





CITATION:
R. v. Jeffers, 2012 ONCA 1



DATE: 20120104



DOCKET: C49760



COURT OF APPEAL FOR ONTARIO



Laskin, Gillese and Karakatsanis JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Livingston Jeffers



Appellant



James Lockyer, for the appellant



John Patton, for the respondent



Heard: June 9, 2011



On appeal from the conviction entered on October 14, 2008 by
          Justice Gail S. Dobney of the Ontario Court of Justice.



Laskin J.A.:



A.

OVERVIEW

[1]

The appellant, Livingston Jeffers, appeals his convictions for counselling
    murder and mischief under $5,000.

[2]

Mr. Jeffers is a black man from the Caribbean.  In 2007, he and his
    family faced a number of difficulties in their lives, largely centered on their
    inability to maintain mortgage payments on their condominium.  Using poor
    judgment, but hoping to get someones attention for his familys plight, Mr.
    Jeffers glued numerous posters to road signs, hydro poles and parking meters in
    the neighbourhood of the Scarborough Town Center.  Some of the posters claimed
    that 
the Jeffers Family fear for their life
 and contained the words 
we
    have been fraud by York Condocork 98 and representitive David Jepb and TD Bank
    Debora Fredricks
.

[3]

Another poster  the poster that precipitated the charges against Mr.
    Jeffers  showed a photograph of city councillor Michael Thompson, also a black
    man, and contained the following hand-printed words:

Murder                                               Help

Councillor
    Thompson
Jeffers

Help Black
647-436-4476

We Black

[4]

A city of Toronto employee complained about the posters.  Mr. Jeffers
    was then charged with counselling members of the public to murder Councillor
    Thompson and with mischief under $5,000.
[1]
At his trial, Mr. Jeffers testified that the posters were a cry for help and
    that he never intended to harm Councillor Thompson.  He said that in the past Councillor
    Thompson had been the one person who had helped him.  The trial judge,
    nonetheless, rejected Mr. Jeffers evidence and convicted him of both charges. 
    She imposed a suspended sentence and three years probation.

[5]

On appeal, the Crown concedes that the conviction for mischief cannot
    stand because the posters did not cause damage or endanger public safety.  However,
    the Crown seeks to maintain the conviction for counselling murder.

[6]

I would allow Mr. Jeffers appeal, set aside both convictions, and
    substitute acquittals.  In my opinion, the conviction for counselling murder is
    unreasonable.  It is not supported by the evidence and, indeed, is contrary to
    the evidence.  The trial judges reasons for conviction are undermined by her
    failure to consider the offending poster and Mr. Jeffers intention in
    context.  More broadly, I agree with counsel for Mr. Jeffers that our society
    can accommodate the kind of nuisance caused by the appellant; to convict him of
    one of the most serious crimes in our criminal law is on its face
    unreasonable.

B.

OTHER RELEVANT FACTS

1)

Mr. Jeffers Background

[7]

Mr. Jeffers was born in Montserrat.  He came to Canada in 1974.  He is
    married with four children.  At the time of trial he was 58 years old.

[8]

Mr. Jeffers has a grade five education.  He testified that he is not
    too great at reading and writing.  He had been a heavyweight boxer and became
    the Ontario Champion for Canada in bodybuilding.  Up to the time of trial, he
    had been working in the scrap metal business.

[9]

Mr. Jeffers and his wife bought a condominium townhouse in 1986.  Their
    difficulties began in 1996, when Mr. Jeffers wife, who was employed as a
    chambermaid at a hotel, suffered a workplace injury.  By 2005 the Jeffers could
    no longer maintain mortgage payments on their townhouse and the mortgage, which
    was held by the Toronto Dominion Bank, went into default.  His condominium corporation
    wanted him to move.  Mr. Jeffers tried to get help from the fraud squad, police
    station, community centres, the Jamaican Centre and City Hall.  He believed
    that his problems originated with the bank because its automated system
    failed.  He claimed they are stealing our property.  He blamed the local
    branch manager, Debra Frederick.

2)

The Posters

[10]

Mr. Jeffers glued about 50 posters to road signs, hydro poles and
    parking meters.  None of the posters interfered with the operation of the
    signs, poles or meters.  Moreover, the posters were easily traced to Mr.
    Jeffers because his name and telephone number were written on all of them, and
    his address on some of them.

[11]

The posters were of two types.  The first type, of which there were two
    variations, showed a photograph of Mr. Jeffers when he was a much younger man. 
    Superimposed on his chest and stomach were pictures of the heads of his wife
    and two of his grandchildren.  These posters claimed that Mr. Jeffers and his
    family had been the victims of house fraud, and targeted their condominium corporation
    and the Toronto-Dominion Bank.  I attach as Appendices 1 and 2 to my reasons
    copies of the two posters of this first type.

[12]

The second type of poster is the one with a photograph of Councillor
    Thompson and the word murder on it.  I attach as Appendix 3 a copy of this
    poster.

[13]

Mr. Jeffers, whose speech was at times colourful, testified that he used
    the word murder because in his vernacular it meant a cry for help; he and his
    family were being murdered.

A.

Okay.  I like what I say, I say, murder, now murder is me that.  Me
    crying for murder.  When we in the Caribbean and anything - - anything would
    happen to anybody that is wrong, that is the only way you could - - if somebody
    is beating somebody badly.

Q.

Yes.

A.

Somebody yell
    murder, murder.

Q.

Okay.

A.

That is what we - - that is the phrase we use.  So what I am really saying,
    is very simple, murder, help Jeffers, that is what I am saying.

[14]

He said that he was asking Councillor Thompson, a fellow black man, to
    help him.  He never intended to harm the councillor in any way.

3)

Mr. Jeffers Interaction With Councillor Thompson

[15]

Mr. Jeffers met Councillor Thompson in 2006.  Councillor Thompson was
    then Mr. Jeffers local city councillor and helped him with a sewage problem.

[16]

Mr. Jeffers said that he never had a problem with Councillor Thompson. 
    He was asked why he did not phone the councillor directly about his problems
    with his condominium corporation and the bank.  Mr. Jeffers explained:

He done his best.  He do what he could done and I
    didnt want to keep bothering him up.  He do his part, I said him get we back
    in our home and we thank him very much for that.

[17]

Councillor Thompson did not testify at trial.  And the Crown called no
    evidence to suggest that Mr. Jeffers held a grudge against him or to contradict
    Mr. Jeffers evidence that he viewed Counicllor Thompson as a good person.

C.        THE CONVICTION FOR MISCHIEF

[18]

The Crown proceeded under s. 430(a) of the
Criminal
    Code
.
[2]
It alleged that Mr. Jeffers committed mischief by willfully damaging property. 
    In convicting him, the trial judge held:

In my view, damaged property can
    include things like defacing, putting graffiti on, sticking posters up, things
    that interfere with the manner in which the owner of the property had had his
    property originally set out.



The fact that it can be remedied
    subsequently by someone coming along and taking the glue off and scraping the
    posters or tearing them down, doesnt change the fact that for the time being
    damage was done by gluing things to a parking machine and I find the accused
    guilty of that offence.

[19]

The trial judge erred in her appreciation of the
    meaning of damage under the mischief provisions of the
Code
.  To
    criminalize mischief, the damage must be more than negligible, more than a
    minor inconvenience.  To prove damage the Crown must show that the usefulness
    or value of the property has been impaired, at least temporarily.  Proulx J.A. set
    out the test in
R. v. Quickfall
(1993), 78 C.C.C. (3d) 563, at p. 566
    (Q.C.A.):

Without disagreeing with this
    definition of the word damage according to which the thing is rendered less
    suited for its intended purpose, I would add, on the basis of my reading of
    the dictionaries, that damages means that at least temporarily,
the
    usefulness or the value of the property is impaired, whether or not the
    property was harmed or ruined
.  In this sense and, with respect for the
    contrary opinion, I do not believe that the least bit of damage is sufficient
    to constitute mischief. [Emphasis in original.] [Footnotes omitted.]

[20]

In the present case, none of Mr. Jeffers
    posters interfered with the utility of the signs, poles or parking meters, or
    impaired their value.  All of the citys property remained functional.  At most,
    the glue affixed to the posters made them somewhat difficult to remove.  This
    minor difficulty does not amount to damage under s. 430(a) of the
Code
.

[21]

The test for damage amounting to criminal
    mischief reflects an appropriate balance between individual and societal
    rights.  Individuals have long used postering as an effective and inexpensive
    means of communicative expression  whether to give notice of a lost pet, an
    upcoming local concert, or a persons availability to do home repairs. 
    Criminalizing this kind of conduct is not in societys interest.

[22]

On the other hand, local municipalities have a
    legitimate interest in ensuring that posters do not become a nuisance or impair
    the safe operation of their signs, poles and meters.  For this reason, the
    regulation of postering on public property  be it the size, appearance or
    location of the poster  is best left to local by-law legislation: see
Peterborough
    Corp. v. Ramsden
, [1993] 2 S.C.R. 1084.
[3]

[23]

The conviction for mischief must be set aside, and in its place an
    acquittal entered.

D.        THE CONVICTION FOR COUNSELLING MURDER

[24]

In
R. v. Hamilton
, 2005 SCC 47, [2005] 2 S.C.R. 432 , the Supreme
    Court of Canada set out the
actus reus
and
means

rea
for
    counselling the commission of an offence.  Fish J., writing for the majority, said
    at para. 29:

In short, the
actus reus
for counselling is
    the
deliberate encouragement or active inducement of the commission of a
    criminal offence.
And the
mens rea
consists in nothing less than an
    accompanying
intent
or
conscious disregard of the substantial and
    unjustified risk inherent in the counselling:
that is, it must be shown
    that the accused either intended that the offence counselled be committed, or
    knowingly counselled the commission of the offence while aware of the
    unjustified risk that the offence counselled was in fact likely to be committed
    as a result of the accuseds conduct. [Emphasis in original.]

Thus, to establish Mr. Jeffers guilt, the Crown had to prove
    that: (a) an ordinary reasonable person viewing the poster objectively would
    take it as an invitation to kill Councillor Thompson; and (b) Mr. Jeffers
    either intended or knowingly counselled Councillor Thompsons murder while
    aware of the unjustified risk that murder was likely to be committed.

[25]

I agree with the Crown that in her oral reasons for conviction, the
    trial judge correctly set out both the
actus

reus
and the
mens

rea
for counselling murder.  However, I do not agree that she correctly
    applied these elements of the offence.

[26]

The trial judge was required to approach her analysis of the poster from
    the perspective of the ordinary, reasonable person. In doing so, she was required
    to look beyond the words on the page to consider the context or circumstances
    in which the poster was made, including the manner in which the words were
    communicated and the relationship between the writer and the subject of the
    alleged invitation to kill: see
Hamilton,
at paras.  15 & 74;
R.
    v. Sharpe,
2001 SCC 2, [2001] 1 S.C.R. 45, at para. 56; and
R. v.
    Batista
, 2008 ONCA 804, 238 C.C.C. (3d), at paras. 19 & 20.

[27]

She was also required to inquire into Mr. Jeffers subjective state of
    mind. She had to take account of not only Mr. Jeffers direct evidence, but as
    well of the various pieces of circumstantial evidence that told of his
    intention.

[28]

Although the trial judge gave reasons that are seemingly thorough, her
    analysis failed to go beyond the poster itself. After analyzing the poster (at
    Appendix 3) the trial judge concluded that Mr. Jeffers testimony was not
    believable:

In my view, his explanation is utterly and entirely
    inconsistent with what is on the face of this document.  Indeed it was meant to
    be read down, being murder Councillor Thompson to help black was or could
    be certainly read as being an incitement or a solicitation to others to murder
    Councillor Thompson, the reason why, to help Jeffers, both of those things set
    out there.  It is clear to me that Mr. Jeffers holds a significant group of
    grievances against a number of people.  He has problems with his condominium
    association.  He has problems with his bank.  He has problems with various
    other people who were named on this.  I find it implausible, his explanation
    that Councillor Thompson, who had previously helped him by a simple phone,
    would be incited to assist him or asked to assist him by putting up a poster
    around the city, which there was no guarantee would ever come to Councillor
    Thompsons intention of asking help by saying, murder Councillor Thompson.  I
    do not accept that.  I reject his evidence on that completely.

[29]

She also concluded that the words on the poster:

are deliberately written in that way to act as a
    deliberate encouragement or act of inducement to the commission of a criminal
    offence.  It may have been put there as a threat to Councillor Thompson to get
    his assistance but it also has the dual purpose of attempting to solicit
    someone to commit the offence.

[30]

In my opinion, these conclusions are not supportable.  Mr. Jeffers had
    neither the
actus reus
nor the
mens rea
for counselling murder,
    and to conclude that he did is unreasonable.  No reasonable person viewing the
    words on the poster could think that they were encouraging someone to murder Councillor
    Thompson.  On their face, they were a cry for a fellow black man to help the
    Jeffers family, not an exhortation to kill.

[31]

The trial judges analysis did not take account of the context of the
    alleged offence, including the collective message of the posters, the
    appearance of the words, the lack of motive, the steps Mr. Jeffers took to
    ensure that he could be identified, and Mr. Jeffers personal background.

(i)
The collective message of the posters

[32]

The poster in question cannot be considered in
    isolation.  It has to be looked at in the context of the other posters. The
    other two posters share a common theme, a complaint of house fraud. They
    mention the TD Bank and the condominium corporation, but do not refer to Councillor
    Thompson. Obviously, Mr. Jeffers grievances are not with Councillor Thompson,
    but with his condominium corporation and the bank.

(ii)
The appearance of the words on the poster

[33]

Mr. Jeffers explained his use of the word
    murder as meaning a cry for help.  That intention seems obvious from the
    juxtaposition of murder with help Jeffers and the phone number. These items
    are related. Indeed the relative thinness of the pen strokes of these words, as
    compared to the words help black, we black and 
Councillor
Thompson supports this interpretation and suggests that they were
    written in sequence.  In contrast, the words help black and we black are
    related to 
Councillor
Thompson.

(iii)
Absence of motive

[34]

The trial judge held that Mr. Jeffers motive
    was irrelevant.  She said:

And what may have been in his mind
    and why he thought this was going to help, in my view is more of a question of
    motive and it is not something that I have solve here.

[35]

However, as evidence motive is always relevant
    to the issue of intention and this case is no different: see
Lewis v. The
    Queen,
[1979] 2 S.C.R. 821.  The existence of a motive makes it more likely
    that a person committed the crime.  Persons do not usually act without a
    motive.  Mr. Jeffers had no motive to want
Councillor Thompson murdered. 
    The councillor had helped him in the past and had never done him any harm.  Mr.
    Jeffers lack of motive to want Councillor Thompson killed is a strong piece of
    circumstantial evidence that he never intended to encourage his murder.

(iv)
Mr. Jeffers was easily identified

[36]

The trial judge did not take into account that
    Mr. Jeffers made sure he could easily be identified and found.  His name and
    telephone number were displayed on the offending poster.
[4]
When the police
    arrived at his home, he was open and co-operative with them, and, indeed,
    delighted to see them.  Even during his testimony, both in chief and under
    cross-examination, Mr. Jeffers was more than candid about his postering
    campaign, advising that he had about ten thousand flyers printed, including
    others that did not make it to the posting stage. This is not the normal
    conduct of a person who intends to counsel the murder of another human being. 
    Instead, this conduct is another piece of circumstantial evidence supporting the
    appellants lack of intent.

(v)
Mr. Jeffers personal background

[37]

Mr. Jeffers personal background was also highly
    relevant to the question of his intent. Mr. Jeffers limited level of literacy,
    his rudimentary English, his grade five education and his Caribbean background
    all should have been considerations in evaluating his intent, and more
    specifically his credibility: see
Batista
. Rather than rejecting the
    appellants explanation of what he intended to convey through the offending
    poster as being implausible, the trial judge ought to have evaluated his
    evidence with these subjective characteristics in mind. Had she done so, it
    would have been clear that Mr. Jeffers had no intention of encouraging
    Councillor Thompsons murder.

[38]

For these reasons I would set aside the
    conviction for counseling murder.  It is not supported by the evidence, and in
    my opinion, it is contrary to the evidence.

[39]

The Crown submits, in the alternative, that we
    ought to substitute a conviction for threatening death.  Accepting that we have
    the jurisdiction to do so, I would not give effect to the Crowns submission. 
    Mr. Jeffers no more intended to threaten
Councillor Thompsons death
    than he intended to counsel his murder.

E.        CONCLUSION

[40]

I would allow Mr. Jeffers appeal, set aside his
    convictions for mischief and
counselling
murder, and in
    their place enter an acquittal on each charge.

John Laskin J.A.

I agree E.E. Gillese
    J.A.

I agree Karakatsanis
    J.A.

RELEASED:  January 4, 2012




Appendix 1



Appendix 2



Appendix 3






[1]

The indictment did not specify how the mischief
    was committed; however, the parties and the trial judge proceeded on the
    assumption that the mischief count alleged destruction or damage of property:
    see s. 430(1)(a).



[2]

Supra
note 1.



[3]
My reasons apply to the affixing of posters on public property.  Postering on
    private property is not before us and may call for a different assessment.



[4]

The other two
    posters also contained his home address.


