DATE: 20020301 DOCKET: C36621
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) v. STACEY S. (Appellant)
BEFORE:
DOHERTY, WEILER and CHARRON JJ.A.
COUNSEL:
Irwin Koziebrocki
for the appellant
Milan Rupic
for the respondent
HEARD:
February 26, 2002
On appeal from the conviction entered by Justice H. Campbell on April 4, 2001 and the sentence imposed on July 5, 2001.
E N D O R S E M E N T
[1] The Crown alleged that the appellant attempted to obstruct justice by “directing” two witnesses in an ongoing criminal proceeding to “make a false statement”. Although it was part of the Crown’s theory that the appellant attempted to cause the witnesses to make those statements by means of coercion and threats, the Crown did not make those allegations in the information. The Crown did not seek to amend the information at any point in the trial.
[2] At trial, counsel for the appellant argued that the Crown was required to prove that the appellant knew that the statements she directed the witnesses to make were false. The Crown argued that the appellant’s knowledge of the truth or falsity was irrelevant to her liability, and that guilt was established if she used threats or other coercive means to cause the witnesses to change their statements.
[3] The trial judge believed the complainants and disbelieved the appellant and her witnesses. He found that the appellant had coerced the two witnesses to change the statements they had given to the police. He made no finding with respect to either the falsity of the altered statements or the appellant’s knowledge of that falsity.
[4] The offence of attempt to obstruct justice can be committed in many ways. Here, the Crown alleged that the obstruction lay in the causing of the witnesses to make false statements. As pled, the charge required that the Crown prove both that the statements were false and that the appellant knew they were false. We cannot agree that this allegation is surplusage. It describes the means by which the offence was committed.
[5] On the trial judge’s findings, the Crown proved that the appellant attempted to obstruct justice by using threats to cause witnesses to change their statements. This was not, however, the attempt to obstruct justice that the Crown particularized in the information.
[6] We cannot say that the appellant was not prejudiced. While it was certainly part of the defence that no threats were made by the appellant, it was also part of the defence that the charges should fail because the Crown had not proved that the appellant knew that the statements solicited from the witnesses were false. As indicated above, this was a defence to the charge as framed by the Crown.
[7] At trial, Crown counsel conceded that it could not show that the appellant knew that the statements she solicited from the witnesses were false. Given this concession and our finding that knowledge of the falsity of the statements was an essential element of the offence as charged by the Crown, it follows that the conviction must be quashed and an acquittal entered.
[8] We need not consider the other grounds of appeal.
“Doherty J.A.”
“K.M. Weiler J.A.”
“Louise Charron J.A.”