COURT OF APPEAL FOR ONTARIO
Watt, Pardu and Trotter JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Caterina Petrolo
Appellant
Alan D. Gold and Laura Metcalf, for the appellant
Matthew Asma, for the respondent
Heard: June 28, 2021 by videoconference
On appeal from the conviction entered by Justice David Harris of the Ontario Court of Justice on January 17, 2020, and from the sentence imposed on March 4, 2020, with reasons reported at 2020 ONCJ 36 and 2020 ONCJ 122.
REASONS FOR DECISION
1The appellant was convicted of one count of breach of trust of a public official and one count of attempt to obstruct justice for using her position as a paralegal prosecutor to improperly influence the outcome of provincial offences matters.
2The police discovered the appellant’s conduct after intercepting communications between the appellant and Police Constable Richard Senior, who was the primary target in a large investigation into police corruption. P.C. Senior and the appellant were having an affair. The intercepted communications detailed steps the appellant took to obtain favourable outcomes for friends of P.C. Senior’s who were charged with provincial offences.
3The intercepted communications were summarized in a Substantive Event Summary (“SES”), which was then disclosed to York Region, the appellant’s employer. Armed with the SES, the appellant’s supervisor gathered court and internal records to provide to the police to use in their investigation.
4The appellant sought to have the intercepted communications and York Region records excluded from trial on Charter grounds. Her application was dismissed. She was found guilty of both offences for two separate matters and sentenced to a three-month conditional sentence. She appeals her conviction and sentence.
5The appellant challenges the convictions on three grounds:
The verdict was unreasonable. The trial judge could not have ruled out the possibility that the appellant was lying to impress her intimate friend, and the trial judge was therefore required to acquit her.
The trial judge erred in concluding that police disclosure of some aspects of the intercepted communications to the appellant’s employer were covered by the exemption in s. 193(2)(b) of the Criminal Code as disclosure made in the course of a criminal investigation. As a result, the disclosure was illegal, in contravention of s. 193(1) of the Code, and tainted the interception evidence on Charter grounds. Pursuant to Wakeling v. United States of America, 2014 SCC 72, [2014] 3 S.C.R. 549, this evidence should have been excluded.
The appellant was convicted of two offences for essentially the same conduct and one of the matters should have been stayed by operation of the principles in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.
6The appellant challenges the sentence, arguing that a conditional discharge was the appropriate sentence in the circumstances.
Analysis
7We do not accept these arguments.
(1) Unreasonable verdict
8In brief, the appellant was accused of improperly intervening in the prosecution of five traffic offences between May and October 2018. The trial judge acquitted the appellant with respect to three of these incidents. The appellant’s convictions rest on her involvement in the remaining two prosecutions.
9The first concerned Mr. Carlton Wills, who received a traffic ticket for disobeying a sign. This charge was ultimately withdrawn. The second concerned Mr. Nicholas Guarino, who was charged with careless driving. This charge was later reduced to disobeying a lane light.
10There was nothing improper on the face of these dispositions. The assessment of the appellant’s role in these events depends on the interpretation of her intercepted communications.
The Wills matter
11P.C. Senior had grown up with Mr. Wills’ son, Fabian. They had been friends for 30 years. After he received the ticket, Mr. Wills contacted P.C. Senior and asked what he could do about it. On P.C. Senior’s instructions, Mr. Wills set a court date for June 1, 2018. Roughly a week before the court date, Mr. Wills received a call telling him not to attend.
12A transcript of proceedings at the Richmond Hill Provincial Offences Court, dated June 1, 2018, states that a prosecutor – not the appellant – withdrew the charge. Mr. Wills was listed as appearing in person.
13The appellant is only connected to Mr. Wills’ matter through the intercepted communications. The appellant, P.C. Senior, and Fabian communicated via WhatsApp on June 1, 2018 at around midnight. The key portions of their conversation read:1
CP: Hello!!!
FW: Lmao
CP: Fabian your father’s disobey sign ticket’s gone bye [emoji]
FW: Well hello
CP: I’m still sweating [emoji]
FW: Omg. You are too good to me and my pops
FW: He wants to meet you
CP: Lol he owes me a drink
RS: I am officially shutting down the CP lets make a deal office after this
CP: Rich ur tab is getting big
RS: Lol
FW: I am sure CP will assist where she can with Myles. But this chat group is solely Wills and their traffic stupidity
CP: Yes I agree Fabian
RS: Then the name should reflect that
CP: Lmao
RS: Wills ticket specialist
FW: What you and her do in your spare time is not my business [emoji]
14There later followed a discussion of a Toronto traffic ticket. The appellant was not a prosecutor in Toronto:
CP: Drum roll pls ....
CP: Fabian .. pls tell ur dad his seatbelt ticket was withdrawn
CP: Total saving of 4 points and $350
CP: Lucky man
FW: Fml
FW: I am feeling jealous
CP: Lol
CP: Now he needs to keep that record squeaky clean
CP: And pls make sure that he doesn’t attend that June court date
The Guarino matter
15Mr. Guarino was initially charged with careless driving. He spoke with a friend, Roman, who advised Mr. Guarino he would try and speak to someone about helping him with the charge.
16Mr. Guarino ultimately attended court and pleaded guilty to disobeying a lane light. The fine was substantially lower than that for careless driving, and there are no demerit points for disobeying a lane light compared to six points for careless driving.
17The appellant was not the prosecutor at court on the day Mr. Guarino appeared, and she never spoke with him. Again, the only evidence linking the appellant to the matter is in the following intercepted telephone conversation between the appellant and P.C. Senior:
PETROLO: And I called you because I worked some magic with uh Roman’s ticket
SENIOR: Oh Roman’s buddy’s ticket yeah
(voices overlap)
PETROLO: His buddy’s ticket
SENIOR: Yeah
PETROLO: Okay so I offered him zero (0) points like a lane light it doesn’t even apply does not sit I squeezed it out
SENIOR: Yeah
PETROLO: Uhm it should’ve been like a fail to tum out left to (unintelligible)
(voices overlap)
SENIOR: Yeah yeah
PETROLO: (mouth noise) Tell him he better not know me he better not fucking squawk cause if he squawks they’ll look at the deal right
SENIOR: Yeah yeah yeah a hundred (100) percent
PETROLO: So tell him tell him to take fuckin’ deal and shut up and not question it
(voices overlap)
PETROLO: Well you gimme a headache too sometimes so we’re even
SENIOR: Okay ‘sup
PETROLO: Uhm that's it. I was telling you about the ticket
SENIOR: Oh okay
PETROLO: Make sure he doesn't squawk (ph) hey
SENIOR: Yeah yeah I’ll forward you what I wrote him sent him
PETROLO: Because as soon as he says is there anything better they’re gonna be like this doesn't even apply
SENIOR: Yeah
PETROLO: So (unintelligible) take it 'n be quiet.
The verdict was not unreasonable
18The appellant argued that this evidence did not exclude the possibility that the appellant was lying in an effort to impress Senior and that, therefore, the trial judge had to acquit her. The trial judge rejected this argument, noting that there was no direct evidence to support the suggestion that the statements by the appellant were an attempt to ingratiate herself with Senior.
19The trial judge recognized that the burden lay upon the Crown to prove the offences beyond a reasonable doubt, citing R. v. W.(D), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, and also that the appellant was not obliged to testify.
20He was not required to acquit based on “supposition or conjecture, that flows from a purely hypothetical narrative”: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 50.
21While trial judges must consider exculpatory theories inconsistent with guilt when convicting an accused based on circumstantial evidence, such theories “must be based on logic and experience applied to the evidence or absence of evidence, not on speculation”: R. v. S.B.1, 2018 ONCA 807, 143 O.R. (3d) 81, at para. 124. As explained in R. v. S.B.1, at para. 138:
Decisions of this court since Villaroman demonstrate that merely because a trial judge rejects an alternative theory inconsistent with guilt does not mean that he or she committed a so-called Villaroman error. It may simply mean that there was no available inference, other than guilt, that was reasonable, given the evidence and the absence of evidence, and in light of human experience and common sense. Nor does the use of expressions such as “no evidence to the contrary” or “no competing narrative” signal a “Villaroman error” or a misplacement of the burden of proof. [Citations omitted.]
22Deference is owed to a trial judge’s conclusion that there are no reasonable alternative inferences other than guilt: R. v. S.B.1, at para. 139.
23Here, the trial judge could reasonably take the appellant at her word and conclude in light of human experience and common sense that the appellant had in fact “fixed” the tickets as a favor to Senior and his associates. There was nothing manifestly untrue about any of the appellant’s intercepted communications. The appellant did not testify, so there was no evidence that she was lying in these communications. There is no “common sense” inference that a party to an affair will lie so as to ingratiate him or herself with the other party: see R. v. Perkins, 2007 ONCA 585, 228 O.A.C. 120, at para. 35; R. v. JC, 2021 ONCA 131, 70 C.R. (7th) 38, at paras. 58-62.
24There is no basis to conclude that the trial judge reversed the burden of proof or failed to consider the absence of evidence from the prosecutors who actually dealt with the matters in the courtroom.
(2) Disclosure of the intercepted communications
25The appellant acknowledges that the above communications were lawfully intercepted. She argues that her rights under s. 8 of the Charter were violated by the subsequent illegal disclosure of these intercepted communications and that the evidence should properly have been excluded.
26On the afternoon that the appellant was arrested, York Regional Police Inspector deRuiter emailed a copy of a document – the SES – to York Regional Solicitor Joy Hulton. Inspector deRuiter testified that he approached Ms. Hulton to seek help in obtaining documents necessary for the investigation and that he thought sending the SES was the easiest way to communicate the substance of the allegations.
27The SES was seven pages long. It referred to nine separate instances of purported fixing of provincial offence notices. While the document did not contain a transcript or recording of the intercepted communications, it included very short summaries. The extracts specifically referred to in the SES relate to the appellant taking steps to deal with tickets.
28The SES was passed along to York Region Senior Counsel for Prosecutions Chris Bendick. Mr. Bendick, who was also the appellant’s supervisor, used the SES to pull court records and internal prosecution records to ascertain whether what was said in the SES and intercepted communications was connected to the appellant. He provided the documents gathered to the police.
29Sections 193(1) and 193.1(1) of the Criminal Code make the use or disclosure of an intercepted communication or disclosure “of any part, substance, or meaning thereof or its existence”, an indictable offence, subject to the exemptions in ss. 193(2) and (3): see Wakeling v. United States of America.
30One of the exemptions is for disclosure in the course of a criminal investigation. For ease of reference, the relevant exemption read as follows:
(2) Subsection (1) does not apply to a person who discloses a private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof or who discloses the existence of a private communication …
(b) in the course of or for the purpose of any criminal investigation if the private communication was lawfully intercepted;
31The trial judge found that the police disclosed the information in the course of or for the purpose of a criminal investigation. The information was disclosed for the subjective, specific purpose of enabling counsel for York Region to locate documents which the police hoped to use as evidence against the appellant.
32The appellant submits that it was entirely unnecessary for the police to disclose the intercepted communications. They could have requested the sought-after ticket information by giving the ticket numbers, the names of the persons involved, or the dates of the provincial court appearances. Further, the police failed to warn the recipients of their request that disclosure was prohibited by the Criminal Code. Counsel argues that the temporal connection between the disclosure and the arrest or investigation of the appellant is not enough to establish that the disclosure of the intercept was “of or for the purpose of [a] criminal investigation.”
33We agree that it was not logically necessary for police to disclose the intercepted communications to obtain the documents they sought; however, we are not persuaded that necessity is an element of the exemption. The language “in the course of or for the purpose of any criminal investigation” is broad and not so limited. Where Parliament meant to require necessity as an element in this context it has done so expressly: see, e.g., ss. 184(2)(c) and (e), 184.4(b), 193(2)(d).
34In Wakeling, s. 193(2)(e) was in issue. This section permits domestic and international sharing of intercepted private communications to investigative and prosecutorial authorities. This disclosure is potentially quite intrusive, as once the evidence is in a foreign state Canadian laws may have no application to its use.
35Moldaver J. held that, under s. 193(2)(e), the subjective belief of the person making the disclosure is the relevant factor for determining whether the exemption is engaged. It is difficult to see how an objective test of necessity for the disclosure is compatible with the subjective assessment required. Further, in her concurring opinion, McLachlin C.J.C. indicated, at para. 92-93, that:
[A] valid warrant sanitizes the state intrusion on privacy, as long as the execution of the warrant is reasonable and the information is used for the purposes of law enforcement.… Provided information is shared for purposes of law enforcement, the individual cannot complain that the sharing violates his s. 8 right to privacy.
There was no suggestion that necessity was an element of the exemption.
36Here, there is much more than simply a temporal connection between the impugned disclosure and the investigation and arrest. The police were subjectively looking for relevant documents in aid of their investigation. In our view, the disclosure was made “in the course of and for the purpose of a criminal investigation” and, accordingly, the exemption applies.
37Further, we agree with the trial judge’s conclusion that, taking into account the content of the SES, the police acted reasonably, particularly given the limited reference to the intercepted communications confined to some of the appellant’s statements about her actions in relation to tickets.
38The disclosure was therefore lawful, and there is no Charter breach associated with the intercepted communications. We need not consider whether the exemption in s. 193(2)(a) applies.
(3) Was the appellant properly convicted of both offences?
39The appellant was convicted of breach of trust by a public official, under s. 122 of the Criminal Code, and obstruction of justice, under s. 139(1).
40The trial judge accurately stated the elements of each offence. For breach of trust by a public official he noted, at para. 23 of his reasons, that the Crown must prove each of the following:
The accused is an official;
The accused was acting in connection with the duties of her office;
The accused breached the standard of responsibility and conducted demanded of her by the nature of the office;
The conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and,
The accused acted with the intention to use her public office for a purpose other than the public good, for example, for a dishonest partial, corrupt of oppressive purpose: see R. v. Boulanger, 2006 SCC 32, [2006] 2 S.C.R. 49, at para. 58.
41In relation to the elements of obstruct justice, citing R. v. Yarlasky (2005), 2005 CanLII 3936 (ON CA), 195 O.A.C. 188 (C.A.), the trial judge listed the essential elements as follows:
The accused must have done enough for there to be a risk, without any further action by her, that injustice will result; and,
The attempt by the accused to obstruct justice must have been wilful.
42As is apparent from their elements, these are two different offences that serve different societal interests. One applies only to officials. Obstruction of justice requires an intent to obstruct, pervert or defeat the course of justice. There are additional and distinguishing elements which differentiate the two offences: see R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480, at pp. 493-495; R. v. Kinnear (2005), 2005 CanLII 21092 (ON CA), 199 O.A.C. 323 (C.A.), at paras. 32-39. The Kienapple principle does not foreclose conviction for both offences.
(4) The sentence appeal
43The appellant also submits that the trial judge erred in not granting a conditional discharge. She submits that the trial judge unreasonably distinguished cases in which a discharge had been granted by observing that those involved guilty pleas. Counsel argues that a conditional discharge would not have been contrary to the public interest given that the appellant was a 37-year-old first offender with no previous record. She has suffered serious collateral consequences: the loss of her job and profession.
44In our view, the three-month conditional sentence imposed was not demonstrably unfit, nor was there an error in principle. The weight to be given to the mitigation factor of remorse demonstrated by a guilty plea in the other cases was a matter for each of the sentencing judges in those cases. That mitigating factor was absent here. Whether a conditional discharge would have been contrary to the public interest was a discretionary decision available to the trial judge: see R. v. Lu, 2013 ONCA 324, 307 O.A.C. 40, at paras. 48-50, leave to appeal refused, [2013] S.C.C.A. No. 313. Given the serious violations of trust placed in the appellant as an official, and the potential to erode public confidence in the administration of justice, some denunciation was required. There is no basis to interfere with the trial judge’s decision that a conditional discharge would not be appropriate.
Disposition
45Accordingly, the appeal from convictions is dismissed. Leave to appeal sentence is granted but the appeal from sentence is also dismissed.
“David Watt J.A.”
“G. Pardu J.A.”
“Gary Trotter J.A.”
