly becoming unlawful   (2) Persons who are lawfully assembled may become an unlawful assembly if they conduct themselves with a common purpose in a manner that would have made the assembly unlawful if they had assembled in that manner for that purpose.   Exception   (3) Persons are not unlawfully assembled by reason only that they are assembled to protect the dwelling-house of any one of them against persons who are threatening to break and enter it for the purpose of committing an indictable offence therein.   Riot   64. A riot is an unlawful assembly that has begun to disturb the peace tumultuously.   Punishment of rioter   65. Every one who takes part in a riot is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

Attroupement illégal   63. (1) Un attroupement illégal est la réunion de trois individus ou plus qui, dans l’intention d’atteindre un but commun, s’assemblent, ou une fois réunis se conduisent, de manière à faire craindre, pour des motifs raisonnables, à des personnes se trouvant dans le voisinage de l’attroupement :   a) soit qu’ils ne troublent la paix tumultueusement;   b) soit que, par cet attroupement, ils ne provoquent inutilement et sans cause raisonnable d’autres personnes à troubler tumultueusement la paix.   Quand une assemblée légitime devient un attroupement illégal   (2) Une assemblée légitime peut devenir un attroupement illégal lorsque les personnes qui la composent se conduisent, pour un but commun, d’une façon qui aurait fait de cette assemblée un attroupement illégal si elles s’étaient réunies de cette manière pour le même but.   Exception   (3) Des personnes ne forment pas un attroupement illégal du seul fait qu’elles sont réunies pour protéger la maison d’habitation de l’une d’entre elles contre d’autres qui menacent d’y faire effraction et d’y entrer en vue d’y commettre un acte criminel.   Émeute   64. Une émeute est un attroupement illégal qui a commencé à troubler la paix tumultueusement.   Punition des émeutiers   65. Quiconque prend part à une émeute est coupable d’un acte criminel et passible d’un emprisonnement maximal de deux ans.

Count Two:

Forcible confinement 279(1) […] (2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or

Séquestration   279(1) […]   (2) Quiconque, sans autorisation légitime, séquestre, emprisonne ou saisit de force une autre personne est coupable :   a) soit d’un acte criminel et passible d’un emprisonnement maximal de dix ans;

[23]        Section 21 of the Criminal Code, which the appellants contend the trial judge erroneously omitted to instruct the jury to apply in light of the facts they found, reads as follows:

Parties to offence   21. (1) Every one is a party to an offence who   (a) actually commits it;   (b) does or omits to do anything for the purpose of aiding any person to commit it; or   (c) abets any person in committing it.   Common intention   (2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

Participants à une infraction   21. (1) Participent à une infraction :   a) quiconque la commet réellement;   b) quiconque accomplit ou omet d’accomplir quelque chose en vue d’aider quelqu’un à la commettre;   c) quiconque encourage quelqu’un à la commettre.   Intention commune   (2) Quand deux ou plusieurs personnes forment ensemble le projet de poursuivre une fin illégale et de s’y entraider et que l’une d’entre elles commet une infraction en réalisant cette fin commune, chacune d’elles qui savait ou devait savoir que la réalisation de l’intention commune aurait pour conséquence probable la perpétration de l’infraction, participe à cette infraction.

[24]        The appellants argue that in the context of a trial with multiple accused in which there is evidence that two or more of the accused, acting together, committed an offence, a trial judge is obliged to instruct the jury in accordance with section 21 Cr.C., irrespective of the component elements of the offence. From their perspective, such an instruction would have permitted the jury to focus on those amongst the accused who were mere bystanders, and who thus could not have been found guilty of any offence simply because they were present at a crime scene.

[25]        With respect, this submission has no merit.

[26]        As the Crown correctly points out in its factum, the offences created by sections 63 and 64 Cr.C. require the participation of at least three persons, and their intention to participate together in the furtherance of a common objective. Such requirements necessarily exclude a simple bystander or mere observer from their ambit, since at a minimum, the required intention would be lacking.

[27]        As for the charge of forcible confinement, the jury acquitted a total of 12 of the 19 accused of this count, which suggests unmistakably that they understood that actual participation in the offence was an essential element.

[28]        The issue first arose during the trial when the trial judge and counsel were discussing the elements that would be included in her instructions to the jury. Needless to say, counsel for the accused argued strenuously for the inclusion of an instruction based on s. 21 Cr.C. After a lengthy colloquy with defence counsel, the trial judge's point of view that such an instruction was unnecessary is well-captured in the following extract:

[…] I'm sensitive to what you say and I'll certainly give as an example, you know, if somebody arrives with a camera crew in-tow, and starts interviewing participants, you're not going to lay charges against that person, because that person's behaviour makes it clear that they are not participating in the riot; they're there to observe and they're there to report on it.

[29]        In their address to the jury, the three counsel for the accused took care to plead the limited implication of 10 of their 19 clients in the commission of the offences.

[30]        The trial judge was faithful to her word, as the following extracts from her instructions relating to the individual participation of the accused show:

And if you decide that the accused were present at the assembly, so that's the first thing, they have to be there, right, you decide that they were there, that the assembly had become unlawful because someone could reasonably fear that it was about to degenerate into becoming tumultuous, that a reasonable person could see that it had indeed so degenerated and become tumultuous, you may go on to decide that they intended to be there for the common purpose of those assembled.

You don't need direct evidence of their intention to participate.  But you may consider that they should have had subjective foresight… I'm sorry, objective foresight, not subjective; subjective is what they need… and I'll come back to that when analyzing the defence.  But in this case, objective foresight that peace would be disturbed tumultuously because of the behaviour of the assembly in which they took part; and then remained there once peace begins to be disturbed tumultuously by the assembly with elements of threats and violence exhibited by participants, that is the sort of behaviour that may allow you, if you accept the evidence of that behaviour, to infer an intention to participate in the riot.  Okay.

It could be, I'll give you an example that the evidence would show that somebody was there who did not intend to participate in the riot.  I'll give you the following examples.  If someone is there with a cameraman in tow and a microphone in his or her hands, and is seeking to interview various people there, well, I think you will infer that they are not there to participate in the riot; they're there because they're covering it for the media, and they want to interview people, and they want to get a feel of what is going on, and report on it.  Okay.  So you wouldn't conclude, I don't think, that the person intends to participate in the riot.  Even though that person is there, you would conclude that that person intends to report on the events.

So in the end, you will have to consider all the evidence that you accept, all the surrounding circumstances, including what the accused are heard to say on tape; including what they were heard to say by witnesses; and including what they are seen to do on tape, in order to decide whether the Crown has proved that he accused did in fact mean to participate in a riot.

Before you can find that the accused have the necessary mental element, you must be satisfied beyond a reasonable doubt that this intent, the intent to participate in a riot, that is in an assembly that has become tumultuous with signs of violence and force being exhibited, that is the only reasonable inference to be drawn from the facts that you accept.  Okay.

[…]

The Crown also presented evidence to identify the people that we see on the videos and the voices that we hear on the video recordings.  And the video recordings have been filed as exhibits.

[…]

But the defence has raised a concern about the accuracy of the video on the basis that not the entire thirty-six (36) to thirty-eight (38) hours were videotaped.  And it has been suggested, and you will have to decide what to do with the evidence on that point, that the only moments that were taped were moments of disruptive behaviour, and that this gives a distorted impression of the facts.  Okay.

So you've also heard evidence about what went on during the entire period, and what made the people videotaping decide when to videotape.  So it's up to you to decide whether or not these videos accurately depict what took place, and to what extent if they do depict what took place. And you must also consider whether or not the Crown witnesses correctly identified the people and voices we see and hear on the videotapes.

[…]

Obviously in this case, you need identification of each accused as being present before you can find them guilty of either being a member of an unlawful assembly or of participating in a riot.  And so you have to find that they were at least there, they had to be present, and then, go on to the rest of the essential elements.

So you have testimony in this respect, as well as the videos; you've been told by Melanie Gabriel that the accused were people she had known all her life in a small community.  As I mentioned to you before, you can request tapes of her evidence or anyone else's evidence, and it will be up to you to decide whether or not you accept or reject the identification evidence, and to what extent you accept or reject it, as the case may be, just as for any other type of evidence.

And in so doing, I would suggest maybe that you could consider the description that the witness was able to make of the person identified; what she said about recognizing their voices; how easily or not the identification could be made in a courtroom; the description of what the person identified was wearing on the videotapes; whether the identification remained constant throughout the testimony; whether some of the identification were confirmed by other witnesses; and of course, you may select other criteria, I mean you're judges of the fact.

If you find something else that is significant in your eyes, well… that I haven't thought to mention, by all means, this is your intellectual exercise, not mine.  And having determined… so what I'm telling you is merely intended as a guideline here.  And having determined the identity of the accused, then you may go on to ask yourself: did the accused act like they wanted to participate in a riot, or like they were reckless as to whether or not they were seen to be participating in the events.

And if you're not satisfied about the identification evidence concerning any of the accused, then you must not use the video recordings as evidence when discussing the guilt of that accused.  And I've told you before, anything the attorneys tell you is not evidence; their opinion as to what was said is not evidence.

[…]

[31]        In addition, in her instructions, the trial judge reminded the jury of the necessity:

· to consider whether each accused intended to participate in a common purpose on the rioting count;

· to consider whether the elements of the offence of forcible confinement were proved against each accused on the standard of proof beyond a reasonable doubt;

· to consider the position of Sonya Gagnier during her testimony that the Band Council resolution of January 2 was illegally adopted;

· to recall the position of defence counsel during their address to the jury on the two preceding issues.

[32]        Five of the accused on whose behalf their counsel made specific submissions as to their limited involvement were acquitted of both counts (Bertha Bonspille-Peltier, Nancy Gabriel, Angus Nelson, Sonya Gagnier and Mark Delisle) while two others were acquitted of the forcible confinement count (Keith Cree and Tehanerahtahkwa Nelson McDonald). This suggests, at a minimum, that the jurors understood and followed the trial judge's instructions to the effect that actual participation in the commission of the offences and the intention to do so were essential elements of each of them, and that there was no risk that so-called mere bystanders would be found guilty. It also gives credit to the persuasiveness of the arguments of the appellants' experienced counsel to the jury on behalf of those individuals who were acquitted of both or one of the charges.

[33]        Moreover, it is also significant that in their factum, the appellants' counsel did not suggest which of the remainder of them might have been found not guilty of the offence(s) for which they were convicted had a section 21 Cr.C. instruction been given, nor did they make any such submissions during oral argument. The reason is straightforward: there are none. At best, their argument is theoretical, but it has not been shown to have any practical application to the evidence at trial in light of the judge's supposedly erroneous instructions to the jury.

[34]        This ground of appeal accordingly fails.

(2) The trial judge erred by giving two separate definitions of the term "tumultuously", an essential element of the offences of riot and unlawful assembly.

[35]        The trial judge did speak differently when talking about the term "tumultuously" in the context of her instructions relating to riot and the included offence of unlawful assembly. She first addressed the latter and said this:

We'll start with the unlawful assembly.  First, you need three (3) people.  If you want to write that down.  The first essential element of an unlawful assembly is three (3) people.  I don't think you'll have much trouble with that.  What I'm saying basically is that you can't commit a riot by your lone self.  So you can try, but you need to be three (3), okay, at least three (3).  So that's the first element.

When does an assembly of more than three (3) people become unlawful.  When somebody nearby would begin to reasonably fear that the assembly will become tumultuous, that it will start disturbing the peace in a tumultuous manner.  Tumultuous means a disturbance that is disorderly, noisy, turbulent, one marked by disorderly commotion, that's tumultuous.

So when you have an unlawful assembly, it's not tumultuous yet.  But somebody nearby fears that it's about to become tumultuous.  And the third element is you need a common purpose.  Those assembled have to be there for the same thing, they're there for the same reason.

[Emphasis added]

[36]        With respect to the offence of riot, here is what she said:

And if you decide that the accused were present at the assembly, so that's the first thing, they have to be there, right, you decide that they were there, that the assembly had become unlawful because someone could reasonably fear that it was about to degenerate into becoming tumultuous, that a reasonable person could see that it had indeed so degenerated and become tumultuous, you may go on to decide that they intended to be there for the common purpose of those assembled.

You don't need direct evidence of their intention to participate.  But you may consider that they should have had subjective foresight… I'm sorry, objective foresight, not subjective; subjective is what they need…and I'll come back to that when analyzing the defence.  But in this case, objective foresight that peace would be disturbed tumultuously because of the behaviour of the assembly in which they took part; and then remained there once peace begins to be disturbed tumultuously by the assembly with elements of threats and violence exhibited by participants, that is the sort of behaviour that may allow you, if you accept the evidence of that behaviour, to infer an intention to participate in the riot.  Okay.

[Emphasis added]

[37]        The essence of the appellants' submission is that "tumultuously" should have been explained in the same way and have included reference to the presence of force or violence for both offences and not only for that of riot.

[38]        The trial judge, however, went on later in her instructions to give further definitions of both offences. She began with unlawful assembly and said this:

Let me just repeat.  You have three (3) essential elements for an unlawful assembly.  Okay.  Three (3) or more persons; a common purpose to those persons, they're there for the same reason; and whose assembly would begin to cause alarm to a reasonable person nearby, because that reasonable person nearby would fear that it was about to become tumultuous, and even possibly violent.  Okay.  That would be an unlawful assembly.

Okay.  Is it possible to find… the short question is: can we find some people not guilty and others guilty?  Absolutely.  Let me come back to that.  To be guilty of the lesser offence of being in an unlawful assembly, you need to want to be a member of that assembly.  Okay.  So you need to be there, assembled for a common purpose; and the assembly has to be such that it would cause fear in a reasonable person that it's about to become tumultuous and even violent.  Okay.  So it's begun to…you shouldn't be a member of that.  You shouldn't be a member of an assembly that presents these characteristics.

[Emphasis added]

[39]        Immediately thereafter, she spoke of riot again, as follows:

The essential element of riot is three (3) or more persons who are there for a common purpose, that's number two (2).  Three (3) is they are there not only for the common purpose, but to further the common purpose, to advance the common purpose.  Okay.

And you have to find that each accused intended, you have to be able to infer from the evidence that each accused not only was there for the common purpose, but each was participating voluntarily, in that each would have been ready to help one another by force if necessary, against anyone who may oppose, okay, anyone who may oppose the execution of the common purpose.

Or that each exhibited recklessness as to whether or not they were seen to participate in an assembly where one would infer that they were there to further that common purpose, and ready to help one another in that common purpose by force if necessary.

That's the way it is.  I can't make it simpler for you.  That's the way it is.  And if you find that one of the accused doesn't fit that or several of the accused don't fit that, if you find that you can't infer from their behaviour an intent to participate in a riot by being willing to help the others by force if necessary, to achieve the common purpose, well then, you've got to acquit.  Okay.  So you don't need to find everyone guilty, absolutely not.

And there must be… what makes it a riot is there has to be an air of violence to it or force to it, you know what I mean?  It just…you have to feel that it's alarming to a reasonable person; it would alarm a reasonable person of reasonable courage.  It has to be alarming, you have to be afraid.  A reasonable person would be afraid.

[40]        The parties do not dispute that a word used in the same statute should have the same meaning, unless the context suggests otherwise. The Crown also concedes that the judge's second attempt did not succeed in properly bringing home the point that "tumultuousness" in both offences requires an element of violence, and not merely possible violence as it relates to the offence of unlawful assembly.

[41]        As a result of the distinct and incomplete definition of the word "tumultuously" as it relates to the offence of unlawful assembly, the appellants argue that the five of them convicted of that included offence should be acquitted, or alternatively have a new trial ordered. It is difficulty to see how the same argument can be plausibly made for those of the appellants convicted of the offence of riot since the trial judge's definition of its requirements is not challenged.

[42]        For its part, to the extent the trial judge erred in respect of the foregoing, the Crown invites the Court to apply the curative provision of s. 686(1)(b)(iii) Cr.C.

[43]        A two-stage process comes into play when the Court is called upon to apply the curative proviso: first, to determine whether the error harmless or not, and second, if not, to assess whether the evidence is nevertheless overwhelming such that the verdict would have been the same even if the error had not been made.[10]

[44]        In this case, whether or not the error is harmless has to be assessed in light of the evidence. There can hardly be any doubt that many elements of the evidence, both viva voce and filmed, highlight the violent character of the events. In this respect the evidence is overwhelming that violence or the real threat of violence were significant features of the discontent displayed by those assembled outside the Kanesatake police station between January 12 and 14, 2004.

[45]        Without in any way being exhaustive, threats such as those reflected in the following words can be easily heard on the video recordings that were played for the jury:

They’re caged up like animals, they’re staying here tonight![11]

I’m not going anywhere. You wanna be in Kanesatake, you’re gonna be in a cage, all of you![12]

We’re getting our numbers, you motherfuckers. We have our numbers! We’re gonna go and get… we’re gonna kick your fucking asses![13]

Come on Larry! Let’s settle the old score you motherfucker! You’re a fucking faggot![14]

You are all goddamn scared! How many have wet your pants? Mommy ain’t here to help you sweethearts![15]

Walk out that gate, you’re getting it![16]

And James is the root of everything, you gotta fucking lose him. He’s a pain in my fucking ass. We should level his fucking house and give him a clear message you’re not wanted here.[17]

Wait for them to open that gate. We’ll kick their fucking ass.[18]

We’ll kick your fucking ass right here![19]

Come here. One on one! One on one! One on one![20]

I’ll whoop your fucking ass![21]

If they open that fence, they’re gonna get it… the minute they open that fucking fence, they’re getting it.[22]

I hope we get to mix it up. Fuck, I prayed for this every fucking day.[23]

You want a war, you’re gonna get it, motherfuckers.[24]

I’m gonna fucking bury that fucking smirk.[25]

Don’t let those cars out! You ain’t getting out motherfuckers! Open that fucking gate![26]

You are not coming out, you understand? You’re staying in there. You wanna be in a cage, you’re gonna stay in a cage.[27]

Fuck you! Fuck you! Cocksuckers! You wanna come here? Now you’re gonna fucking stay here, you son of a bitch fucking traitor! Fuck you! You’re fucking gonna stay here you fucking traitors! Fuck you![28]

You’re not leaving without a beating, motherfuckers![29]

[46]        As previously mentioned, these words were uttered in a context where many of those assembled outside the police station were roaming around with baseball bats or sticks, and in some instances swinging them.

[47]        Moreover, when called by the Crown to explain what she witnessed from inside the police station in her capacity as a police officer, and after having specifically identified many of the appellants on the video recordings, Melanie Gabriel testified to the prevailing atmosphere she observed outside the enclosure.

EXAMINED BY Me PIERRE TEASDALE

ATTORNEY FOR THE CROWN

Q         Now, Miss Gabriel, we've seen the films that are of January 12, 13, 2004 in Kanesatake; you were then present at the police station?

A          Yes I was.

Q         We even saw you on footage at some place?

A          Yes.

Q         When you directed the jurors in fact with you being present while we saw Mr… (inaudible)…

A          Yes.

Q         Now, since you were present through these events, Miss Gabriel, at the police station, how did you…how did you feel towards these events?  What was your feeling at the police station, as an individual?

A          I felt that everyone there was in danger.

Q         Why do you say that?

A          Because it was a volatile situation, there was a lot of threats being made towards the police officers, it was verbal and physical, as we saw with the people that were hitting the fence with sticks, throwing blocks of wood over the fence.  Physically we couldn't leave the station because they placed a Van in front of the gate, we couldn't leave.  Later on after that, they placed a bulldozer and a back-hoe in front of the gate, there was no question of us leaving in any sense of safety and…

Q         Why do you say that?  Why do you say that, there was no…in the sense of safety?

A          I think if we had tried to, it would have gone a lot worst.

Q         That's how you felt?

A          That's how I felt, with the presence of the bulldozer and the back-hoe, I don't know if it was shown on the case but there were points where they were slamming the buckets into the ground.  You could feel the whole building shake.

[48]        The eventual departure of those inside the police station had to be negotiated and convoys established to escort them out safely, as Ms Gabriel explained:

Q         Okay.  Now, you finally, if I may say, succeeded in leaving that police station?

A          Yes.

Q         How did this happen from what you remember?

A          From what I remember, there was a deal made with the Minister of Public Security, Jacques Chagnon, to have the Kahnawake Peacekeepers come in, escort us out and they would resume patrolling the reserve.

Q         And in fact, were you escorted out by the Kahnawake Peacekeepers?

A          Yes, we were.

Q         Okay.  And when was that?

A          That was, it's a little after midnight on January 14^th, I believe.

Q         Okay.  And how in fact could you tell the jurors that it happened, that you were escorted out of the police station and the territory by the Kahnawake Peacekeepers, how did this happen in fact?

A          Someone negotiated the deal with the…

            BY THE DEFENCE (Me Lighter)

            Objection.

            BY THE CROWN (Me Teasdale)

Q         No but I mean after this, how in fact did you manage to leave this?

A          We left in a convoy, in the vehicles that we came in, we were escorted by the Kahnawake Peacekeepers, escorted from what I can recall, there were, I believe, the Peacekeepers' vehicles were in front of our convoy and at the end, and they were parked at different locations along the 344, as we exited the community.

[49]        None of the evidence led on behalf of the appellants put into question the essential accuracy of the events seen on the video recordings or described by Ms Gabriel. Despite the error in the trial judge's definition of "tumultuousness" as one of the constituent elements of the offence of unlawful assembly, the evidence is overwhelming that the atmosphere that reigned at the relevant time was one of violence that those assembled were ready and willing to inflict if the occasion to do so had arisen.

[50]        In the circumstances, the judge's error could have had no bearing on the adverse outcome to those of the appellants to whom it concerned. It is therefore appropriate to apply the curative proviso and reject this ground of appeal.

(3) The trial judge erred in law by not declaring a mistrial and/or not giving appropriate instruction to the jury concerning inflammatory, illegal and highly prejudicial remarks made by Crown counsel during his address to the jury.

[51]        The remarks of Crown counsel to which this ground of appeal refers relate to the burning of the home of Grand Chief James Gabriel on the evening of January 12. Both Crown counsel and defence counsel were aware that two of the accused, Joseph Daye and Deborah Étienne, had been charged in separate court files with offences related to that incident,[30] but the jury was unaware of these charges. Nevertheless, the jury had heard evidence during the course of the trial that James Gabriel's house had been set afire, without specifically linking such evidence to any of the accused.

[52]        Given the nature of the reproach to Crown counsel as it is currently framed,[31] it is useful to set out the remarks that gave rise to the trial judge's intervention in the midst of Crown counsel's address to the jury. The extract that follows occurred after the jury had viewed extracts from the video evidence at 5:16 pm and 7:05 pm on January 12.

(VIEWING OF A VIDEO-CASSETTE)

Five sixteen (5:16).  He is identified by Ms Gabriel, he is holding a gas can.

(VIEWING OF A VIDEO-CASSETTE)

Seven-O-five (7:05) P.M.  In this excerpt, I will ask you to listen carefully, closely at what the female voice, identified by Ms Gabriel as being that of Deborah Étienne, on of the accused says.  And I suggest that when you listen carefully, it does not start right away, you will hear at some point: "And James."  Meaning, I suggest, James Gabriel, the Grand Chief:  "And James is the root of everything, you've got a fucken use[32] him, he's a pain in my fucking ass, you should level his fucking house and give him a clear message, you're not wanted here."  Further on, you will listen to this tape and you will hear, I suggest, from the voice that you may not recognize by the way, that of Sonya Gagnier.  And what you will hear, I suggest, from Ms Gagnier, these words:  "Some of you stay, we need some guys here."  We will get to Ms Gagnier's words after, but first listen carefully to those of Deborah Étienne.

(VIEWING OF A VIDEO-CASSETTE)

That is Sonya Gagnier.  Well, you will realize from these excerpts, from the coming excerpts as testimonies, what in fact Ms Étienne is talking about.  Whose to take her word, whose fucking house she is talking about and that the demonstrators should level it.  Ms Oak, in her testimony mentioned and I read: "Somebody came in and said that they were going to Jimmie's, I suggest, Jimmie's, James Gabriel's house and some people were going to burn it down.  I left the building, I wanted to see if they were there, I wanted to see if I could talk them out of it, but nobody seemed to really be looking at me and I figured them must have already left."  That is what Ms Oak said in her testimony.

Ms Gagnier in her testimony said:  "It was in the evening and I remember people just leaving for some reason, for some reason.  The parking lot was starting to get empty.  What's going on here I said, some guys stay behind and the reason for my saying that was because I was scared.  I was scared of the situation and I kind of felt abandoned like you know I'm alone out there, the Commission is not with me, they're inside.  So my first instinct was to stay.  Some guys stay behind, it just came out of me, I couldn't help it."  Well, Ms Gagnier did not mention the reason, but listen carefully again to what she said at seven-o-five (7:05) and you will see that this is the moment she is talking about, the very same moment.

(VIEWING OF A VIDEO-CASSETTE)

You heard these last words from Ms Gagnier.  We all know, I submit, for what reason people had left at seven-o-five (7:05), seven-o-six (7:06) that evening.  I say this is the moment when the demonstrators left to level or burn down James Gabriel's house.  In fact, Brenda Gabriel, James Gabriel's sister, who was living just by her brother's place on rang du Milieu or Center Road, testified as to the time she realized that her brother, James Gabriel's house was on fire.  She said:  "When I realized that my brother's house was on fire, I took my children and went to my mother's house.  It was between seven (7:00) and seven thirty (7:30) in the evening."  That is what she said.  Between seven (7:00) and seven thirty (7:30) fits with the seven-o-five (7:05) actual timing on the footage catching the words of the accused Deborah Étienne and that of the accused Sonya Gagnier.

The defence, Wednesday, pleaded that the demonstrators acted in defence of their territory, in defence of the police station.  They had the right to stop the trespassers from taking their police station, said one of the defence attorneys.  Did this include, I am asking you, did this include the right to level or burn down the Grand Chief's house?  As suggested, I submit, by Deborah Étienne and as was done.  Was this co-called concern of protection of the territory and police station by the demonstrators to be different than that of the Kanesatake Mohawk police members confined in the station and that of the whole population of Kanesatake, that had expressed deep and serious concerns on security and police matters at the meeting held at the Band Council and recollected as we will get later by Steven Bonspille in his letter to Yves Leguerrier of the Federal Government on October, 2001.  Do you feel that this behaviour of the demonstrators is the true expression of society values that are widely held and accepted by the people of Kanesatake?

The defence asked Wednesday:  Where were the people of Kanesatake that agreed to the presence of the First Nation police officers in Kanesatake on January the 12^th.  I suggest to you, that these people of Kanesatake that had expressed concerns as to their security on their territory in the Band Council meeting of October, 2001, were again living in terror as they said on January the 12^th, and in fear that what happened to James Gabriel's house could and would happen in their opinion, would they say anything.

Seven ten (7:10) P.M.  That is when KMP corporal Mark Delisle, one of the accused, unloads fire wood.

[Emphasis added]

[53]        At this point, the trial judge intervened and the following exchange occurred:

BY THE COURT

Maître Brière.

BY THE DEFENCE (Me Brière)

Yes, Madam.

BY THE COURT

I just want to make something clear for the jury.  Ms Étienne is one of our accused as you know, she is not accused or arson before you.  So you certainly can consider that she said, her participation in determining whether or not she was participating in a riot, whether or not she was willing you know to forcibly confine the police officers, but do not use that evidence for any other purpose, okay.  And there is also no proof at all, with all due respect to Maître Brière, that the community was living in terror, that the same thing that happened to James Gabriel would happen to them as well and that is why they did not show up you know to defend.  I mean you may well note that it was no counter-riot if you want and no counter-demonstration, that is something for you to consider if you see fit, if you think it is relevant in your analysis of the facts.  But there is no proof that they were living in terror, that the same thing would happen to them.  So continue, Maître Brière.

BY THE CROWN (Me Brière)

You are absolutely right, Madam. […]

[Emphasis added]

[54]        Subsequently, counsel for the accused applied to the trial judge for a mistrial, invoking not only the remarks of Crown counsel referred to above, but what they perceived to be other irregularities of a similar nature during the course of the trial. Their essence was that Crown counsel's references to the fire that destroyed James Gabriel's house were made intentionally to cause prejudice to the accused as opposed to mere mistakes made in the heat of battle.

[55]        As a result of the lengthy exchange between counsel for the accused, Crown counsel and the trial judge, the application for a mistrial was denied, but the trial judge acquiesced to defence counsel's request to speak to the jury in reply after Crown counsel had finished his address. The trial judge indicated as well that she would return to the issue during her instructions to the jury to reinforce the comment she had made that is reproduced in paragraph [53] above.

[56]        Ultimately, defence counsel chose not to avail themselves of the right that the trial judge had reserved to address the jury in reply for the following reasons:

In view of what has transpired, and after discussion with my colleagues and the clients, we have come to the following conclusion, that nothing that we can say to the jury will be able to redress the problem that was created by Maître Brière, and would only make matters worse.

Furthermore, with the rules that have been… or the rules that were set down, both myself and the accused find that it has become, in their expression, too one-sided for us to continue and to attempt to recuperate that that has been lost.  So therefore, under the circumstances, we will not be making a further address to the jury.

[57]        Crown counsel also, at the invitation of the trial judge, corrected his earlier comments when he resumed his argument before the jury:

BY THE COURT

…I'd invite you to make the correction now…

BY THE CROWN (Me Brière)

Okay.  Well…

BY THE COURT

…it will be simpler, if you can find it in your notes.

BY THE CROWN (Me Brière)

…like I told you, like I told you, Madam, this morning you mentioned, and I have to admit that you in fact were right, and so I did say after you made your comment, there's no absolutely evidence whatsoever to the effect that the people of Kanesatake on the 12^th of January, and I'm talking on the 12^th of January because this is what we were talking about, were in fact living in terror that day, because no evidence was ever introduced before this Court to this effect to you.  So I want to be clear on that, you know, there's no evidence about it.  Is that correct, Madam?

BY THE COURT

That's fine.

[Emphasis added]

[58]        Finally, in addition to what she had said as recorded in paragraph [53], the trial judge added this during her instructions when summarizing the cross-examination of one of the Crown's witnesses, Melanie Gabriel, with respect to events on January 12:

[…]

She said she did not call James Gabriel that afternoon, but she did speak to him after his house burned down, that the[33] spoke to him to make sure he was okay.  That he ended up leaving at seven (7:00) P.M. that evening, he was on the territory.  Now, of course you may ask why you are relating this to us since you have told us repeatedly that this is not an arson charge.  Quite simply because this is the cross-examination, this is in answer to questions by the defence attorneys, it is in the evidence and you may consider the words that were spoken when it is in the evidence to determine whether or not they are indicative of either of the offences, which are on the indictment.  It is not impossible for words spoken to be proof as to one or more charge.  So that is the reason why I am recalling it.  You must take for granted that the evidence that is there is there legally and you can consider all of it, as long as you just give it its proper purpose you know.  So what I mean is, your role is not to punish people for burning down James Gabriel's house, it is to assess coldly and without passion just the charge of riot and just the charge of forcible confinement, okay.

[Emphasis added]

[59]        The success of this ground of appeal must be assessed on the basis that Crown counsel acknowledged the improper character of his remarks set out in paragraph [52], that the trial judge intervened during his address to admonish him in the presence of the jury for having done so, that Crown counsel unreservedly withdrew his improper remarks in the presence of the jury, and that the trial judge emphasized in her instructions that the jury was not to consider the burning of James Gabriel's house as a factor in assessing the guilt of the accused.

[60]        This is not a case that is sometimes seen where Crown counsel disputes an appellant's assertion in appeal that some aspect of their submissions to the jury was inappropriate.[34] Rather, it is one where the appellants challenge the adequacy of the corrective measures the trial judge deployed, keeping in mind that their counsel declined the trial judge's decision to allow them to address the jury in reply.

[61]        The duty of a trial judge in this respect was well-described by Cory, Iacobucci and Bastarache, JJ. for the majority of the Supreme Court in R. v. Rose.[35]  The majority held that it would have been preferable for a trial judge to have given a corrective instruction with respect to an aspect of Crown counsel's address to the jury, but that in the circumstances, there was no miscarriage of justice. In the course of their reasons, they described the roll of trial judges in the following manner:

G. The Ability of the Trial Judge to Rectify Errors in Jury Addresses of Counsel   124   What action can be taken by a trial judge when the Crown or defence counsel's closing address to the jury contains gross inaccuracies, seriously misstates the evidence or misuses the evidence in connection with the inferences to be drawn? As Dubin C.J. observed in the court below, there are two approaches available to a trial judge to remedy unfairness resulting from an improper closing address.   125   First, if a trial judge is of the opinion that an irregularity in counsel's address has jeopardized the fairness of the trial, then, in most situations, it may be rectified by a specific correcting reference to it in the charge to the jury. This should suffice in most cases. Second, if the trial judge is of the opinion that curative instructions alone will not suffice to remedy the damage, then in those relatively rare situations, the prejudiced party may be granted a limited opportunity to reply. Let us first consider a correction made by the trial judge as part of the charge to the jury.   (1) Curative Jury Instructions   126   It cannot be forgotten that the trial judge is the last person to speak to the jury. The trial judge is also in the best position to assess the significance of the remarks of counsel, to determine if they need to be corrected, and, if necessary, to correct inaccuracies and remedy any unfairness that may arise from the addresses of counsel. Indeed, from the point of view of counsel, it is a humbling experience to have the trial judge point out errors in their addresses. It is this ability of the trial judge to correct addresses of counsel that provides an element of control which helps to curb inaccuracies, exaggeration and unfair comments by counsel. Moreover, it ensures that the trial process is fair which, after all, is one of the fundamentally important functions of the presiding judge. The judge should not hesitate to correct errors of counsel in order to preserve the fairness of the trial process. Taking this step will ensure fairness in the vast majority of cases. On this issue we are in complete agreement with these comments of Dubin C.J., at p. 613:   It is the duty of the trial judge to present the case for the defence as fully and fairly as the case for the Crown. If there is unfairness in the Crown's address, a complaint can be brought to the attention of the trial judge who should correct any mistake by Crown counsel in overstepping the bounds of propriety, resulting in an unfair trial.   […]   128   In the course of correcting the addresses of counsel, the trial judge should deal in a fair and balanced fashion with both sides of the case. The curative instructions should not indicate that the judge is favouring the arguments of one party over another, nor should they appear to engage in contentious argument with the address of counsel for one of the parties: see R. v. Pouliot, [1993] 1 S.C.R. 456, rev'g (1992), 47 Q.A.C. 1.   [Emphasis added]

G. La capacité du juge du procès de corriger les erreurs commises par les avocats dans les exposés au jury   124   Que peut faire le juge du procès lorsque l'exposé final du ministère public ou de la défense renferme des inexactitudes importantes, comporte de graves erreurs dans la récapitulation de la preuve ou se fonde abusivement sur la preuve pour tirer des conclusions? Comme le juge en chef Dubin l'a noté en Cour d'appel, le juge du procès dispose de deux moyens pour remédier au manque d'équité résultant d'un exposé final incorrect.   125   Premièrement, si le juge du procès est d'avis qu'une irrégularité de l'exposé des avocats a compromis le caractère équitable du procès, dans la plupart des cas, il peut y remédier en apportant une correction dans ses directives au jury. Cela devrait suffire dans la plupart des cas. Deuxièmement, dans les cas relativement rares où le juge du procès estime que des directives correctrices seules ne suffiront pas à réparer le préjudice, il peut accorder à la partie lésée un droit de réplique limité. Examinons d'abord la correction apportée par le juge du procès dans ses directives au jury.   (1) Directives correctrices au jury   126     Il ne faut pas oublier que le juge du procès est la dernière personne à s'adresser au jury. Il est aussi la personne la mieux placée pour évaluer la portée des remarques faites par les avocats, pour déterminer si elles nécessitent des corrections et, le cas échéant, pour corriger les inexactitudes et remédier à tout manque d'équité pouvant résulter des exposés. Certes, du point de vue des avocats, il est humiliant d'entendre le juge du procès relever les erreurs commises dans les exposés, mais cette capacité du juge du procès de corriger les exposés est une mesure de contrôle qui permet de mettre un frein aux inexactitudes, aux exagérations et aux commentaires déloyaux des avocats. Qui plus est, elle garantit le caractère équitable du procès, ce qui, après tout, est l'une des fonctions fondamentales du juge présidant le procès. Celui-ci ne doit pas hésiter à corriger les erreurs des avocats afin de préserver le caractère équitable du procès. Cette mesure assurera l'équité dans la vaste majorité des cas. Sur ce point, nous sommes en parfait accord avec les commentaires du juge en chef Dubin, à la p. 613:   [Traduction] Le juge du procès a l'obligation de présenter les arguments de la défense d'une manière aussi complète et juste que ceux du ministère public. Si l'exposé du ministère public est injuste, la défense peut porter plainte au juge du procès, qui doit corriger les erreurs que le substitut du procureur général a commises en dépassant les bornes et qui sont susceptibles de conduire à un procès inéquitable.   […]   128     Lorsqu'il apporte des corrections aux exposés des avocats, le juge du procès doit traiter les deux parties de manière équitable et juste. Les directives correctrices ne devraient pas laisser entendre que les arguments de l'une des parties emportent son adhésion ni donner l'impression qu'il conteste la position de l'une des parties; voir R. c. Pouliot, [1993] 1 R.C.S. 456, infirmant (1992), 47 Q.A.C. 1.   [Soulignage ajouté]

[62]        The trial judge well respected the measures referred to in the foregoing extract.

[63]        In his treatise entitled Prosecutorial Misconduct,[36] Robert J. Frater poses the following questions as a means to assess the effectiveness of corrective action:[37]

· was the impropriety corrected?

· how quickly was the corrective action taken?

· was the correction clear, specific and forceful?

· did the Crown correct the problem?

[64]        In this case, the short answer is that as we have seen, the trial judge quickly corrected the impropriety in clear and specific language, and the Crown quickly acknowledged the error of its ways. Moreover, the trial judge reiterated the correction in her instructions.

[65]        In such circumstances, the trial judge was right to deny the order for a mistrial that the appellants sought. Moreover, their counsel's decision not to exercise the right of reply to the jury they had initially requested and which the trial judge granted them can only be seen as a strategic decision to preserve a ground of appeal in the event of an adverse verdict.

[66]        This ground of appeal also fails.

IV

CONCLUSION AND DISPOSITION

[67]        Political decisions taken in secret and adopted surreptitiously are bound to draw intense reaction from those affected when the participation of elected officials in the democratic process has been stifled. Violence and the realistic threat of violence, however, are inappropriate rejoinders to such conduct, and will inevitably lead to criminal proceedings such as these, with an adverse result for many of those involved.

 

 

FOR THESE REASONS, THE COURT:

[68]        DISMISSES the appeals.

 

		ALLAN R. HILTON, J.A.
		PAUL VÉZINA, J.A.
		CLAUDE C. GAGNON, J.A.
Mtres Dylan Jones and Jeffrey K. Boro
Boro, Polnicky, Lighter
For the appellants
Mtre Dennis Galiatsatos
Criminal and Penal Prosecuting Attorney
For the respondent
Date of hearing:	April 30, 2015