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Rousseau v. The Queen, [1985] 2 S.C.R. 38

 

Paul A. Rousseau     Appellant;

 

and

 

Her Majesty The Queen     Respondent.

 

and between

 

Her Majesty The Queen     Appellant;

 

and

 

Paul A. Rousseau     Respondent.

 

File Nos.: 17523 and 17530.

 

1984: December 11; 1985: July 31.

 

Present: Dickson C.J. and Beetz, McIntyre, Chouinard, Lamer, Wilson and Le Dain JJ.

 

 

on appeal from the court of appeal for quebec

 


                   Criminal law ‑‑ Appeal ‑‑ Accused acquitted of conspiring and of obstructing justice ‑‑ Crown’s appeal limited to questions of law ‑‑ No mistake of law ‑‑ Logical conclusion by the trial judge ‑‑ Criminal Code , s. 605(1) (a).

 

                   Criminal law ‑‑ Extortion ‑‑ Money requested without violence or menaces does not amount to extortion.

 

                   Appellant Rousseau was charged (1) with conspiring with a police officer to attempt to obstruct justice, (2) with attempted obstruction of justice, and (3) with extortion. The accused, a lawyer, represented three persons suspected of stealing and of receiving stolen goods; two of these persons worked for the security company responsible for protecting the businesses where the thefts occurred. The attempted obstruction of justice and the conspiracy arose from the fact that the accused allegedly agreed with the police officer responsible for the investigation that fewer charges be laid in return for money obtained from his clients. The accused allegedly committed the extortion through a request for $10,000, made to the lawyer of the security company, to avoid bad publicity for the company. The accused undertook to have the charges against the company's employees quietly dropped. The judge of the Court of Sessions of the Peace acquitted the accused on the three charges. He considered that the accused's guilt was not established beyond all reasonable doubt. The Court of Appeal allowed the Crown's appeal on the first count only and found the accused guilty of conspiracy. Rousseau appealed the judgment of the Court of Appeal on the first count, and the Crown on the second and third counts.

 

                   Held: The appeal by Rousseau should be allowed. The appeal by the Crown should be dismissed.

 

                   The Court of Appeal erred in quashing the acquittal and in finding the accused guilty of conspiracy. The Crown's appeal, which was governed by s. 605(1) (a) of the Criminal Code , was limited to grounds "that involved a question of law alone". The doubt entertained by the trial judge concerning the existence of a conspiracy had to be purely a matter of conjecture and have no basis whatever in the evidence for it to amount to an error of law. In the case at bar, the actions and statements of both the accused and the police officer supported the notion that such a conspiracy existed, but this was not the only logical possibility and one cannot say, as did the Court of Appeal, that "to consider any possibility other than the existence of a conspiracy between the accused and the police officer was purely conjectural". The trial judge was not convinced beyond all reasonable doubt of the existence of such a conspiracy. In view of the evidence adduced at trial, one cannot say that such a doubt amounts to an error of law.

 

                   The trial judge, moreover, did not err in finding that the accused's guilt was not established beyond all reasonable doubt on the count of attempted obstruction of justice. The doubt entertained by the judge is not purely a matter of conjecture and has basis in the evidence.

 

                   Finally, the fact that someone asks another person for a sum of money for committing an unlawful act which might be helpful to that other person does not constitute extortion within the meaning of s. 305  of the Criminal Code . The accused did not attempt to induce the security company to give him money by threats, accusations, menaces or violence.

 

Statutes and Regulations Cited

 

Criminal Code, R.S.C. 1970, c. C‑34, ss. 127(2) [as am. by R.S.C. 1970 (2nd Supp.), c. 2, s. 3; 1972 (Can.), c. 13, s. 8], 305(1), 423(1)(d), 605(1)(a).

 

 

                   APPEALS from a judgment of the Quebec Court of Appeal1 which dismissed an appeal by the Crown concerning the counts of attempted obstruction of justice and extortion, and allowed an appeal concerning the count of conspiracy. Appeal by Rousseau allowed. Appeal by the Crown dismissed.

 

1 Que. C.A., No. 200‑10‑000102‑819, January 20, 1983.

 

                   Raynold Bélanger, Q.C., for Rousseau.

 

                   Claude Haccoun, for the Crown.

 

                   English version of the judgment of the Court delivered by

 

1.                Lamer J.‑‑Appellant Rousseau was acquitted by a judge of the Court of Sessions of the Peace on a charge consisting of three counts, namely, conspiring with a police officer in an attempt to obstruct justice, attempted obstruction of justice and extortion. The Crown appealed the judgment and the Quebec Court of Appeal dismissed the appeal on the counts of attempted obstruction of justice and extortion; however, it allowed the appeal on the first count and found Rousseau guilty of conspiracy. Rousseau appealed to this Court on the first count, and the Crown did likewise on the second and third counts.

 

2.                In my view, Rousseau's appeal should succeed and that of the Crown should be dismissed.

 

Facts

 

3.                Both the trial judge and the Court of Appeal related and analysed the facts in great detail in their judgments. I do not think it is necessary for me to do so in this judgment. I need only say the following. Rousseau is a lawyer. Three of his clients were involved in theft and receiving. Two of them worked for the security company which had the contract to protect the businesses where the thefts occurred.

 

4.                The attempted obstruction of justice and conspiracy for that purpose arose from the fact that Rousseau allegedly agreed with the police officer responsible for the investigation of these crimes, a man named Asselin, to lay charges only for a part of them and to conceal the identities of the perpetrators from the authorities as to the remainder, in return for money obtained from his clients, money which Rousseau claimed was to be shared with the police officer.

 

5.                The extortion was allegedly committed by a request made by the lawyer Rousseau to the lawyer of the security company for the sum of $10,000 to avoid publicity which, in connection with events involving employees, would have been bad for the company. The lawyer Rousseau allegedly said that he would be able to have the charges quietly dropped. The evidence of this request for money rested simply on the testimony of the company's lawyer.

 

6.                The evidence relating to the other two counts is more complicated. Essentially, it consisted of conversations which Rousseau had with his clients, related at the trial by two of them, a discussion between Rousseau and the police officer, and finally statements made by the police officer to Rousseau's clients.

 

7.                The trial judge disposed of the second and third counts quite briefly, saying simply that [TRANSLATION]  "The evidence does not support a guilty verdict on counts 2 and 3." However, he undertook a meticulous and exhaustive analysis of the evidence on the charge of conspiracy. The following passage summarizes his analysis:

 

                   [TRANSLATION]  The evidence did not establish any agreement between Rousseau and Asselin in the presence of any other person. The content of the conversations which Rousseau may have had with Michel Hébert, Laurent Cyr, Boucher or Mr. Delisle, and which Asselin may have had with Cyr and Hébert, is so vague as to the intent of Rousseau and Asselin that the Court cannot definitely conclude that there was an agreement between Rousseau and Asselin to attempt to obstruct the course of justice by ensuring that Hébert and Cyr would only be charged with the theft of cigarettes.

 

Count 3: Extortion

 

8.                The Court of Appeal disposed of the third count by saying

 

[TRANSLATION]  The fact that someone asks another person for a sum of money for committing an unlawful act which might be helpful to that other person does not constitute extortion within the meaning of section 305(1)  Cr.C .

 

and that

 

[TRANSLATION]  . . . however the approach made by respondent to A.D.T. Security System Inc. is described, respondent did not attempt to induce this company to give him the sum of $10,000 by threats, accusations, or violence.

 

9.                I concur with the Court of Appeal and would dismiss the appeal of the Crown on this count without further comment.

 

Count 2: Attempt to Obstruct Justice

 

10.              The Court of Appeal dismissed the Crown's appeal on the following ground:

 

[TRANSLATION]  . . . by "ensuring in return for the sum of $6,000 that Michel Hébert and Laurent Cyr would only be charged with the theft of cigarettes", respondent did not commit the offence specified in section 127(2)  Cr.C ., since respondent was not responsible for deciding on the nature of the charges to be laid against his clients. Respondent also could not be found guilty of the charge of obstructing justice under sections 21  and 22  Cr.C ., as Asselin's accomplice, since the evidence did not establish that Asselin in fact committed the indictable offence of obstruction.

 

11.              I concur with the Court of Appeal that, in order for Rousseau to commit the crime specified in s. 127(2) , it was not sufficient for him to give an undertaking to his clients that they "would only be charged with the theft of cigarettes". He had to perform some act which would have amounted "to attempting in any manner" to obtain this result for them. However, it was not necessary that Asselin in fact attempted to obstruct justice. It sufficed that the suggestion be made to him by Rousseau.

 

12.              The trial judge considered that the accused's guilt was not established beyond a reasonable doubt. I have read the evidence and I believe that he did not, in so concluding, commit an error of law. Indeed, this is an appeal by the Crown from an acquittal, covered by s. 605(1) (a) of the Criminal Code , which limits the appeal to grounds "that involve [...] a question of law alone". For the doubt entertained by the judge to amount to an error of law it must be the result of conjecture and have no basis whatever in the evidence. I have read the evidence, and such is not the case. For reasons which I will expand upon when considering the first count hereinafter, the trial judge had a reasonable doubt as to Asselin's participation in the matter. Moreover, this is the only possible explanation, in view of Rousseau's acquittal on the count of conspiracy. For this reason, therefore, I would dismiss the appeal of the Crown on count 2.

 

Count 1: Conspiracy

 

13.              The Crown worded the indictment as follows:

 

[TRANSLATION]  Between October 1, 1979 and January 30, 1980, at Ste‑Foy and at Québec, district of Québec, did conspire with Mr. Raymond Asselin to commit an indictable offence not provided for in section 423 (a), (b) and (c) of the Criminal Code , to wit: wilfully attempting to obstruct the course of justice, thereby committing an indictable offence specified in section 423 (d) of the Criminal Code .

 

14.              It should be noted that the accused's clients are not mentioned as parties to the conspiracy. The Crown therefore had to establish that Rousseau and the police officer Asselin had conspired together.

 

15.              The trial judge said he had a reasonable doubt as to the existence of such a conspiracy between Rousseau and Asselin. He did not appear to be satisfied by the evidence of statements made by the lawyer to his clients, asking them for $6,000 for himself and the police to ensure that charges would not be laid for some of the thefts and that the sentence would be light for the remainder. In view of police officer Asselin's statements and actions, the trial judge also seems not to have been persuaded beyond all reasonable doubt of the latter's participation in the conspiracy between the lawyer and his clients, if one existed.

 

16.              The Court of Appeal was well aware, in view of s. 605(1) (a), of the limits beyond which it could not substitute its opinion for that of the trial judge and override the doubt entertained by the Court as to the accused's guilt, quash his acquittal and find him guilty. Writing for the Court, Beauregard J.A. felt that to consider any possibility other than the existence of a conspiracy between the accused and Asselin was purely conjectural. If he was right, there would have been an error of law and the Court of Appeal would have been fully justified in reversing the trial judgment.

 

17.              With respect, I do not think he was correct in this regard.

 

18.              It is clear, and there was no reason for the trial judge to doubt this (and his observations tend to support this interpretation, though one cannot be absolutely sure), that the lawyer Rousseau suggested to his clients, as he did to the security company's lawyer, that he could "fix" the matter. It is clear that Rousseau suggested to his clients that he was conspiring with officer Asselin. I share the view of Beauregard J.A. that only conjecture could support a doubt in that regard. The question remains, however, whether there was a conspiracy between Rousseau and the police officer Asselin; indeed, one must not loose sight of the fact that Rousseau is not charged with conspiracy with his clients but with police officer Asselin. Asselin's actions and statements tend to support the existence of such a conspiracy, but I do not think it is possible to go beyond this assertion and say that this was, beyond all reasonable doubt, the only logical conclusion.

 

19.              The evidence could easily support certainty as to the existence of a conspiracy between Rousseau and the police officer, but its weight was not such that any doubt in this regard would constitute an error of law. First, there was no direct evidence as to the nature of the statements allegedly made by the lawyer to the police officer. At best, it can only be inferred from the observations made by the officer to the lawyer's clients and from his conduct in the matter. Furthermore, at the conclusion of his judgment, Bilodeau J., who has considerable experience in the practice of the criminal law and police operations, reveals his true thoughts in the following observations:

 

                   [TRANSLATION]  The Court has no doubt that Mr. Rousseau wished to take advantage of the situation and of the circumstances to obtain money.

 

                    The Crown is bound by the wording of the indictment.

 

                    The circumstances are consistent with guilt, but I am not persuaded beyond all doubt that they are inconsistent with any other logical solution.

 

20.              In reading the evidence, one finds certain references to the possible existence of a network of receivers, and others suggesting that the police were to some extent ready to deal with the "small fry" in order to get to the "big guys". This is a possibility which undoubtedly had some effect on Bilodeau J.'s belief as to the criminality of the police officer's participation in the lawyer's scheme; it explains his reference to the fact that the lawyer wished to "obtain money" by defrauding his clients and to the constraints imposed on the Crown by its choice of the charge. It is possible, and this is the possibility which created a doubt in the mind of Bilodeau J., that Rousseau converted into money for his own benefit and at the expense of his clients advantages which the police were willing to offer in exchange, not for money, but for information regarding the leaders of the network in the interests of the administration of justice. This possibility may not be one which would have created in the minds of all a doubt as to Asselin's illegal participation in a conspiracy, but in view of the evidence as a whole I cannot say that to entertain such a doubt constitutes an error of law.

 

21.              I would therefore allow the appeal of Rousseau, quash the judgment of the Court of Appeal and restore the acquittal entered by the trial judge; I would dismiss the appeal by the Crown.

 

                   Appeal by Rousseau allowed. Appeal by the Crown dismissed.

 

                   Solicitor for Rousseau: Raynold Bélanger, Québec.

 

                   Solicitor for the Crown: Claude Haccoun, Montréal.

 

 

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