



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Labonte, 2016 ONCA 426

DATE: 20160601

DOCKET: C58216

Simmons, van Rensburg and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ashley Labonte

Appellant

Michael W. Lacy and Anida Chiodo, for the appellant

Michael Perlin, for the respondent

Heard: November 25, 2015

On appeal from the convictions entered on September 13,
    2013 and the sentences imposed on December 5, 2013 by Justice A.L. Guay of the Ontario
    Court of Justice.

Benotto J.A.:

Overview

[1]

A drug transaction took place outside a bar in Sudbury, Ontario. One of
    the parties to the transaction was stabbed eight times and was left bleeding on
    the sidewalk.

[2]

At trial, there were two competing versions of events. The complainant
    claimed he was purchasing drugs from the appellant, who was in a parked car. He
    said that when he gave the appellant his money, she and the co-accused tried to
    drive away without giving him the drugs. He dove into the car through the
    passenger window to try to engage the parking brake and was stabbed eight times
    by the co-accused.

[3]

The appellant and the co-accused claimed that the complainant was not
    the purchaser of the drugs, but the seller. They said that when the appellant paid
    the complainant, he counted the money and unexpectedly attacked them through
    the car window. The co-accused stabbed the complainant to defend the appellant.
    Both the appellant and the co-accused denied the complainants allegation of robbery.

[4]

The trial judge reviewed the contradictory evidence and found that the
    appellant and her co-accused had created a plan to rip off the complainant to
    settle a prior debt.

[5]

The trial judge convicted the appellant and her co-accused of robbery
    and other related offences. In doing so, he did not turn his attention to the
    counts as particularized by the Crown. The appellant and her co-accused both appeal
    their convictions and sentences. The two appeals were heard together. The
    reasons are being released together and are intended to be read together: see
R.
    v. Breton
, 2016 ONCA 425.

[6]

For the reasons that follow, I would allow the appeal and order a new
    trial.

Facts

[7]

The appellant, Ashley Labonte, was 26 years old at the time of the
    events in question. She had been involved in the drug trafficking trade for at
    least two years. The co-accused, Jean Claude Breton, was her boyfriend.

[8]

On the evening of December 4, 2012, the appellant and Breton were parked
    in a car outside the Nickel City Hotel, a bar in Sudbury, Ontario. In the
    drivers seat was the appellants friend, Natalie Ross. They were waiting to
    conduct a drug transaction with the complainant, John Courtemanche.

[9]

There was conflicting evidence about almost every aspect of the drug
    transaction, including (1) how the meeting was arranged; (2) who was selling
    drugs and who was buying drugs; (3) what type of drug was being sold; (4) how
    much money was being paid; and (5) who initiated the violence.

[10]

In
    any event, it was clear that some sort of drug transaction or rip-off was
    underway. It was also clear that Courtemanche was stabbed eight times by
    Breton. Breton claimed that he did this to defend the appellant.

(1)

Evidence of Courtemanche

[11]

The
    Crowns case against the appellant and Breton was primarily based on Courtemanches
    testimony.

[12]

Courtemanche
    testified that he had no dealings with the appellant before the drug
    transaction. Yet, he said that she called him on December 4, 2012 in order to
    sell him $50 worth of crack cocaine outside the Nickel City Hotel.

[13]

Courtemanches
    friend, Alain Rheaume, drove him to the Nickel City Hotel to meet the appellant.
    There, Courtemanche saw Natalie Ross, whom he knew. She was parked in her
    yellow two-door car. Ross waved Courtemanche over.

[14]

He
    approached the passenger side of the car, where the appellant was sitting. He
    did not see anyone in the back seat of the car. He said that the appellant took
    his $50 and someone from inside the car said go. When he heard this, he
    thought he was getting ripped off, so he dove into the car through the open
    passenger window and jammed the car into park with the parking brake.

[15]

Courtemanche
    then felt what he thought was punching from behind. He heard go, go again. Ross
    put the car in drive and he reached inside again to put it into park. He said
    he then got three more shots to the head. As he was struggling to get his
    money back, he grabbed a few things.

[16]

The
    Crown alleged that Breton had leaned over from the back seat and stabbed
    Courtemanche eight times and that in doing so, Breton accidentally stabbed the
    appellant once in the hand. Ross was then successful in driving off, leaving
    Courtemanche bleeding on the sidewalk.

[17]

Courtemanche
    suffered three lacerations to his head, three stab wounds to his back and two
    stab wounds to his arm. One of the stab wounds perforated his left lung and another
    perforated his left kidney, necessitating its removal.

(2)

Evidence of the Appellant and Breton

[18]

The
    appellant and Breton testified that Courtemanche was the drug dealer and that the
    product being sold was fentanyl patches  not crack cocaine.

[19]

The
    appellant testified that in the afternoon of December 4, 2012, Courtemanche
    called her to say he had fentanyl patches for sale. She had bought fentanyl
    patches from him before. On one occasion he shorted her one patch, so he owed
    her one more. They agreed on the phone that he would give her three patches for
    the price of two (the average price is about $150 per patch; she would pay $300
    for three patches). They agreed to meet outside the Nickel City Hotel around 8:30
    p.m.

[20]

The
    appellant and Breton were given a ride in Ross car to the Nickel City Hotel. The
    car was a small two-door with tinted windows. Ross was driving. The appellant
    was in the back seat and Breton was in the front.

[21]

When
    they arrived at the Nickel City Hotel, the appellant and Breton switched seats
    because she felt she would not be able to conduct the deal from the confines of
    the back seat. She also wanted Courtemanche to see her, because she was the one
    who arranged the deal with him and he did not know who Breton was.

[22]

The
    appellant phoned Courtemanche when she arrived. He approached the car and handed
    the appellant the three fentanyl patches. She gave him $300 cash. She then gave
    the patches to Breton in the back seat.

[23]

Courtemanche
    counted the money and then freaked out and attacked her. He stabbed her in
    the hand with his knife and tried to engage the parking brake to prevent the
    car from leaving. Breton was able to wrestle the knife away from Courtemanche and
    stabbed him in an effort to defend the appellant.

[24]

The
    appellant denied that the transaction had anything to do with cocaine and
    denied ripping off Courtemanche.

[25]

Breton
    testified that when the appellant handed Courtemanche the money all hell broke
    loose. Courtemanche jumped through the window of the car, began attacking the
    appellant and going crazy. He was pulling her hair and hitting her. Breton
    said he told Ross to drive.

[26]

Breton
    said that Courtemanche had the knife and he tried to get it out of
    Courtemanches hand. He said that he grabbed Courtemanches wrist and managed
    to wrestle the knife away.

[27]

With
    the knife in his hand, Breton was trying to push Courtemanche out of the car. He
    was not trying to stab him, merely trying to protect the appellant  his
    girlfriend. He was not even aware that he had stabbed Courtemanche as
    Courtemanche was not reacting at all. Breton was afraid for the appellants
    life.

[28]

Breton
    also testified that the transaction had nothing to do with crack cocaine. After
    the events and before the police arrived, he smoked a strip of one of the
    fentanyl patches because he was shaken and had been hit in the face.

(3)

Other Evidence

[29]

Fentanyl
    patches and a shank were found in Courtemanches jacket. Courtemanche said
    this was impossible and that the transaction had nothing to do with
    fentanyl. No crack cocaine was found on anyones clothes or in the car.

[30]

Rheaume
    testified that he heard the car revving and the driver shout, just dont do
    that. He then saw Courtemanche on the ground.

[31]

Samantha
    Jean, a patron having a smoke outside of the bar, heard the car revving and saw
    it move forward, stop, then reverse. She heard the sound of a parking break and
    heard a man yell, why do you got to do me like that? Courtemanche was in the
    window of the car when it started to drive away. He was bleeding.  She also
    testified that when Courtemanche fell out of the vehicle, she saw money fall to
    the ground. Someone came from across the street and picked it up. She did not
    see how much money there was.

[32]

Ross
    testified that she picked up the appellant around 8:15 pm on December 4, 2012. The
    appellant asked Ross to take her and Breton to the Nickel City Hotel. As she
    pulled up, the appellant was on the phone and waved Courtemanche over. She did
    not recall if anyone switched seats in the vehicle, but confirmed that the
    appellant was in the front seat.

[33]

Ross
    knew Courtemanche by his street name Frenchy. Courtemanche came towards the
    car. Ross testified that Courtemanche had a short conversation with the
    appellant. Without warning, she heard the appellant say what the hell? and
    then Courtemanche unexpectedly jumped into the car through the passenger
    window. Breton, in the back seat yelled drive. Ross tried to get away but
    Courtemanche kept forcing the car into park. Breton was trying to get
    Courtemanche off of the appellant.

[34]

According
    to video surveillance, the entire transaction took place in approximately one
    minute. (The trial judge incorrectly said 37 seconds as trial counsel had not
    adverted to the fact that the video did not run continuously but rather every
    half second.)

The Charges Against the Appellant

[35]

As
    the result of these events, in addition to some unrelated charges, the
    appellant was charged with robbery. She was also charged with being an
    accessory to an attempted robbery by Breton. The Crown particularized the
    robbery charge against the appellant and Breton as involving a theft of money
    from Courtemanche.

Trial Judges Reasons

[36]

The
    trial judge released written and oral reasons simultaneously. It appears as
    though he read his written reasons aloud, but added oral comments not found in
    the written reasons. To the extent that the transcript differs from the written
    reasons, I rely on the transcript.

[37]

The
    trial judge began his reasons by describing the accused and the charges they
    were facing. He said the appellant and Breton were charged with the robbery of
    Courtemanche and that the appellant was also charged as an accessory to a
    robbery of Courtemanche. He did not refer to the particulars in the
    information.

[38]

Despite
    the submission from defence counsel that Bretons identity was in issue, the
    trial judge found that the appellant and Breton were clearly the two persons
    involved in the failed drug transaction.

[39]

The
    trial judge found that the appellant and Courtemanche knew each other from past
    drug deals and agreed to meet on the evening of December 4, 2012. He did not
    make a finding of fact as to who arranged the meeting as it was his view that
    it did not really matter.

[40]

The
    trial judge effectively rejected Courtemanches testimony that the subject of
    the drug transaction was the purchase of $50 worth of crack cocaine as he found
    it highly unlikely for the appellant and Breton to have come all the way from
    the outskirts of the city for a $50 drug deal.

[41]

Further,
    as no cocaine was found in the car or on any of the parties involved in the
    drug deal the trial judge found that the evidence supported the appellants contention
    that the drug deal was for fentanyl patches. He did not however make a specific
    finding to that effect.

[42]

Nor
    did he make a finding of fact as to who was selling and who was buying the
    drugs. Consequently, he also did not make a finding of fact as to what, if
    anything, was stolen from Courtemanche  money or drugs.

[43]

The
    trial judge went on to conclude that the appellant and Breton had planned all
    along to settle in a roundabout manner John Courtmanches debt to her and in
    the process rip him off. He also found that the appellant brought Breton
    along as muscle for security and that the violence that ensued was not
    unexpected.

[44]

With
    respect to the stabbing of Courtemanche, the trial judge did not accept
    Bretons evidence. He found that:

·

Had Courtemanche been the aggressor, he could have easily
    inflicted a number of deadly wounds on the appellant, rather than just cut her
    hand;

·

The appellants hands were in the air for much of the struggle.
    It made most sense that she was accidentally stabbed by Breton, rather than by Courtemanche,
    who was essentially leaned over in her lap;

·

If Breton wrestled the knife from Courtemanche, he would have had
    to grab the blade, yet he suffered no cuts to his hands; and

·

Courtemanche could not have been the aggressor while he was
    trying to prevent them from driving away.

[45]

The
    appellant was convicted of robbery and sentenced to 30 months imprisonment.
    She also received a consecutive term of six months imprisonment for other
    unrelated property offences and offences against the administration of justice,
    in relation to which there is no issue on appeal.
The trial judge simply stayed the charge he described as being an
accessory to robbery based on the principles in
R. v. Kienapple
, [1975]
    1 S.C.R. 729 without giving any reasons relating to that charge. (On appeal it
    is undisputed that, having entered a conviction for robbery, the trial judge
    should not have stayed a count in which the appellant was charged as an
    accessory to the very robbery of which she was convicted.)

[46]

Breton
    was also convicted of robbery and was sentenced to 60 months imprisonment,
    given his more violent role in the offence and his criminal record. Additionally,
    Breton was convicted of three counts of breach of probation and possession of a
    weapon for a purpose dangerous to the public peace, for which he was sentenced to
    12 months imprisonment, consecutively. Bretons charge of aggravated assault
    was stayed on the basis of the
Kienapple
principle.

Issues on Appeal

[47]

At
    the hearing of the appeal, the appellant framed her argument primarily as an
    unreasonable verdict, but wove errors by the trial judge into that argument
    that she argues led him to an unreasonable verdict. She submitted that his
    reasons are insufficient, internally inconsistent and unreasonable; the
    findings of fact were based on speculation; and he reversed the burden of
    proof.

[48]

The
    respondent submits that the verdict was reasonable  the reasons were
    sufficient and there were no palpable and overriding errors or reversals of the
    burden of proof.

Analysis

[49]

I
    will begin with the appellants submissions as to unreasonable verdict.  I do
    not agree that the test has been met. A conviction for the charge of robbery as
    particularized could reasonably be rendered by a properly instructed jury,
    acting judicially, on the evidence as a whole and having regard to the findings
    of the trial judge. However, I have concluded that a new trial is necessary
    because the trial judges reasons are insufficient and fall short of fulfilling
    their functional requirements. Accordingly, I would allow the appeal and order
    a new trial. It is therefore not necessary to address the appellants sentence
    appeal.

(1)

Unreasonable
    Verdict

[50]

The
    test to be applied by an appellate court in determining whether a verdict is
    unreasonable or cannot be supported by the evidence has been explained by the
    Supreme Court of Canada.  In
R. v. Yebes
, [1987] 2 S.C.R. 168, at p.
    186, McIntyre J. wrote for the court:

The Court must determine on the whole of the evidence whether
    the verdict is one that a properly instructed jury, acting judicially, could
    reasonably have rendered. While the Court of Appeal must not merely substitute
    its view for that of the jury, in order to apply the test the Court must
    re-examine and to some extent reweigh and consider the effect of the evidence.

[51]

In
R. v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, the
    court further explained that this test imports both an objective and a
    subjective assessment. The reviewing court looks at the sufficiency of the
    evidence objectively to determine if it is capable of supporting the verdict
    and then, using the lens of judicial experience, weighs the evidence to
    determine whether the verdict is supportable on any reasonable view of the
    evidence. This test has been subsequently applied by the Supreme Court of
    Canada (
R. v. Sinclair,
2011 SCC 40, [2011] 3 S.C.R. 3;

R. v.
    W.H.
,
2013 SCC 22, [2013] 2 S.C.R.
    180;
R. v. R.P.
,

2012 SCC 22, [2012] 1 S.C.R. 746) and by this court (
R. v. Smith
,
2016 ONCA 25, [2016] O.J. No. 144)

[52]

There
    is a slightly expanded scope of review for unreasonableness in judge alone
    cases. As recently explained by Watt J.A. in
Smith
at para 75:

In cases tried without a jury, the unreasonableness analysis
    required under
R. v.

Beaudry
involves scrutiny of the logic
    of the judges findings of fact or inferences drawn from the evidence admitted
    at trial:
R. v. Sinclair
.  Under this test, an appellate court can
    interfere where a trial judge draws an inference or makes a finding of fact
    that is:

i.   plainly contradicted by the evidence relied upon by the
    judge for that purpose; or

ii. demonstrably incompatible with
    evidence that is not otherwise contradicted or rejected by the trial judge
    (citations omitted).

[53]

The
    test articulated in
R. v. Beaudry
,

2007 SCC 5, [2007] 1 S.C.R. 190 is a narrow inquiry as to whether a trial
    judges conclusion or verdict can be seen from the reasons to have been reached
    illogically or irrationally.

[54]

A
Beaudry
error will only be found in exceptional cases where the
    reasoning process of the trial judge is so irrational, or so at odds with the
    evidence, that it vitiates the verdict  even though that verdict is available
    on the evidence as a whole. In these rare cases, an appellate court will be
    justified in concluding that the verdict itself is unreasonable. However, a new
    trial should be ordered, rather than an acquittal, where the verdict discloses
    evidence capable of supporting a conviction.

[55]

When
    the reviewing court is considering the verdict in a judge alone trial, there is
    another element: deference must be shown to the trial judges credibility findings
    provided that they are supported by and compatible with the evidence:
R. v.
    R.P.
, at para. 12.

[56]

I
    now apply these principles to the case before the court.

[57]

Pursuant
    to the
Yebes/Biniaris
test a verdict of guilt was available. There was
    evidence from Courtemanche that he had been robbed of money. The trial judge
    rejected Courtemanches evidence that the subject matter of the transaction was
    a $50 crack cocaine deal but did not reject his evidence in its entirety. Rejection
    of Courtemanches evidence on the subject matter of the transaction did not
    preclude a trier of fact from finding that there was a theft of money with
    proximate violence.

[58]

Even
    in light of  and showing deference to  the trial judges credibility findings,
    I conclude that a trier of fact could reasonably render a conviction on the
    robbery charge. In particular:

·

Courtemanche
    testified that the appellant grabbed his money but did not give him any drugs 
    although the trial judge rejected Courtemanches  evidence as to the subject
    matter of the transaction ($50 crack cocaine), he did not reject this aspect of
    Courtemanches evidence;

·

the
    trial judge accepted Courtemanches perception that he was being ripped off and
    his reaction as consistent with that belief;

·

the
    appellant gave evidence, which was not rejected by the trial judge, that she intended
    to pay Courtemanche less money than three Fentanyl patches were worth  from
    that and other evidence, the trial judge drew an inference that the appellant
    planned to settle an outstanding drug debt with Courtmanche and in the process rip
    him off;

·

witnesses
    supported the complainants evidence that he was grabbing at the hand brake to
    stop the car from leaving;

·

Courtemanche
    described grabbing a few things as he exited the vehicle the second time;

·

there
    was witness evidence that money fell out of the vehicle;

·

witnesses
    heard the utterances of go, go and why do you got to do me like that;

·

witnesses
    saw the car drive away leaving Courtemanche on the ground;

·

Courtemanche
    suffered eight serious stab wounds in contrast to a minor puncture wound suffered
    by the appellant;

·

two
    fentanyl patches were found behind a piece of foil in a cigarette package in Courtemanches
    jacket; and,

·

Breton
    admitted to using one fentanyl patch prior to arrest and was found in
    possession of two fentanyl patches later on in the evening in question.

[59]

In
    summary, a conviction for robbery of money is not an unreasonable verdict. The
    real issue is the trial judges reasons which do not make the necessary
    findings of fact in relation to the charge as particularized by the Crown. I
    now turn to that issue.

(2) Insufficient Reasons

[60]

The
    trial judge failed in his reasons to make findings relating to the charge as
    particularized such that the basis of the conviction is unclear and the reasons
    fall short of fulfilling their functional requirements:
R. v. Sheppard
,
    2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 28 & 56.

[61]

The
    Information reads as follows:

Jean Claude BRETON and Ashley
    LABONTE
did steal MONEY
from John COURTEMANCHE and at the time thereof
    did use violence to John COURTEMANCHE, contrary to Section 344(b) of the
    Criminal Code. [Emphasis added.]

[62]

The
    Crown particularized the robbery charge to state that it involved stealing
    money through the use of violence. In these circumstances, the Crown could not
    rely on attempted theft and had to prove that money was stolen to make out the
    charge as particularized. It is a fundamental principle of criminal law that
    the offence, as particularized in the charge, must be proved: see
R. v.
    Saunders
, [1990] 1 S.C.R. 1020, at 1023. This principle is grounded in
    fairness, as it permits the accused to be reasonably informed of the
    transaction alleged against him or her and allows the preparation of a full
    defence and a fair trial: see
R. v. Sadeghi-Jebelli
, 2013 ONCA 747,
    313 O.A.C. 257, at para. 24.

[63]

As
    already noted, the trial judge rejected Courtemanches evidence that the
    transaction was for $50 in exchange for crack cocaine. He did not make a
    finding of fact as to what, if anything, was actually stolen from Courtemanche.
    His reasons do not make it clear whether  according to the scheme  the
    appellant and Breton stole Courtemanches money or his fentanyl patches. This
    finding is also not implicit in the trial judges reasons because he did not
    make a finding of fact as to who was the buyer and who was the seller in the
    drug transaction. In the absence of such fact finding, the decision of this
    trial judge is incapable of proper judicial scrutiny on appeal.

[64]

Faced
    with conflicting versions of the intended transaction and the ensuing events,
    the trial judge was obliged to make findings, supported by the evidence that
    demonstrated a pathway to conviction for the charge as particularized. In his
    reasons, the trial judge never adverted to the charge as particularized and
    never made findings that would support it. In fairness to the trial judge,
    counsel did not advert to the charge as particularized in their submissions.

[65]

The
    Crown argued that the trial judge was not required to identify what was stolen.
    I do not agree. The Crown made the nature of the stolen property germane both
    in the charge and throughout the trial.

[66]

I
    would therefore allow the appellants appeal of her conviction for robbery and
    order a new trial.

Disposition

[67]

I
    would set aside the appellants conviction for robbery and the stay of her
    conviction for accessory to an attempted robbery and order a new trial.

[68]

The
    appellants unrelated convictions for the property offences under s. 354(1) of
    the
Criminal Code
, R.S.C. 1985, c. C-46, stand, along with the six
    month sentence for those offences.

Released: June 1, 2016

M.L. Benotto J.A.

I agree Janet
    Simmons J.A.

I agree K. van
    Rensburg J.A.


