



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Boast, 2017 ONCA 602

DATE: 20170720

DOCKET: C62374

Hoy A.C.J.O., Simmons and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cody Boast

Appellant

Michael Dineen, for the appellant

Cody Boast, appearing in person

Jennifer Epstein, for the respondent

Heard:  July 10, 2017

On appeal from the conviction entered on May 11, 2016 by
    Justice Jonathan Brunet of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

Among other counts, the appellant was charged
    that in Ottawa, between December 17, 2014 and January 1, 2015, he did wrongfully
    and without lawful authority, for the purpose of compelling the complainant to
    abstain from doing something that the complainant had a lawful right to do,
    namely proceed in public without fear, intimidate by threats that punishment
    would be inflicted on the complainant contrary to s. 423(1)(b) of the
Criminal
    Code
.

[2]

The trial judge found the appellant guilty of
    attempting to intimidate, contrary to s. 423(1)(b), and, given that finding,
    also found him guilty of two counts of breach of probation alleging failure to
    keep the peace and be of good behavior at the relevant time.

[3]

Section 423(1)(b) provides as follows:

423(1) Every one is guilty of an indictable offence and liable
    to imprisonment for a term of not more than five years or is guilty of an
    offence punishable on summary conviction who, wrongfully and without lawful
    authority, for the purpose of compelling another person to abstain from doing
    anything that he or she has a lawful right to do, or to do anything that he or
    she has a lawful right to abstain from doing,

[]

(b)
    intimidates or attempts to intimidate that person or a relative of that person
    by threats that, in Canada or elsewhere, violence or other injury will be done
    to or punishment inflicted on him or her or a relative of his or hers, or that
    the property of any of them will be damaged

[4]

We agree with Duty Counsel that the appellants conviction under s.
    423(1)(b) cannot stand.  As a result, we allow the appeal and acquit the
    appellant on all counts.

[5]

As Duty Counsel argues, the accuseds purpose in attempting to
    intimidate the complainant is one of the essential ingredients of the offence
    created by s. 423(1)(b) of the
Criminal Cod
e and the onus rests upon
    the Crown to prove the accuseds purpose beyond a reasonable doubt:  see
R.
    v. Branscombe
(1956)
, 25
    C.R. 88, [1956] O.J. No. 374 (C.A.).

[6]

The trial judge stated that the elements of s. 423(1)(b) had been proven
    beyond a reasonable doubt. However, in support of that conclusion, the trial
    judge pointed only to: (a) two aggressively worded text messages and (b) an in-person
    encounter (the look on the appellants face as he held his arms out to his
    sides when he encountered the complainant on the street). These could be
    characterized as
attempts
to intimidate the
    complainant (a means of committing the offence set out in s. 423(1)(b)).

[7]

There was no direct evidence of the
purpose
of the appellants conduct and the trial judge did not explain how the alleged
    purpose of the appellants conduct necessarily flows by inference from the
    circumstances. The trial judge found that the appellants actions did not make
    the complainant fearful. Further, the record disclosed that, in the past, the
    complainant and the appellant had been good friends and that there was an
    intervening text, conveying Christmas wishes. In the face of these facts, and
    the trial judges finding that the appellants actions did not make the
    complainant fearful, the evidence equally supports that the complainant may
    have had another purpose in sending the texts  namely what the trial judge
    found was the actual effect of the appellants actions:  to vex, disquiet or
    annoy the complainant, a person with whom the appellant was quite familiar. Based
    on the whole of the evidentiary record, and in the light of the trial judges
    findings, we are not persuaded that the evidence permitted the trial judge to
    conclude beyond a reasonable doubt that the purpose of the appellants conduct
    was to compel the complainant to abstain from proceeding in public without fear
     the alleged purpose of the appellants conduct as framed in the information
    and an essential element of the offence.

[8]

In the absence of evidence capable of establishing the appellants
    alleged purpose beyond a reasonable doubt, the s. 423 conviction cannot stand,
    and, consequently, neither can the two breach of probation convictions which
    rise and fall on the s. 423 conviction.

[9]

Given that we dispose of the appeal on this basis, it is unnecessary for
    us to determine whether, as Duty Counsel argues, to proceed in public without
    fear is not something that the complainant has a lawful right to do within
    the meaning of s. 423(1)(b).

[10]

We observe, however, that the alleged purpose of the appellants conduct
    was not to compel the complainant from abstaining from proceeding in public,
    full stop; the addition of the words without fear may be significant. To proceed
    in public
without fear
 could be equated with
    being free from intimidation.  Thus, arguably, the appellant was found guilty
    of attempting to intimidate the complainant for the purpose of intimidating
    him. We question whether this is what is contemplated by s. 423(1)(b), which specifically
    requires, as an essential ingredient, in addition to a finding that the accused
    attempted to intimidate a person, that the attempted intimidation have been
    for the purpose of compelling another person to abstain from doing anything
    that she has a lawful right to do.

[11]

That said, this issue was raised in the context of an in-person appeal,
    conducted with the assistance of Duty Counsel. Because we have disposed of the
    appeal on other grounds, we are not inclined to address this issue of statutory
    interpretation. We do not have the assistance of a full record, which would
    disclose whether this issue was raised at trial, or written argument.

[12]

Finally, we do not accept the Crowns argument that uttering threats to
    cause bodily harm is an included offence under s. 423(1)(b) as particularized
    in the information.

Alexandra Hoy A.C.J.O.

J.M. Simmons J.A.

David M. Brown J.A.


