Docket: CACR2302 Her Majesty the Queen Appellant - v. -, 2014 SKCA 50

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 50 Date: 2014-04-21 Between: Docket: CACR2302 Her Majesty the Queen Appellant - and - Arden Felix Panipekeesick Respondent Coram: Lane, Ottenbreit and Ryan-Froslie JJ.A. Counsel: Anthony Gerein for the appellant Christopher Lavier for the respondent Appeal: From: Provincial Court Heard: April 21, 2014 Disposition: Allowed (orally)

Written Reasons: April 25, 2014 By: The Honourable Madam Justice Ryan-Froslie In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Ottenbreit Ryan-Froslie J.A. [1] Following the hearing of this appeal, the Court gave an oral decision allowing the appeal and ordering a new trial. What followsare our written reasons. [2] Arden Felix Panipekeesick was acquitted of the charge of attempting to extort money from Joyce Charles, contrary to s. 346(1) ofthe Criminal Code. The charge arises out of an incident which occurred on April 25, 2011 at the Ramada Hotel in Saskatoon.

Ms.Charles alleges she encountered the respondent, Mr. Panipekeesick and a woman by the name of Sky Toutsaint there, that she wasphysically assaulted by Ms. Toutsaint in Mr. Panipekeesick’s presence, and that the two of them demanded money of her. Ms. Charles’ssister, Jasmine, was present for at least part of the incident. Ms. Charles knew both Mr. Panipekeesick and Ms. Toutsaint and believedthem to be members of a gang known as the Native Syndicate. Mr. Panipekeesick denied any involvement in the incident. [3] The Crown appeals the acquittal on a question of law pursuant to s. 676(1)(

a) of the Criminal Code. Firstly, it argues the trialjudge erred in his application of the law respecting extortion. Secondly, having found Mr. Panipekeesick was not a “principal” in thecommission of the offence, it argues the trial judge erred in failing to consider whether Mr. Panipekeesick was a “party” to the offenceand thus guilty of it pursuant to s. 21 of the Criminal Code. [4] In summarizing his view of the case, the trial judge stated as follows: In this particular case, the absence of overt threats is certainly not helpful to the Crown’s case.

It’s not necessarily fatal to theCrown’s case in situations like this, but it certainly makes it more difficult for the Crown to convince the Court that the accused is guiltyof extortion when he doesn’t actually say or do anything that overtly is extortionate. Ultimately, it’s whatever actions he took and whatever things he said in the presence or in the face of actions of Ms. Toutsaint thathave to form the basis of the Crown’s case.

Having gone through all of the evidence with considerable care, I cannot find that the Crown has proven its case beyond areasonable doubt …. [Transcript pp. 316-17] [5] The trial judge’s decision is lacking both legal analysis and findings of fact and credibility. While this was a classic case inwhich to employ the credibility analysis set out by the Supreme Court of Canada in R. v. W.(D.), (SCC), [1991] 1 S.C.R.742, the trial judge did not do so.

The trial judge raised inconsistencies in the testimony of Joyce Charles and her sister Jasmine but hemade no definitive findings of credibility other than that Joyce’s evidence was not credible with respect to one of four statementsallegedly made by Mr. Panipekeesick. [6] The leading case regarding extortion is the Supreme Court of Canada decision in R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R.368. In that case, Binnie J., writing for a majority of the Court, set out at para. 53 what the Crown must prove in order to establishextortion, namely: (

i) that the accused induced or attempted to induce someone to do something or cause something to be done; (ii) that in doing so the accused used threats, accusations, menaces or violence; (iii) that the accused acted with the intent of obtaining something by the use of threats; and (iv) that the use of the threats or the making of the demand for the thing sought to be obtained was done without reasonable justificationor excuse. [7] In determining whether each element of extortion has been proved, a court must consider all the actions of the accused in thecontext of the incident as a whole. [8] The test for extortion as enunciated by the Supreme Court of Canada in Barros, supra, at para. 64 is: what would a reasonableperson in the position of the complainant understand? [9] In this case, the trial judge did not address the elements necessary to establish the offence or properly articulate the law with

respect to extortion. He seemed to hold that in order to establish extortion a person must do some “overt act” and that mere presence is not enough to establish a charge of extortion. [ 10 ] An “overt act” is not required to establish extortion and, depending on the entire context of the incident, mere presence could be sufficient to establish the offence.

As pointed out by Binnie J. at para. 74 of Barros, supra : The legal test for extortion requires a court to delve below the surface of the exchanges between the accused and those whom he or she is accused of threatening, particularly where, as here, the protagonists spring from the same occupational background. Much that is understood between them need not be stated explicitly. In my respectful view, the trial judge erred in law in failing to consider the issue of the threats or menaces in the context of the conduct of Mr.

Barros in its entirety and, in particular, of the longstanding relationship between the two men. [ 11 ] As in Barros , the trial judge here erred in law by failing to consider Mr. Panipekeesick’s conduct in the context of the situation as a whole. Key to this analysis would be the trial judge’s findings of fact and credibility. If Mr. Panipekeesick was found to be present during the incident, a fact not specifically found by the trial judge, but one which could be inferred from his judgment, then Mr.

Panipekeesick’s presence needed to be analyzed in light of Joyce Charles’s knowledge of and relationship with him, together with all the other evidence which he believed. [ 12 ] As we have determined, the trial judge erred in law with respect to his analysis and application of the law of extortion, it is unnecessary to consider the Crown’s second argument being the applicability of s. 21 of the Criminal Code . [ 13 ] The appeal is allowed and a new trial ordered.