R. v. Royz, 2008 ONCA 584
[5] The first ground of appeal is that the trial judge erred by failing to instruct the jury that “not every distasteful threat will constitute extortion” and that “the threat must go beyond that which a reasonable person in the circumstances of the accused would view as … legitimate”. The alleged omission is derived from the instruction to be given when threats are used by the accused to collect a legitimate debt: R. v. H.(A.) (2005), 2005 CanLII 32566 (ON CA), 206 C.C.C. (3d) 233 (Ont. C.A. ) application for leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 526. In that case, Doherty J.A. held that a “threat”, as an element of the offence of extortion, does not need to be independently unlawful as long as it was made “without reasonable justification or excuse”. His conclusion followed from the language of the section creating the offence of extortion in the Criminal Code. As Doherty J.A. explained in H.(A.):
[71] Section 346(1) is broadly worded to criminalize threats of any kind made in an attempt to induce any person to do anything, if those threats are made with the intention of obtaining anything. The section is aimed at those who would use coercion to overcome the free will of others for the purpose of extracting some gain. [Citations omitted.]
[72] The broad prohibition in s. 346(1) is tempered by the availability of the defence of ‘reasonable justification or excuse’ …
In the context of addressing the defence of “reasonable justification or excuse”, Doherty J.A. made the following comments on which the appellant relies:
[84] When an accused charged with extortion has used threats in an attempt to collect a legitimate debt, the trier of fact must consider all of the circumstances, including the nature of the threat and the nature of the demand, to determine whether the Crown has proved beyond a reasonable doubt that there was no reasonable justification or excuse for the threat. In jury cases, trial judges will instruct juries that it is not every distasteful threat used to support a legitimate demand for repayment of a debt that will constitute extortion. The jury will be told that the threat must go beyond that which a reasonable person in the circumstances of the accused would view as a legitimate or warranted means of attempting to collect the debt.
[6] In the case at bar, there is no suggestion that the appellant was attempting to collect a legitimate debt and on this basis alone the decision in H.(A.) is not directly applicable.
[7] To the extent that the instruction from H.(A.) can be read as having general application to cases where the demand to which the threat relates constitutes legitimate business activity, the charge in this case was nevertheless adequate.
[8] In dealing with the nature of the threat, the trial judge told the jury that “to be a threat … whatever is communicated must be definite enough that a person of ordinary intelligence would understand it as a threat of injury.”
[9] The appellant’s demand was that the complainant purchase the distribution rights to his book; his threat was that he would disclose the contents of the book to important people in the complainant’s life in order to ruin her. Where the “demand” in an extortion case can be viewed neutrally – e.g., a demand to pay a legitimate debt or to purchase a legitimate product – the focus shifts to the means deployed by the accused to induce the complainant to comply. As is clear from H.(A.), the focus is on the “reasonable justification or excuse” part of the analysis and the inquiry is whether “the threat [goes] beyond that which a reasonable person in the circumstances of the accused would view as … legitimate” in relation to the demand.
[10] Although the trial judge did not use the precise language suggested by Doherty J.A. in H.(A.) when charging the jury, I am satisfied that the jury was adequately instructed on the defence of “reasonable justification or excuse”. The trial judge in this case correctly instructed the jury to focus not only on the demand made by the appellant but also on how he sought to obtain compliance and to measure both against the objective standard of reasonableness. The following passage from the charge is illustrative:
A reasonable justification or excuse is one that the law allows and is reasonable in all the circumstances of the case. The issue is not whether one thing in Mr. Royz’s entire course of conduct considered by itself may be justifiable or excusable. In other words, a reasonable justification or excuse relates not only to the demand made by Mr. Royz, but also to the making of the threats by which Mr. Royz sought to compel compliance with the demand … [T]he Crown must prove beyond a reasonable doubt that Mr. Royz had no such justification or excuse.
[11] The jury was correctly instructed to acquit the appellant if the Crown failed to prove beyond a reasonable doubt that his threat and demand, viewed together, lacked reasonable justification in all the circumstances of the case. Defence counsel, who had earlier cited the decision in H.(A.), supra, in support of his motion for a directed verdict, did not object to the trial judge’s charge in this regard. Thus, I would not give effect to this ground of appeal
Aucun commentaire:
Publier un commentaire