jeudi 2 janvier 2025

Des gestes gentils que posent un accusé à l'endroit d'une personne séquestrée n'équivalent pas automatiquement à de l'aide et à de l'encouragement

R. v. Laurencelle, 1999 BCCA 511

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X.                   It is my view, with respect, that the passage which I have quoted from the judge's reasons indicates that she lost sight of the principle that the burden of proving participation was on the Crown.  She appears to have imposed a duty on the appellant to leave the house, and perhaps more importantly, she found that the appellant "allowed" McCandless and Biron to remain.  In my view, the evidence provides no reasonable basis for finding a duty to leave or for finding that the appellant allowed McCandless and Biron to remain and continue the confinement.  The evidence, since it all comes from the victim, is very hazy as to what the appellant's relationship was to the house but, from what little evidence there is, it can be taken that she and Biron were both living there and both, to that extent, had some control over the premises.  There is no basis for asserting that the appellant had sole control, and certainly no basis as a matter of common sense for suggesting that she had any effective way of requiring McCandless and Biron to leave.  This case is quite different from the various cases which have found that control can lead to a person being found a party by allowing premises or automobiles to be used in an unlawful manner.

 

XI.              The judge's observation that she was left to wonder whether the appellant said to the victim that she was afraid in order to instill fear in him is mere speculation.  It would almost seem to imply an assumption that the accused should have given evidence, since it was only the accused who could have "left it open to the Court to wonder" why she said that.  However that may be, it was not an appropriate basis upon which to reject the otherwise contradicted evidence that she had expressed fear.  I will observe finally on that point that the suggestion that she was being devious in saying she was afraid is inconsistent with her other behaviour towards the victim.

 

XII.        The Crown submits that the acts of kindness amounted to aiding and abetting the offence of confinement.  With respect, I can find no adequate basis for making that connection.  For those reasons, I would allow the appeal, set aside the conviction, and direct that an acquittal be entered.

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