r v. SHAQUILLE BELLE, 2020 QCCQ 3217

R. c. Belle 2020 QCCQ 3217 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF QUÉBEC Criminal and Penal Division No: 200-01-217605-181 DATE: September 4, 2020 ______________________________________________________________________ BY THE HONOURABLE CHRISTIAN M. TREMBLAY, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v. SHAQUILLE BELLE Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr.

Belle is charged with acting in a manner with intent to provoke a state of fear in a justice system participant in order to impede him in the performance of his duties. [ 2 ] The offence is alleged to have occurred on January 3, 2018, while he was an inmate at Donacona Correctional Facility. Correctional Officer (CO) Jonathan Roy-Ross is the justice system participant in question. [ 3 ] The evidence relied upon by the Crown about the incident is essentially the testimony of CO Roy-Ross and CO Francis Dubuc. Mr. Belle did not present any defence. [ 4 ] On January 3, 2018, around 10:30pm, Mr.

Belle was coming back from the gym. [ 5 ] Since he had a bag of chips with him, CO Roy-Ross asked him to produce the purchase receipt. The request was justified in order to counter smuggling. [ 6 ] Mr. Belle told him he did not have the purchase receipt on him. CO Roy-Ross asked Mr. B e lle to go back to the gym to retrieve the purchase receipt. [ 7 ] Before Mr. Belle returned to the gym, CO Roy-Ross grabbed the bag of chips. [ 8 ] When he returned from the gym, Mr. Belle was agitated. He asked for his bag of chips even though he had no purchase receipt. He became aggressive.

He threw the can he had in his hand. [ 9 ] According to CO Roy-Ross, Mr. Belle said: “Give me my chips or I’ll stab you.” Mr. Belle got closer to CO Roy-Ross. There was less than four meters between them. CO Roy-Ross took a defensive stance and made sure he kept an arm’s length distance between himself and Mr. Belle. [ 10 ] Mr. Belle added: “One day I’m going to stab you when your guard is lower. Maybe in six months. I’m going to get you in the row.” He swore on his daughter’s head that he would succeed in stabbing him. [ 11 ] CO Roy-Ross was working in the same ward where Mr. Belle was incarcerated.

He must count the number of inmates in the rows. [ 12 ] CO Roy -Ross testified that Mr. Belle was agitated and even aggressive. He had his arms in the air. He was screaming and angry. [ 13 ] CO Roy-Ross ordered him to return to his pavilion. He obeyed under the constraint of three COs. [ 14 ] In cross-examination, CO Roy-Ross affirmed that Mr. Belle also said: “I want to brake your face.” [ 15 ] CO Francis Dubuc saw the incident between CO Roy-Ross and Mr. Belle. [ 16 ] He heard Mr. Belle say: “I’m going to stab you next time I see you. I swear on my daughter’s head.” [ 17 ] He saw Mr.

Belle moving in the direction of CO Roy-Ross. He also saw the defensive reaction of CO Roy-Ross. Mr. Belle stopped but continued to make threats such as: “ I’m gonna wait for you. I’m gonna remember you.” [ 18 ] After Mr. Belle returned to his cell, he continued to yell at CO Roy-Ross.

[ 19 ] In cross-examination, CO Dubuc testified that Mr. Belle never said: “ I want to break your face.” [ 20 ] Finally, CO Jean-François Roy confirmed that he had accompanied Mr. Belle to his cell with the help of four other COs (exhibit D-2). [ 21 ]

Section 423.1(1)

b) reads as follows: 423.1

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

b) a justice system participant in order to impede him or her in the performance of his or her duties; […] [ 22 ] In 2015 ,

section 423.1 of the Criminal Code ( Cr.C .) was amended by the Victim’s Bill of Rights Act (Act) (S.C. 2015, c. 13). One of the stated purposes of the Act was to “broaden the conduct to which the offence of intimidation of justice system participants applies” ( Victims Bill of Right Act ,

summary). Thus, the Act amended

section 423.1(1) to refer to “any conduct” and repealed paragraph 423.1(2) which previously enumerated the conduct to which the

section applied. The mens rea of the offence was not affected. [ 23 ] Thus, a charge under

section 423.1 includes any conduct that is intended to provoke a state of fear in a justice participant with the intent to impede the performance of their duties. In this case, the information alleges no specific conduct. [ 24 ] In my view, there is no doubt that a correctional officer is a justice system participant (see the definition in

section 2 of the Criminal Code ) and so that requirement has been met. [ 25 ] For the defence, the main issue is the context of the incident. The defence alleges that, despite the testimony of CO Roy-Ross and CO Dubuc, the evidence does not demonstrate beyond a reasonable doubt what Mr. Belle said. Their testimony is neither credible nor reliable. [ 26 ] Even if Mr. Belle was upset by the incident with the bag of chips, he obeyed to the CO’s order . He showed no signs of physical violence. [ 27 ] The incident was inconsequential. [ 28 ] The fact that Mr.

Belle was upset does not mean it was his intention to provoke a state of fear. [ 29 ] The Court considers the testimony of CO Roy-Ross and Dubuc was credible concerning the incident with Mr. Belle. Both witnesses had the opportunity to see and hear the events about which they testified. They had the ability to recall those events accurately. Their testimony was plausible and consistent. They were not biased or hostile and did not display any attitude which might have cast doubt on the truthfulness of their testimony. They had no motive to lie.

The Witnesses Pre-trial Preparation was normal and did not affect the testimony of the two witnesses, considering that they did not discuss the events amongst themselves. There are no inconsistencies between their respective statements with respect to the incident with the can. Both saw the same thing. They explained that they did not refer to this specific incident in their respective Observation Reports because it was a marginal incident for the purposes of the reports. Mr. Belle’s general attitude and threatening words were more significant than this one gesture.

However, as far as the numerous statements attributed to Mr. Belle are concerned, the Court observed a few contradictions. They lead the Court to be cautious as to the reliability of the statements attributed to Mr. Belle. [ 30 ] CO Roy-Ross refers to fewer statements attributed to Mr. Belle in his Observation Report completed shortly after the event (exhibit D-1) than those invoked during his testimony. He wrote that, after he approached him, Mr. Belle said: “I just want to break your fucking face right now.” He testified about this statement attributed to Mr. Belle only during cross-examination.

In addition, the statement is denied by CO Dubuc. [ 31 ] In the Observation Report (exhibit D-1), he wrote that he ordered Mr. Belle to return to Pavilion E. On his way to Pavilion E, Mr. Belle said: “I just want to stab you now. I will never forget your fucking face. The next time you do a walk in the range, I will break your face. I swear on my little daughter that I will never forget this.” Of course, CO Roy-Ross’ testimony is somewhat different, but the Court does not see any significant contradiction. Essentially, CO Roy-Ross affirmed that Mr. Belle threatened to stab him.

He said he would come after him when he counted the inmates. CO Dubuc testified in the same vein. [ 32 ] A testimony does not have to be perfect. CO Roy-Ross admitted it was possible that he may have misinterpreted the comments attributed to Mr. Belle. This demonstrates the honesty of the witness. [ 33 ] For the Court , the exact words attributed to Mr. Belle are not consequential here. It is clear from the evidence as a whole that Mr. Belle:

a) was upset and frustrated by the confiscation of his bag of chips;

b) became agitated and aggressive;

c) got closer to CO Roy-Ross;

d) threatened to attack CO Roy-Ross during the performance of his duties; and

e) th e threats were serious.

[ 34 ] The Court agrees with the Crown’s submissions. Since the amendment to

section 423.1 of Cr.C ., it is no longer necessary to prove a specific act or gesture to prove the actus reus of the offence. Paragraph 1 refers to “any conduct”. As far as the Court is concerned, the actus reus has been proven beyond a reasonable doubt. [ 35 ] With regard to the mens rea , the Crown must prove beyond a reasonable doubt that the accused (

i) intended to provoke a state of fear in the justice system participant (ii) in order to impede him or her in the performance of his or her duties. The fault element of this offence requires proof of specific double intent. [ 36 ] In this case, there is no doubt that Mr. Belle verbally threatened a justice system participant, CO Roy-Ross. He was frustrated and became aggressive. He walked in the direction of CO Roy-Ross, who took a defensive position. He also swore on his daughter’s head.

This form of intimidation was intended to provoke a state of fear in CO Roy-Ross. [ 37 ] He also specified that he would execute his threats when CO Roy-Ross carried out a count of inmates. [ 38 ] These remarks were directly intended to impede CO Roy-Ross in the performance of his duties. [ 39 ] The Court considers that the Crown has discharged its burden of proving the offence beyond a reasonable doubt. [ 40 ] In light of these findings, the Court considers Mr. Belle guilty of the offence as charged. __________________________________ CHRISTIAN M. TREMBLAY, J.C.Q.

M e Edith Jacques Crown attorney M e Marie-Claude Lacroix Defence attorney Date of hearing: March 2 nd , 2020