r v. R., 2013 NBCA 39

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 119-12-CA CHRISTOPHER ROBERT MESSER APPELLANT CHRISTOPHER ROBERT MESSER APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Messer v. R., 2013 NBCA 39 Messer c.

R., 2013 NBCA 39 CORAM: The Honourable Justice Deschênes The Honourable Justice Richard The Honourable Justice Bell CORAM : L’honorable juge Deschênes L’honorable juge Richard L’honorable juge Bell Appeal from a decision of the Court of Queen’s Bench: August 15, 2012 (conviction) September 7, 2012 (sentence) Appel d’une décision de la Cour du Banc de la Reine : Le 15 août 2012 (déclaration de culpabilité) Le 7 septembre 2012 (prononcé de la sentence) History of case: Decision under appeal: 2012 NBQB 287 Preliminary or incidental proceedings: N/A Historique de la cause : Décision frappée d’appel : 2012 NBBR 287 Procédures préliminaires ou accessoires : S.O.

Appeal heard : May 14, 2013 Appel entendu : Le 14 mai 2013 Judgment rendered: June 20, 2013 Jugement rendu : Le 20 juin 2013

Counsel at hearing: For the appellant: Michael W. Lacy and Brian D. Munro For the respondent: William B. Richards Avocats à l’audience : Pour l’appelant : Michael W. Lacy et Brian D. Munro Pour l’intimée : William B. Richards THE COURT The appeal is allowed. The conviction under s. 264 of the Criminal Code is quashed and the appellant is acquitted of the original count. The conviction under s. 266(

a) is also quashed, but we order a new trial on that charge, which, pursuant to s. 686(5)( a ), is ordered to be held before a court composed of a judge and jury. LA COUR L’appel est accueilli. La déclaration de culpabilité prononcée en application de l’ art. 264 du Code criminel est annulée et l’appelant est acquitté de l’infraction dont il avait été accusé à l’origine. La déclaration de culpabilité relative à l’infraction prévue à l’ al. 266

a) est elle aussi annulée, mais nous ordonnons la tenue d’un nouveau procès quant à cette accusation, procès qui devra être instruit devant un tribunal composé d’un juge et d’un jury, conformément à l’ al. 686(5) a ). The following is the judgment delivered by THE COURT [1] Christopher Robert Messer was charged with three offences (1) uttering a threat to cause death or bodily harm (s. 264.1(1)(

a) of the Criminal Code , R.S.C. 1985, c. C-46); (2) assault causing bodily harm (s. 267( b )); and, (3) assault (s. 266( a )). All three offences were alleged to have been committed while he was on duty as a police officer and as he was investigating a break, enter and theft into his own home. Effectively, the theory of the prosecution was that he threatened and assaulted two people he believed might, at the very least, have information regarding the break and enter. On August 15, 2012, a judge of the Court of Queen’s Bench acquitted Mr.

Messer on all of the offences as charged, but, with respect to the first two counts, convicted him of what the judge determined to be lesser included offences: “threatening conduct” purportedly under s. 264, and assault simpliciter (s. 266( a )). The judge’s decision is reported at 2012 NBQB 287 , 394 N.B.R. (2d) 266 . On September 7, 2012, the judge sentenced Mr. Messer to consecutive jail terms of one and two months, respectively: 2012 NBQB 327 , 395 N.B.R. (2d) 1 . Mr. Messer appeals the conviction and seeks leave to appeal the sentence.

[2] Mr. Messer argues that what the judge described as an offence of “threatening conduct” is not an offence known to law and is certainly not the offence of criminal harassment set out in s. 264 of the Criminal Code . The Attorney General replies that the term used to describe the offence under s. 264 is really of no moment, but agrees with Mr. Messer that the trial judge erred when he determined that an offence under that

section was an included offence for a charge under s. 264.1(1)( a ). We, too, agree. On application of the appropriate criteria articulated in R. v. G.R. , 2005 SCC 45 , [2005] 2 S.C.R. 371 and repeated in R. v. Comeau , 2008 NBCA 60 , 332 N.B.R. (2d) 308 , there is simply no legal justification for the verdict on the first count. It follows that the conviction under s. 264 must be set aside. [3] As for the assault conviction, Mr. Messer argues the verdict was unreasonable. He seeks an acquittal.

The At torney General replies that, in relation to the verdict on that count, “it is difficult to discern exactly what the judge found.” The Attorney General “respectfully submits that the decision of the judge is too unreliable to be informative of why he convicted as he did, and upon what evidence” conceding that the decision “does not lend itself to appellate scrutiny, and […] raises doubts about its internal logic.” The Attorney General also says that, with this decision, interested members of the public could not satisfy themselves that justice was done.

Thus, the Attorney General concedes the conviction should be quashed but argues that the proper remedy is to order a new trial rather than enter an acquittal. [4] We agree with the Attorney General that the verdict on the second count is “unreliable.” It is difficult to discern from the trial judge’s reasons critical unambiguous findings that would support a conviction. For the most part, the reasons for decision consist of the judge setting out different versions of events from the testimonies at trial, with much editorial commentary.

However, when it comes to making findings that would have been key in explaining the verdict, the reasons are deficient. Mr. Messer argues the trial judge accepted his testimony to the exclusion of that of the complainant. However, this is not necessarily so on some critical issues. The trial judge claimed not to “understand” key portions of Mr. Messer’s testimony. He said he did not understand how Mr. Messer got his arm stuck between the complainant’s legs, nor why Mr. Messer thought it necessary to punch the complainant. Because he chose to enter a conviction, the trial judge must have found Mr.

Messer applied excessive force, either in self-defence, or in controlling the complainant who was under arrest. The use of excessive force being a question of fact, Mr. Messer cannot say all the judge’s findings of fact were in his favour and supportive of an acquittal. [5] What we do not know is why the trial judge,

applying proper credibility findings, arrived at this particular conclusion. As theAttorney General points out, the reasons for decision are unreliable and do not lendthemselves to meaningful appellate scrutiny. For this reason, the proper course is toset aside the conviction and order a new trial. [6] The Attorney General has not appealed any ofthe acquittals on the original charges. We therefore have no jurisdiction to order anew trial with respect to these.

Even with respect to the count in regard to which Mr.Messer was convicted of the lesser and included offence of assault simpliciter, wecannot order a new trial on the original count: R. v. Guillemette, (SCC), [1986] 1 S.C.R. 356, [1986] S.C.J. No. 24 (QL). Mr. Messer therefore standsacquitted with respect to the first count because the judge found him not guilty of theoffence charged and erred in law in finding him guilty of the offence set out in s. 264.He also stands acquitted of the assault described in the third count, regarding whichthere was no appeal.

As for the second count, he was acquitted of assault causingbodily harm and that acquittal has not been appealed. He can therefore only be re-tried on a charge under s. 266(

a) relating to the transaction to which the second countrelates. In his notice of appeal, as amended, Mr. Messer requests that any new trial beheld before a court composed of a judge and jury. [7] For these reasons, the appeal is allowed. Theconviction under s. 264 of the Criminal Code is quashed. The conviction under s.266(

a) is also quashed and we order a new trial on that charge, which, pursuant to s.686(5)(a), we order be held before a court composed of a judge and jury. ________________________________ ALEXANDRE DESCHÊNES, J.A. ________________________________ J.C. MARC RICHARD, J.A. ________________________________ B. RICHARD BELL, J.A.