2024 QCCA 182, 2024 QCCA 182

Beaver c. R. 2024 QCCA 182 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007696-212 ( 500-01-200392-204 SEQ. 001) MINUTES OF HEARING DATE: February 9, 2024 CORAM: THE HONOURABLE MARIE-FRANCE BICH, J.A. PATRICK HEALY, J.A. BENOÎT MOORE, J.A.

APPELLANT COUNSEL frederick beaver Mtre THOMAS VILLENEUVE-GAGNÉ Mtre john t. pepper jr ( Pepper, Villeneuve-Gagné ) Absent RESPONDENT COUNSEL HIS MAJESTY THE KING Mtre MAUDE PAYETTE ( Directeur des poursuites criminelles et pénales ) Absent On appeal from a judgment rendered on October 12, 2021 by the Honourable Alexandre St-Onge of the Court of Québec, Criminal and Penal Division, District of Montreal. NATURE OF THE APPEAL: Guilt – Break and enter in a dwelling-house and possession of instruments for this purpose – Defence of duress. Clerk at the hearing: Sarah-Maude Lalande Courtroom: Pierre-Basile-Mignault

HEARING 9:33 Continuation of the hearing held on February 8, 2024. Counsel were excused from appearing in Court. BY THE COURT: Judgment – see page 4. Conclusion of the hearing.

Sarah-Maude Lalande, Clerk at the hearing JUDGMENT [ 1 ] This is an appeal against findings of guilt by the Court of Quebec [1] that on 22 January 2020 the appellant committed offences of burglary [2] and possession of housebreaking instruments. [3] The defence at trial was that the appellant acted under duress as a result of threats by two unidentified men of harm to him or his family if he did not break and enter and steal jewellery at a specified address in Montreal.

The trial judge accepted that the defence was viable but concluded that it was unsuccessful. [ 2 ] The actus reus and mens rea of the offences charged were not disputed. The only issue in this appeal is whether the trial judge erred in concluding that the prosecution had disproved the defence of duress by establishing beyond reasonable doubt that the appellant had “a safe avenue of escape.” [ 3 ] The trial judge summarised the testimony at trial: [8] The following witnesses were heard during the trial: 1.

David Szamosi, the accused' business partner, testified that he had been using drugs in the months leading up to the events of January 22, 2020, and that he had stolen money from the restaurant he owned with the accused to pay for his addiction. He was living at the time at his parents' residence, a semi-detached house adjacent to the one burglarized on [...]. He also mentioned that he had not been approached or pressured to repay debts, and implicitly denied any involvement in the burglary. 2. Frederick Beaver testified that he had committed the burglary on Castlewood Street under duress.

He had been approached on January 7, 2020, by two men who told him that David Szamosi owed them money and that he (Mr. Beaver) had to commit a burglary into the residence situated at [...], otherwise his family would be harmed. He did not call the authorities because he did not trust the police since he had witnessed, when he was 8 years old, his father's wrongful arrest. 3. David Beaver, the accused's father, testified that he was mistakenly arrested in front of his children in 1996.

The police had arrested the wrong David Beaver, as it appeared that another man also named David Beaver , had been living on the same street he had been living on. [ 4 ] The judge further summarised the appellant’s testimony: [10] Mr. Beaver testified that he is a law abiding citizen. He is married to his high school sweetheart and they are the parents of two children. He has been operating a plumbing business for the last ten years. He does not drink, gamble or do drugs. [11] He lives in Hawkesbury, Ontario, but still operates his plumbing business in the Montreal area.

In February 2019, he opened a restaurant in Hawkesbury named "Moonshine BBQ" with an acquaintance, David Szamosi. [12] On January 7, 2020, just before closing his restaurant for the day, he went outside to throw out the garbage. He was then approached by two men. They asked if he was "Fred" and he responded 'yes". They told him that David Szamosi owed them money. [13] Mr. Beaver told them to go see David (Mr. Szamosi) because he hadn't seen him since the latter got out of rehab. He was then shown a picture of his house with his car parked in the front.

These men told him that he has to steal the jewellery from a house whose address, written on a small torn yellow lined paper, they handed to him: [...] in Côte St-Luc.

[14] They told him that he has to break into this house and steal all the jewellery inside, and that they will know when the job will have been done. Mr. Beaver was also warned not to go to the police or say anything to anyone. [15] One of the two men showed him the gun he was carrying on his left side. [16] Finally, before leaving, the men told him they would hate for something to happen to his house and his family. [17] As the days passed, Mr.

Beaver reasoned that there was no other way for him to get out of this situation other than to do what he had been told. [18] On January 21 st , 2020, he made a reconnaissance trip and saw David Szamosi on Castlewood Street. At the time, he didn't know that his business partner had been living on that street. [19] Mr. Beaver got out of his car and went to talk to him (Mr.

Szamosi) to confront him about the fact that he had been ignoring him, as he had tried to contact him on numerous occasions in the last two weeks. [20] At that moment, he realized that the address on [...] was adjacent to where David Szamosi was living. [21] He assumed that he (Mr. Szamosi) was either responsible for the situation he was in, or that the men who had threatened him knew that the house he was supposed to burglarize was adjacent to where Mr. Szamosi was living. [22] On January 21th, he asked his brother, Randy Beaver, to help him to commit the burglary.

He told him that he was in trouble, and that he needed his help. [23] On the day of the burglary (January 22, 2020), the pair met at 4:00 am. They entered Randy's vehicle and drove to the address on Castlewood Street. [24] They broke into the house and searched inside for the jewellery. They found some, which they stole. As they were leaving the house, they saw David Szamosi who was screaming at them. They continued running and the accused was eventually stopped by police officers. He told them that he was chasing a burglar and, eventually, he was brought to Szamosi's residence.

He was arrested there several minutes later . [25] Mr. Beaver and his brother were brought to the detention center. The accused made two statements to police investigators detailing his implication.

He was arraigned on January 23, 2020 and later released the same day. [26] On January 24, 2020, he left with his family for Cuba for a vacation he had booked several months earlier. [27] The accused had decided to commit the burglary on January 22, 2020, because, from his point of view "it had to be done", since he thought he was the only one in a position to act, as no other option existed. [28] He wanted to do it before leaving for Cuba since his sister and brother were supposed to take care of his house during his family vacation, and that he did not want his inaction being responsible for someone else's harm. [29] He had no other option but to commit the burglary, because he had always distrusted the police.

This distrust dates back to his childhood when, as a 8 years old child, he had witnessed his father's arrest, and subsequent release, in a case of mistaken identity. Ever since that event, Mr.

Beaver has "zero trust in the police". [30] This sentiment had been reinforced by the fact that after his arrest in the present case, he had tried unsuccessfully to cooperate with the authorities by offering to look at pictures to identify the men who had threatened him. [ 5 ] The judge assessed the testimony of the appellant’s business partner, D.S., in these terms: [57] David Szamosi's testimony was not credible for the following reasons: • He was hesitant during cross-examination; • He stole money on numerous occasions from the restaurant he owned with the accused to sustain his drug addiction.

This fact greatly affects his credibility; • He was hesitant during his testimony regarding the question of money he owes/owed or not to his drug suppliers; • His assumption to explain the accused's presence on the premises of the burglary he had just witnessed, to the effect that he (Mr.

Beaver) was in the area doing a service call, does not make any sense, when analyzed with the rest of the evidence; • His implicit denial of any involvement in the burglary is contradicted by certain elements of circumstantial evidence that point to the contrary (the burglary occurred at his neighbors' residence, he had the knowledge that they were absent, and he had a motive to

participate in the crime since it is reasonable to infer he owed money because of his drug addiction). [58] In the end, his testimony was not a credible.

I do not believe his testimony, except concerning the fact that (1) he is the accused's business partner, (2) he had in the past a drug addiction, (3) he had stolen money numerous times from the restaurant to sustain this addiction, and that (4) he knew the occupants of [...] were absent at the time of the burglary. [ 6 ] The judge accepted the testimony of the appellant’s father. [ 7 ] The judge concludes that the appellant’s testimony, when assessed with the other evidence, leaves “at least a reasonable doubt concerning its veracity.” [4] Elsewhere he says that the fact that no deadline had been given to commit the burglary makes him doubt the veracity of the appellant’s testimony concerning the existence of the threats uttered to him. [5] Although he makes no specific reference in relation to these conclusions about the appellant’s testimony, they are clearly consistent with the application of the method of assessment described by the Supreme Court in W.D. [6] On the basis of this doubt he proceeds to consider whether the evidence as a whole proves beyond reasonable that there was no defence of duress because the accused had a safe avenue of escape. [ 8 ] After noting the Supreme Court’s review of the substantive elements of duress in Ryan , [7] and after concluding that the evidence of duress merits consideration in this case, the judge examines whether in fact the evidence supports the appellant’s claim that he had no safe avenue to escape from commission of the burglary.

For this purpose he notes the lapse of time between the threats made on 7 January 2020 and the commission of the offence on 22 January.

As already noted, the judge concluded that this lapse led him to doubt the veracity of the appellant’s testimony concerning the threats and in this regard he refers specifically to the Supreme Court’s observation that a threat “too far removed in time would cast doubt on the seriousness of the threat and, more particularly, on claims of an absence of a safe avenue of escape.” [8] This consideration leads the judge to conclude that for several reasons the appellant had safe avenues of escape: ▪ he had the opportunity and time to contact authorities; ▪ he had the means to contact authorities in several ways; ▪ neither he nor his family were immediately “in harm’s way” and he was under no force to act urgently; and ▪ his distrust of the police was unreasonable. [ 9 ] With regard to the last point, the judge considers that for six specific reasons a person with the appellant’s background and characteristics could not reasonably conclude that there was no safe avenue of escape: [76] I am of the opinion the accused's distrust of the police is unreasonable in the present case for the following reasons: Firstly, the accused's distrust of the police must be evaluated at the time of the burglary.

His offer to cooperate with the police after he was arrested, which was refused, carries little weight in relation to his belief regarding the police at the material time (January 7 to January 22, 2020). Secondly, approximately 25 years had passed since he had witnessed his father's arrest. Thirdly, his father was not framed or falsely prosecuted by the police at the time, as it was a case of mistaken identity (the police arrested the wrong David Beaver, as two David Beaver were living on the same street), and the accused's father was ultimately cleared and released from detention.

While it would be reasonable for an 8 years old child to distrust the police for some time, I am of the opinion that the passage of time, the reason for his father's wrongful arrest (mistaken identity) and the accused's adult life as a law abiding citizen and as a successful entrepreneur render his distrust of the police, in January 2020, unreasonable. Fourthly, the evidence as a whole demonstrate that Mr. Beaver is not a vulnerable man.

After he received the threats on January 7, 2020, but before the break and entering, he inquired if some of his commercial neighbors near his restaurant ("Garage Le Spécialiste" and "Icono Gas") had surveillance cameras that would have filmed the men who had threatened him. They did not. Fifthtly, the police force (Montreal) who had arrested his father is different from the one in Hawkesbury, Ontario, where he mentioned he had been threatened, and where his restaurant and domicile are situated. These police forces are not even situated in the same province.

Finally, there is no rational link between the arrest of the wrong David Beaver, 25 years ago by the Montreal police force, and the capacity of the police in general, in January 2020, to protect the accused and his family from the men who had threatened him.

[ 10 ] These are factual conclusions reached by the judge in the application of modified objective test of reasonableness. There is no error of law in the formulation of the test and there is no basis on which to suggest that the judge’s application of that test in his assessment of the evidence discloses palpable and overriding error.

The judge thus completes his analysis of the case with the conclusion that on the whole of the evidence the prosecution had proved the charges beyond reasonable doubt not only because the actus reus and the mens rea for each were not disputed but because the evidence disproved beyond reasonable doubt the defence of duress. This means that that the offences were committed as an expression of voluntary choice.

The appellant may have been sincere in his belief that he could not reach to the police (nor anyone else), but this subjective perspective does not conform to the modified objective standard applicable in such matters, i.e. that of the reasonable person similarly situated [9] . FOR THESE REASONS THE COURT : [ 11 ] DISMISSES the appeal. MARIE-FRANCE BICH, J.A. PATRICK HEALY, J.A. BENOÎT MOORE, J.A.