PENITENTIARIES |
McCoy v. Canada (Attorney General)
A-5-02
2003 FCA 118, Létourneau J.A.
6/3/03
10 p.
Whether Trial Division Judge (Judge) erred when endorsed decision of Disciplinary Board (Board) convicting appellant of being disrespectful or abusive toward officer of Correctional Service of Canada (officer) in manner likely to provoke him to be violent--Board's decision, upheld by Judge, contrary to law as at least one of ingredients of offence not proved--Actus reus of offence under Corrections and Conditional Release Act, s. 40(g) consisting in fact of engaging in action not simply disrespectful but actually so disrespectful as to provoke person on receiving end to engage in violence--Offence requiring marked degree of disrespect, provocation to violence and causal relationship between disrespect and provocation: action must be so disrespectful as to be likely to provoke violent reaction, even if, in fact, violence does not occur--In case at bar, appellant's action took form of following words, "You owe me $15 and you must pay me"--In themselves, these words in themselves not discourteous or, to use dictionary definition of word "irrespectueux" [disrespectful], not necessarily "impertinent", "insolent" or "irrévérencieux": Le Nouveau Petit Robert, 1993, p. 1359--These words establish existence of debt and debtor's obligation to pay it--However, officer did not perceive words as formulated here as lack of respect, but rather as threat in context in which uttered, as appellant confirmed, but without specifying what kind of threat involved--Board concluded that there were threats, apparently within meaning of s. 40(h), but convicted appellant under s. 40(g)--Court does not think Board or Judge necessarily equated threat with lack of respect toward person in question --Evidence not establishing that this conduct disrespectful in manner likely to provoke officer to be violent--During testimony, officer at no time declared or stated he had felt he was object of disrespect--Prosecution had burden of proving beyond reasonable doubt ingredients of offence--Complete lack of evidence on essential ingredient of offence--Would be inappropriate to infer that reasonable person would have felt object of disrespect and provoked to violence when person to whom remarks directed testified and did not state or did not wish to state under oath that such was case--Would be unfair to fill in omissions and deficiencies in evidence by speculating on what would have been perception of reasonable person-- Officer is professional trained in coping in prison environment with inmates with diversified and complex profiles--Trained to stay calm and cool in face of jibes, irreverent comments, frustration, even threats--His behaviour indicative of individual who did not feel provoked to violence and who acted in accordance with standards by writing report on threat offence--Appeal allowed--Application for judicial review allowed--Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 40(g), (h).