R v Barrett, 2019 SKCA 6

Court of Appeal for Saskatchewan Docket: CACR3056 Citation: R v Barrett , 2019 SKCA 6 Date: 2019-01-18 Between: Her Majesty the Queen Appellant And Terri-Lynn Frances Barrett and Michael Christopher Barrett Respondents Before: Jackson, Caldwell and Leurer JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Caldwell On Appeal From: 2017 SKQB 371 , Saskatoon Appeal Heard: November 5, 2018 Counsel: W.

Dean Sinclair, Q.C. for the Appellant Mike Buchinski for Terri-Lynn Barrett Kathy Lee Hodgson-Smith for Michael Barrett Leurer J.A I. Introduction [ 1 ] The Crown appeals the acquittals of the respondents, Terri-Lynn Frances Barrett and Michael Christopher Barrett, on charges of breaking and entering a dwelling house and commission of an indictable offence ( Criminal Code , s. 348(1) (b)) and use of a weapon in committing an assault on Marc Gamelin ( Criminal Code , s. 267 (a)). [ 2 ] The charges arise out of the taking of Ms. Barrett’s 6-year-old son and 4-year-old daughter from the de facto custody of Mr.

Gamelin. Ms. Barrett had come to believe her children were in peril with Mr. Gamelin, and she developed a plan to peacefully regain custody. Unfortunately for all concerned, things did not turn out as Ms. Barrett had planned. [ 3 ] Ms. Barrett had the idea the children could be taken outside of Mr. Gamelin’s house, with the assistance of her brother, Mr. Barrett, and a third person, Dale Mooney. When Mr. Gamelin saw Ms. Barrett planned to take the children with her, he scooped the son in his arms and took him into the house. Concerned with the son’s immediate safety, Ms. Barrett, Mr. Barrett, and Mr.

Mooney forced their way into Mr. Gamelin’s house. Mr. Gamelin wielded a knife. Unknown to the respondents, Mr. Mooney was armed with pepper spray, which he used in his effort to disarm Mr. Gamelin. All of this resulted in the charges now the subject of this appeal. [ 4 ] The Crown’s appeal, pursuant to s. 676(1) (

a) of the Criminal Code , is limited to questions of law arising from the judgment below. Certain positions the Crown takes in this appeal are inconsistent with those taken at trial and therefore not open to it in this Court. Other arguments involve either challenges to factual findings or allege errors that are inconsequential to the outcome below. For these reasons, which I expand upon below, I would dismiss the Crown’s appeal. II. Background A. Facts found at trial [ 5 ] The following are among the facts found by the trial judge ( R v Barrett , 2017 SKQB 371 ). It should be noted that both Ms. Barrett and Mr.

Barrett testified in their own defence and, for the most part, the trial judge’s findings were derived from their testimony. [ 6 ] Ms. Barrett and Mr. Gamelin began a relationship in late 2006. They have two children, a son born in 2009 and a daughter born in 2010. [ 7 ] Mr. Gamelin was convicted on two occasions in 2010 of physically assaulting Ms. Barrett and other offences. Injuries were caused to Ms. Barrett on the occasion of the second assault. Mr. Gamelin agreed that “over the course of their relationship he was violent toward [Ms. Barrett]” (at para 24). [ 8 ] Mr. Barrett lived with his sister, Ms.

Barrett, and Mr. Gamelin for over a year after the son was born and had also worked with Mr. Gamelin on a job for a year. Mr. Barrett “felt he had a good relationship with [Mr.] Gamelin, but was aware of [Mr.] Gamelin’s propensity for violence, the fact that [Mr.] Gamelin had assaulted his sister on two occasions and of the injuries she suffered on the second occasion” (at para 17).

[ 9 ] The children lived with Ms. Barrett until the summer of 2014, when Mr. Gamelin failed to return the children following a period of temporary access. Ms. Barrett testified Mr. Gamelin controlled her access to the children, she feared him, and she did not have the confidence to take the children back into her care or the resources to take legal proceedings to determine the parenting arrangements. “[S]he chose to not rock the boat and to see the children as and when [Mr.] Gamelin would permit” (at para 23). Ms. Barrett’s “fear of [Mr.

Gamelin] had the result that [Mr.] Gamelin was able to exercise control over [Ms. Barrett] and thereby limit her access to and parenting of the children” (at para 24). [ 10 ] Ms. Barrett developed an increasing level of concern as to whether the children were being cared for appropriately by Mr. Gamelin. She believed that Mr. Gamelin had recently bitten her son and may have been sexually abusing her daughter. Ms. Barrett witnessed what she thought were adult bite marks on her son, which her son told her were caused by Mr. Gamelin. Ms.

Barrett also believed her son “was very vulnerable to harm because of his medical conditions and was at risk of harm when [Mr.] Gamelin was angry”. Ms. Barrett shared her concerns, supported by a photograph of the son’s arm taken on her phone, with the children’s school. [ 11 ] On April 3, 2015, Ms. Barrett determined she was going to take the children back from Mr. Gamelin. Ms. Barrett, Mr. Barrett, and Mr. Mooney drove to Mr. Gamelin’s residence. The plan was for Ms. Barrett to “remove the children without a confrontation”. Mr. Barrett and Mr. Mooney “were there to protect [Ms.

Barrett] and the children in the event that [Mr.] Gamelin became violent and not for the purposes of taking offensive action against [Mr.] Gamelin in his home” (at para 36). [ 12 ] Ms. Barrett attended at the house and presented gifts to the children. She remained outside while the children played. Mr. Gamelin stayed outside with the children as well. Mr. Barrett and Mr. Mooney remained in the vehicle, parked in an alley. Approximately fifteen minutes later Mr. Barrett and Mr. Mooney approached Mr. Gamelin’s backyard.

Their actions coming to the yard were “equally or more consistent with making their presence known so that [Ms. Barrett] would feel safe to act and do as she planned” (at para 37). [ 13 ] Mr. Gamelin appeared to Mr. Barrett to be angry, agitated and enraged. He yelled an expletive. Ms. Barrett asked the children if they wanted to come with her. They said they did. Mr. Gamelin swore at Ms. Barrett, shouting the children are not going anywhere. Mr. Gamelin then picked up the son and ran into the house and closed the door. “The reaction and actions of [Mr.] Gamelin were such as might reasonably have caused [Mr.

Barrett] and [Ms. Barrett] to fear for the safety of [the son]” (at para 37). [ 14 ] Ms. Barrett, Mr. Barrett and Mr. Mooney ran to the door and pushed on it to gain entrance. Mr. Gamelin and his girlfriend tried to hold the door shut from the inside. As Ms. Barrett, Mr. Barrett and Mr. Mooney pushed on the door it gave way, and Mr. Barrett fell to the floor. [ 15 ] When Mr. Barrett got up he saw Mr. Gamelin waving a large knife. By this time, Ms. Barrett, Mr. Mooney and the daughter had entered the house as well. [ 16 ] Mr. Barrett several times stated to Mr. Gamelin that they were “not there to fight”.

He told Mr. Gamelin that “the only person that is going to get stabbed is ‘me’ [i.e., Mr. Barrett] and that he is not going to let [Mr.] Gamelin by him with the knife” (at para 32(vii)). “Nothing transpired that should have given [Mr.] Gamelin cause to believe he was being threatened or that his property was going to be taken. Clearly the break and enter of his home was related to his actions with respect to [the son]” (at para 44). [ 17 ] A struggle ensued between Mr. Barrett and Mr. Gamelin and then an attempt by Mr. Gamelin to lunge at Mr. Mooney with the knife. During this time, Mr.

Barrett was restraining Mr. Gamelin. “[T]he purpose and intent of [Mr. Barrett’s] actions were to prevent [Mr.] Gamelin from harming him or others” (at para 66). [ 18 ] Mr. Mooney sprayed Mr. Gamelin with pepper or bear spray, which also contacted Mr. Barrett. Neither Ms. Barrett nor Mr. Barrett was aware Mr. Mooney had brought pepper spray. [ 19 ] After the pepper spraying incident, Ms. Barrett went to a bedroom where the daughter was. Ms. Barrett pried the daughter from Mr. Gamelin’s girlfriend’s arms and walked the daughter to the vehicle, where Mr. Barrett was waiting. Mr.

Mooney brought the son to the vehicle with him. [ 20 ] After the respondents left, Mr. Gamelin found Ms. Barrett’s cellphone on the living room floor, which he unlocked. “[A]t at some point before he delivered the phone to the police station ... [Mr.] Gamlin removed one or more of the text messages from the phone as well as the photograph, found within the photos file on the phone, taken by [Ms. Barrett] of the bruise on [the son’s] arm” (at para 33). B.

The indictment [ 21 ] The indictment alleges the respondents each did: [B]reak and enter a place, to wit, a dwelling house situated at [address] and did commit therein an indictable offence, contrary to section 348(1) (

b) of the Criminal Code . … [I]n committing an assault on Marc Gamelin use a weapon, contrary to

section 267 (

a) of the Criminal Code . C. The trial decision [ 22 ] Mr. Barrett did not contest the fact of the break and enter. Instead, he testified he was acting out of concern for the children and his own safety in the context of dynamic and unpredictable circumstances. On this basis he advanced a defence of self-defence and

defence of others, pursuant to s. 34 of the Criminal Code . Ms. Barrett, who was not represented by counsel at trial and did not make submissions, was taken by the trial judge as having adopted the positions taken by Mr. Barrett. [ 23 ] The trial judge found an air of reality to a defence pursuant to s. 34(1)(a), justifying both the break and enter and the subsequent assaults by the respondents on Mr. Gamelin. Respecting the allegation of assault with a weapon, the Crown’s position was the evidence of Ms. Barrett and Mr. Barrett was not to be believed and they either knew or were wilfully blind to the fact Mr.

Mooney had brought pepper spray to Mr. Gamelin’s residence with the intention to use it if necessary to extract the children. Not only did the trial judge find that “it has not been proven that they knew or were wilfully blind to the fact that [Mr. Mooney] brought and intended to use pepper spray”, but he went further and accepted that “they did not know that [Mr. Mooney] had brought pepper spray and had no reason to suspect that he had” (at para 35). [ 24 ] The trial judge then turned his attention to whether the Crown had disproven at least one of the elements of the defence beyond a reasonable doubt.

When he concluded it had not, he acquitted the respondents. III. Issues [ 25 ] Although it frames its submissions in various ways, the Crown’s appeal is properly considered by examining three issues: (

a) Did the trial judge err in law by finding an air of reality to a defence pursuant to s. 34 of the Criminal Code ? (

b) Did the trial judge err in law by failing to find the respondents guilty as parties to Mr. Mooney’s assault pursuant to s. 21(2) of the Criminal Code ? (

c) Did the trial judge err in law by failing to consider indictable offences unrelated to the alleged assault of Mr. Gamelin as a basis to convict pursuant to s. 348(1) (

b) of the Criminal Code ? IV. Analysis A. Alleged error in respect to s. 34 [ 26 ]

Section 34 of the Criminal Code provides a defence if three preconditions are met, namely: (

i) the accused believes on reasonable grounds that force is being used or threatened against a person; (ii) the act that constitutes the offence is committed for the purpose of defending or protecting against that use or threat of force; and (iii) the act committed is reasonable in the circumstances.

The Crown alleges error by the trial judge in finding a defence under s. 34 , both with respect to the act of break and enter and with respect to crimes alleged to have been committed by the respondents in the house. [ 27 ] The Crown argues, first, the “whole purpose” of the respondents’ attendance was to abduct the children and therefore it “was a palpable and overriding error of fact to reason as if the respondents could have been motivated to break into the house and abduct the children by anything they saw Mr. Gamelin doing to the children after they arrived”.

Leaving aside issues relating to the scope of an appeal pursuant to s. 676(1) (a), and even if such a standard exists for the purposes of criminal appellate review, this argument places its focus on the wrong series of events. Although the reasons why the respondents were at Mr. Gamelin’s house are material to a determination of the charges, they are not the actions that constitute the alleged offence. In this regard, the Crown’s first argument fails to grapple with the trial judge’s assessment of evidence relating to the reasons the respondents broke and entered into Mr.

Gamelin’s house and for the assault which occurred once in the house. [ 28 ] The trial judge found as fact that, immediately before the break and enter, the son had been taken into the home and the respondents had reasonable cause to fear for the safety of the son. He further found that the immediate purpose of the break and enter was the protection of the son. Once in the home, the actions of Mr. Gamelin were found to threaten the safety of the respondents and the children.

The trial judge concluded as follows: [70] I find that force was used against [the son] by his father and that there is an air of reality to the defence position that they broke and entered the home of [Mr.] Gamelin to protect [the son] from the use of that and feared further force. Thus they saw their act of breaking and entering as justified in the circumstances. I also find and hold that there is an air of reality to the accused’s defence of self- defence.

Upon entering the home, the actions of [Mr.] Gamelin threatened the accused and put them and indeed the children at risk of bodily harm. [ 29 ] The trial judge did not directly avert, at this stage of his analysis, to the third element of the defence, that is the question as to whether the act (i.e., the break and enter) was reasonable in the circumstances. He would return to this, however, when assessing whether the Crown had proven the non-existence of that element.

After directing himself as to the requirements of s. 34(2), that when determining whether the act committed is reasonable in the circumstances, “the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to” the enumerated factors, the trial judge stated: [81] When I consider all of these factors, and particularly the reference in subsection (

b) to the “imminence” of the force, in (

e) to age of the person being protected, in (

f) to histories of relationships and the prior use of force and the nature of that threat or force and in (

g) to the proportionality of the response, I am satisfied that Parliament did not intend for s. 34 to be available only within strict temporal restraints of an immediate use or threat. Rather what s. 34 requires is that all of the relevant circumstances be considered in determining whether an accused believed, on reasonable grounds, that force was being used or threatened within such a temporal scope that action was then required to avoid the use or threat of force. [82] A practical problem with the Crown’s position is that the Crown has provided no evidence or other basis to conclude that going

to the proper authorities, (whether that be the police, Social Services or others) would reasonably protect the children in the circumstances of this case.

In assessing whether the accused’s actions were done for the purpose of protecting the children from the use of force and whether their actions were reasonable in the circumstances, I necessarily need to consider the vulnerability of the children and the time frame within which other measures could reasonably be expected to become effective to protect the children within the context of the accused’s belief that the use or threat of force existed or was imminent. [ 30 ] The Crown alleges that paragraph 82 (quoted above) demonstrates the trial judge misdirected himself when he said “he could not consider the alternative of reporting their concerns to child protection authorities without proof that course of action would have protected the children”.

With respect, the Crown’s position erroneously seeks to place the onus of proof of a defence on the accused. The trial judge correctly instructed himself to consider if an air of reality existed to each element of the defence (see: R v Cinous , 2002 SCC 29 at para 95 , [2002] 2 SCR 3). He was alive to each element of the defence, including the need for an objectively reasonable basis for belief that “force was being used or threatened within such temporal scope that action was then required to avoid the use or threat of force” (at para 81, emphasis added).

Once the trial judge concluded the evidence gave rise to an air of reality to each element, the onus of displacing at least one of the necessary elements beyond a reasonable doubt rested on the Crown (see: R v Piapot , 2014 SKCA 9 at para 29 , 433 Sask R 109). At that point, if the Crown intended to assert the respondents’ actions were unreasonable because the matter could have been referred to the authorities, the onus rested on it, not the respondents. [ 31 ] The Crown’s argument also adopts too narrow a view of the trial judge’s consideration of the child protection issue.

The trial judge indicated that he was open to persuasion based on “evidence or other basis ” (at para 82, emphasis added) that measures such as recourse to authorities might have rendered the actions of the respondents unreasonable. This left open the possibility that inference or perhaps judicial notice, coupled with the evidence before him, would have met the onus resting on the Crown.

His finding was that the Crown had not met this onus. [ 32 ] The Crown also argues the trial judge erred in finding that “a father’s lawful efforts to prevent the abduction of his child could qualify as an application of unlawful force within the meaning of s. 34(1) (

a) of the Criminal Code ”. However, this argument reverses the point of the s. 34 analysis, which is the examination of the lawfulness of the respondents’ use of force. The trial judge recognized this when he observed that “[t]his case is not about whether [Mr.] Gamelin would have had a defence of self-defence had he been charged with assault or assault with a weapon. This case is about whether the accused’s reactions to [Mr.] Gamelin’s actions qualify as self-defence” (at para 43). [ 33 ] To be sure, s. 34(2)(

h) requires consideration, when assessing the reasonableness of actions taken in self-defence or defence of others, of “whether the act committed was in response to a use or threat of force that the person knew was lawful”. Mr. Gamelin may have had a right to custody of the children; however, on the facts as found by the trial judge, the respondents feared for the physical safety of the son and the subsequent knife-wielding by Mr.

Gamelin could hardly be construed as lawful. [ 34 ] The Crown further argues, without reference to any authority, that it was incumbent on the respondents to lead “admissible evidence” that shows the children were in danger. The specific complaint is that the trial judge should not have relied on Ms. Barrett’s statement that her son told her he had been bitten by Mr. Gamelin, or her untrained assessment of the presence of blood on her daughter’s underclothing, as an evidentiary basis for a defence under s. 34.

With respect, this argument proceeds on an erroneous understanding of the circumstances that can give rise to a reasonable belief that a threat exists for the purposes of s. 34 . [ 35 ] “Reasonable grounds” for the beliefs required by s. 34 may be grounded in information presented to the defender which is not admissible in a court of law as evidence to prove the veracity of information provided to the defender. People act every day on the basis of information that would not withstand the tests of trial admissibility; it is often reasonable to do so.

This is not to say that the reasonableness of a belief is unaffected by the quality of the information that is present when a person acts in self-defence or defence of others. However, admissibility of that information as evidence as proof of the underlying fact is not a threshold consideration. The reason for this is that the court’s ultimate inquiry is not into the veracity of the information available to the defender, but the objective reasonableness of his or her subjective belief that force is being used or threatened against them or another person.

As stated by Kent Roach, in Criminal Law , 7th ed, (Toronto: Irwin Law, 2018) at 369, “a mistaken belief ... may still qualify under section 34(1) if it is a reasonable mistake in the circumstances”. [ 36 ] In this case, the issue, which the trial judge squarely faced, was whether the respondents had both subjective and objectively reasonable grounds for belief that force was being used or threatened against the children. In determining an air of reality existed for the defence, the trial judge made reference to a constellation of facts. These facts included what Ms. Barrett had been told by her son and others.

Additionally, it included facts Ms. Barrett testified to based on her personal knowledge, such as bite marks she had seen and photographed, blood on her daughter’s underclothing, which she had personally observed, and her son’s medical condition. It included facts Ms. Barrett and Mr. Barrett testified to relating to their personal history with Mr. Gamelin, and then the immediate events of April 3, 2015.

It is the totality of the information available to the respondents that formed the basis for the trial judge’s findings that an air of reality existed for each of the three elements of a defence pursuant to s. 34 and that the Crown had not disproven at least one of the elements of the defence.

Ultimately, I agree with the respondents when they argue the Crown is inviting this Court to set aside what it considers to be an unreasonable verdict, a ground of appeal not open to it from the acquittal of the respondents: R v Ballanytne , 2015 SKCA 107 at para 28 , 329 CCC (3d) 127. [ 37 ] For all of these reasons, I would respectfully dismiss the Crown’s appeal so far as it is based on alleged errors of law in the trial judge’s application of a defence pursuant to s. 34 on the facts as he found them. B.

Alleged error in respect to s. 21(2) [ 38 ] The Crown also argues the respondents could be liable as common intent parties pursuant to s. 21(2) of the Criminal Code , which provides as follows: 21

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the

commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. [39] At trial, although the Crown argued the respondents were liable as aiders and abettors to Mr. Mooney’s offences pursuant to s.21(1), s. 21(2) was not presented by the Crown as a basis for conviction. The assertion now made in this Court is that the respondents areliable because they formed a common intent with Mr. Mooney to abduct the children (or another indictable offence) and they knew orought to have known an assault was probable.

The Crown asserts it was “an error of law to hold that the respondents had to subjectivelyforesee that Mr. Gamelin would be assaulted in the precise way he was assaulted for them to be liable as a party to the offence”. Instead,it was sufficient that the respondents should have been aware an assault was probable because they “obviously knew that Mr.

Gamelinwas likely going to resist their efforts to unlawfully enter his home and unlawfully abduct his children”. [40] The Crown correctly asserts that objective foresight of the commission of an assault would be sufficient to make therespondents common intent parties (see: R v Natewayes, 2015 SKCA 120 at para 20, 467 Sask R 308, aff’d 2017 SCC 5, [2017] 1 SCR91). However, in the circumstances of this case, the Crown’s argument depends on the existence of facts not found by the trial judge.Moreover, the trial judge found some facts relevant to s. 21(2)’s application, as follows: [37] As time progressed, both [Mr.

Barrett] and [Mr. Mooney] were encouraging [Ms. Barrett] to act and were making it clear thatthey were there to support her. The evidence does not justify, as Crown counsel argues, drawing the inference the plan was to take thechildren by force. If that was the plan then [Mr. Barrett] and [Mr. Mooney] would have come into the yard as soon as the children wereout riding their scooters. Ultimately when it was clear that [Mr.] Gamelin was not leaving the yard they left the truck and entered theyard. Nothing in what transpired leads me to a logical inference that either [Ms. Barrett] or [Mr. Barrett] knew [Mr.

Mooney] had pepperspray with him or intended to use it. The actions of [Mr. Barrett] and [Mr. Mooney] coming to the yard are equally or more consistentwith making their presence known so that [Ms. Barrett] would feel safe to act and do as she planned. Further, I find the reaction andactions of [Mr.] Gamelin were such as might reasonably have caused [Mr. Barrett] and [Ms.

Barrett] to fear for the safety of [the son]. (Emphasis added) [41] I agree with the Crown that the trial judge did not directly refer to s. 21(2), nor are the findings of fact made at paragraph 37of the trial decision a complete analysis of the elements of the section.

This is hardly surprising given the Crown did not present thepossible application of s. 21(2) as a route to conviction at trial. [42] There is a long line of authority, often traced back to Wexler v The King, (SCC), [1939] SCR 350 [Wexler],constraining the ability of the Crown to advance theories of liability that differ from those presented at trial. In Wexler, the Crownappealed a finding of not guilty of murder on the ground of an alleged error of law. A new trial was ordered by the Quebec Appeal Court.This was reversed by the Supreme Court of Canada.

At trial, the Crown had taken the position the murder was deliberate. The defencewas that the shooting was accidental. On appeal, the Crown argued that, on the accused’s own testimony, if there had been an accident,it had occurred while the accused was attempting suicide and, as a result, it was an error of law not to put this to the jury. The SupremeCourt refused to order a new trial on the basis of this new theory. [43] In the years since Wexler, case law has assisted in clarifying the extent to which the Crown is restricted in its ability toadvance arguments on appeal not taken at trial.

I will mention several milestone decisions. [44] In R v Brown, (SCC), [1993] 2 SCR 918, reversing (1992), (AB CA), 73 CCC (3d) 481(Alta CA) [Brown], L’Heureux-Dubé J. noted several of the strong policy reasons why appeal courts are reluctant to hear argument onpoints not made in a lower court, stating as follows (at 923–924): … the general prohibition against new arguments on appeal supports the overarching societal interest in the finality of litigation incriminal matters. Were there to be no limits on the issues that may be raised on appeal, such finality would become an illusion.

Both theCrown and the defence would face uncertainty, as counsel for both sides, having discovered that the strategy adopted at trial did notresult in the desired or expected verdict, devised new approaches. Costs would escalate and the resolution of criminal matters could bespread out over years in the most routine cases. Moreover, society’s expectation that criminal matters will be disposed of fairly and fullyat the first instance and its respect for the administration of justice would be undermined.

Juries would rightfully be uncertain if theywere fulfilling an important societal function or merely wasting their time. For these reasons, courts have always adhered closely to therule that such tactics will not be permitted. [45] Brown involved a situation where an accused was raising an alleged Charter breach not raised at trial. Justice L’Heureux-Dubé was in dissent and would have refused to hear argument premised on the issue raised for the first time on appeal.

The majorityallowed the argument to be made, for reasons expressed by Harradence J.A. in dissent in the Alberta Court of Appeal, who had focusedon the fact there had been a significant and unexpected change in the case law after the trial had been held and the refusal to allow theargument would create a significant unfairness to the accused.

In R v Rollocks (1994), (ON CA), 19 OR (3d) 448(CA), Doherty J.A., for the panel which also included Arbour J.A. (as she then was) and Houlden J.A., referring to this passage from thejudgment of L’Heureux-Dubé J. in Brown, stated that he did “not read the brief majority judgment as taking issue with the principle” shedescribed. [46] In R v Varga (1994), (ON CA), 18 OR (3d) 784 (CA) [Varga], the Ontario Court of Appeal refused toallow an appeal from an acquittal notwithstanding the existence of several legal errors.

Justice Doherty stated for the court: In addition, there are situations in which an appellate court should not address the merits of a ground of appeal advanced by the Crowneven though that ground alleges an error in law that is germane to the acquittal. For example, the Crown cannot advance a new theory ofliability on appeal: R. v. Wexler, (SCC), [1939] S.C.R. 350 at pp. 353-56, 72 C.C.C. 1 at pp. 4-5, 8; R. v. Savard andLizotte, (SCC), [1946] S.C.R. 20 at pp. 33-34, 37, 49, 85 C.C.C. 254 at pp. 266, 270, 282-83; R. v. Merson (1983), (BC CA), 4 C.C.C. (3d) 251 (B.C.C.A.) at pp. 272-73, 273-74.

Nor can the Crown raise arguments on appeal that it chosenot to advance at trial: R. v. Penno, (SCC), [1990] 2 S.C.R. 865 at p. 895, 59 C.C.C. (3d) 344 at p. 365, per McLachlin J.(concurring in result); R. v. Egger, (SCC), [1993] 2 S.C.R. 451 at pp. 480-81, 82 C.C.C. (3d) 193 at p. 214.

These examples share a common feature. A Crown appeal cannot be the means whereby the Crown puts forward a different case than the one it chose to advance at trial. It offends double jeopardy principles, even as modified by the Crown’s right of appeal, to subject an accused, who has been acquitted, to a second trial based on arguments raised by the Crown for the first time on appeal.

Double jeopardy principles suffer even greater harm where the arguments advanced on appeal contradict positions taken by the Crown at trial. [ 47 ] In R v Nguyen , 2008 SKCA 160 , [2009] 2 WWR 591, the issue was the correctness of a decision at trial to exclude evidence on the basis of a Charter breach. On appeal, the Crown took the position that the trial judge erred by failing to consider the witness statement when assessing whether a police officer had reasonable grounds to arrest the accused.

The fact the Crown had placed no reliance on the statement as a basis for the arrest was held to preclude it from asserting otherwise on appeal. After consideration of Wexler , Varga , as well as other authority, Jackson J.A. continued (at para 39): ... On a Crown appeal from an acquittal, a trial judge should not be found to have committed an error of law for having failed to consider a means of convicting the accused, which was effectively taken off the trial judge’s plate by Crown counsel.

There is no obligation on a trial judge to make a better case for the Crown than that which was presented. [40] If Crown counsel’s approach at trial was not the product of considered choice, the trial judge, nonetheless, took his cue from the Crown and analyzed the case in the same way as Crown counsel did. The trial judge filed an unofficial version of his judgment with the Court, with copies to counsel, some five weeks before the return date, but no additional submissions were made.

If the trial judge could be taken to have made — in the eyes of Crown counsel — a fundamental error of this importance, one would have expected some comment to be made. None was. … [42] On appeal, the confession is used for the first time to support the arrest of the third individual, and thereby confer the authority to search as an incident to arrest with consequences for all three accused. Upon a review of the transcript, it is apparent that the police officer was asked no questions about the confession in this context.

When Crown counsel made submissions to the trial judge, the confession is not mentioned as a basis for the arrest, but is used only to avoid suppression of the evidence obtained contrary to the Charter. We should not use the Court’s authority to set aside acquittals and order a new trial on the basis that the trial judge committed an error of law in such circumstances. In my respectful view, Crown counsel has not discharged the heavy burden imposed upon him by Graveline , and the authorities referred to therein, to convince the Court that a new trial should be ordered pursuant to s. 686(4)(b)(

i) of the Code. (Emphasis added) [ 48 ] R v Tran , 2016 ONCA 48 , R v Suarez-Noa , 2017 ONCA 627 , 350 CCC (3d) 267, and R v Patel , 2017 ONCA 702 , 356 CCC (3d) 187, provide further recent examples where courts have refused to allow Crown counsel to advance positions on appeals not taken at trial. [ 49 ] I recognize that the law does not create an absolute bar to new issues being raised on an appeal, even by the Crown.

R v Walsh , 2016 SKCA 162 , 354 CCC (3d) 298 [ Walsh ], provides an example where the Crown was permitted to raise an argument not advanced in the court below, but its facts are readily distinguishable from the present case. In that case, the accused was subject to a recognizance, pursuant to s. 810.1, requiring him not to “attend or be in close proximity to schools, children’s playgrounds, community centres, daycares, swimming areas or another place where persons under the age of 16 years are present or can be reasonably expected to be present”. In an agreed statement of facts, Mr.

Walsh admitted to being present at a festival where children were present. At trial, the accused argued the condition of the recognizance violated his s. 7 Charter rights and as relief he sought a stay of the charge under s. 24(1) of the Charter . The trial judge decided that matter without resort to the Charter , holding that there was no statutory authority for the recognizance, and therefore dismissed the charge on this basis. The Crown appealed this result on the ground that the trial judge erred in law by allowing Mr.

Walsh to collaterally attack the validity of the s. 810.1 recognizance in proceedings set down to determine whether he had violated that recognizance. Walsh is distinguishable from the present case on several grounds. It is evident from the judgment that the Crown’s argument was responsive to positions staked by the accused rather than part of the Crown’s case. The new issue raised in Walsh did not engage in any way issues of fact that might have been alive at the trial. Finally, there was no suggestion of prejudice to the accused associated with the introduction of the new issue on appeal.

None of this can be said in this case. [ 50 ] In these circumstances, I reject the Crown’s attempt to now rely on s. 21(2) as a new basis to find the respondents liable for Mr. Mooney’s assault of Mr. Gamelin. C. Alleged error in not allowing the Crown to refer to offences other than assaults on Mr. Gamelin [ 51 ] The Crown’s principal arguments flow from the failure by the trial judge to consider offences other than those arising from assaults on Mr. Gamelin as a basis for a conviction under s. 348(1) (b).

The Crown observes that the first count of the indictment does not explicitly state the indictable offence the respondents were alleged to have committed after their break and enter. It also points out s. 566 of the Criminal Code “stipulates that a trial must be on the indictment”. Building from these two points, the Crown argues it is entitled to prove the commission of an offence under s. 348(1) (

b) if it is able to prove any additional indictable offence was committed after the break and enter. In this regard, the Crown argues the evidence made out the commission by the respondents of several offences. It relies principally on s. 283, which provides as follows: Abduction 283

(1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years,

takes, entices away, conceals, detains, receives or harbours that person, whether or not there is a custody order in relation to that personmade by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or chargeof that person, of the possession of that person, is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or (

b) an offence punishable on

summary conviction. Consent required

(2) No proceedings may be commenced under subsection (1) without the consent of the Attorney General or counsel instructed by himfor that purpose. [52] The Crown argues the trial judge “erred in law when he concluded the respondents could not have been acting unlawfullywhen they abducted the children” and “[b]y failing to consider the legal effect of s. 283 of the Criminal Code, the trial judge alsooverlooked s. 285 of the Criminal Code”, which prescribes a more limited defence to a charge pursuant to s. 283 than that provided by s.34, stating as follows: Defence 285 No one shall be found guilty of an offence under sections 280 to 283 if the court is satisfied that the taking, enticing away,concealing, detaining, receiving or harbouring of any young person was necessary to protect the young person from danger of imminentharm or if the person charged with the offence was escaping from danger of imminent harm. [53] The Crown’s position is predicated on three propositions: (

i) the Crown was not obligated to particularize the indictableoffences alleged to have been committed in association with the break and enter when alleging an offence pursuant to s. 348(1)(b); (ii)the Crown did not particularize the indictment at the trial to allege that the specific indictable offence committed in association with thebreak and enter was an assault on Mr.

Gamelin; and (iii) it is open to the Crown to adopt a different position on this appeal than thattaken at trial. [54] Respecting the first of these points, the Crown relies on R v Khan (1982), (ON CA), 66 CCC (2d) 32 (OntCA) [Khan], and R v Wendler (1986), (SK CA), 49 Sask R 234 (CA) [Wendler]. However, it is open to significantquestion whether this case law is applicable. [55] The offence of break and enter and commission of an indictable offence (s. 348(1)(b)) exists alongside the offence of breakand enter with intent to commit an indictable offence (s. 348(1)(a)).

Khan and Wendler each involved individuals charged with breakingand entering with intent to commit an indictable offence pursuant to s. 348(1)(a), not s. 348(1)(b). An offence under s. 348(1)(

a) iscompleted at the point of the break and enter. In contrast, pursuant to s. 348(1)(b), the offence is only complete after the commission ofthe associated indictable offence, including its associated actus reus and mens rea. An indictment simply asserting the fact of a breakand enter, with a bald assertion that the accused also did “commit an indictable offence therein”, points aimlessly to any of the hundredsof indictable offences found in the Criminal Code and potentially other statutes as well.

This raises issues relating to both the legal andfactual sufficiency of the charge, as discussed by Steven Penny, Vincenzo Rondinelli and James Stribopoulos, in Criminal Procedure inCanada, 2d ed (Toronto: LexisNexis, 2018) at 644–652. [56] In R v Pringle, (SCC), [1989] 1 SCR 1645 [Pringle], the Court held that the offence of use of a firearm whilecommitting an indictable offence requires a conviction of the underlying indictable offence in which it is alleged the firearm was used.

Inthe course of reaching this conclusion, Lamer J. (as he then was) offered the following comments respecting the proper form of a chargealleging the offence, stating as follows (at 1655–1656): In the case at bar, the underlying offence, in the context of the charge of having used a firearm while committing a criminal offence,seems to be the offence of unlawful confinement. However, the terms used in the indictment do not permit us to be certain in this regard.Nonetheless, I am of the view that it is not necessary to identify with certainty this underlying offence for disposing of the case at bar.

If the offence of unlawful confinement was the underlying offence that the Crown had in mind at the time of the laying of theindictment, the Court of Appeal was justified in allowing the appeal and quashing the guilty verdict pronounced with respect to s. 83(1)since the respondent has been acquitted of the count of unlawful confinement of Mr. Standish, the employer. If the offence was not unlawful confinement, the trial judge has nevertheless committed an error in law in finding the accused guilty ofhaving used a firearm while committing an assault.

The accused has not been charged with any count of assault, whether in that count orin a distinct count, and, as such, he could not have been and in fact has not been found guilty of such an offence. Finally, the Crown’s argument to the effect that the Court of Appeal committed an error of law in quashing the guilty verdict with respectto the offence under s. 83(1), since the accused had been convicted of offences during which he used a firearm, does not affect myconclusion.

This argument seems to me to be without merit since, in my opinion, the count must clearly indicate the offence during whichthe accused person is charged with having used a firearm. Furthermore, the fact that the Crown raises this question demonstrates theimportance of clearly identifying the underlying offence.

This illustrates one of the many difficulties which could arise in the absence of aclear indication concerning the underlying offence. (Emphasis added) [57] The point came up more directly in R v Griffin (1996), (BC CA), 111 CCC (3d) 567 (BCCA), which againdeals with a charge of using a firearm while committing an indictable offence. In finding a charge that failed to specify the underlyingoffence to be insufficient, Prowse J.A. made the following statements:

[15] In my view, the trial judge erred in declining to apply the reasoning of Lamer J. with respect to this issue on the basis that it wasobiter. Obiter from the Supreme Court of Canada is not to be readily dismissed. This is particularly so where, as here, Lamer J.’sstatements were made in the course of addressing an issue specifically raised by one of the parties and where he gave reasons for hisdecision.

Applying Lamer J.’s reasoning in Pringle to the facts here, I find that the charge of using a firearm while committing anindictable offence was defective for failing to specify the underlying indictable offence. (Emphasis added) [58] The authors of both the 2019 Martin’s Annual Criminal Code (Edward L. Greenspan, The Hon. Justice Marc Rosenberg andMarie Henein (Toronto: Thomson Reuters, 2018) at A/49) and The 2019 Annotated Tremeear’s Criminal Code (David Watt andMichelle Fuerst (Toronto: Thomson Reuters, 2018) at FC-61) recommend that indictments alleging breach of s. 348(1)(

b) shouldparticularize the indictable offence alleged to have been committed following the break and enter.

Although the authors do not expresslystate that this is a required pleading, at the very least it is indicative of accepted practice. [59] Ultimately, since it was not argued below that the indictment was defective because of the failure to particularize whatindictable offence had been committed in conjunction with the break and enter, and because I reject the latter two propositions thatunderpin the Crown’s position, I leave for another day a final resolution of the question of whether these particulars form an essentialpart of an indictment alleging an offence contrary to s. 348(1)(b). [60] Even if not required for a valid indictment, the Crown’s position in this appeal is dependent on these particulars not havingbeen provided at trial.

The Crown accepts that, if particulars were provided, it would be precluded from alleging the commission of anyoffence other than an assault with a weapon, or the included offence of assault against Mr.

Gamelin, as a basis of the charge pursuant tos. 348(1)(b). [61] A lengthy exchange took place at trial from which it was fair for the trial judge and the respondents to understand that theCrown’s entire case was premised on the submission that there was proof of an assault with a weapon, or at least an assault, on Mr.Gamelin and not any other indictable offence as the second constituent element of the offence alleged pursuant to s. 348(1)(b).

Theexchange began with a question put to Crown counsel by the trial judge: THE COURT: And so I want you to identify for me precisely what you say the indictable offence committed by one or the other -- MR. COLLINS: Yeah. THE COURT: -- or both -- MR. COLLINS: I will do that through my submissions, certainly. THE COURT: -- of them -- them was -- okay. MR. COLLINS: I’ll -- I’ll do that, My Lord, certainly through my submissions I’ve prepared, and then in that fashion because I think Ihave to -- [62] Crown counsel further asserted as follows: MR.

COLLINS: -- Your Lordship can -- can certainly, and the -- and the Crown is suggesting that it is proven, certainly, that there’sbeen an assault with a weapon, which is an indictable offence by law, based on the fact that they’re both dual procedure offences and theCrown proceeded by indictment to this court. So those would be the offences the Crown is submitting were committed in relation to the break and enter of [Mr.] Gamelin or Anton’sresidence.

Your Lordship probably knows because it’s fairly tight law -- or trite law, I should submit, that there doesn’t need to be an actualbreaking of an opening or window --. [63] The Crown later specifically confirmed that the charges did not concern Mr. Gamelin’s girlfriend. It also emphasized it wasseeking to establish guilt of the respondents on the count of break and enter on the basis of the subsequent commission of an indictableoffence and not on the basis of break and enter with the intent to commit an indictable offence. This is an understandable position on theCrown’s part.

Even with the benefit of the presumption created by s. 348(2)(a), it would have been difficult for the Crown to establishthe requisite intent at the point of the forced entry, given the evidence of the respondents’ concern for the children. [64] The Crown argues, because the indictment was not amended, the representations made by Crown trial counsel did not amountto particulars, but instead were a mere expression of the Crown’s theory of its case.

However, while s. 566 requires a trial to “be on anindictment in writing”, this does not overrule s. 587(3)(c), which provides that where a particular is delivered pursuant to that

section “thetrial shall proceed in all respects as if the indictment had been amended to conform with the particular”. In this regard, oral particulars areas binding as those delivered in writing.

In Paton v The Queen/Cox v The Queen, (SCC), [1963] SCR 500 at 511 [Cox],the Court stated: Turning now to the grounds on which Miller C.J.M. dissented as to the conviction on count 3, I would first observe that, in my opinion,the appellants are entitled to rely on the particulars given orally by counsel for the Crown to the same extent as if they had beenfurnished pursuant to an order made under s. 497 of the Criminal Code.

On this point I agree with the statement of Beck J.A. in R. v.Carswell [(1916), (AB CA), 10 W.W.R. 1027 at 1038]: S. 859 (a predecessor of s. 497) empowers the trial judge to order particulars.

If he does so it must be clear that the prosecutor is bound by the particulars which he gives in accordance with the order. If without the order he gives particulars he must be equally bound. (Emphasis added) [65] The Crown further takes the position that the exchange with the trial judge amounts to an expression of its theory of its case,which is not limiting to its rights at trial or on appeal, pointing to Khan and R v Govedarov, Popovic and Askov (1974), (ON CA), 16 CCC (2d) 238 (Ont CA) [Govedarov], as providing the essential distinction between “particulars” and a mere statement ofcase theory.

In Khan, the court accepted the fact particulars given orally are binding upon the Crown; however, the court determined thatthe Crown was only providing its theory of the case and had not given any particulars (at 36–37). In that case, the discussion in questionwent as follows: MR. LOCKYER: I would ask for particulars of the indictable offence alleged in the indictment. I assume it’s theft, I would like thatparticularized. THE COURT: Is it otherwise Mr. McGuigan?

THE CROWN: Well there are two possibilities, mischief or theft and if I have to make a choice I prefer to leave both of those open asbeing the indictable offence, that is mischief pursuant to s. 387. THE COURT: The mischief being what? THE CROWN: Damage to property. [66] While the court in Khan stated it believed particulars had not been given and that this was only a statement of the Crown’stheory of the case, it was ultimately unnecessary for it to consider the point further since Crown counsel on appeal conceded the pointand stated, “he had assumed that particulars had been furnished” (at 39).

The court proceeded on the basis that the Crown had furnishedparticulars at trial in that case. [67] The Ontario Court of Appeal also addressed this issue in Govedarov, another case involving a charge of break and enter withthe intent to commit an indictable offence. There, defence counsel made an application for particulars and, after some discussion, Crowncounsel stated he was relying upon “the burglary part of

Section 213”. On appeal, defence counsel argued this statement, as per the rulein Cox, bound the Crown. However, the Ontario Court of Appeal disagreed, stating the following (at 271): ... The statement of Crown counsel that he relied on the provisions of s. 213 with respect to burglary was, at most, merely anannouncement of the theory upon which he intended to proceed and did not constitute the furnishing of particulars having the effect oflimiting the charge contained in the indictment.

Moreover, it does not appear that the accused were in any relevant sense misled orprejudiced by the enlargement of that theory to include the offence of robbery if there was evidence to support the application of ss. 213and 21(2) to that offence. The contention that the indictment was void for duplicity if it charged that the offence of murder wascommitted in furtherance of burglary or robbery is, of course, entirely without merit. (Emphasis added) [68] Ultimately, whether a statement made by counsel amounts to particulars or a mere expression of the theory of the case mustturn on an

interpretation of what occurred at trial. In my respectful view, in this case, the only reasonable

interpretation of what tookplace was that the Crown had particularized the charge for the benefit of the court and the two accused. Four considerations compel thisconclusion: (

i) the trial judge specifically requested the particularization; (ii) Crown counsel acknowledged the necessity of specifyingthe underlying offence; (iii) one of the accused was self-represented, which invited the trial judge to take a more active role in assistingthe accused (R v McGibbon (1988), (ON CA), 45 CCC (3d) 334 (Ont CA) at 346–347); and (iv) the ultimateunderstanding of the trial judge as to what occurred.

In this latter regard, I observe the trial judge clearly understood that particulars hadbeen provided, stating as follows: [42] … In any event, the charge against the accused is not one of having broken and entered with intent to commit an indictableoffence.

Rather the charge particularized is that they did commit an indictable offence, which the Crown says is the offence of assault. (Emphasis added) [69] Even if what occurred was not the provision of particulars, fairness demands the Crown not resile from the positon adopted attrial for much the same reason that it is unfair to the respondents to allow the Crown to point on appeal to s. 21(2) as a route toconviction. Specifically, so far as the Crown now seeks to point to indictable offences other than an assault on Mr.

Gamelin as anindictable offence committed in association with the break and enter, the positions adopted on appeal are not supplemental to, but insteadin material respects are inconsistent with, the positions taken at trial because the Crown expressly took off the table any suggestion of anabduction charge or an assault involving Mr. Gamelin’s girlfriend.

Finally, the new Crown arguments engage issues of fact that wouldhave invited analysis by the trial judge had they been raised at the trial, as the offences the Crown now seeks to assert involve differentelements. [70] The risk of prejudice to the respondents, if the Crown is allowed to shift its theory of liability, is illustrated by its argumentssurrounding the application of s. 285, which provides a defence to a charge pursuant to s.

Section 285 provides as follows: Defence 285 No one shall be found guilty of an offence under sections 280 to 283 if the court is satisfied that the taking, enticing away,concealing, detaining, receiving or harbouring of any young person was necessary to protect the young person from danger of imminent

harm or if the person charged with the offence was escaping from danger of imminent harm. [ 71 ] The Crown points out s. 285 requires that, for a defence to a charge under s. 283 to exist, the abduction must have been “necessary to protect the young person from danger of imminent harm”. The Crown then argues there was “no evidence the children were in a situation of urgent or imminent peril before the respondents showed up to forcibly abduct them”. Assuming, without deciding, a defence under s. 34 does not remain available if the court can consider an offence under s. 283 as underpinning the s. 348(1) (

b) charge, the situation is to be tested in relation to the conduct that is the subject of the charge. At the point of the break and enter and the assaults on Mr. Gamelin, it is inaccurate to say that there was no evidentiary basis for an argument of urgent or imminent peril. The trial judge found “force was used against [the son] by his father and that there is an air of reality to the defence position that they broke and entered the home of [Mr.] Gamelin to protect [the son] from use of that and feared further force” (at para 70).

Perhaps more importantly, the position taken by the Crown at trial deprived the respondents of the opportunity to argue, and the trial judge of the opportunity to assess, whether the facts created the air of reality necessary to shift the burden to the Crown in relation to the s. 285 defence.

Similar points can be made in respect to the other indictable offences the Crown invites us to look at as having been allegedly committed in association with the break and enter. [ 72 ] Finally, while I agree with the Crown’s observation that the trial judge misstated the law when he said the criminal law is not engaged when a parent takes the parent’s child in the absence of a court order, this error is of no significance in this case.

A parent can commit an offence pursuant to s. 283 of the Criminal Code by taking a child, even if there is no extant court order granting custody, although prosecution may proceed only with the consent of the Attorney General. The prosecutor, as well as the trial judge, overlooked this provision.

The important points remain that not only was this not the charge alleged against the respondents, but Crown trial counsel was unequivocal that no charge respecting the taking of the children was before the court. [ 73 ] For all these reasons, I respectfully reject the suggestion the trial judge erred in law by failing to consider the possibility the respondents committed offences other than an assault on Mr. Gamelin as the basis for conviction under s. 348(1) (b). V. Conclusion [ 74 ] The Crown is rightly concerned the courts not condone vigilante justice.

The law does not countenance unlawful self-help, especially when it involves actual or threatened violence. However, the trial judge was alert to this concern. He made explicit findings of fact to the effect that the respondents’ actions were justifiable as a result of a reasonable apprehension for the safety of the children or themselves, affording them a defence pursuant to s. 34 of the Criminal Code . [ 75 ] I therefore would dismiss the Crown appeal. “Leurer J.A.” Leurer J.A. I concur. “Caldwell J.A.” for Jackson J.A. per authorisation I concur. “Caldwell J.A.” Caldwell J.A.