R. v. LeBlanc

R. v. LeBlanc Court Court of Appeal Date 2005-02-18 Citation 2005 NSCA 33 Docket CAC 223751 Judge/Registrar/Adjudicator Oland, Linda L. (Honourable Justice); Hamilton, M. Jill (Honourable Justice); Bateman, Nancy J. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - R. v. LeBlanc - 2005 NSCA 33 - 2005-02-18 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: R. v. LeBlanc, 2005 NSCA 33 Date: 20050218 Docket: CAC 223751 Registry: Halifax Between: Henry Blair LeBlanc Appellant v. Her Majesty the Queen Respondent Judge(s): Bateman, Oland and Hamilton, JJ.A. Appeal Heard: January 28, 2005, in Halifax, Nova Scotia Held: Appeal allowed, conviction set aside and a new trial ordered, as per reasons for judgment of Hamilton, J.A.; Bateman and Oland, JJ.A. concurring Counsel: Lawrence O’Neil, for the appellant Daniel A. MacRury, for the respondent Reasons for judgment: [1] The appellant, Henry Blair LeBlanc, seeks a new trial. He was found guilty of threatening to cause death or bodily harm pursuant to s. 264.1(1)(a) of the Criminal Code of Canada, R.S.C. 1985 c. C-46. He was sentenced to serve a twelve month period of probation and made subject to a weapons prohibition order for a period of five years pursuant to s.110 of the Code. [2] The charge Mr. LeBlanc was found guilty of is as follows: That on or about the 10th day of September, A.D., 2001, at, or near Antigonish, in the County of Antigonish, Province of Nova Scotia, he did by word of mouth knowingly utter a threat to Shirley Ann MacInnis to cause death or bodily harm to Sarah Peppard, contrary to Section 264.1(1)(a) of the Criminal Code. [3] The facts are that Mr. LeBlanc telephoned the Department of Community Services office in Antigonish on September 10, 2001. He was angry. He had been seeking money to pay his university tuition for some time and wanted to meet the following day with a particular official in the office, Sarah Fullerton (formerly Peppard), who he felt held the key to his getting this money. The receptionist who answered the telephone, Shirley Ann MacInnis, indicated that Ms. Fullerton would not be in the office the next day. [4] Ms. MacInnis testified that during the conversation Mr. LeBlanc “said that Sarah had been fucking him out of thousands of dollars,” that when she asked him if he wanted to speak to a supervisor, “He said he had already dealt with every fucking supervisor up the line. . . . And that it was her he wanted. It was her that was fucking him over.” She also testified that Mr. LeBlanc said “Well I’m coming in that fucking office tomorrow. I’m going to sit there all fucking day until I get to talk to her. . . . I get to see her. . . . and you can tell her I’ll be coming with a gun.” [5] Ms. MacInnis testified that following her conversation with Mr. LeBlanc she gave a statement to the police and made an internal report. Neither was introduced into evidence. Ms. MacInnis did not testify that the police statement and the internal report were consistent with her testimony in court or that she had reviewed them prior to giving her evidence in court. [6] Mr. LeBlanc denied saying he would be going to the office with a gun. His evidence during direct examination about what he said during his conversation with Ms. MacInnis was: . . . So I said, look I know she’s going to be there, you know, I’d like to see her. And [Ms. MacInnis] continued to, what I say, give me the run around, and I just got mad. And I said, look I’m going to go down there and I’m going to wait all day and yeah, I probably cursed and I probably swore. And I believe the term was ah, because it was so long ago, I said either, “I going down with guns blazing” or “I’ll be gunning for her.” It was just a figure of speech, you know, I didn’t say I’m going down with a gun. [7] Mr. LeBlanc indicated on cross-examination that he could not remember the exact words he used during the call because it was three years earlier. He agreed he was charged with the offence within a day or so of the call. [8] Crown counsel read from Ms. MacInnis’ police statement without specifically identifying it during his cross examination of Mr. LeBlanc and during his submission to the jury. [9] Crown counsel’s submission to the jury suggested it should accept Ms. MacInnis’ recollection of what was said during the telephone conversation with Mr. LeBlanc because she reviewed her police statement and internal report prior to testifying in court, suggesting all three were consistent: I also ask you to consider some of the things she said. She told you about the short call and that he was yelling and upset and he was cursing and using a loud voice. That the conversation overall made her nervous and scared. I ask you to remember how specific she could remember things. She said he had an 8:15 class and would be here at 9:00. So she wasn’t guessing when she gave her evidence. She wasn’t guessing when she gave the statement which she reviewed before she came to court. Which is another point, remember, she had lots of reason to remember this and remember it clearly. She gave an internal report right away. She gave a report to the police that night. All very fresh in her mind. She reviewed that statement before coming to court. It’s all very fresh. She had very specific recall about what happened that day, 8:15 sit her all day. (Emphasis mine) [10] During discussions with the judge after they had made their submissions to the jury, both counsel agreed that in charging the jury the next day the judge should include an instruction to the effect that there was no evidence before the jury of any consistency among the police statement, the internal report and Ms. MacInnis’ testimony. The judge agreed. This indicates the importance those in attendance at the trial attributed to the manner in which this matter had been handled. [11] The trial judge’s instruction to the jury on this matter only referred to Ms. MacInnis’ statement to the police, not her internal report: Members of the jury, the crown Prosecutor, Mr. MacDonald, in his summation to you suggested that Shirley Ann MacInnis’ evidence at this trial was the same as what she had told the police after the incident happened. I would point out to you that you have not heard any evidence about what she actually told the police after the incident happened. Therefore, you should not make any use of that in deciding if you accept her evidence or not. [12] Forty minutes after it commenced its deliberations, the jury was back with its first question. Its note read “Could we get a copy of the incident report of the phone call?” This clearly indicates the jury did not understand the instruction set out in the preceding paragraph to include the internal report. [13] The trial judge answered this question as follows: . . . Your question was: ‘Could we get a copy of the incident report of the phone call.’ And I’ve had an opportunity to discuss that question with counsel and I could indicate to you that the rule is that a jury is bound to make a decision based on the evidence that is placed before you. In this case the incident report was not placed in evidence before you and you’re not entitled to see it. The - there are a number of reasons why documents like that are not placed into evidence. Sometimes it’s based on admissibility, sometimes it’s because they’re not admissible, and there can be a number of different reasons why that is so, and you should not concern yourself with that. In this case because the incident report was not placed in evidence, you may not use it or its contents which you are not aware of in deciding any of the issues in this trial. [14] Section 686(1) of the Code sets out the powers of this court on appeal against conviction: On the hearing of an appeal against a conviction . . . the court of appeal (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; [15] Mr. LeBlanc argued that the combination of (1) Ms. MacInnis’ testimony that she gave a statement to the police and made an internal report shortly after her conversation with Mr. LeBlanc, (2) Crown counsel’s reading directly from the police statement and (3) Crown counsel’s arguing in his summation to the jury that Ms. MacInnis’ recollection of the telephone conversation should be accepted because she reviewed her police statement and internal report before testifying, had the cumulative effect of improperly leaving with the jury the suggestion that there was evidence of prior consistent statements by Ms. MacInnis before it, thus bolstering her evidence. [16] He argued that this amounted to improper oath helping in favour of Ms. MacInnis, which in this short two day case, where the reliability of Ms. MacInnis’ and Mr. LeBlanc’s testimony were very important, amounted to a miscarriage of justice. [17] The Crown acknowledged that the summation to the jury went too far and, with respect to Ms. MacInnis reviewing her police statement and internal report before testifying in court, was not supported by the evidence. However, it argues that any confusion arising from the testimony about the police statement and the internal report or from the Crown’s summation was adequately dealt with by the trial judge’s instruction to the jury as set out in ¶ 11 herein. [18] With respect, I do not accept the Crown’s argument for two reasons. First, this instruction only dealt with the police statement, not the internal report, which was dealt with at the trial in a way similar to the police statement. Secondly, the instruction did not make it clear to the jurors that they were not to draw any inference from the testimony or submissions relating to the police statement and the internal report about the reliability of Ms. MacInnis’ recollection of the words used during the telephone conversation with Mr. LeBlanc. [19] Neither did the trial judge’s answer to the jury’s first question concerning Ms. MacInnis’ internal report, set out in ¶ 13 herein, make it clear to the jurors that they were not to draw any inference from the testimony or submissions relating to the consistency of her evidence with the internal report, about the reliability of Ms. MacInnis’ recollection of the telephone conversation. [20] The importance in this trial of the jury’s assessment of the reliability of Ms. MacInnis and Mr. LeBlanc; Crown counsel’s use of the police statement when cross-examining Mr. LeBlanc and during summation, reading directly from it; the Crown’s summation incorrectly suggesting there was evidence before the jury that Ms. MacInnis had reviewed her police statement and internal report prior to court to refresh her memory of what was said during the telephone conversation with Mr. LeBlanc, suggesting consistency; and the relevance the jury seemed to place on Ms. MacInnis’ internal report, satisfies me that the jury may have been left with the impression that it could consider the consistency of her police statement and internal report with her trial evidence in determining whether they should accept Ms. MacInnis’ recollection of what was said during the telephone conversation, improperly bolstering her reliability. [21] This, in my view, adversely affected the fairness of the trial resulting in a miscarriage of justice. As stated at page 541 in R. v. Morrissey (1995), 22 O.R. (3d) 514: . . . The long reach of s. 686(1)(a) (iii) was described by McIntyre J., for a unanimous court, in Fanjoy v. R., [1985] 2 S.C.R. 233 at p. 240, 21 C.C.C. (3d) 312 at pp. 317-18: A person charged with the commission of a crime is entitled to a fair trial according to law. Any error which occurs at trial that deprives the accused of that entitlement is a miscarriage of justice. [22] Accordingly I would allow the appeal, set aside the conviction and order a new trial. [23] Given my decision on Mr. LeBlanc’s first argument, it is not necessary for me to deal with the other issues he raised. [24] While I would order a new trial, I note that Mr. LeBlanc has already served a substantial portion of his one year probationary sentence. This is a factor which the Crown may wish to take into account in exercising its discretion as to whether to proceed with a new trial. (R. v. Brouillard [1985] 1 S.C.R. 39 page 53). Hamilton, J.A. Concurred in: Bateman, J.A. Oland, J.A.