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R. c. Simpson |
2014 QCCQ 8973 |
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JL1755 |
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CANADA |
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PROVINCE OF QUEBEC |
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DISTRICT OF |
MONTREAL |
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« Penal and Criminal Division » |
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N° : |
500-01-089926-130 |
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DATE : |
September 25, 2014 |
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______________________________________________________________________ |
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PRESIDING : THE HONOURABLE DENIS LAVERGNE, J.C.Q. |
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THE QUEEN |
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Prosecutor |
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c. |
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Andrew SIMPSON |
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Respondent |
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______________________________________________________________________ |
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JUDGMENT |
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[1] The defendant is charged with three offenses of criminal harassment, an offense of having uttered a threat to cause death or bodily harm and another to have, not being in a dwelling-house, caused a disturbance in a public place, namely, the building of the Court of Appeal of Quebec in Montreal, by fighting, screaming, shouting, swearing, singing or using insulting or obscene language.
[2] All these offenses brought against the defendant arise from a single incident occurring on March 21st, 2013 in the premises of the Court of Appeal of Quebec in Montreal.
[3] The three people who have been the object of the criminal harassment are members of the staff of the Court of Appeal.
[4] As to the alleged victim of threat, it is a special constable called to the scene.
[5] The facts establish that the defendant accompanied by Mrs. Kizzy-Ann Farrell, present themselves at the Court of Appeal’s court clerk’s office.
[6] They are seeking information on the status of the pending file at the Court of Appeal in which they are both involved.
[7] In the circumstances described below, the discussion with the staff of the court clerk’s office escalates to the point where the Security Service must intervene.
[8] At the request precisely of the security service, the defendant and Mrs. Farrell eventually leave voluntarily.
[9] However, the defendant is arrested shortly after leaving the building of the Court of Appeal on faith, we can infer from the evidence, of the versions of the incident given to the security service by the staff involved in the incident.
[10] Before turning to the examination of the testimonies, the elements of the offense in question should be recalled and identified.
- What is criminal harassment?
[11]
The defendant is accused of having acted towards Marie-Claude
Benoît, Celina Ayala and Catherine Dufour, staff members of the Court of
Appeal, knowing that they were harassed or recklessly as to whether they were
harassed, having engaged in a prohibited conduct referred to in subsection
[12]
Section
No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
[13] So what are these prohibited acts to which the provision refers?
[14] Section 264(2) lists them the following way:
The conduct mentioned in subsection (1) consists of
(a) repeatedly following from place to place the other person or anyone known to them;
(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or
(d) engaging in threatening conduct directed at the other person or any member of their family.
[15] In Bertrand v. R.[1], the Court of Appeal pointed out that the offense of harassment has four essential elements:
- the existence of threatening behavior;
- the effect of threatening behavior;
- the existence of harassment;
- the knowledge of the effect of harassment or recklessness as to its effect demonstrated by the accused.
[16] The Court also teaches that the offense of harassment may be committed during one incident[2].
[17]
"Harassing" means for the purposes of Section
[18] That being said, caution should be exercised when it comes to determining whether the threatening conduct and state of harassment which is the result because it may distort the essence of the offense and give it a range it does not have.
[19]
In view of the evidence in support of the offenses, "the
prohibited act" with which the defendant is charged falls within sub-paragraph
(d) of Section
engaging in threatening conduct directed at the other person or any member of their family.
- The offense of threat
[20]
Section
Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat
(a) to cause death or bodily harm to any person;
[21] Several Supreme Court of Canada rulings addressed this offense [5].
[22] It is important to remember that the elements of the offense include:
(1) The utterance or conveyance of a threat to cause death or bodily harm;
(2) An intent to threaten.
[23] Citing a passage from its judgment in McCraw, the Supreme Court in McRae, reiterates about the analysis that must deliver the trial judge when deciding if there is a death threat or threat of serious injury:
The question to be resolved may be put in the following way. Looked at objectively, in the context of all the words written or spoken and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person?
(McRae, paragr. [10])
And
The starting point of the analysis should always be the plain and ordinary meaning of the words uttered. Where the words clearly constitute a threat and there is no reason to believe that they had a secondary or less obvious meaning, the analysis is complete. However, in some cases, the context reveals that words that would on their face appear threatening may not constitute threats within the meaning of s. 264.1(1)(a) (see, e.g., O’Brien, at paras. 10-12). In other cases, contextual factors might have the effect of elevating to the level of threats words that would, on their face, appear relatively innocent […]
(McRae, parag. [11])
[24] That said, the question of whether the accused uttered a threat of death or bodily injury turns solely on the meaning that a reasonable person would attach to the words viewed in the circumstances in which they are uttered or conveyed.
[25] It is not necessary that the recipient of the threat was intimidated by the threat or has taken it seriously.
[26] In conclusion on this point, the Supreme Court in McRae teaches:
[16] […] the prohibited act of the offence of uttering threats will be made out if a reasonable person fully aware of the circumstances in which the words were uttered or conveyed would have perceived them to be a threat of death or bodily harm.
[27] What now with the second essential element of the offense, the intention?
[28] In McRae, the Supreme Court recalls:
The fault element is made out if it is shown that threatening words uttered or conveyed “were meant to intimidate or to be taken seriously”.
(McRae, paragr. [17])
- The offenses of causing disturbance
[29]
The Supreme Court of Canada
in Q. v. Lohnes[6],
ending a certain controversy on the issue, specifies what constitutes an
offense under section
[30] From the start, Madam Justice McLachlin wrote for the Court, unanimous:
Shouting or swearing or singing are not in themselves criminal offences. They become criminal only when they cause a disturbance in or near a public place. What constitutes such a disturbance? For example, does mere annoyance or emotional disturbance of the complainant suffice? Or is something more required?
[31]
After reviewing the origins of section 175 creating the offense
of disturbance and the Canadian jurisprudence having applied it, Madam Justice
McLachlin considers that the term "disturbance" for the purposes of
Section
[32] She makes the following arguments:
[…] the noun "disturbance" may have a different connotation than the verb "to disturb". Not everything that disturbs people results in a disturbance […]. […] "disturbance" has a secondary meaning which "disturb" does not possess; a meaning which suggests interference with an ordinary and customary conduct or use;
[…] the context of "disturbance" in s. 175(1)(a) suggests that Parliament did not intend to protect society from mere emotional disturbance. […] Parliament chose to speak of a disturbance in or near a public place, not in someone's mind. By addressing "disturbance" in the public context, Parliament signalled that its objective was not the protection of individuals from emotional upset, but the protection of the public from disorder calculated to interfere with the public's normal activities;
[…] the heading under which s. 175(1)(a) appears supports the view that Parliament had in mind, not the emotional upset or annoyance of individuals, but disorder and agitation which interfere with the ordinary use of a place;
[…] the word used for disturbance in the french version of s. 175(1), "tapage", connotes an externally manifested disturbance involving violent noise or confusion disrupting the tranquillity of those using the area in question.
[33] And the judge concluded:
[…] the disturbance contemplated by s. 175(1)(a) is something more than mere emotional upset. There must be an externally manifested disturbance of the public peace, in the sense of interference with the ordinary and customary use of the premises by the public. There may be direct evidence of such an effect or interference, or it may be inferred from the evidence of a police officer as to the conduct of a person or persons under s. 175(2).
[34] As the jurisprudence illustrates, « the interference with the ordinary and customary conduct in or near the public place may consist in something as small as being distracted from one's work. But it must be present and it must be externally manifested ».
[35] It is now time to review what the evidence shows.
- Highlights and relvevant facts
· Mrs. Catherine Dufour's version
[36] A lawyer by profession and Assistant Coordinator at the Criminal division court clerk’s office of the Court of Appeal, Mrs. Dufour knows the defendant as a user of the clerk’s office at which he has presented himself at least twice before the events of March 21st, 2013 on a matter pending before the Court to which he is a party.
[37] Here is how Mrs. Dufour reports the defendant’s visit to the clerk’s office on March 21st, 2013.
[38] Mrs. Farrell talks to Mrs. Dufour who answers her questions about the same file in which she is also involved.
[39] Meanwhile, Marie-Claude Benoît, another employee of the clerk’s office speaks with the defendant.
[40] According to Mrs. Dufour, the conversation between Mrs. Benoît and the defendant becomes animated.
[41] The defendant moves to address Mrs. Dufour who he criticizes for not speaking English, tells her she is a racist and contests the fact that she cannot help him. He threatens to sue her.
[42] In the course of his diatribe against Mrs. Dufour, he uses the expression "to throw under the bus" which she does not know. She nevertheless expresses feeling harassed by these words. She considers the defendant's conduct as harassing, doubled with aggression.
[43] The conversation lasts 4 to 5 minutes. She is shaken to the point where she does not go through her day.
[44] According to her, it so happens that the conversation is no longer about the respondent's file as such that she does not have “the opportunity” to discuss it further.
[45] The constables intervene.
[46] The defendant eventually leaves the premises in circumstances that Mrs. Dufour does not know.
[47] We can retain in cross-examination:
- she does not know the expression "to throw under the bus"; so she did not know what it meant; she now recognizes that the expression does not mean what she had initially inferred when the defendant uses it, that is to say, according to the literal meaning of the words;
- she does not remember the exact nature of the defendant’s step on March 21st, 2013 nor the issues he wanted to address; but she knows that the defendant had sent documents to the Chief Justice likely complaining about the handling of his case;
- during previous visits, she remembers that the defendant also complained about the slow progress of his case;
- she never felt harassed during previous visits of the defendant;
- she recognizes that it is easier to deal with lawyers than with people who have no legal knowledge;
- she reiterates not to have had the opportunity to assist the defendant on March 21st, because he showed his displeasure at the outset; she actually recognizes telling him she could not help but says, at the trial, that she thought his overreaction was the cause; in fact she did not even have the time to speak as she would have liked, the defendant moving towards her and criticizing her;
- she says it was not easy to talk with the defendant but maintains that she never lost patience;
- to the questions seeking to establish the ambivalence of the relevance to lay charges, she says she is sorry that the day ended this way on the one hand, and to have thought about what she wrote in her statement on the other hand; it is not possible to work in the conditions that prevailed; one cannot tolerate it; the rest is the Director of penal and criminal proceedings’ jurisdiction;
- however, she considered as harassing the defendant’s remarks; as a precaution, she asked her husband to pick her up at work;
- she describes the atmosphere reigning at the clerk’s office as chaotic. In re-examination, she stated not to have felt safe, which explains the help of her spouse in case, she says, the defendant would want revenge.
· Mr. Maxime Langlois' version
[48] Special Constable, Mr. Langlois was posted, on March 21st, 2013 at the Montreal Courthouse.
[49] He is called to the Court of Appeal building on the grounds, according to the information received, that an aggressive individual is verbally lashing out at the staff, wants to talk to a judge and refuses to leave.
[50] Upon his arrival on the premises, he sees the defendant talking with a clerk, Mrs. Marie-Claude Benoit, and two special constables. The defendant shows to be "verbally aggressive".
[51] It appears that Mrs. Benoit had already asked the defendant to leave.
[52] Mr. Langlois attempts to establish a dialogue with the defendant who gesticulates and repeats he will not leave the premises before speaking to a judge.
[53] After a few minutes of conversation, the defendant appears to him angry, disorganized and somewhat confused.
[54] After telling him that he could not see a judge, he hears the defendant tell him the same comments reported by Mrs. Dufour. The defendant adds, "I'm going to hunt people down", "That this is the only opportunity I have left." However, in cross-examination about the additional and somewhat different "to hunt people down" becomes "I'm going to shoot the same people." The defendant proves to be turbulent and speaks loudly.
[55] Mr. Langlois considers that the defendant behaves in a threatening manner towards him and towards the others so that it becomes imperative to expel him from the premises.
[56] He therefore tries to convince the defendant to leave.
[57] Other constables arrive. The defendant eventually complies and leaves voluntarily without the need to use any force whatsoever.
[58] In cross-examination, Mr. Langlois confirms, essentially, his testimony in examination. But particularly, arriving on the scene, he sees the defendant gesticulating, screaming, walking, talking loudly and insulting constables and a clerk.
[59] The defendant also calls him a "racist".
· Mrs. Marie-Claude Benoît's version
[60] Legal Technician, Mrs. Benoît confirms having seen the defendant before March 21st, 2013 but never having dealt with him.
[61] On March 21st, the defendant and Mrs. Farrell speak primarily to Me Dufour. Then, the defendant walks away from them to ask her to speak to a clerk.
[62] Mrs. Benoît asks for what reason, to which the defendant answers with the same question and emphatically spelling the word "clerk".
[63] She tells him she is herself a clerk; the defendant asks to talk to a judge. Mrs. Benoît decides to refer him to Me Dufour.
[64] The defendant gesticulates "excessively and abruptly," talks a lot and loudly; he says he is a victim of injustice. Mrs. Benoît says she cannot help him; the defendant says that it is because he is black that she does not want to help him.
[65] It seems pointless to continue such a discussion which escalates. Stressed and frightened, Mrs. Benoît pushes the panic button which will have the security service intervene.
[66] Estimating herself to be tolerant and strong of a long experience, Mrs. Benoît does not accept all the shouting and aggression. She sets the defendant’s tone "on the edge of speaking loudly".
[67] According to her, the staff uses the panic button four or five times a year.
[68] In cross-examination, Mrs. Benoît declares:
- the defendant already had a loud tone when he asks her to talk to a clerk;
- he was known as a person asking questions, and probably not represented by a lawyer although she says in this regard not to have kept a clear memory;
- it seems it was agreed that Mrs. Dufour would now be in charge of answering the defendant on the grounds that his case would have presented difficulties of a legal order requiring recourse to a lawyer;
- she denies being offended when the defendant repeated his request to speak to a clerk by insisting on spelling the word as if she had not understood; she cannot say whether asking the defendant why he wanted to talk to a clerk would have further poisoned the atmosphere;
- the defendant would not let her speak; he appeared illusory to continue the conversation which wasn’t really one in fact;
- the defendant said, among other things, that he was a victim of injustice and wanted to talk to a judge;
- she does not know or does not remember the exact nature of the defendant’s step;
- the defendant made no threatening gesture towards her nor adopted some aggressive posture;
- the exchange with the defendant lasts a few seconds;
- subsequently, she discussed the event with colleagues;
- she does not remember if she returns to her duties after the departure of the defendant; but further, and when viewing an excerpt from a video tape (Exhibit D-4), she admits to having returned to her duties after pressing the panic button; however, she does not acknowledge that she was not stressed;
- she recognizes that she would have wished to exempt herself from Mr. Simpson’s visit on the question of whether she considered him a nuisance.
· Mr. Bertrand Gervais's version
[69] Researcher Coordinator at the Court of Appeal, but General Director at the time, Mr. Gervais had heard about the defendant prior to his visit on March 21st, but had not dealt with him.
[70] The defendant had expressed during previous visits his displeasure to the point of going into a courtroom to talk to a judge.
[71] He is not a witness to the exchange between the defendant and Mrs. Dufour and Mrs. Benoît.
[72] Mrs. Dufour went to his office to tell him what had happened at the clerk’s office. She seemed to him in shock and she is crying.
[73] Upon his arrival on the scene, the defendant is talking to constables. He speaks loudly, appears edgy, restless and discontented. In fact, Mr. Gervais described the defendant's behavior as being among the most agitated. The constables try to calm him down but without success.
[74] Mr. Gervais wanted to avoid a repeat of the previous incident in which the defendant broke into a courtroom. He therefore ordered in that regard to lock the courtroom near where stood the defendant accompanied by the constables. He was there at about 11:00 - 11:15, the time corresponding to the judges’ recess.
[75] After about 15-20 minutes, the defendant agrees to voluntarily leave the premises.
[76] Mr. Gervais confirms that Mrs. Dufour has interpreted the expression "throw under the bus" as a threat to throw someone under the wheels of a bus.
· Mrs. Nancy David's version
[77] Special Constable assigned to the security post at the entrance of the building of the Court of Appeal, Mrs. David receives, on March 21st, 2013, an emergency call to go to the clerk’s office.
[78] Upon her arrival, she sees and hears the defendant gesticulating, talking loudly and asking to speak to a clerk.
[79] According to her, the defendant displayed aggressive behavior. People move away from the counter. Mrs. Benoît seems to be in shock.
[80] Mrs. David is trying to communicate with the defendant but in vain; he insists on speaking to a clerk.
[81] Meanwhile, Mrs. Dufour speaks to Mrs. Farrell in French. The aggressiveness of the defendant is accentuated; he accuses Mrs. Dufour of being a racist because she speaks French.
[82] Mrs. David comes out of the clerk’s office with Mrs. Farrell, who explains the situation. In the meantime, the defendant stayed with Mrs. Dufour who provides explanations in English.
[83] Another constable, Mr. Lacroix, arrives on the scene. He asks the defendant to leave. Other people want to come to the clerk’s office. The defendant refuses to leave for as long as he will not have spoken to a judge.
[84] He walks towards a courtroom. But it is locked.
[85] After the arrival of other constables and five minutes of discussion, the defendant leaves the premises.
[86] According to Mrs. David, a tense atmosphere prevails; the clerks are thereby stressed. More specifically, Mrs. Dufour seems emotionally affected and sad that it was not possible for her to do more than the explanations she tried to give the defendant.
[87] Mrs David estimates at 45 minutes the duration of the incident.
[88] In cross-examination, she reports that the defendant calls her a racist. She admits that she saw the defendant at least once before March 21st, 2013. But she had heard from other people that he had actually been there twice before.
· Mr. Martin Boucher's version
[89] Operations Officer at the Montreal Courthouse and Court of Appeal, Sergeant Martin Boucher, special constable answers, on March 21st, 2013 an emergency call to go to the Court of Appeal.
[90] Upon his arrival on the scene, accompanied by three other constables, the director, Mr. Gervais, tells him that he asked that a courtroom be locked and that the activities will not resume until the defendant has not left the building.
[91] Close to a courtroom, the defendant speaks loudly. All eyes are directed towards him.
[92] Mr. Boucher asks constable Lacroix, first, to invite the defendant to leave and then after a while, to expel him.
[93] The defendant shows to be agitated, talks loudly, shouts, calls everyone racists and hits the side of his head with his hand. He says "you are not done with me," "you will have to kill me".
[94] Subsequently, Mr. Boucher asks constable Lacroix to take the statements of those present to know what happened.
[95] He evaluates at 10 to 15 minutes the duration of his presence at the Court of Appeal.
[96] He acknowledges that the defendant eventually leaves the Court of Appeal voluntarily and without being obliged to use the hard way.
[97] The defendant collaborated, but hardly, says the witness who later explains why and how we proceeded to his arrest at the Montreal Courthouse.
[98] According to Mr. Boucher, the defendant has indeed disturbed the peace in the Court of Appeal; but given his collaboration, even limited, it was decided not to intervene further. Incidentally, Mr. Boucher also acknowledges that he had no other reason to arrest the defendant at the Court of Appeal building.
[99] However, the situation is otherwise when witnesses, including Mrs. Dufour, have made a statement incriminating the defendant.
· Mr. Andrew Simpson's version
[100] With no criminal record, and describing himself as a "revolutionist", the defendant maintains his innocence. He says he is a victim of injustice, racism, false charges based on fabricated evidence and perjury.
[101] In essence, his testimony blames the events of March 21st, 2013 on a failure in their duties of the staff of the Court of Appeal clerk’s office, in general, and Mrs. Dufour, in particular.
[102] He underlines that his step at the clerk’s office, that March 21st, is part of a goal to have his pending file progress in more rapid manner at the Court of Appeal in which the prosecution had appealed against an acquittal. Moreover, he emphasizes that his approach in this direction is based on the recommendation made to him by a judge of the Court of Appeal urging him to go to the staff that would help with the procedure.
[103] He denies causing a disturbance or threatening anyone. He considers as unjustified and an infringement of his right to freedom of expression and freedom of access to a public place, such as the Court of Appeal building, to have been expelled.
[104] Regarding the expression "to throw someone under the bus," the defendant denies having said it, at least, as reported by Mrs. Dufour and Mr. Langlois:
[…] I never said that, Your Honour. That's what I'm saying, Sir. I speak proper language. I said to them seems like you're all like throwing me under the bus. That's all I said. Throwing under the bus is a legal term, Sir. It means when you stop all legalities, when you stop all my way to go through (inaudible) me, (inaudible) law (inaudible) the police they could do this because they have the law, they could do this, that's why I used that phrase.
It's a Jamaican phrase, a Caribbean phrase, to throw under the bus.[7]
And, in cross-examination:
Q. Are you saying to the Court that it is Jamaican in origin?
A. It's a phrase that we use in my country because I've never travelled. It means somebody is against you, like in that manner. Somebody like the law, something like that, you'll say he throws me under the bus. I can't win you so whatever you're doing then, you are killing me. You are throwing me under the bus. It means that you're going to run over me. Then you're not helping me.[8]
[105] Faced with the definition of the term given by the document (Exhibit D-1) he filed, the defendant says:
A. No, but that can mean that to the people in the encyclopedia but I'm saying this is what it means to me. I was saying, at the time I was saying to Mrs. Dufour, that since like you people -- I never said her. I said: You people is throwing me under the bus.[9]
[106] Thus, he alleges that Mrs. Dufour and Mr. Langlois both misjudge the phrasing of the expression as he said it.
[107] Incidentally, he stresses that he has a habit of using the same expression for any occasion.
[108] As for the word "I'm going to hunt people down", "That this is the only chance I have left", here is the defendant’s version:
Q. Did you say at one point I will hunt you down, it's the only choice I have left. Did you say that to a constable?
A. No. If I said it, this is the way I put it. I said: If you're provoking me so much, you throw me under the bus, you are stopping me to get justice, it seems that you want me to go hunt them people, (inaudible) people (inaudible) killer, (inaudible) in Canada that's what you want me to do.[10]
[109] The prosecution noting that no witness had previously mentioned wanting to make a "serial killer" out of the defendant, he answers:
Q. But no one before the Court retold those words. How do you explain that?
A. Because if I speak, Sir, in my mother language, that's patois. Now, if I'm in my -- I told you I'm sick, so then I speak patois. I speak -- I stutter to get the words out. Sometimes (inaudible) the same words but I didn't have to explain to you what I just said because I speak so fast then (inaudible).[11]
And, further, about the words "I will hunt you down; it's the only choice I have left":
Q. You didn't pronounce those words.
A. Probably I said it and probably I didn't said it because, Sir, the terminology is that if I get justice I'm telling the Court also that I want to speak to a judge to go on the roll and I've been blocked. So I've been stopped by the courthouse, somebody there is stopping me. Go on!
Q. I'm on the subject of the words.
A. Yes, Sir.
Q. Did you say those words: I will hunt people down, it's the only choice I have left. Did you say those words?
A. I don't recall, I don't remember saying those words but I use phrases that goes in the courthouse all the time, in my trials all the time. I said: You are provoking me to go turn myself into a serial killer, yes.
Q. Okay, okay. And the expression to throw someone under the bus is an expression that you use often?
A. Yes, Sir.
Q. But you would have used it in reverse. It's what you're telling the Court. I mean you want to throw me under the bus.
A. Yes.[12]
- Analysis
[110] Pursuant to the rules of law made by the jurisprudence stated above, what about, here, in regards to the facts at issue?
[111] At the outset, we should make an observation on the attitude of the defendant throughout this three-day trial.
[112] Not represented by counsel, the defendant was found inclined to be quick tempered and sometimes seemed daunting towards the Court’s interventions although essentially intended to remind him how to proceed in the investigation phase of the trial.
[113] At the hearing on May 28th, 2014, the evidence of the prosecution continuing, the defendant has reached the threshold of contempt. He asked if the presiding judge was crazy after having made, not without aggressiveness in his tone, several criticisms of violating his rights.
[114] It should be noted that one of his criticisms would be to have been forced to be represented by a lawyer.
[115] Pursuant
to section
[116] Ironically, this lawyer, Me Hugues Surprenant, clearly well prepared, engaged in a tight and effective cross-examination of the two witnesses which scored points in favor of the defendant in particular regard to the count of criminal harassment against Mrs. Benoît.
[117] Fortunately, the calming presence of Mrs. Farrell who accompanied the defendant throughout the trial and whom the Court has allowed to remain at his side during the hearings was proved to be probably beneficial. It is clear that Mrs. Farrell has done useful work by suggesting in writing to the defendant the questions to ask. At the closing arguments, the Court, exceptionally, allowed Mrs. Farrell to speak to it on behalf of the defendant to read an argument supporting the dismissal of the charges.
[118] Nevertheless, the defendant, a man of great stature, has himself demonstrated an inability to control himself when upset or even capacities to intimidate when a loud and aggressive tone as well as accentuated gestures are reunited.
[119] Such a propensity is of relevant dimension when it comes to dealing with criminal offenses whose foundation is based on the improper conduct of an individual.
[120] It is not without interest to note that the special constable Mrs. David who assisted the defendant’s exit at the hearing on May 28th, 2014, recounted above, said in re-examination that the defendant's attitude proved comparable in all respects to the one she had seen on March 14th, 2013 at the Court of Appeal.
[121] The Court is satisfied beyond reasonable doubt of the veracity of the description of the agitated behavior of the defendant given by six witnesses during the trial.
[122] Moreover, the defendant did not contradict such a description.
[123] This being, it does not mean, however, that the defendant is guilty of the offenses with which he is charged.
[124] An uncivil or discourteous conduct does not in itself violate the law. More is required to conduct a criminal liability as illustrated by the cases cited previously.
- Count of infraction number 1 : criminal harassment towards Mrs. Marie-Claude Benoît
[125] The Court acquits the defendant.
[126] Mrs. Benoît pressed the panic button after an exchange of a few seconds with the defendant at a moment when, on the one hand, she found it unnecessary to continue the conversation because of the aggressiveness that she perceived in him and, secondly, the fear arising in her because of such a behavior punctuated by an unduly loud tone and criticisms, accompanied by robust gesticulation.
[127] But beyond talking louder than necessary, gesticulating and saying perhaps unpleasant things, the facts do not reveal any express or implied threat nor any gesture or posture susceptible of amounting to threatening words or a threat. One must also keep in perspective that the scene lasts less than a minute.
[128] In addition, Mrs. Benoît continues to go about her business after the exchange with the defendant. Without excluding that the incident she could well have done without, she says, stressed her out, one can come to the conclusion that she has not been greatly disturbed to the point of leaving the office or taking a break to recover.
[129] Mrs.
Benoît did not testify feeling harassed one of the elements of the offense of
harassment under section
[130] While there are situations, such as in R. v. Bertrand[13], in which this state of harassment can be inferred from the factual evidence.
[131] The Court
believes Mrs. Benoît when she says she was afraid. However, one cannot make an
automatic equation between fear prompting a state official to push the panic
button because of inappropriate and discourteous behavior of a user, and
criminal harassment within the meaning of Section
[132] While
weighing the scene described by Mrs. Benoît as a whole, it is not possible to
conclude beyond a reasonable doubt in a criminal harassment under section
[133] The prosecution has not discharged itself beyond a reasonable doubt to prove the constituting elements of the offense of harassment.
- Count of infraction number 2 : criminal harassment towards Mrs. Céline Ayala
[134] The Court acquits the defendant.
[135] Mrs. Ayala did not testify.
[136] There is no evidence in the file that establishes beyond reasonable doubt the commission of the offense.
- Count of infraction number 3: criminal harassment towards Mrs. Catherine Dufour
[137] For the reasons that follow, the Court acquits the defendant.
[138] It is not possible, given the context, to exclude a misunderstanding of the phraseology in which the defendant used the expression "to throw you under the bus".
[139] Incidentally, the evidence of the facts does not reveal what was this phraseology, in other words, the phrase uttered by the defendant in which we find the expression.
[140] Mrs. Dufour and Mr. Langlois limit themselves to reporting the words of the expression but removed from its context.
[141] The defendant’s version proves to be difficult to believe in this regard given that another witness, namely Mr. Lacroix, and at a different time, hears the same expression; it does however raise a reasonable doubt.
[142] The defendant's explanation makes sense to the extent that, believing himself to be, rightly or wrongly, badly served by employees of the state, he would have expressed frustration exclaiming that they wanted to get rid him.
[143] Indeed, the threat that Mrs. Dufour and Mr. Langlois lend to the use of the expression is equally compatible with a demonstration of the spite felt by the defendant who considered himself a victim of racism and treated in a unsatisfactorily manner by the clerk’s office staff. That the defendant used the expressions so as to express that they wanted to get rid of him does not show to be implausible either. After all, it only suffices to replace a few words to change the meaning of the expression.
[144] The defendant’s rapid speech, which the court itself has been able to observe during the hearings, marked with a Jamaican accent difficult to understand by a francophone who is not familiar, and occasionally, according to the defendant, of Jamaican patois, are not without adding to the risk of misinterpretation.
[145] Mrs. Dufour says she understands English. But she did not know the expression "to throw you under the bus" and, as already mentioned, it seems she at first understood it in its literal sense, that is to say, a real threat and this even if she hesitated thereafter to make a formal complaint.
[146] Consequently, as soon as there is room for reasonable doubt about the words reported by Mrs. Dufour and contradicted by the defendant, the court finds that the facts do not establish beyond a reasonable doubt that the defendant behaved in a threatening manner.
[147] If one excludes from the factual backdrop the expression "to throw under the bus" in the context described by Mrs. Dufour, it is not possible to conclude to a threatening behavior, the first element constituting the offense of criminal harassment.
[148] Otherwise, the defendant's guilt would not be in doubt because the expression would have clearly constituted a threat in the context even if, in its figurative sense, it does not have that meaning.
[149] But, here, this is not the case.
[150] Consequently what is left? The anger of the defendant who speaks loudly, who speaks accusingly to Mrs. Dufour, to wit, accuses her of being a racist and of not wanting to help him? This is certainly not the behavior state employees expect from citizens who address them. Mrs. Dufour would have been right to end the conversation with the defendant if she found the tone and manner of addressing her unacceptable.
[151] However, one must still consider that the defendant exercised a legitimate right by inquiring at the clerk’s office about the status of his case.
[152] Criticizing, justified or not, and insulting a state official, although all these are inappropriate, does not in itself constitute threatening remarks.
[153] For these reasons, the acquittal is required, the first of four elements constitute the criminal offense not being proven beyond reasonable doubt.
- Count of infraction number 4: threat to cause death or bodily harm to Maxime Lacroix and employees of the Court of Appeal of Quebec
[154] For the reasons that follow, the Court acquits the defendant.
[155] From the outset, keeping in perspective the reasons the court stated concerning the offense of criminal harassment against Mrs. Dufour, there is no evidence beyond a reasonable doubt that the defendant has threatened to cause death or injury to employees of the Court of Appeal clerk’s office.
[156] Moreover, and according to the testimony of Mr. Lacroix, the defendant talked incessantly, in different directions and all around, turning to everyone. According to the witness, he said a lot of things and uttered insults. He seemed confused, agitated and disorganized. He threatened other special agents.
[157] Mr. Lacroix says he speaks English with ease. He asserts that the defendant clearly said these words: "I'm going to throw you out under the bus" followed by "I'm going to shoot some people." "It's the only chance I have left." The witness’s version is somewhat different depending on whether one relies on the examination or cross-examination. In the first, it is rather "to hunt people down"; in the second "to shoot some people".
[158] Previously, the Court found that the defendant’s version raised a reasonable doubt about the way in which he used the expression "to throw someone under the bus" when he was talking with Mrs. Dufour.
[159] It is not different with the offense of threat against Mr. Lacroix.
[160] The defendant does not deny saying the two expressions; however, the sense in which the sentence was used made himself the target subject and not the other party. He also added saying that the attitude of the court staff or special agents could make him a serial killer. No other witness, it is true, has reported such words. However, Mr. Lacroix confirms that the defendant spoke and said many things.
[161] Moreover, no other witness supports Mr. Lacroix’s version either.
[162] No other witness confirms threats to other special agents as does Mr Lacroix.
[163] There is no evidence that the defendant made any hostile gesture toward anyone or any physical contact with anyone.
[164]
Moreover, and despite threatening words towards the peace
officer, no one arrest the defendant forthwith as was permitted by section
[165]
In still assuming that the defendant uttered the threatening
words, the Court is not convinced that Mr. Lacroix truly felt threatened. He
testified that he had before him an agitated man speaking loudly, saying
anything, and even seeming confused or disorganized. Even if, on this issue,
the perception of the victim is not a relevant benchmark to determine if there
is a threat within the meaning of section
[166] In summary, the defendant's testimony raises a doubt about the threatening words he would have uttered; and in the best of situations for the prosecution, assuming that the defendant allegedly made the remarks reported by Mr. Lacroix, there would be as much room for doubt on criminal intent.
- Count of infraction number 5 : disturbance in a public place
[167] The Court acquits the defendant.
[168] The facts
do not convince beyond a reasonable doubt of one of the essential elements of
the offense provided for in Section
[169] In Lohnes[14], the Supreme Court of Canada said that the offense is twofold: first, the accomplishment of any of the acts listed and then an act that causes a disturbance in a public place or near such a place.
[170] The act
charged to the defendant is as follows in Section
(a) not being in a dwelling-house, causes a disturbance in or near a public place,
(i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language,
[171] The combined testimonies of Mrs Dufour and Mrs. Benoit, the three special constables and the Director, Mr. Gervais, show beyond doubt that the defendant committed one of the acts listed in the provision such as screaming, shouting or using insulting language.
[172] However, the second part of the infraction causes a problem.
[173] In Lohnes, the Supreme Court concluded after a review of the jurisprudence, the principles of statutory interpretation and principle considerations "that the disturbance contemplated by s. 175(1)a) is something more than mere emotional upset". There must be an externally manifested disturbance of the public peace, in the sense of interference with the ordinary and customary use of the premises by the public[15].
[174] However, the facts do not persuade the court that the discourteous and unwelcome conduct of the defendant has impeded the normal work of the clerk’s office or the courtrooms.
[175] The evidence does not support the statement of Sergeant Boucher according to which the activities were disrupted because of the defendant's conduct.
[176] On the one hand, locking the courtroom towards which the defendant goes at a time when hearings are suspended for the morning break. In this context, it is difficult to see how the defendant impeded the normal activities of the courtroom. Moreover, there is no evidence that individuals or litigants were deprived, even very momentarily, either from accessing the courtroom, or any services usually available at the Court of Appeal.
[177] On the other hand, Mrs. Benoît returned to work after ending the conversation which lasted a few seconds with the defendant. Mrs. Dufour left work due to emotional disturbance brought on by the defendant's conduct.
[178] But the facts do not establish conclusive evidence that allows to infer an "interference with the ordinary and customary use of the premises by the public" of the services provided by the Court of Appeal’s clerk’s office. The Court does not know what Mrs. Benoît does or does not do while the defendant is talking to Mrs. Dufour.
[179] The evidence does not clearly establish that members of the public have not had access to the clerk’s office either during the sequence described by Mrs. Benoît and Mrs. Dufour which lasts no more than five or six minutes or in the subsequent phase where the constable urges the defendant to leave, which he finally does without any problem.
- Other considerations
[180] Given these findings, it is not necessary for the Court to rule on the arguments it has, exceptionally, allowed Mrs. Farrell who is not a lawyer, to assert by way of argument instead of the defendant.
[181] It is sufficient to make the following two observations.
[182] The Court of Quebec, Criminal Division, has no jurisdiction to rule on allegations of misconduct or neglect of duties, if any, by employees of the public service in the performance of their duties. Moreover, the argument that Mrs. Dufour would have violated several provisions of the Criminal Code is totally devoid of any legal basis.
[183] Finally, Act Respecting Administrative Justice (CQLR, c J-3) does not apply to the facts of the case. Moreover, the defendant has not satisfied that his constitutional rights were violated in any way.
FOR THESE REASONS, THE COURT:
ACQUITS the defendant, Mr. Andrew Simpson.
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__________________________________ DENIS LAVERGNE, J.C.Q. |
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Me Pierre Garon |
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For the prosecution |
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M. Andrew Simpson |
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Personally |
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Hearing dates : |
April 2nd and 4th, 2014 May 28th, 2014 |
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[1]
[2] Q. v. O'Connor,
[3] Q. v. Lamontagne, 1998 CanLII 13048 (Q.C.A.), p. 11.
[4] Id., p. 10.
[5]
R. v. McCraw,
[6]
[7] Transcripts, hearing of May 28th, 2014, p. 148, l.12-L.22.
[8] Id., p. 150, l.15-l.24.
[9] Id., p. 151, l.15-l.20.
[10] Id., p. 153, l.24-l.25; p. 154, l.1-l.7.
[11] Id., p. 155, l.17-l.24.
[12] Id., p. 156, l.22-l.25; p. 157, l.1-l.20.
[13] Aforementioned, note 1.
[14] Aforementioned, note 6.
[15] Id. p. 181.
AVIS :
Le lecteur doit s'assurer que les décisions consultées sont finales et sans
appel; la consultation
du plumitif s'avère une précaution utile.