2015 QCCA 1390, 2015 QCCA 1390

R. c. Étienne 2015 QCCA 1390 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-003321-054 ; 500-10-003322-052; 500-10-003323-050; 500-10-003324-058; 500-10-003325-055; 500-10-003326-053; 500-10-003328-059; 500-10-003329-057; 500-10-003330-055; 500-10-003332-051 (700-01-051263-047) DATE: 1 er septembre 2015 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. PAUL VÉZINA, J.A. CLAUDE C. GAGNON, J.A. No: 500-10-003321-054 HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v. DEBORAH ÉTIENNE RESPONDENT – Accused No: 500-10-003322-052 HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v.

BERTHA BONSPILLE-PELTIER RESPONDENT – Accused No: 500-10-003323-050 HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v. NANCY GABRIEL RESPONDENT – Accused No: 500-10-003324-058 HER MAJESTY THE QUEEN APPELLANT - Prosecutrix v. KEITH CREE RESPONDENT - Accused No: 500-10-003325-055 HER MAJESTY THE QUEEN APPELLANT - Prosecutrix v. ANGUS NELSON RESPONDENT - Accused No: 500-10-003326-053 HER MAJESTY THE QUEEN APPELLANT - Prosecutrix v.

TEHANERAHTAHKWA (McDONALD) NELSON RESPONDENT - Accused No: 500-10-003328-059 HER MAJESTY THE QUEEN APPELLANT - Prosecutrix v. MARK DELISLE RESPONDENT - Accused No: 500-10-003329-057 HER MAJESTY THE QUEEN APPELLANT - Prosecutrix v. MILTON GABRIEL RESPONDENT - Accused No: 500-10-003330-055 HER MAJESTY THE QUEEN APPELLANT - Prosecutrix v. STEWART CONWAY RESPONDENT - Accused No: 500-10-003332-051 HER MAJESTY THE QUEEN APPELLANT - Prosecutrix v.

FRANÇOIS PINSONNEAULT RESPONDENT - Accused JUDGMENT [ 1 ] These consolidated appeals arise out of verdicts of acquittal returned on October 29, 2005 by a jury of the Superior Court, District of Terrebonne, at which the Honourable Madam Justice Nicole Duval Hesler (then a judge of the Superior Court) presided. [1] The respondents and several other accused were charged with the following two offences: 1. On January 12, 13 and 14, 2004 in Kanesatake, district of Terrebonne, did take

part in a riot at or near the Kanesatake Mohawk Police Station (located at 91 Center Road in Kanesatake) committing thereby the indictable offence provided by sections 64 and 65 of the Criminal Code . 2. On or about January 12, 13 and 14, 2004 in Kanesatake, district of Terrebonne, did confine, imprison, or forcibly seize several individuals at the Kanesatake Mohawk Police Station, committing thereby the indictable offence provided by section 279(2)

a) of the Criminal Code . [ 2 ] The respondents Deborah Étienne, Bertha Bonspille-Peltier, Nancy Gabriel, Angus Nelson and Mark Delisle were acquitted of both counts, while the respondents Stewart Conway, Keith Cree, Milton Gabriel, Tehanerahtahkwa Nelson McDonald and François Pinsonneault were acquitted of the forcible confinement count, but convicted of the included offence of unlawful assembly on the riot count.

The Crown's appeals seek to have all of the respondents convicted of both counts as charged in the indictment, and it invokes the same arguments in respect of all of them. [ 3 ] The relevant facts are stated at length in the judgment being rendered today that dismisses the appeals of those accused who were found guilty of one or more offences and need not be restated here at length. [2] [ 4 ] Essentially, the charges relate to the conduct of all the accused upon their learning of the circumstance surrounding the adoption and implementation of a "walk-around" resolution signed by four of the seven members of the Kanesatake Band Council without the other three members being shown or invited to consider signing it.

The resolution thus adopted relieved the acting chief of police of his duties and replaced him with someone who was meant to begin actively investigating the production and sale of marijuana on the reserve, as well as the sale of contraband tobacco. This led to a lengthy and often violent demonstration outside the police station that effectively prevented the incoming police officers from leaving the police station by a variety of means over an extended two-day period (January 12 - 14, 2004).

[ 5 ] The Crown asserts two questions of law in its notice of appeal that can conveniently be addressed together. They are that the trial judge erred in opening defences based on sections 30 Cr.C . and 41(1) Cr.C . [3] that respectively provide as follows: Preventing breach of peace 30.

Every one who witnesses a breach of the peace is justified in interfering to prevent the continuance or renewal thereof and may detain any person who commits or is about to join in or to renew the breach of the peace, for the purpose of giving him into the custody of a peace officer, if he uses no more force than is reasonably necessary to prevent the continuance or renewal of the breach of the peace or than is reasonably proportioned to the danger to be apprehended from the continuance or renewal of the breach of the peace. * * * * * Defence of property 41.

(1) Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling- house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary. Le fait d'empêcher une violation de la paix 30.

Quiconque est témoin d’une violation de la paix est fondé à intervenir pour en empêcher la continuation ou le renouvellement et peut détenir toute personne qui commet cette violation ou se dispose à y prendre part ou à la renouveler, afin de la livrer entre les mains d’un agent de la paix, s’il n’a recours qu’à la force raisonnablement nécessaire pour empêcher la continuation ou le renouvellement de la violation de la paix, ou raisonnablement proportionnée au danger à craindre par suite de la continuation ou du renouvellement de cette violation. * * * * * Défense des biens 41.

(1) Quiconque est en possession paisible d’une maison d’habitation ou d’un bien immeuble, comme celui qui lui prête légalement main-forte ou agit sous son autorité, est fondé à employer la force pour en empêcher l’intrusion par qui que ce soit, ou pour en éloigner un intrus, s’il ne fait usage que de la force nécessaire. [ 6 ] The Crown argues in essence that neither of these defences had an air of reality such that a jury acting judicially could not have concluded they were applicable given the absence of a probative factual basis with respect to their component factors. [ 7 ] In that respect, it contends that the defence of property ( s. 41(1) Cr.C .) defence was unavailable to them since they were never in "peaceable possession" of the Kanesatake police station and exercised no control over it, despite their being members of the Kanesatake community.

In any event, only one accused, Sonya Gagnier, testified as to her belief that the police station was community property, and her testimony did not link the other accused to whatever belief she may have had that she had the right to act in defence of the police station from the incoming police forces.

From the Crown's perspective, there was no evidence that the accused, including the respondents, believed that they were in "peaceable possession of … real property / possession paisible … d'un bien immeuble", to restate the qualifying words of s. 41(1) Cr.C . [ 8 ] In the same vein, the Crown argues that apart from Sonya Gagnier, none of the accused testified that they acted as they did "to prevent the continuance or renewal (of a breach of the peace) / empêcher la continuation ou le renouvellement (d'une violation de la paix)", to use the words of s. 30 Cr.C ., because they considered the Band Council's resolution to be illegal. [ 9 ] For their part, the respondents point to the testimony not only of Sonya Gagnier, but also to another member of the Kanesatake Police Commission, Susan Oak, as well as two of the Band Council Chiefs from whom the adoption of the January 2, 2004 resolution was kept secret, John Harding and Steven L.

Bonspille. They argue that their testimony formed a proper basis to allow the defences to go to the jury. In particular, they note the potential illegality of the resolution owing to its secretive and thus defective adoption, as well as a genuine issue as to whether the Band Council had the legal authority to adopt it in light of the powers conferred on the Police Commission.

Their objective, in effect, was to prevent the impending implementation of the resolution, a subject that was canvassed in the testimony led during the presentation of the defence's case. [ 10 ] The respondents also point out that the Crown's submissions in appeal were never put to the trial judge, and that in any event, the two defences were based on what is characterized as the accused's erroneous belief as to the illegality of the impugned resolution and its presumptive consequences.

Finally, they argue that the Crown has failed to establish that the errors attributed to the trial judge in her instructions had a significant impact on the verdicts of acquittal, noting that a majority of the accused were found guilty of at least one offence. [ 11 ] Before proceeding further, since the Crown's appeal is based on the judge's instructions with respect to these defences, here is what she said in respect of each of them. [ 12 ] First, the

section 30 defence: Okay. Now, I'll go to the justification defences. [...] Now, again, I'm giving you these; I don't want you to put your own

interpretation

on it, I will explain it to you, but I think it anchors, you know, the explanation, and I think you will find it useful. So the defence relies on these two (2) provisions to raise what it called a justification defence. The first thing I'll tell you is if you find that the Crown has not proven beyond a reasonable doubt that each and every one of the accused is guilty of riot and forcible confinement, or of the lesser included offence of unlawful assembly in the case of riot, you don't even need to consider the justification defences . I hope everything I've said makes that clear.

You get to that step once you think that the Crown has proven the offences beyond reasonable doubt. And then, you see whether or not the Crown has also proven that these defences don't arise from the facts, they don't apply to the facts at hand, and here they are . We'll read them…we'll read 30 together: "Preventing breach of peace.

Everyone who witnesses a breach of the peace is justified in interfering to prevent the continuance or renewal thereof, and may detain any person who commits or is about to join in or to renew the breach of the peace for the purpose of giving him into the custody of a peace officer, if he uses no more force than is reasonably necessary to prevent the continuance or renewal of the breach of the peace or than is reasonably proportioned to the danger to be apprehended from the continuance or renewal of the breach of the peace." It's a mouthful, but it's not that complicated.

A breach of the peace occurs whenever harm is done or likely to be done to a person or a property of that person in his or her presence, whenever a person is in fear of being harmed through an assault, through a riot, through an unlawful assembly, through a disturbance. Okay. So really, the defence is reversing the positions here. What it says is: 'It's not us who disturbed the peace, it's…, and you heard the attorneys argue it very forcibly and very clearly: 'We didn't disturb the peace, they disturbed the peace by invading our territory, coming on our territory without lawful authority.

And they showed up at the Kanesatake police station, and thus, they committed a breach of the peace, and we were entitled to defend ourselves on the basis of

Section 30 .' Okay. So

Section 30, in essence, tells you that everyone who witnesses a breach of the peace is justified in interfering to prevent the continuance of the breach of the peace or its renewal, and may detain anyone, but not for any purpose; may detain that person for the purpose of handing him or her over to a police officer, because that's what the

article says, for the purpose of giving that person into the custody of a peace officer. So you detain the persons who commit the breach of the peace. And you may use force to do so, but you may not use more force than is reasonably necessary to prevent a continuance of the breach of the peace. That's what the

article says. So the force has to be proportional to the danger that is presented by the sixty-seven

(67) First Nations Police Officers being in the police station in Kanesatake. Whether or not the force was more than necessary or just what was necessary, whether or not you accept that the Crown has proven that this defence does not apply, that's an issue of fact for you to resolve . You'll have to decide that. But the defence contends that it's the other way around; the ones who were breaching the peace were the…what the defence calls the invaders, they were the ones who committed the breach of the peace.

So let us resume, because we also know that these invaders, there is evidence which you'll have to accept or reject, it's up to you, there is evidence that they thought that they were there lawfully, because they thought that the Band Council resolution, having been signed by a majority of the chiefs, entitled them to be there to do what they had set out to do.

So they thought they were there…and the issue for you is to find whether or not in the circumstances, the Crown, because it remains the burden of the Crown, I told you it never shifts to the accused, the Crown has convinced you beyond a reasonable doubt that this defence does not apply. That's what you have to decide. And if you want me to give you the three (3) essential elements of that defence just so that you can jot them down, first of all, you need an actual breach of the peace, okay; you have to determine that there was an actual breach of the peace as I have just defined it.

So apprehended harm to the person or the property. Okay. That the person witnessing the breach of the peace confined the person, but solely for the purpose of handing that person over to a police officer. That's the second element. So if there was a confinement justified under this section, it was solely for the purpose of handing these people over to police officers. Remember that in the end, in a way, that's what was done, because they were handed over to the Kahnawake Peacekeepers. Okay. But you need the three (3) elements for the defence to apply.

And that there was no excessive force used, just the force that was necessary. Because 30, just like 41.1, and we'll get to 41.1, does not allow excessive force. If you use too much force, it's not a defence; it's only when you use reasonable force. And the burden of proof still rests with the Crown, never shifts. So it's up to the Crown, I repeat, to demonstrate beyond a reasonable doubt that the facts of this case do not give rise to a defence under

Section 30 . [Emphasis added] [ 13 ] Next, the s. 41(1) defence: The accused also invoked 41.1 of the Criminal Code , and we're going to read it together: "Every one who is in peaceable possession of a dwelling-house of real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefore, if he uses no more force than is necessary." This is very similar to the previous one, very similar. I'll give you the essential element. So it raises the defence of justifiable use of

force to defend property. And the accused don't have to prove that it applies; it's up to the Crown to convince you beyond a reasonable doubt that it doesn't apply. If you're left with a reasonable doubt that it might apply, then you must acquit. Now, defence of a building by an occupant or someone assisting an occupant, and these words are important, who is the occupant? Well, I'll go on to that. But this is a defence which is rigidly defined in the Criminal Code , because any defence that relies on the right to use force in order to prevent someone from coming on premises or, you know.

I mean in other words, if you shoot someone because they get on…you find them on your property, a lot of times, the fact that they were trespassing won't be a valid defence because the jury will be of the opinion that maybe shooting was a little strong, you know; maybe a warning might have done the trick. So you get the gist of it, it's in the same nature. Now, who is everyone who is in peaceable possession of a dwelling-house or real property. First of all, there is no need to bother with "real property". Real property is land and a building erected on it. So take it from me, a police station is real property.

So don't worry about that, that is met. But, you know, who is the regular occupant. Well, I think most of us would think it's either the community of Kanesatake, but I mean, I don't see the…because you're a member of the community of Kanesatake that you have a right to be in the police station at all times when you so wish. I mean, think about it. I think really, it is normally in the possession of the police officers there, okay, under the authority of their validly constituted chief; that is who is normally in possession.

However, in this case, the reasonable belief aspect comes into play because Sonya Gagnier and Susan Oak certainly thought…Susan Oak is not a defendant, but she did testify and confirmed Sonya Gagnier on this aspect, they certainly thought that, you know, they were rightful occupants of the police station by…if you want, as delegates of the community to look after police affairs. They certainly testified that this was their honest belief. Okay .

So you'll have to consider, the first element is were they acting under the authority of the legitimate occupier, or could they reasonable have thought that they were acting under the authority of the legitimate occupier. That would be the first ingredient of that defence. The second ingredient would be that they used force, in this case, they didn't use force to remove the First Nations Police Officers, but they would have used force to keep them there until the Kahnawake Peacekeepers came, and then, they could all leave together, so that could be it, because they thought they were trespassing.

Now, that calls for a definition of trespass. For there to be a trespass, the trespassers must be there without permission. You've heard evidence in this case, I've already alluded to it, that the First Nations Police Officers thought they had permission to be there; and they thought that the new chief of police, who had been appointed in virtue of a Band Council resolution was the chief of their operations, and they thought they were there to conduct police operations under his orders.

At the same time, you've also heard evidence that the accused believed the Band Council resolution to be invalid, and I've already told you why they believe the Band Council to be invalid. So you'll have to consider whether or not you accept that evidence; whether or not you think the belief was legitimate, was genuine, was real, because some beliefs can be convenient . So you'll have to consider that: was it a genuinely held belief, or was it an excuse. That's what you have to consider: in fact, what do you think people intended? I hate to put this on your shoulders, but that's where the burden rests.

You have to decide that. In fact, what was the intent? In considering whether the belief was legitimate, you may well consider whether it was reasonable in the circumstances to believe that. Okay. Is that clear enough for everyone ? Thank you. There's something else I have to tell you about trespassers. Persons…you'll think I'm making this up to give you a hard time, but I'm not. I'm not. Persons who are initially…what do you think? BY THE DEFENCE (Me Boro) Go for it. BY THE COURT I'm being encouraged by the defence to go for it, so I'll do so.

When someone is initially there with a permission, when do they become a trespasser? It's a good question. Well, when they're told to leave by someone in authority. That's the next issue, is were they told to leave by someone in authority. And I'm laughing, but I'm not laughing at the defence, I'm laughing at the situation. I'm not…believe me, I don't mean to be dismissive of the defence, it's a serious defence. It's just so odd to see a case like this which is given such a different construction by the two (2)…I won't call them warring factions, but it's given such a different

interpretation, you don't run into cases like that often. But you have it in this case, and you'll have to deal with it. This is what you have to deal with, not something else. This is the situation. So you'll have to assess all these issues. And the third element is again the same as the first time, no more force than necessary.

So if you accept evidence that there were threats, that there was a menace of violence, okay, this is the contention of the Crown, eventually I'll give you the position of the Crown, and hopefully the position of the defence, if you accept that there was violence, then you'd have to consider whether the force used was justified, was proportionate. So the force used by the demonstrators must bear some relationship to what the police officers of the First Nations did.

Otherwise, the force is excessive…there must be some proportionality there between the actions of the police officers of the First Nations and the actions of the demonstrators. And if you find that there was disproportion, and that the force used was excessive, then it's not a valid defence under 41.1 Okay. Use

your common sense when deciding whether or not you're satisfied beyond a reasonable doubt that the force used by the accused was excessive. But you have to be satisfied beyond reasonable doubt that it was excessive for the defence not to afford. Keep in mind that a person doesn't always have the time for calm deliberation when faced with someone they believe is a trespasser. So you may have to consider, and this is just a suggestion, it's up to you, you may have to consider whether or not there was an element of surprise, or whether or not this was something that was expected. There is evidence concerning that.

There is evidence of all kinds concerning that, and I'm leaving it to you, in your hands, because it's an issue of fact. What do you think really happened? What do you think people really intended? So to summarize the essential ingredients of the defence of justifiable use of force to defend real property: it applies when the accused were acting under the authority of the legitimate occupier, or genuinely thought that they were acting with that authority. Two, the accused used force to cause the First Nations Police Officers to leave because they honestly believed them to be trespassers.

And three, the force was no more than reasonably necessary. Those are the essential elements. [Emphasis added] [ 14 ] The Crown does not challenge the accuracy of the judge's instructions with respect to the two defences, but rather, the fact that they were given at all. [ 15 ] The Court is of the view that the Crown's appeal fails. Here is why. [ 16 ] First, the preferable time to raise an argument about the availability of a defence is at trial.

The record before us shows that the Crown did not do so in this case, despite the fact that it had at its disposal all of the elements necessary to attempt to persuade the trial judge that the proposed defence should be rejected.

Thus, we have no judgment from the trial judge explaining her view as to why the defence was a proper one to submit to the jury. [4] While not constituting an absolute bar in appeal, the reality is that the Crown's failure to object to a defence at trial when there is an acquittal can lead to an order from a court of appeal for re-trial, which might have been avoided if the trial judge had maintained the objection. [ 17 ] That being said, as Binnie, J. observed as part of the majority in R. v.

Cinous , "A trial judge should be very slow to take a defence away from a jury." [5] That does not mean, however, that a jury should be compelled to consider any defence, however farfetched, as the circumstances of Cinous disclose. [6] Indeed, to paraphrase the words of McLachlin, C.J. and Bastarache, J. in Cinous , a trial judge should put to the jury any defence that has an evidential foundation that gives it an air of reality, meaning simply one that is sufficient to be put in play, leaving the ultimate decision of its impact to the jury. [7] [ 18 ] In this case, the Court concludes that there was a sufficient evidentiary basis arising out of the potential illegality of the Band Council resolution based on their genuine but erroneous belief that the Mohawk community as a whole was the legal possessor of the police station. [ 19 ] Here, for example, is what Sonya Gagnier said in this respect when examined in chief: Q What would you say, as a community member, your understanding is as to who the public buildings on the territory belong to?

A I would say it belongs to people in the territory. Mean, most of the funding that comes into our community to build these buildings are usually given by the federal government to the people. Q Um-hum. A How it runs culturally in our community, is that the people are the first and last voices; they're the decision-makers at the end of the day, and the chiefs, and whoever work with them…well, the chiefs basically are accountable to the community members. So I would say that all the buildings that are there are run by community members and are…basically belong to the community. Q And who uses them?

They're run by community members, and who typically uses the facilities? A Well, anybody and everybody, they're public places, people will come and go. If they have to place a complaint at the police station, or if they have to go to the school to, you know, sign up their child for school or to go to Band Office for Band business or… Q Can I send my child to a school in Kanesatake? A I guess so, if… yes, if you were living on the territory, I guess so. Q Okay. So I'd have to live on the territory to do that? A Basically, mostly if they're Band members.

We do have some non-natives that work within the community departments, and they come to work almost daily; we have nurses and stuff that work there that are non-native. Q Okay. What about any medical clinics or hospitals on the territory? A Yes, we have a health centre… Q And who… A …on the… Q And who does that belong to?

A The community; it's run by Joyce Nelson, she's the director. Q Okay. And the Band Council office, who does that belong to? A The people, the public, it's a public building. [20] This evidence, which was introduced without objection by the Crown, together with the testimony of the three other defencewitnesses relating to the very plausible belief that the January 2 resolution was illegally adopted,[8] formed a sufficient evidential basisto allow the defence to be put to the jury, leaving to the jury to weigh its probative value.

The trial judge's instructions concerning thesedefences related the evidence to the substantive requirements of the defences and disclose no error as to its substantive content. [21] That alone suffices to dismiss the appeal. [22] A further reason, however, leads the Court to reject the Crown's submissions that a new trial should be ordered. [23] Its burden in appeal is not simply to show an error in the court below. Rather, it must show more, as Fish, J. explained for themajority in R. v.

Graveline,[9] a case in which the Supreme Court reversed a judgment of this Court and restored a verdict at trial ofacquittal, notwithstanding the trial judge's errors in opening a defence that the accused had not pleaded which it was conceded had beenimproperly put to the jury, as well as the substantive content of the instruction relating to the defence: 13 In many jurisdictions, as Cory J. observedin R. v. Evans, (SCC), [1993] 2S.C.R. 629, at p. 645, the state has no right ofappeal against the acquittal of an accused at trial.That is not so in Canada. Section 676(1)(

a) of theCriminal Code, R.S.C. 1985, c. C-46, providesthat the Attorney General may appeal to the Courtof Appeal "against a judgment or verdict ofacquittal ... on any ground of appeal that involvesa question of law alone". 14 It has been long established, however, thatan appeal by the Attorney General cannot succeedon an abstract or purely hypothetical possibilitythat the accused would have been convicted butfor the error of law. Something more must beshown.

It is the duty of the Crown in order toobtain a new trial to satisfy the appellate courtthat the error (or errors) of the trial judge mightreasonably be thought, in the concrete reality ofthe case at hand, to have had a material bearing onthe acquittal. The Attorney General is notrequired, however, to persuade us that the verdictwould necessarily have been different. 15 This burden on the Crown, unchanged formore than half a century (see Cullen v. The King, (SCC), [1949] S.C.R. 658), wasexplained this way by Sopinka J., for the majority,in R. v.

Morin, (SCC), [1988] 2S.C.R. 345: I am prepared to accept that the onus is a heavyone and that the Crown must satisfy the courtwith a reasonable degree of certainty. An accusedwho has been acquitted once should not be sentback to be tried again unless it appears that theerror at the first trial was such that there is areasonable degree of certainty that the outcomemay well have been affected by it. Any morestringent test would require an appellate court topredict with certainty what happened in the juryroom. That it cannot do [p. 374]. 16 Speaking more recently for a unanimousCourt in R. v.

Sutton, [2000] 2 S.C.R. 595, 2000SCC 50, the Chief Justice stated: The parties agree that acquittals are not lightlyoverturned. The test as set out in Vézeau v. TheQueen, (SCC), [1977] 2 S.C.R.277, requires the Crown to satisfy the court thatthe verdict would not necessarily have been thesame had the errors not occurred. In R. v. Morin, 13 Dans bon nombre de ressorts, comme lejuge Cory l’a fait remarquer dans R. c. Evans, (SCC), [1993] 2 R.C.S. 629,p. 645, l’État ne peut interjeter appel du verdictd’acquittement d’un accusé au procès. AuCanada, ce n’est pas le cas.

L’alinéa 676(1) (a)du Code criminel, L.R.C. 1985, ch. C-46,prévoit que le procureur général peut introduireun recours devant la Cour d’appel « contre unjugement ou verdict d’acquittement [. . .] pourtout motif d’appel qui comporte une question dedroit seulement ». 14 Il est cependant établi depuis longtempsqu’un appel interjeté par le procureur général nesaurait être accueilli sur une possibilité abstraiteou purement hypothétique selon laquellel’accusé aurait été déclaré coupable n’eût étél’erreur de droit. Il faut des moyens plusconcrets.

Pour obtenir un nouveau procès, leministère public doit convaincre la cour d’appelqu’il serait raisonnable de penser, compte tenudes faits concrets de l’affaire, que l’erreur (oules erreurs) du premier juge ont eu uneincidence significative sur le verdictd’acquittement. Le procureur général n’esttoutefois pas tenu de nous persuader que leverdict aurait nécessairement été différent. 15 Ce fardeau qui incombe au ministère publicet qui demeure inchangé depuis plus d’un demi-siècle (voir Cullen c. The King, (SCC), [1949] R.C.S. 658) a été expliquécomme suit par le juge Sopinka au nom de lamajorité dans R. c.

Morin, (SCC), [1988] 2 R.C.S. 345 : Je reconnais volontiers que cette charge estlourde et que la poursuite doit convaincre lacour avec un degré raisonnable de certitude. Unaccusé qui a déjà été acquitté une fois ne devraitpas être renvoyé à un nouveau procès s’il n’estpas évident que l’erreur qui entache le premierprocès était telle qu’il y a un degré raisonnablede certitude qu’elle a bien pu influer sur lerésultat. Tout critère plus strict exigerait qu’unecour d’appel prédise avec certitude ce qui s’estpassé dans la salle de délibérations, ce qu’elle

(SCC), [1988] 2 S.C.R. 345, thisCourt emphasized that "the onus is a heavy oneand that the Crown must satisfy the court with areasonable degree of certainty" (p. 374). [para. 2] [Emphasis added] ne peut faire. [p. 374] 16 S’exprimant plus récemment dans unjugement unanime, la Juge en chef a dit ce quisuit dans R. c. Sutton, [2000] 2 R.C.S. 595,2000 CSC 50 : Les parties s’entendent pour dire que lesverdicts d’acquittement ne sont pas annulés à lalégère.

Selon le critère énoncé dans Vézeau c.La Reine, (SCC), [1977] 2R.C.S. 277, le ministère public doit convaincrela cour que le verdict n’aurait pas éténécessairement le même s’il n’y avait pas eud’erreurs. Dans R. c.

Morin, (SCC), [1988] 2 R.C.S. 345, notre Coursouligne le fait que « cette charge est lourde etque la poursuite doit convaincre la cour avec undegré raisonnable de certitude » (p. 374). [par.2] [Soulignage ajouté] [24] Quite simply, the Crown has not discharged the burden incumbent on it to persuade the Court, assuming the trial judge to haveerred by opening these two defences (which she did not), that the error "might reasonably be thought, in the concrete reality of the caseat hand, to have had a material bearing on the acquittal" of these respondents.

This is all the more the case when it is remembered thatprecisely the same defences were argued on behalf of all of the accused who were convicted of both offences as charged or convicted ofthe included offence of unlawful confinement. [25] Although dressed up as an appeal on a question of law, the Crown's appeal is presented in the abstract, without anyconsideration of the fact that the impugned defences did not succeed with respect to the majority of the accused on at least one count.

Ifin fact the jury had relied on this defence, one would have expected all of the accused to have been acquitted of both counts in theindictment, as well as the included offence of unlawful assembly. Rather, it is apparent that the jury carefully assessed the evidence as itapplied to each of the accused and rendered its verdicts accordingly, as they had been instructed by the trial judge. FOR THESE REASONS, THE COURT: [26] DISMISSES the appeals. ALLAN R. HILTON, J.A. PAUL VÉZINA, J.A. CLAUDE C. GAGNON, J.A.

Mtre Denis GaliatsatosCriminal and Penal Prosecuting AttorneyFor the appellant Mtres Dylan Jones and Jeffrey K. BoroBoro, Polnicky, LighterFor the respondents Date of hearing: April 30, 2015