Her Majesty the Queen - v. -, 2016 SKPC 117

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 117 Date: September 20, 2016 Information: 44795072 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Robin Favel Appearing: Adam Breker For the Crown Patrick McDougall For the Accused JUDGMENT C. SNELL, J Introduction [ 1 ] Robin Favel was tried on a charge that “...on or about January 6, 2016 he did, without lawful authority, engage in any conduct with the intent to provoke a state of fear in Sheldon Scales, a justice system participant, in order to impede the administration of criminal justice, contrary to

section 423.1 (

b) of the Criminal Code ”. The original Information was amended to this wording at the beginning of the trial. I will have more to say about the wording of the Information later in these reasons.

[ 2 ] A preliminary hearing into an allegation that the accused robbed Sheldon Scales was conducted in Regina Provincial Court on January 6, 2016. Mr. Scales began testifying but became upset during his testimony. When a break was called, he reported to the police that Mr. Favel had made a threatening gesture to him. [ 3 ] That evening a post was made to a Facebook page which could be considered conduct falling within the parameters of the offence as charged, if proved to have been made by or at the direction of Mr. Favel. [ 4 ] On January 25, 2016 Mr. Favel was arrested for “witness intimidation”.

He was told the charge specifically related to what happened in court on January 6, 2016. [ 5 ] The following issues are addressed in this decision: 1. What is the charge the accused faced given the amendment made by the Crown at the outset of the trial? 2. Has the Crown proved that the accused committed either of the acts the Crown alleges constitute the conduct or actus reus of the charge? 3. If it is proved that the accused committed either of the acts alleged, has it been proved that he did so with the necessary intent? 4.

If it is proved that the accused was responsible for making the Facebook post with the necessary intent, can he be convicted for that on the charge as laid? Issue 1: What is the charge the accused faced given the amendment by the Crown at the outset of the trial? [ 6 ] The original charge the accused faced read as follows regarding the relevant particulars: “...without lawful authority did engage in any conduct with the intent to provoke a state of fear in Sheldon Scales in order to impede the administration of criminal justice contrary to

section 423.1 (

a) of the Criminal Code ”. [ 7 ] At the beginning of the trial Crown counsel indicated that he was applying to amend the Information to insert after the name of Sheldon Scales the words “a justice system participant” and to change the subsection specified to subsection (b), resulting in the wording set out in paragraph 1 of this decision . Defence counsel had no objection to this amendment being made. [ 8 ]

Section 423.1, paragraphs (1) (

a) and (

b) of the Criminal Code provide: 423.1

(1) No person shall, without lawful authority, engage in any conduct with the intent to provoke a state of fear in (

a) a group of persons or the general public in order to impede the administration of criminal justice; (

b) a justice system participant in order to impede him or her in the performance of his or her duties;... [ 9 ] In amending the Information as it did, the Crown neglected to insert the proper wording of the intent required in a case where the allegation is pursuant to paragraph (b). When the conduct is in relation to a justice system participant, the wording should be “in order to impede him or her in the performance of his or her duties”, rather than “in order to impede the administration of justice”.

[ 10 ] This error was not noticed by either counsel or me during the trial, so I have not heard argument with respect to this issue. However, in light of the amendment to the Information which was made, the fact the amendment was made with the consent of the accused, and the theory of the Crown at trial, I have decided that I do not need to invite argument on this issue.

I have concluded that the intent specified in s. 423.1(1)(b), “...in order to impede him or her in the performance of his or her duties” is what must be proved in this case, in light of the amendment by the Crown to particularize that paragraph. [ 11 ] Further, it was clear throughout the trial that the Crown’s theory was that both acts were done with the intent to provoke fear in Sheldon Scales as a witness testifying in court, and who would have to testify in court again, in order to impede him or her in the performance of those duties as a witness.

Issue 2: Has the Crown proved that the accused committed either of the acts the Crown alleges constituted the conduct, or actus reus , of the charge? (

a) The Alleged Gesture during the Preliminary Hearing [ 12 ] Three officers escorted Mr. Scales to the courthouse on January 6, 2016; two of them sat in court while he was testifying. From all accounts Mr. Scales’ demeanour and the evidence he was giving in the courtroom changed while he was giving testimony. [ 13 ] Cst. Rieger was in the courtroom with Mr. Scales. He said that he saw the accused shake his head as if disagreeing with what Mr. Scales said. His attention was primarily on Mr. Scales. He noticed that Mr. Scales appeared to change his testimony and he became very uncomfortable on the stand.

He went with Mr. Scales into the break room when the court adjournment was called. He described Mr. Scales’ appearance as white and pale. Cst. Rieger asked him what was wrong because he thought Mr. Scales appeared scared. He testified that Mr. Scales told him that the accused had made a throat slashing motion towards him while he was testifying. [ 14 ] Cst. Rieger also testified that Cst. Kauk came into the interview room and he told Cst. Kauk what Mr. Scales had reported. Cst. Kauk then went to advise the Crown prosecutor about this development. The officers then took steps to make Mr.

Scales feel more comfortable and better protected in the courtroom so that he could continue giving his evidence after the break. [ 15 ] Cst. Kauk was also in the courtroom during Mr. Scales’ testimony. He noted that Mr. Scales became agitated while giving his evidence and became evasive in his answers. He saw the accused move within the prisoner’s box to where he had an unobstructed view of Mr. Scales. He said that the accused kept a steady gaze on Mr. Scales. Cst. Kauk observed that the accused was mouthing words to Mr. Scales, but he had no idea what words those might have been.

He testified that he looked over at the accused and saw that he had his forearm up, with his hand in a fist and then he saw him open and close that hand as if to simulate a mouth opening and closing. The adjournment was announced right after he saw this. [ 16 ] Cst. Kauk testified that at the break he heard from others that Mr. Scales had said that the accused had made a motion to slit his throat just before the talking gesture. [ 17 ] Cst. Lawrence was not in the courtroom during Mr. Scales’ testimony, but stated that he appeared pale and white when he came out of the courtroom during the break. Cst.

Lawrence received information from Cst. Kauk about what had allegedly happened in the courtroom and he assumed responsibility for the subsequent investigation. [ 18 ] Deputy Sheriff Connor MacDonald was assigned to guard Mr. Favel during the preliminary inquiry. He was seated in the prisoner’s box to the right of Mr. Favel, facing him. He was on a chair at the end of the box; Mr. Favel was seated on the raised prisoner’s bench. He described Mr. Favel’s body language as being seated forward with his shoulders tensed up and he said that from the time Mr.

Scales took the stand and during the whole of his evidence Mr. Favel stared at him and didn’t break his gaze. [ 19 ] Deputy Sheriff MacDonald stated that when Mr. Scales testified that the accused had threatened to stab him, Mr. Favel got

visibly agitated and began to mouth words at the witness. At that point the Deputy Sheriff rose to his feet and told Mr. Favel to stop mouthing words. [ 20 ] Subsequent to him taking that action, Deputy Sheriff MacDonald saw Mr. Favel raise his left hand to about his eye level, and make a gesture to the witness, but because he was on Mr. Favel’s right side, he could not see what that gesture was. While the Deputy Sheriff said he was not particularly focussed on what the witness was saying, he was aware that as the proceedings went on Mr.

Scales changed what he was saying, and he noted that when the witness said he couldn’t identify the accused, Mr. Favel relaxed, dropped his shoulders and leaned back into the bench. [ 21 ] Sheldon Scales gave his evidence in a very straight-forward fashion. He is a soft spoken young person, twenty years old, who said that he was uncomfortable testifying, both at the preliminary inquiry and during this trial. He stated that he noted a very distinct difference in the accused’s behaviour on the date of the preliminary hearing as opposed to when he was testifying in this trial.

The accused was staring at him during the preliminary hearing, but he was not doing that during the trial. [ 22 ] Mr. Scales testified that the threatening gesture made by the accused was at a point when he was answering questions put to him by the prosecutor and when he was looking at the prosecutor. He said he saw a bit of movement, and when he looked at the accused he saw that the accused had his hand up in a fist, up to his neck, and that he was making a stabbing motion towards his neck. He took this as a threat to his life.

He said that he then told the court that he couldn’t identify the accused, but after the break he did identify him. [ 23 ] The only other evidence relevant to the events which took place during the preliminary hearing is contained in a statement given by the accused to Cst. Lawrence, which Defence counsel has admitted was voluntarily made. In it the accused said that he may have made the motion with his hand to simulate talking and that what he meant by that was that the witness was “talking shit”.

The only other gesture he admitted making was that he said he mouthed the words “what the fuck” and raised both hands in the air, palms outward, as an expression of disbelief at what the witness was saying, at one point in the proceedings. [ 24 ] Defence counsel argues that the evidence of all the witnesses is so contradictory that the court cannot be satisfied about what happened during Mr. Scales’ evidence. In fact, the only evidence which I find contradictory is the account from Cst. Rieger about what Mr. Scales reported to him and the evidence Mr. Scales gave on this trial. Cst. Rieger said that Mr.

Scales told him the gesture was a throat slashing gesture, whereas Mr. Scales said at this trial that it was a stabbing gesture. [ 25 ] I note that the evidence about what Mr. Scales said to Cst. Rieger, if it was introduced as a previous consistent statement, is not admissible for the truth of the contents, but only to provide the narrative and context of the complaint. In so far as it is an inconsistent statement, it was not reduced to writing nor was any inconsistency put to either Cst. Rieger or Mr. Scales in cross- examination. Cst. Rieger did not make notes about the statement.

In the result, I am not satisfied that Mr. Scales did give an inconsistent statement previously, as it may be the case that Cst. Rieger misunderstood what Mr. Scales told him. [ 26 ] Similarly, Cst. Kauk was testifying about what other persons told him Mr. Scales had said. This is double hearsay and could have been misunderstood or mis-communicated by the person or persons who passed on the information. Accordingly, I am not prepared to find on his evidence that Mr. Scales made a previous inconsistent statement. [ 27 ] I find the rest of the evidence given by Cst.

Kauk and Deputy Sheriff MacDonald to be very consistent with Mr. Scales’ evidence, particularly given that Cst.Kauk’s attention would not have been focussed on the accused at all times. Each of the officers saw a portion of what the accused did, and the evidence they have each given fits well with the evidence of Mr. Scales, who also did not have his attention fixed on the accused at all times. [ 28 ] Given all the evidence, reviewed above, which I accept, I believe that the throat stabbing motion was likely made immediately before the simulated talking gesture. While Mr.

Scales did not testify to having seen the simulated talking gesture, I do not consider this to be something which damages his credibility or reliability. I believe it happened, given Cst. Kauk’s evidence of what he saw and the accused’s admission. Mr. Scales was clearly frightened after the accused made the stabbing gesture and that would be the motion which he would remember, although it is also possible that he looked away as soon as he saw the stabbing gesture and therefore didn’t see the simulated talking gesture. Cst. Kauk’s attention may have been drawn to the accused too late to see the stabbing gesture.

Deputy Sheriff MacDonald’s evidence is consistent with both gestures being made with the one hand and at the same time, one immediately following the other. [ 29 ] The accused did not testify. Therefore, while his statement has been introduced in evidence, he has not been subjected to cross-examination on its contents. I do not believe that the accused threw both hands in the air as he claimed in his statement. I am confident that someone, most particularly Deputy Sheriff MacDonald, would have seen that gesture, had it been made.

I do not find his agreement in cross-examination that the accused could have raised both hands up during the proceedings, although he made no note of it, to be agreement that the dramatic gesture shown by the accused in his statement could have been made without his notice. [ 30 ] I believe the evidence of the officers, Mr. Scales and the Deputy Sheriff. I find that the accused did engage in conduct which could support the charge as laid if made with the intent to promote a state of fear in Sheldon Scales while he was testifying at the preliminary hearing and in order to impede Mr.

Scales in the performance of his duties as a witness. This conduct was making hand gestures of a stabbing motion to the throat and simulation of a mouth opening and closing. His unwavering staring at the witness could also be intimidating, although that would not be sufficient on its own to support the charge. [ 31 ] That the accused’s actions did frighten Mr. Scales when he was giving his testimony is clear from all of the evidence with respect to his behaviour while testifying prior to the break and his condition when he came out of the courtroom for the break. (

b) The Facebook Post [ 32 ] Exhibit P2 is the Facebook Post. The content of it exactly as it appears in the exhibit is as follows: Sheldon Nathanial Scales You lieing coco sucking snitch...! You know we where joking with your faggot ass make something out of Nothing acting like your Never coming to jail. I got your paper work now Bitch. [ 33 ] Cst. Wood introduced this post indicating he found it on a Facebook page belonging to Burden Favel, which is a name the accused uses while performing. He apparently has a rap career; he performs in small venues and has a number of recordings available on Youtube.

In addition, there is a photograph on the Facebook profile which Cst. Wood identified as being the accused. [ 34 ] Cst. Wood copied the post at 12:25 a.m. on January 7, 2016. He stated that the post includes a reference to “one hour” on it which he said means that it would have been posted an hour earlier, presumably at 11:25 on Jan. 6, 2016. Cst. Wood checked on the post the next day and discovered that it had been removed. [ 35 ] When asked if there was anything else that happened which intimidated him, Mr.

Scales testified that he had received some unusual messages from persons asking to meet up with him and that he was told by someone that there had been a posting with his name on Mr. Favel’s Facebook account. Cst. Lawrence testified that Mr. Scales sent him a copy of this post in an email on January 16, 2016, although he had already heard of the post from Cst. Wood. [ 36 ] In order for this post to appear on the Burden Favel Facebook page it would have had to have been posted by Mr. Favel himself, or by someone else who had his Facebook password. Mr.

Favel was incarcerated on remand on the robbery charge at the Regina Provincial Correctional Centre at the time of the preliminary hearing and thereafter. [ 37 ] In his statement the accused initially said that he posted the message in P2 using a contraband smart phone. Later in the statement when the officer asked the accused specifically about how that post came to be on Facebook he resiled from what he had earlier stated. However, P4 on the trial consists of recorded phone calls which Defence counsel admitted had been made by Mr. Favel from the Regina Provincial Correctional Centre.

I will be reviewing these in detail later in this decision. For now I note that in one call made at 9:55 on January 6, 2016, Mr. Favel uses words too similar to those on the Facebook post to be coincidental.

[38] Accordingly, I conclude that Mr. Favel either posted P2 himself or had someone else post it at his direction. Given itscontent, and Mr. Scales’ evidence I have no difficulty concluding that this was further conduct on the part of the accused which could befound to constitute the actus reus of the offence as charged. Issue 3: If it is proved that the accused committed either of the acts alleged, has it been proved that he did so with the necessary intent? [39] There are two aspects to the mens rea required for this offence.

First, I must decide if the accused performed each of the actsoutlined above with the intent to provoke a state of fear in Mr. Scales. In my view, no other conclusion is possible, given the evidence. The actions of the accused in making threatening gestures to the witness while he was testifying could have been made with no otherpossible intention. Further, while not required for a conviction, it is clear that Mr. Scales was frightened by the gestures, given theevidence of Csts.

Rieger, Kauk and Lawrence, and Deputy Sheriff MacDonald, as outlined above. [40] Similarly, using the witnesses’ name in the public Facebook post along with the words “snitch” and a suggestion that hemight in future be in prison where he would be vulnerable could only be construed as a threat intended to make the witness fearful. [41] The next question to be answered is whether the accused also intended to impede Mr. Scales, the justice system participant, in the performance of his duties as a witness. The proper

interpretation of the words “in order to impede the justice system participant inthe performance of his or her duties” has been the subject of judicial scrutiny. The Crown provided me with decisions of the BritishColumbia Court of Appeal in R v Armstrong, 2012 BCCA 248 and R v Bergeron, 2015 BCCA 177.

These cases follow and apply theSupreme Court of Canada decision in R v Chartrand, (SCC), [1994] 2 SCR 864 regarding a charge of child abductionwhich requires that the accused do the prohibited act “with intent to deprive a parent of the possession of the child”. [42] These cases note that purpose and motive are not the same as intent. The trier of fact must determine whether it has beenproven beyond a reasonable doubt that the accused subjectively foresaw that the fear caused to the complainant would be certain orsubstantially certain to impede him in the performance of his duties as a witness.

In order to reach this conclusion the trier of fact isentitled to draw the common sense inference that a sane and sober person intends the natural and probable consequences of their actions. [43] There are cases, including one from Saskatchewan, in which acquittals have resulted where the court has found the accused tohave had a different purpose for the act. See R v Treleaven, 2012 ONSC 6930, R v Noble, 2009 MBQB 98 and R v Cluney, 2008 SKQB2440. The judge in Treleaven explained that these cases are consistent with Armstrong.

In Treleaven, Noble and Cluney the trial judgesconcluded, on all the evidence, that it was not appropriate to draw the inference that the accused foresaw, and therefore intended thecertain or substantially certain consequences of his acts, therefore a conviction could not be entered. The inference is one that may bedrawn, not one that must be drawn. [44] In Treleaven, the allegation was that the accused and another person assaulted a witness in order to discourage the witnessfrom testifying in an upcoming trial.

The accused testified that he went into the washroom where the witness was and pushed him out ofthe way because he was feeling ill.

Although he dismissed the bulk of the accused’s evidence, the trial judge concluded that the Crownhad 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, impedethe witness in the performance of his duties as a justice system participant because a rational inference could be drawn from the evidencethat the accused attacked the witness because he was angry the witness had informed on their mutual friend. [45] In order to establish that the accused intended to impede Mr.

Scales in his duty to testify, the Crown introduced variousrecorded phone calls from the accused to unidentified persons. In one conversation on January 2, 2016 the accused states clearly that ifthe witness doesn’t show up he’ll be okay; he also makes a comment about offering Mr. Scales something not to show up. In anotherportion of the same call there is a reference to offering Mr. Scales some money and later on, he states that he is just hoping this kiddoesn’t show up - that it would be best if he doesn’t. [46] Another call was made on January 5, 2016, the day before the preliminary inquiry.

In this call there is some discussion about

the recipient of the call going to talk to the witness and possibly giving him some cash. She says she will talk to him if he’s even there. [ 47 ] During the call at 9:55 p.m. on January 6, 2016, following the preliminary hearing, the accused asks the recipient if she has checked Facebook. He then makes the statements about Mr. Scales being a “cock sucking snitch” and uses other language similar to that used in the Facebook post. [ 48 ] The final phone call was on January 7, 2016.

In that call the accused notes that others are saying he was threatening the witness whereas he claims he wasn’t doing that, but rather was just making talking motions. The recipient of the call said that the accused was “staring at him like you want to kill him”. The accused made no reply to that. [ 49 ] The Crown submits that these phone calls help to show the purpose of the accused was to dissuade the witness from testifying. In my view they do assist in that regard.

While Defence counsel correctly points out that the accused simply expresses hope that the witness won’t show up in the phone calls, and argues that the accused couldn’t have been serious when talking about buying the witnesses’ silence since he is incarcerated with no funds, the phone calls do show that the accused was very concerned about the witness showing up to testify and wanted to take steps to dissuade the witness from showing up. [ 50 ] Given this context, I have no difficulty in concluding that the gestures the accused directed towards the witness while he was testifying were directed with the intent of provoking fear and with the specific intent that this would result in the witness not testifying that Mr.

Favel had robbed him. [ 51 ] In my view there is nothing in the evidence to suggest that the accused’s intent was any different when he made or had someone else make the Facebook post. Although Mr. Scales had already testified at the preliminary inquiry, there would still be a Queen’s Bench trial at which he would be expected to testify. In the absence of any contrary evidence, I do not consider that there is any rational inference I can draw other than that the accused foresaw that the consequence of naming Mr.

Scales publicly as a “snitch”, along with the other comments and tenor of the Facebook post, would be to continue to intimidate him from performing his duties as a witness. [ 52 ] In the absence of any direct evidence about the accused’s purpose, I draw the inference that he foresaw that the Facebook post would be certain or substantially certain to cause fear in Mr. Scales and dissuade him from continuing his participation in his duties as a witness.

Issue 4: If it is proved that the accused was responsible for making the Facebook post with the necessary intent, can he be convicted for that on the charge as laid? [ 53 ] The argument made by Defence counsel with respect to this issue was that this case has always been about what happened during the preliminary hearing held on January 6, 2016. He said that Mr.

Favel was arrested with respect to that incident and it would be unfair to include events which took place after that in the case he had to meet. [ 54 ] Defence counsel did not submit that he was taken by surprise by the Crown’s assertion that the Facebook post was another act which could comprise the actus reus of the offence as alleged even if it was found that no act of intimidation took place during the court proceedings. He did not raise this in argument or request any remedy.

Counsel instead chose to limit his submission to the argument that as the arrest was only for the actions in court, nothing more could be included in the charge as laid. [ 55 ] While it is correct that Cst. Lawrence advised the accused that he was being arrested for what happened in court, when he took the accused’s statement shortly after the arrest he confronted the accused with the Facebook post and questioned him about that as well.

All of the information about the Facebook post and the phone calls from the Correctional Centre were disclosed to Defence counsel. [ 56 ] The actions of the police with respect to what charges they specify when arresting suspects or the charges they lay after concluding their investigation cannot bind the Crown as to the charges on which the prosecution will proceed. The police and the

Crown are independent agencies and have different roles. While the police may seek the advice of the Crown about what charges to lay,they are not bound to do so, and the Crown has the absolute discretion to proceed with the charges they believe are appropriate and meetthe prosecution standard. [57] Accordingly, I must reject the argument of Defence counsel that Cst.

Lawrence’s statement that he was arresting the accusedfor his actions during the preliminary hearing renders it impossible for the Crown to seek a conviction based as well on another actwhich comes within the parameters of the charge as laid. [58] Although it was not argued by Defence counsel, it appears to me that an argument might be made that the actions of theCrown breached the requirement in s. 581 of the Criminal Code that each charge against an accused person must be a single transaction. [59] The relevant portions of

section 581:

(1) Each count in an indictment shall in general apply to a single transaction and shall contain in substance a statement that the accused ordefendant committed an offence therein specified.

(2) The statement referred to in subsection (1) may be (

a) in popular language without technical averments or allegations of matters that are not essential to be proved; (

b) in the words of the enactment that describes the offence or declares the matters charged to be an indictable offence; or (

c) in words that are sufficient to give the accused notice of the offence with which he is charged.

(3) A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information withrespect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence orinsufficiency of details does not vitiate the count... [60] The reference in s. 581(1) to a “single transaction” does not mean there can only be a single incident, occurrence or evenoffence. Separate acts which are successive and cumulative and which comprise a continuous series of acts can be considered to be onetransaction.

In R v Flynn, (ON CA), [1955] OR 402 (CA) it was argued there was more than one offence of theftwhere a number of electrical appliances had been stolen, but not at the same time. It was accepted that the allegation was of a singletransaction since the appliances were alleged to have been taken from the same owner over a period of time, by the same person. [61] That definition of a single transaction has been accepted with respect to sexual offences in R v German, [1989] SJ No 462(CA).

Thus where the Crown alleges a series of sexual offences by the same accused on the same complainant over a period of time, thiswill not offend the single transaction requirement, even though each incident could be the subject of a separate charge. [62] However, R v Stelles, (ON CA), [1997] OJ No 2502 (CA) demonstrates that the single transactionrequirement can be breached even though a series of offences are alleged to have been committed against the same complainant.

In thatcase the evidence called by the Crown related to events which sometimes involved only the accused, while others involved the accusedas well as strangers. The incidents were not all of a similar nature; some alleged the complainant was subjected to acts of prostitutionand gang rape as opposed to sexual activities with the accused alone. The court held that the indictment itself did not offend the singletransaction rule and was not duplicitous. It simply alleged sexual assault causing bodily harm by the accused on the complainant over aperiod of several years.

However, inadmissible evidence had been tendered by the Crown because the events were not in fact a singletransaction. The court held this resulted in an unfair trial. [63] In the present case the Crown has not particularized the acts of the accused as being limited only to what occurred during thepreliminary inquiry. On its face, the indictment is not duplicitous nor does it breach the single transaction requirement in s. 581.

Whatmust be determined is whether the two acts alleged by the Crown are so different that they cannot be considered to be a single,continuous transaction. [64] In my view, the acts which the Crown has proved form a continuous transaction of acts which the accused performed in orderto intimidate Mr. Scales from providing evidence against him. That he did this by different actions does not mean that it cannot be acontinuous transaction, in my view, particularly in light of the broad wording of “any conduct” set out in the offence creating provision of

the Criminal Code . The accused used the means which were available to him - direct threats made in court and indirect threats made on social media. The acts alleged by the Crown took place during the time period specified in the charge so both can be considered as coming within the charge as laid, subject to one final issue. [ 65 ] Since this issue was not specifically argued by Defence counsel I am left without argument concerning whether permitting both acts to be considered as a continuing transaction caused prejudice to the accused.

The accused was confronted with the Facebook post during the statement he gave to Cst. Lawrence following his arrest on January 25, 2016. Defence counsel was provided with all the evidence relating to the Facebook post in the disclosure provided by the Crown in relation to this trial. Defence counsel did not make a demand for particulars. Further, Defence counsel cross-examined the witnesses regarding the Facebook post and the Crown evidence suggesting it was made by him or at his direction.

The accused chose not to testify, so he cannot complain now that he made that decision based on his belief that he could not be cross-examined on both acts when that was not raised as an issue at trial. [ 66 ] Although not directly on point, I have looked at other cases where accused persons have alleged they have had an unfair trial due to a change in the case they thought they had to meet.

In R v Pinceman, 2004 SKCA 33 the accused, who was charged with care or control of a motor vehicle while impaired, testified and provided a good defence to the care or control charge with respect to the time when he was found in his vehicle by the police.

The Court of Appeal held it was not unfair for him to have been convicted on the charge of care or control as laid, based on his testimony that he drove to the location where he was later found, since the act of driving is a form of care or control and that act of earlier driving took place within the time frame charged. [ 67 ] In another decision of the Saskatchewan Court of Appeal, R v Heaton , 2014 SKCA 140 , the court concluded that an accused person who testified about possessing cocaine at an earlier time than was the focus of the Crown evidence could be convicted for that act when it was included in the time frame set out in the Information.

In that case the trial judge had acquitted, holding that it would be unfair to convict the accused on his own evidence when he had prepared to defend a different factual basis for the offence. The Court of Appeal disagreed and entered a conviction. [ 68 ] In this case the accused faced a different way of committing the offence but one which I have found fell within the description of “any conduct” as set out in the charge against him.

He has not incriminated himself by his own testimony, he has simply been required to defend an additional allegation comprising the actus reus for the same offence, with disclosure of the evidence to be called provided in advance of the trial.

He did not request that the Crown provide formal particulars of the offence and he was aware the evidence about the Facebook post was in existence and of concern to the police from the time the accused gave his statement on January 25, 2016. [ 69 ] In the result, it does not appear that the accused has been prejudiced by the inclusion of the Facebook post as part of the conduct alleged to comprise the offence with which he has been charged. Conclusion [ 70 ] I find the accused guilty as charged, relying both on the gestures which I have found the accused made while Mr.

Scales was testifying at the preliminary inquiry on January 6, 2016 and the Facebook post which appeared on January 6, 2016. Dated at the City of Regina, in the Province of Saskatchewan, this 20 th day of September, 2016. ____________________________________ Snell, J Judge of the Provincial Court of Saskatchewan