1-NoelvR-2001nbca80 - Caledonia Wake Up Call

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CanLII - 2001 NBCA 80 (CanLII)[8] Sections 346 and 660 of the Criminal Code read asfollows:346.(1) Every one commits extortion who, without reasonable justificationor excuse and with intent to obtain anything, by threats, accusations,menaces or violence induces or attempts to induce any person, whether ornot he is the person threatened, accused or menaced or to whom violenceis shown, to do anything or cause anything to be done.(1.1) Every person who commits extortion is guilty of an indictableoffence and liable(a) where a firearm is used in the commission of the offence, toimprisonment for life and to a minimum punishment of imprisonment for aterm of four years; and(b) in any other case, to imprisonment for life.660. Where the complete commission of an offence charged is not provedbut the evidence establishes an attempt to commit the offence, theaccused may be convicted of the attempt....[9] As can be seen, the offence of extortion under section346 can be made out if anyone induces or attempts to induce. In otherwords, the trial judge could have found the appellant guilty of extortionunder s. 346 of the Code despite the fact that neither Ms. Ouellette-Johnson nor her son Sacha had paid any money as a result of the threat ofviolence made on February 17, 2000. In that context, the conclusion by thetrial judge that the appellant was guilty of "attempted extortion" under s.346 was merely a reflection of his conclusion that the appellant hadattempted to induce payment of the drug debt with no result. In my view,there was no need for the trial judge to refer to s.660 of the Code to findthe appellant guilty.[10] In the Supreme Court of Canada case of R. v.Natarelli, 1967 CanLII 11 (S.C.C.), [1967] S.C.R. 539 at pages 545-46, JusticeCartwright, writing on behalf of a unanimous Court, discusses the essentialelements of the offense of extortion under section 291 (now, in substance,section 346) of the Code as follows:When it is proved that threats have been made for the making of whichthere could be no justification or excuse, that the threats were madewith intent to gain something and were calculated to induce the personthreatened to do something, the commission of the crime defined in s. 291is established, and it is unnecessary to inquire whether the personmaking the threats had a lawful right to the thing demanded orentertained an honest belief that he had such a right; that inquiry wouldbe necessary only if the threats were such that there could be reasonablejustification or excuse for making them.Speaking generally, the essential ingredients of an offence under s. 291http://www.canlii.org/eliisa/highlight.do?language=en&s...ml&path=/en/nb/nbca/doc/2001/2001nbca80/2001nbca80.html (4 of 8)16/06/2008 12:58:17 AM
CanLII - 2001 NBCA 80 (CanLII)are, (i) that the accused has used threats, (ii) that he has done so withthe intention of obtaining something by the use of threats; (whatevermeaning be given to the word "extort" the word "gain" as used in thesection is simply the equivalent of "obtain") and, (iii) that either theuse of the threats or the making of the demand for the thing sought to beobtained was without reasonable justification or excuse; (the question onthis aspect of the matter is not whether one item in the accused's courseof conduct, if considered in isolation, might be said to be justifiableor excusable but rather whether his course of conduct considered in itsentirety was without justification or excuse).[11] In R. v. Davis (G.N.) reflex, (1998), 159 Nfld. & P.E.I.R., 273, affirmed by the Supreme Court of Canada at 1999 CanLII 638 (S.C.C.), [1999] 3S.C.R 759, the following comments at para. 52 are apposite:The question that is left, therefore, is whether, as a matter of law, onthe evidence of P.V.B., which was properly accepted by the trial judge,there was a basis for concluding that the offence of extortion had beenestablished. Subsection 346(1) of the Criminal Code provides:It is to be noted that the offence of extortion includes within it thenotion of an attempt. It essentially involves four elements: (i) athreat (no accusations, menaces or violence are involved in this case);(ii) an intent to obtain "anything" by means of the threat; (iii) aninducement or attempted inducement; and (iv) the absence of reasonablejustification or excuse for the use of the threat and the making of theinducement....[12] Finally, in R. v. Perera (1991), 5 B.C.A.C. 302;[1991] B.C.J. No. 2999, online: QL (BCJ), the issue raised by the appellantin this case is squarely dealt with. In that case, the accused was indictedon a charge that he, without reasonable justification or excuse and withintent to obtain money by threats, did induce the complainant to pay moneyto the accused. The complainant had responded to the threats by going to thepolice who subsequently taped incriminating phone calls and then arrestedthe accused. As in this case, the argument was advanced that the essentialelements of the indictment had not been proved as there was, in fact, noinducement as alleged in the indictment as the money was never paid. Afterhaving referred to section 346 of the Criminal Code, the British ColumbiaCourt of Appeal stated:For convenience I will deal with those issues in the order in which Ihave set them out. The first issue was stated in these words:1. THAT the Appellant did not "induce" the victim to pay $4000. to himand/or that no monies were paid to him in fact.In order to consider this issue it is necessary to look at the specificterms of the section of the Criminal Code under which the appellant wascharged. It is s. 346:http://www.canlii.org/eliisa/highlight.do?language=en&s...ml&path=/en/nb/nbca/doc/2001/2001nbca80/2001nbca80.html (5 of 8)16/06/2008 12:58:17 AM
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