Lien vers la décision
[23] In order to determine what the natural and probable consequences of Mr. Bergeron’s act would be, it was necessary for the trial judge to view the circumstances objectively. All the judge was saying in para. 47 was that it was a natural and probable consequence of an act of revenge that the victim’s behaviour would likely be affected by it in the future. The judge did not stop his analysis there. He went on, in para. 48, to draw the inference that Mr. Bergeron did intend to impede Mr. Schmeisser in the performance of his duties. In doing so, he considered the circumstances of the attack, including Mr. Bergeron’s anger. The judge found that Mr. Bergeron had the required subjective intent, and he did not err in doing so.
[24] Mr. Bergeron relies on the Treleaven decision, and says the trial judge incorrectly chose not to follow it on the same basis as he chose not to follow Cluney and Noble. In Treleaven, it was alleged that Mr. Treleaven and another accused assaulted a witness in order to discourage the witness from testifying in an upcoming trial. The assault took place in a washroom during a party, and Mr. Treleaven testified he was feeling ill, went in the washroom, and pushed the complainant out of the way so that he could throw up.
[25] After dismissing the bulk of Mr. Treleaven’s evidence, Mr. Justice Shaw referred to the decisions in Cluney and Noble, in which the trial judges appeared to equate purpose or motive with intent. He then referred to the holding in Armstrong that the words “in order to impede” in s. 423.1 were equivalent to the phrase “with intent to [impede]”. Mr. Justice Shaw then expressed the view that Cluney, Noble and Armstrong were consistent, and that they all stood for the proposition that the Crown must prove beyond a reasonable doubt that, among other things, the accused “provoked a state of fear in order to, that is, with the intent to impede [the justice system participant] in the performance of his duties”. He concluded the Crown had not proven beyond a reasonable doubt that the accused provoked a state of fear in the witness in order to, or with the intent to, impede the witness in the performance of his duties as a justice system participant because a rational inference could be drawn from the evidence that the accused attacked the witness because he was angry the witness had informed on their mutual friend.
[26] What the trial judge in the present case said about these cases was as follows:
[34] In my view, the case of R. v. Armstrong, supra, adopts a different approach from that taken by the courts in Treleaven, Cluney, and Noble. In Armstrong, supra, the court relies on Chartrand, supra, to distinguish between the purpose or motive underlying an act, on the one hand, and the intent, on the other. In each of Cluney, Treleaven, and Noble, the courts appear to require proof beyond a reasonable doubt of the underlying purpose of the impugned conduct rather than the accompanying intent.
[27] I agree with the trial judge that, similar to the judges in Cluney and Noble, Shaw J. in Treleaven did focus on the underlying purpose of the attack rather than on determining the intent of the accused. Although Shaw J. used the words “with the intent to” and referred to foreseeable consequences when dealing with the required intent to provoke fear, his conclusion that there existed a rational inference other than that the accused intended to impede the witness in the performance of his duties was expressed in terms of the purpose or motive (i.e., “because he was angry”), not in terms of the accused foreseeing the consequences of his actions.
[28] Mr. Bergeron maintains that, similar to Treleaven, there was another rational inference other than that he foresaw his actions were certain or substantially certain to impede Mr. Schmeisser in the performance of his duties. The judge found his underlying purpose was to take out his anger on a justice system participant, and Mr. Bergeron says the other rational inference is that his rage at the time clouded his foresight. However, he did not testify at trial to that effect, and it is my view the judge is entitled to deference with respect to the inference he drew, after considering Mr. Bergeron’s anger, that he nevertheless foresaw the consequence that Mr. Schmeisser would be substantially certain to be impeded in the performance of his duties.
Aucun commentaire:
Publier un commentaire