R v. Lilly, 2022 NSSC 138

SUPREME COURT OF Nova Scotia Citation: R v. Lilly , 2022 NSSC 138 Date: 20220517 Docket: Halifax, CRH No. 507902 Registry: Halifax Between: Her Majesty the Queen v. Jacob Matthew Lilly TRIAL DECISION Judge: The Honourable Justice Peter P.

Rosinski Heard: October 6 and 8, 2021; February 11, March 25 and April 14, 2022 in Halifax, Nova Scotia Counsel: Rick Woodburn, for Her Majesty the Queen Ian Hutchinson, for Jacob Lilly By the Court: Introduction [1] [ 1 ] On December 2, 2019, Correctional Officer (“CO”) Matthew Hicks was on duty at the Central Nova Scotia Correctional Facility, a.k.a. “the Burnside Jail”, when an inmate was violently attacked in his cell by a number of inmates, and while others prevented correctional officers from coming to the aid of the inmate being attacked. [ 2 ] Fifteen inmates were charged in relation to that incident.

They became publicly known as “the Burnside 15”. [ 3 ] CO Hicks was prevented from getting to the inmate’s cell, directly by Mr. Lilly, and indirectly by others. [ 4 ] Mr.

Lilly was charged with: conspiracy to commit murder, attempted murder, unlawful confinement, aggravated assault, assault with a weapon in relation to the inmate; and obstruction and assault of a peace officer in relation to CO Hicks. [ 5 ] On March 29, 2021, at a case management conference with Justice Jamie Campbell, the original indictment charging all 15 inmates was severed and Judge Alone trials for Indictment #1 (7 inmates) were set for May 10 - 19, 2021 and Indictment #2 (8 inmates) were set for May 20 - 31, 2021. Mr. Lilly was to stand trial on those charges on May 20, 2021.

As of March 31, 2021, CO Hicks had been subpoenaed as a witness. [ 6 ] The Crown alleges that on March 31, 2021, while an inmate at Burnside Jail, Mr. Lilly yelled to CO Matthew Hicks: “stop snitching on the crew – why you testifying?”; or otherwise put: “stop testifying – why you snitching on the crew?” [ 7 ] Mr. Lilly is charged herein that he: on or about the 31 st day of March 2021 at or near Dartmouth Nova Scotia, did without lawful authority engage in conduct with the intent

to provoke a state of fear in Corrections Officer Matthew Hicks, a justice system participant, in order to impede him in the performance of his duties, contrary to

section 423.1 (

b) of the Criminal Code . [ 8 ] I am satisfied that the Crown has proved that Mr. Lilly is guilty beyond a reasonable doubt of the s. 423.1 (

b) Criminal Code (“ CC ”) offence. Background [ 9 ] Since April 2019 [2] , CO Hicks was continuously employed as a correctional officer at the Central Nova Scotia Correctional Facility, presently and historically also referred to as the “Burnside Jail”, because it is located in the Burnside Industrial Park, Dartmouth, Halifax Regional Municipality, Nova Scotia. [ 10 ] While acting in that capacity he falls within the definition of “justice system participant” as set out in s. 2 of the Criminal Code . [ 11 ] I accept CO Hicks’s testimony as credible and reliable unless I specify otherwise.

The December 2, 2019, Incident [ 12 ] CO Hicks testified that he was one of 12 correctional officers present in the North Unit dayroom at the Burnside Jail on December 2, 2019, when he witnessed a number of criminal offences committed simultaneously by a group of inmates, who became publicly known as “the Burnside 15”. [ 13 ] He saw several inmates enter cell 8 where a new inmate had just been lodged.

Correctional officers immediately became concerned about this congregation of inmates and the cell door having been closed. [ 14 ] CO Hicks made his way toward the cell, but he was impeded by inmates who got between him and other correctional officers which prevented them from intervening in the violence inflicted on the new inmate by the inmates in his cell. [ 15 ] During the incident Mr. Lilly was directly in front of the cell which CO Hicks was trying to enter. He told Mr. Lilly to move, and Mr.

Lilly said he would not permit CO Hicks near the cell, and physically prevented him from reaching the cell for a period of minutes. [ 16 ] CO Hicks gave a statement to police in relation to what had happened, and which inmates participated, including reference to Mr. Lilly’s involvement. [ 17 ] Mr. Lilly was consequently charged with criminal offences related to the December 2, 2019, incident. His trial was initially scheduled for May 2021 [3] . CO Hicks was subpoenaed as a witness, and I infer that Mr. Lilly was aware of this on March 31, 2021. Mr. Lilly was then also represented by Mr. Hutchison.

The March 31, 2021, incident [ 18 ] The Crown presented the following witnesses before me: CO Matthew Hicks; CO Tyler Whynot; whereas the Defence offered evidence through Capt.

Ryan Hill who had been at Burnside for six years, and Detective Constable Bradley Murray of the Halifax Regional Police Criminal Investigation Division, who is the investigator in relation to this intimidation charge. [ 19 ] I also found that the testimony of the latter three witnesses was credible and reliable unless I specify otherwise. [ 20 ] The evidence satisfies me beyond a reasonable doubt that the words and actions that are the bases of the alleged incident of intimidation occurred in the evening of March 31, 2021, while CO Hicks and CO Whynot were working, doing rounds etc., in the West unit where Mr.

Lilly was then housed [4] . [ 21 ] The allegation is that Mr. Lilly and the other inmates were outside their cells when CO Hicks and CO Whynot were among them (between their shift start at 6:45 PM and 10:00 PM – the inmates are usually locked in their cells between 10:00 PM and 9:00 AM, and I am satisfied that this was also the case at the material times herein) when Mr. Lilly, while approximately 50 feet away from CO Hicks, sufficiently loudly stated, such that the inmates and CO Hicks and CO Whynot could hear his words, including, according to CO Hicks at different points in his testimony: 1.

Stop testifying – why you snitching on the crew? or 2. Stop snitching – why you testifying on the crew? or 3. Stop snitching on the crew – why you testifying? or 4. Why you snitching? – stop testifying on the crew. [ 22 ] As I noted elsewhere, I accept that CO Hicks was able to recognize Mr. Lilly’s voice among others, because it stands out and is distinctive, and CO Hicks had sufficient contact with Mr. Lilly in the institution to give this evidence the necessary weight to conclude it so beyond a reasonable doubt. [ 23 ] CO Whynot testified that what he recalled Mr.

Lilly say was captured by the following phrases: “Don’t testify”; “Stop snitching on the crew”; and “Stop being a snitch”. [ 24 ] He characterized Mr. Lilly speaking: Loud enough that I could hear it on the other side of the day room… I could hear it clearly from the other side… I did visually observe

him say it- I also know his voice and I do recognize him from working there … since I got hired in January 2020 and I hit the floor on March 2020. [ 25 ] CO Hicks and CO Whynot both said that shortly after Mr. Lilly spoke, CO Hicks asked CO Whynot, “Did you hear what I heard?” and that CO Whynot confirmed that he did – however neither spoke the words they had heard at that time. They did not discuss it further that shift and CO Hicks wrote up his report without any commentary or input from CO Whynot.

CO Whynot did superficially read CO Hicks’s report when he witnessed it, but only created his own institutional report for the jail on May 3, 2021, in response to the investigation conducted by Halifax Regional Police. [ 26 ] I am satisfied that there is no advertent, or so-called inadvertent, collusion at work here as between CO Hicks and CO Whynot [5] . [ 27 ] Let me next examine whether the Crown has proved all the essential elements of the offence alleged. What are the essential elements of the offence alleged? [ 28 ] The charge reads that Mr.

Lilly did: on or about the 31 st day of March 2021 at or near Dartmouth Nova Scotia, did without lawful authority engage in conduct with the intent to provoke a state of fear in Corrections Officer Matthew Hicks, a justice system participant, in order to impede him in the performance of his duties, contrary to

section 423.1 (

b) of the Criminal Code . [ 29 ]

Section 423.1 (

b) CC reads:

(1) No person shall, without lawful authority, engage in any conduct with 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. 1 - Mr. Lilly did engage in the conduct/ the actus reus . [ 30 ] I am satisfied beyond a reasonable doubt that Mr. Lilly is the person who yelled the words (as recounted by COs Hicks and Whynot), and that he intended they be heard by CO Hicks, as Lilly knew he was subpoenaed for the May 2021, trial involving Lilly and the other charged inmates regarding the December 2, 2019, incident [6] . 2 - The words yelled by Mr.

Lilly at CO Hicks were intended by him to be taken seriously, and provoke a state of fear in CO Hicks, and intended to impede him in the performance of his duties /the mens rea [ 31 ] In R. v. Armstrong , 2012 BCCA 248 , (leave to appeal refused [2012] SCCA No. 529) the court had this to say about the elements of the offence: 18 … It is accepted that the element of uttering threats in s. 264.1 corresponds to the element of threatening in s. 423.1(2) (

b) of the Criminal Code . 19 Sections 423.1(1) and 423.1(2) provide: 423.1(1) No person shall, without lawful authority, engage in conduct referred to in subsection (2) 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; ...

(2) The conduct referred to in subsection (1) consists of (

a) using violence against a justice system participant or a journalist or anyone known to either of them or destroying or causing damage to the property of any of those persons; (

b) threatening to engage in conduct described in paragraph (

a) in Canada or elsewhere. … 34 In this case, where the words used are, as characterized by Mr. Armstrong, a "veiled threat", the circumstances in which the words are uttered, the circumstances of the speaker, the circumstances of the person to whom they are communicated, and the circumstances of

the person who is the subject of the threat (if different from the person to whom the words are said) are all relevant. None of theseconsiderations, as a matter of law, is determinative however because the question of the character of the words is a question of fact. TheCrown must prove beyond a reasonable doubt that, as a matter of fact, the words constitute a prohibited threat. 35 If the expression of a prohibited threat is established, the trier of fact must consider the mens rea- did the accused utter the words as athreat?

Otherwise stated, did he, in Justice Cory's description in Clemente, intend to intimidate or have the words taken seriously? As inother situations where there is no direct evidence of intention, intent is a matter to be inferred from the evidence. In this task the trier offact gains some assistance from considering, objectively, the meaning a reasonable person would take from the words. [32] Hence the Court of Appeal oriented its reasons around the decisions from the Supreme Court of Canada regarding the section264.1 CC offence – R. v. Clemente, (SCC), [1994] 2 SCR 758 and R. v.

McCraw, 3 SCR 72. [33] I bear in mind that the wording changed in 2015, and therefore the decision in R. v. Bergeron, 2015 BCCA 177, which wasbased on events in September 2011, was also decided based on the principles in Armstrong under the 2015 repealed s. 423.1(2). [34] The present s. 423.1 wording (“engage in any conduct”) has at least as wide an application as that at the time of the Armstrongcase (“engage in conduct referred to in subsection 2”). [35] Justice Wood (as he then was) stated in R. v.

Parsons, 2017 NSSC 269: 20 I must now consider whether the required mental element (or mens rea) has also been proven to that standard. 21 The charge under s. 423.1 requires proof that the person had the intention to provoke a state of fear in a justice participant and thatthis was done in order to impede the performance of their duties. 22 This is a specific intent offence which means I must be satisfied that Mr. Parsons had this intent and not some theoretical reasonableperson in the similar circumstances. 23 I have no direct evidence as to Mr.

Parsons’ intention and so I must consider whether I can infer it from the circumstances as set out inthe evidence. [Emphasis added] [36] The elements of the offence in dispute here are (1) engaging in conduct (2) without lawful authority (3) intending to provoke astate of fear (4) in a justice system participant (5) in order to impede them in the performance of their duties. [37] I have found all the other elements of the offence to be proved beyond a reasonable doubt - the remaining elements in disputeare whether the Crown has proved beyond a reasonable doubt that Mr.

Lilly, who I have found uttered the words in question, intendedhis words to be taken seriously, provoke a state of fear in CO Hicks, and impede him in the performance of his duties[7]. [38] I am satisfied beyond a reasonable doubt that Mr. Lilly intended to provoke a state of fear in CO Hicks and intended to impedehim in the performance of his duties (whether that be as a correctional officer at the institution or as a witness at the trials of any of theBurnside 15 accused). [39] In R. v.

Morrow, 2021 SCC 21, the court was reviewing a conviction for the offence of obstruction where the offender wastrying to dissuade a witness from testifying at trial. Therein, Justice Moldaver stated: As the majority observed, the record clearly supports the inference drawn by the trial judge that Mr. Morrow’s conduct represented anattempt to dissuade the complainant, by corrupt means, from giving evidence. Mr. Morrow knew he had recently been charged withcriminal harassment and that he was bound not to contact the complainant.

Despite this, he attended her home uninvited and engaged herin a prolonged and distressing discussion about the process for withdrawing the charges and her reasons for bringing them. … On thebasis of this evidence, it was open for the trial judge to find that Mr. Morrow’s intention was to apply pressure on the complainant andultimately to manipulate her into dropping the charges against him. The fact that Mr.

Morrow may have also been motivated by a desireto rekindle his relationship with the complainant did not undermine the availability of this finding. [Emphasis added] [40] While the Morrow facts are materially different from those before me, the decision makes the point that proof beyond areasonable doubt of the intention to provoke a state of fear in CO Hicks and to intend to impede him in the performance of his duties, isnot necessarily precluded where Mr.

Lilly may have had a coexisting, but additional, intention as well – for example to portray himselfas a “tough guy” or inmate advocate for the audience of other inmates[8]. [41] Both officers testified that the word “snitch” in the criminal subculture, particularly in jail, has a very negative connotation, and

it would include people who tell the authorities things about other inmates or persons in the criminal subculture which woulddisadvantage those other inmates or persons. [42] Hence the common expression: “snitches get stitches”; which is intended to maintain a code of silence in the criminalsubculture, and effect on those that “snitch”, as an example to others, violent repercussions, whether in jail or not. [43] In addition, I observe that the word “snitch” and “snitching” are defined in the Encyclopedic Dictionary of Canadian Law,LEXIS-NEXIS Canada Inc. 2021 in Volume 3 as: Snitch – A noun first used in English in the late 17th century; origin unknown.1.

An informer, a betrayer. Snitching – A term which encompasses any communication of information to law enforcement authorities of any kind that could result inthe arrest or conviction of a person.

The intentional act of providing (possibly true) information so as to cause someone to get in trouble,often so as to secure more lenient treatment for oneself. [44] These terms also are cited without issue on various occasions in the decisions of the Supreme Court of Canada: R v McInroy, (SCC), [1979] 1 SCR 588; R v Perrier, 2004 SCC 56 , 2004 3 SCR 228; R v Chan, 2004 SCC 57 ,[2004] 3 SCR 245; and R v McRae, 2013 SCC 68 , [2013] 3 SCR 931. [45] CO Whynot testified that to him, Mr.

Lilly’s words meant to convey to the other inmates that CO Hicks was a snitch, and thatthe effect thereof for a correctional officer is that “it can cause fear and anxiety” and makes it harder to deal with inmates for thatcorrectional officer. He also characterized the words “as a threat” referencing the “snitches get stitches” saying common in the criminalsubculture. [46] I bear in mind that Mr.

Lilly yelled these statements such that inmates and correctional officers alike could clearly hear them.CO Hicks testified that he considered it, “a shot at me with the ongoing [Burnside 15] trial that was coming [May 2021] … I felt he wastrying to pressure on me not to testify.” [47] CO Hicks was also asked about whether he felt threatened thereby.

He did consider the words “as a threat” intended to makehim “not testify”[9]. [48] He confirmed that not “snitching” is shorthand for “don’t tell what happened”; and more specifically “don’t testify or there willbe repercussions [to him]”. [49] As to who is “the crew”, he stated that “I believe it was intended [to be a reference to] the other individuals that are beingcharged on the same offences [the Burnside 15 who had been charged in relation to the violence against the inmate on December 2,2019, at Burnside Jail]”. [50] In essence, CO Hicks understood Mr.

Lilly’s statements to amount to the following threat: if you testify against us [theBurnside 15] you will be at risk of injuries when you are working and when you are outside the institution. [51] I wish to be clear that in coming to my conclusion that I am satisfied beyond a reasonable doubt that Mr. Lilly intended hiswords to be taken seriously by CO Hicks, and to provoke a state of fear in CO Hicks and impede him in the performance of his duties, Ido not consider as determinative of the issues, the subjective reactions of or

interpretations by CO Hicks and CO Whynot, albeit theirevidence is relevant to my determination of whether I am satisfied beyond a reasonable doubt that what Mr. Lilly subjectively intendedwas criminal[10]. [52] Moreover, I understand and apply the law regarding circumstantial evidence, in particular in relation to drawing of inferencessuch as whether there is proof beyond a reasonable doubt regarding whether Mr. Lilly intended to his words to be taken seriously by COHicks, and provoke a state of fear and to impede CO Hicks in the performance of his duties, as well as who did Mr.

Lilly intend toreference when he used the words “the crew”? [53] As Justice Scaravelli helpfully stated in R. v. G.P.W., 2021 NSSC 28: Circumstantial Evidence 75 In R. v. Lola, 2020 SKCA 13, the Court of Appeal discussed drawing up inferences as it relates to circumstantial evidence as follows: [25] In R v Villaroman, 2016 SCC 33, [2016] 1 SCR 1000 [Villaroman], the Supreme Court of Canada clarified the law of circumstantialevidence and reiterated a number of key points about circumstantial evidence and how that type of evidence must be assessed.

Thesepoints have been conveniently summarised in Learning as follows: [24] Importantly, the Court in R v Villaroman had earlier commented on the reasoning process in cases of circumstantial evidence,noting: (a) "The inferences that may be drawn from [an] observation must be considered in light of all of the evidence and the absence ofevidence, assessed logically, and in light of human experience and common sense" (at para 30). (b) "In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts" (at para 35). (c) "The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there are

reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt" (at para 35). (d) "[A] reasonable doubt, or theory alternative to guilt, is not rendered 'speculative' by the mere fact that it arises from a lack ofevidence. As stated by this Court in [R v Lifchus, (SCC), [1997] 3 SCR 320], a reasonable doubt 'is a doubt based onreason and common sense which must be logically based upon the evidence or lack of evidence': para. 30 (emphasis added[in Learning]). A certain gap in the evidence may result in inferences other than guilt.

But those inferences must be reasonable given theevidence and the absence of evidence, assessed logically, and in light of human experience and common sense" (at para 36). (e) "When assessing circumstantial evidence, the trier of fact should consider 'other plausible theor[ies]' and 'other reasonablepossibilities' which are inconsistent with guilt" (at para 37). (f) "[T]he Crown thus may need to negative these reasonable possibilities, but certainly does not need to 'negative every possibleconjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused'. ... '[O]ther plausibletheories' or 'other reasonable possibilities' must be based on logic and experience applied to the evidence or the absence of evidence, noton speculation" (at para 37; emphasis in original).

Drawing on all of this, the Court said (at para 38) that the "basic question" in such cases is "whether the circumstantial evidence, viewedlogically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty". 76 Succinctly stated by the Nova Scotia Court of Appeal in R. v. Roberts, 2020 NSCA 20: [25] If reasonable inferences other than guilt can be drawn from circumstantial evidence the Crown has not met the standard of proofbeyond a reasonable doubt.

Reasonable doubt can be logically based on the evidence or lack of evidence, must be reasonable given thatevidence or lack thereof, and assessed logically in light of human experience and common sense. [54] CO Hicks was present when the Burnside 15 collectively participated (to a lesser or greater degree) in the incident onDecember 2, 2019. Mr. Lilly actively prevented CO Hicks from reaching the cell of the injured inmate. [55] The incident demonstrated that the members of the Burnside 15 were prepared to act collectively, with the result that they wereconsequently charged with criminal offences.

Thereafter, they were referred to in the press and in court as “the Burnside 15”[11]. [56] Mr. Lilly’s statements on March 31, 2021, speak for themselves in plain language. Per CO Hicks • “Stop testifying – why you snitching on the crew?” or • “Stop snitching – why you testifying on the crew?” or • “Stop snitching on the crew – why you testifying?” or • “Why you snitching? – stop testifying on the crew”. Per CO Whynot • “Don’t testify”; • “Stop snitching on the crew”; • “Stop being a snitch”. [57] I am satisfied beyond a reasonable doubt that the references to “the crew” are to the members of the Burnside 15.

CO Hickswas a subpoenaed witness, for the May 2021, trials which were scheduled for the Burnside 15 members. [58] I am satisfied beyond a reasonable doubt that Mr. Lilly intended that his statements should be taken seriously by CO Hicks andto provoke a state of fear in CO Hicks such that he would not testify at all, or if so, only in a manner favourable to the interests of theBurnside 15. Conclusion [59] All the elements of this offence have been proved beyond a reasonable doubt, and I find Mr. Lilly guilty. Rosinski, J.