Cite as: R. v. Walsh, 1990 NSCO 14 CANADA PROViNCE OF rWVA SCOTIA CBW 8187 IN TilE COUNTY COURT OF DISTRICT NUMBER T~'I/O UE'l'W El::l~ : PETER ALLEN WALSH - and -HER MAJESTY THE QUEEN (., IJEAIW: Before The Honourable Judge Gerald B. Freeman PLACE Lunenburg, Nova Scotia DATE March 9th, 1990 COUNSEL: D. Atwood, Esq. for the Appellant L. Tancock, Esq. for the Crown
D E CIS ION
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Freeman, J.C.C. (Orally): The appellant, Peter from a charge that he breached under s. 741 of the Criminal Code. The facts are that when on the 12th day of July, proba tion order and ordered to report· wi thin seven days to a probation officer and the probation officer. He day with Elizabeth Andrews, was directed to meet with Mike Lee, at 11 a.m. on 1989. That was to be at High Street in Bridgewater he'd been there before and knew what to do. indicated that he appeared to comprehend what was required of him. On September 21st, his appointment. The matter was heard before Judge on February 21st, 1990 and as charged of a breach of his probation order. time the Crown proved the he had failed to keep the evidence was called. The appellant has appealed against on the ground that the learned recording a conviction where the appellant's "wilful" failure probation order, reference C.C.C. (3d) p. 1, Supreme Court of Canada. The issue that is raised Allen Walsh, has appealed an order of probation Mr. Walsh was in court 1989, he was placed on a thereafter as directed by apparently met that same a probation officer, and another probation officer, the 21st day of September, the probation office at 91 and Mr. Walsh stated that Miss Andrews Mr. Walsh failed to keep Hiram J. Carver Mr. Walsh was found guilty At that appointment and proved that appointment. No further the conviction trial judge erred in there was no evidence of to comply with his R. v. Docherty (1989) 51 by the Docherty case
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, is whether additional evidence in a charge under s. 740(1) able to rely on the inference that the intended the consequences of his actions. The position of the MacDonald, J.A. speaking for Appeal in R. v. Gagnon (1989) 80 where he said: "The question for determination therefore is whether the evidence was of such a kind, description, cogency and character that it would be unsafe to rest a conviction upon it. In answering such question, the function of this court goes beyond merely finding that there was evidence to support the conviction. We must re-examine and to some extent reweigh the evidence. See R. v. Yebes, 168; 78 N.R. 351; 36 C.C.C. cannot, however, simply substitute our view of the evidence for that of the trial judge." The Yebes case has been number of the appeal court the Appeal Court's position with respect to the evidence that comes before it. The Docherty case is was charged with, and pleaded guilty to having care and control of of the Criminal Code when his blood alcohol level exceeded 80 mi lligrams of alcohol in At the time of the commission bound by a probation order the peace and be of good behavior. that the commission of the Code constituted a breach present s. 740(1). At his trial breach of probation, the accused testified that at the time he committed the offence of intent is required or whether the Crown is accused person Appeal Court is stated by the Nova Scotia Court of 91 N.S.R. (2d) 79 at p. [1987] 2 SCR (3d) 417. We frequently cited in a decisions as the basis of one in which the accused an offence of a motor vehicle under s. 236 100 mi IIi Ii ters of blood. of the offence, he was that required that he keep The Crown alleged offence under s.236 of the of s.666(1), which is the on the charge of a he was unaware that he
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was breaking the law. He knew that the vehicle in which he was found could not be started. The trial judge accepted the evidence of the accused and acqui tted him of the offence. An appeal by the Crown by way of stated case in a Newfoundland court was dismissed. And on further appeal by the Crown to the Supreme Court of Canada the appeal was dismissed. The decision of the Supreme Court of Canada was deli vered by wi Ison, J. who stated at the commencement of her decision that: "The sole issue to be resolved in this appeal is the requisite mens rea for the offence of "wilfully" failing or refusing to comply with a probation order contrary to s.666(1) of the Criminal Code. More specifically, this court is asked to determine whether commission of a criminal offence by a person required by his probation order to keep the peace and be of good behaviour is sufficient to ground a breach of s.666(1) regardless of the mental element required to sustain a conviction for the underlying offence.~ Very briefly, what the Docherty case stands for is that the intention to commi t the under lying offence is a separate intention from the intention to commit the offence under what is now s.740(1). The word "wilfully" was carefully considered by the Supreme Court of Canada and Wilson J. stated: "In short, the use of the word "wilfully" denotes a legislative concern for a relatively high level of mens rea requiring those subject to the probation order to have
formed the intent to breach its terms and to
have had that purpose in mind while doing so.
At page 9 she stated:
"It is I think consistent with the overall
content and purpose of the probation provisions
in the Criminal Code that those who unknowingly
c. violate the terms of their parole not be
convicted, but only those who "wilfully" breach
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such terms or deliberately refuse to obey them." She stated that the proof of the underlying offence is proof of the actus reus. Then on page 12 she states: "In other words, the court cannot enter a conviction under s.666(1) on proof of the actus reus alone. The accused may by his conduct have fallen short of whatever objective standard is required to constitute keeping the peace but this by itself is not enough. An actual intent to breach the term of the probation order must be established if a conviction is to be entered under s. 666(1)" Her reasoning is to a large measure summarized on page 13 of the Docherty decision: The mens rea of an underlying offence cannot, in my view, be treated as the intent required under s.666(l). As I have stated earlier, the mens rea of s.666(l) requires that an accused intend to breach his probation order. This requires at a minimum proof that the accused knew that he was bound by the probation order and that there was a term in it which would be breached by his proposed conduct. The accused must be found to have gone ahead and engaged in the conduct regardless. The onus, of course, is on the Crown to prove that the accused had the requisite mens rea. To the extent that direct evidence of intent is almost always difficult to obtain, the Crown may ask the court, absent any evidence to the contrary, to infer intent from the fact of the conduct. Any doubt, however, as to whether the accused intended to do what he did must be resolved in favour of the accused. The important point is that an attempt to commit the underlying offence does not afford a basis for inferring the wholly distinct intent, i.e., to breach one's probation order. What then is the significance of the conviction for the underlying offence in relation to the undertaking in the probation order to be of good behaviour? It seems to me that it constitutes the actus reus under s.666(l).
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5. It establishes that the accused has violated the terms of his parole through the commission of a criminal offence. view, prima facie evidence of an intent to do so, still less of a wilful intent to do so. This is a different intention from the intention to commit the actus reus of the underlying offence. A full mens rea offence under the Criminal Code demands that the accused have an intent to perform the acts that constitute the actus reus of the offence. S.666(l) is no different. In my view, where the actus reus of S.666(l) consists of the commission of a criminal offence, an honest belief on the part of the accused that he is not committing an offence means that the accused cannot be said to have "wilfully" failed to comply with the probation order. in these circumstances, have the necessary mens rea for the offence under s.666(l)." Now to relate that to must brief ly review the facts, , Walsh, the appellant, had he had an appointment with Lee.. that he was to keep at of September. The Crown has proved that. 1S suggesting that the Crown some additional evidence as associates of the accused, but too heavy an onus upon the Crown. The criteria I think is in the portion of Wilson's judgment that I quoted before, where she says: "This requires at a minimum proof that the accused knew that he was bound by the probation order and that there was a term in it which would be breached by his proposed conduct." Now he knew that he order. I think that I s clear. a term in that order that Probation Services as directed. But it is not, in my He did not, the present offence, we and those are that Mr. been told specifically that the probation officer, Mr. 11 a.m. on the 21st day The appellant should have brought in to intent, perhaps from I think that is imposing was bound by the probation He knew that there was he was to report to the He knew when, and where,
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and to whom he was to ·report. " In those circumstances, again J: " ... the Crown may ask the court, absent in any evidence to the contrary, to infer intent from the fact of the conduct." That is sufficient to It is then open to the accused doubt. The onus is always case beyond a reasonable doubt, conduct of the accused, or in this case the appellant, is consistent only with a what he's required to obey, a reasonable inference that the provisions of the Docherty , his assistance. I dismiss conviction. With respect to the second of Appeal that the sentence was as to be erroneous, I have by counsel and I have considered the sentence. The sentence of 3 months breach of appeal I think is the circumstances of that sentence was entitled to take into the accused failed to report also failed to appear in court matter had to proceed ex for the benefit of the public, the benefit of accused persons, procedure be respected. When is flouted, as it has been must resort to strongly deterrent He failed to report. in the words of Wilson, prove a prima facie case. to raise a reasonable on the Crown to prove its but when, as here, the "wilfull" refusal to obey then I think that it is this was his intent and case do not come to the appeal against the ground of the Notice so manifestly excessive heard the representations the circumstances of incarceration for this a severe sentence, but in I think Judge Carver account that not only had for probation but held for his trial and the parte. It's most important and in particular for that the probation the probation procedure by Mr. Walsh, then the court sentences in order
7 • to preserve the integrity of the system. I am unable to find by Judge Carver was so manif iestly excessive erroneous, and I therefore sentence, as well. Lunenburg, N.S. March 9th, 1990 that the sentence imposed as to be dismiss the appeal as to
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