Court File and Parties

Court File No.: Pembroke 21-0742 Date: 2022 05 13 Ontario Court of Justice

Between: Her Majesty The Queen

— And — Patricia Ann Merkley

Before: Justice J.R. Richardson

Heard on: March 25, 2022 Reasons for Sentence released on: May 13, 2022

Counsel: Caitlin Downing, for the Crown Jodie Primeau, for the accused Patricia Ann Merkley

RICHARDSON, J.:

1Should an offender who lies to the police in the course of their investigation of a serious offence be subject to a conditional discharge on conviction for obstructing a peace officer? That is the issue that I must decide in this case.

Facts

2On March 25, 2022, Patricia Merkley entered a guilty plea to one count of obstructing Detective Constable Limlaw by providing false information contrary to section 129(a) of the Criminal Code.

3The Crown elected to proceed by Indictment.

4The maximum sentence for this offence is two years imprisonment.

5On June 4, 2021, Lawrence Gilmour was stabbed on Palmer Road in Madawaska Valley Township in Renfrew County. The Police received information that Mr. Gilmour was located by Ms Merkley’s sister, Penny Merkley on the roadway. He was taken to hospital in Barry’s Bay. Neither Penny Merkley nor Mr. Gilmour gave a statement to Police. Police learned that Penny Merkley and Mr. Gilmour were travelling on Palmer Road in Madawaska Valley Township in Patricia Merkley’s car. Patricia Merkley was the driver. James Brushette was also in the vehicle with them.

6Apparently Brushette and Gilmour got into an argument. Penny Merkley told the accused to pull over. Penny Merkley later told Police that when she was walking away, Gilmour asked her for help and told her that he was bleeding. A knife was found by Police on the roadway.

7As Penny Merkley was walking away, Patricia Merkley drove up and told Penny, “He’s fucked”. Penny instructed her sister to go ahead and they would be fine.

8A passerby stopped to assist. While transporting Penny and Gilmour to the hospital, he told Police that he overheard Penny and Gilmour talking. Gilmour told Penny that her sister (Patricia, the accused) had stabbed him in the neck.

9On June 9, 2021, Detective Limlaw and Detective Holmes of the OPP interviewed the accused at the South Frontenac Detachment. During this interview, Patricia Merkley lied to the Police in the following ways:

a) She told Police that on the day in question, she was driving Penny and Lawrence to look at a used car. She told the Police no one else was in the vehicle. She denied any knowledge of James Brushette being in the vehicle.

b) She told the Police that her vehicle had not been cleaned after June 4, 2021. When Police searched the vehicle after the interview (on consent), it was obvious that the vehicle had been cleaned.

10She was arrested immediately for Obstructing Justice. She was cautioned and had an opportunity to speak to Duty Counsel. The interview then continued. This is when the deception with respect to the presence of James Brushette was discovered. She also admitted that her vehicle had been cleaned.

11She denied that she personally washed her car.

12Mr. Gilmour made a full recovery. At the conclusion of the investigation, the Police determined that they did not have grounds to charge anyone for the stabbing of Mr. Gilmour.

13The accused has no record.

14She is 49 years of age. She has two children, ages 27 and 30. She has completed her grade 12 education. After her children were born, she was a stay-at-home mom. She then went back to work and got odd jobs cleaning. She has worked in a small business for two to three years as an office manager. She makes approximately $30,000 a year. She has had problems with substance abuse in the past; she has been sober since the year 2000. She also quit smoking 30 days before I heard submissions as to sentence.

15Defence counsel submitted that Ms Merkley’s sister Penny and Lawrence Gilmour have substance abuse issues. She stated that Ms. Merkley “got in over her head” on the date in question. She said that her sister asked her not to tell the police about the presence of Brushette. She thought it was better to tell a little lie or “something small”. The lie was detected within a short period of time. Ms. Merkley did not lie in her own self-interest.

16The Crown is seeking a Suspended Sentence and two years probation, with no contact provisions for Lawrence Gilmour and James Brushette, counselling and 120 hours of community service. The Crown states that denunciation and general deterrence are the key sentencing considerations in this case.

17Defence counsel argues for a Conditional Discharge.

The Applicable Sentencing Framework

18Section 718 of the Criminal Code states:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

a) to denounce unlawful conduct in the harm done to victims or to the community that is caused by unlawful conduct;

b) to deter the offender and other persons from committing offences;

c) to separate offenders from society, where necessary;

d) to assist in rehabilitating offenders;

e) to provide reparations for harm done to victims or to the community; and

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.

19Section 718.1 of the Criminal Code establishes the fundamental principle of sentencing:

“A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

The Nature of the Offence of Obstructing Police

20Obstructing the police in the course of the execution of their duty can involve a wide range of conduct. In some cases, offenders give police a false name in order to attempt to avoid detection for driving offenses such as driving while disqualified, to avoid detection because they know a warrant for their arrest is outstanding, or to avoid detection because they are in breach of a probation or release order. In other cases, an offender will interfere with a police officer in the course of their duties by interfering with the officer’s arrest or detention of another person, or interfering with a police officer’s lawful direction in a traffic context.

21Ms Merkley’s conduct, however, is more serious. It is closer to the offense of obstructing justice. By any standard, lying to the police in an investigation such as this, which involves a stabbing, is a serious offence. A person is under no duty to cooperate with the police by providing a statement. Where however a person chooses to provide a statement, she must be completely truthful and forthright.

22Contrary to Ms Primeau’s submissions, I do not accept that Ms Merkley was somehow “in over her head”. A person in Ms Merkley’s situation is not “in over her heard” unless she decides that she is going to try to deceive the Police. Her dishonesty is what made her “in over her head”.

Mitigating Factors

23I have carefully considered the following mitigating factors:

1. Ms Merkley is a first-time offender with no criminal record.
2. Ms Merkley is employed.
3. Ms Merkley has entered a guilty plea and spared the time and expense of a trial.
4. Ms Merkley does not require a sentence for the purposes of rehabilitation. She does not require any counselling. There is no evidence that this offence was committed due to addiction.
5. The nature of her lies was discovered the same day she committed them. The Police did not “run in circles” with their investigation for months as a result of her deceit. There is no evidence that anyone else, including Mr. Gilmour, the person who was stabbed, was affected by her deceit.
6. The offence is not a crime of violence such that Ms Merkley needs to be separated from society in order to specifically deter her or rehabilitate her.

Aggravating Factors

24I have already pointed out some of the aggravating factors:

1. Lying to the police in the course of an investigation such as this is a very serious offence.
2. There is some element of pre-meditation. Ms Merkley obviously discussed the fact that she was giving a statement to the Police with her sister before she gave it and her sister asked her to tell the “little lie” about the presence of Mr. Brushette.

The Test for Conditional Discharge

25The test for granting a conditional discharge is set out in section 730 of the Criminal Code. The Court must determine whether a conditional discharge is in the interests of the accused and whether it is not contrary to the public interest.

26A conditional discharge is almost always in the interests of the accused. A conditional discharge allows an accused person to say that they do not have a criminal record. This can have important ramifications with respect to employment.

27Whether it is in the public interest is more difficult, however, particularly in a case such as this. What if the accused finds herself before the court again, either as a witness or as an accused? Would it be contrary to the public interest if she is not branded a liar by being saddled with a criminal record? Is a disposition that involves a criminal record proportionate to the gravity of her offence?

The Import of Section 12 of the Canada Evidence Act

What if Ms Merkley is an Accused in Future Proceedings?

28One feature about a Conditional Discharge that concerned me with respect to the “not be contrary to the public interest” criterion is the question of whether, under section 12 of the Canada Evidence Act, Ms Merkley could be cross-examined about this offence in future proceedings. I asked the parties for submissions about this. Ms Primeau filed written submissions on behalf of Ms. Merkley. Ms Downing agreed that if Ms Merkley is granted a Conditional Discharge, she could not be cross-examined on her record. She did not file further submissions on behalf of the Crown on this point.

29Under section 12 an accused person cannot be cross-examined in relation to a prior Conditional Discharge (R. v. Conway, 1985 ONCA 3592; R. v. Danson, 1982 ONCA 1916). Generally, the only time it is permissible is if the accused has put her character in issue (R. v. Mullin, 2019 ONCA 890). This therefore may weigh in favour of a finding that a Conditional Discharge runs afoul of the “not contrary to the public interest” criterion.

30That said, even if an accused is to be cross-examined in future proceedings as an accused, there is no guarantee, given R. v. Corbett, [1988] 1 S.C.R. 670, that the record would be sufficiently probative that it would be left with a trier of fact to mull over in terms of credibility. Judges routinely refuse to allow some or all of an accused’s criminal record to go to a jury where the prejudicial effect of the record outweighs its probative value and there is a danger of propensity reasoning. Even if admitted, trial judges instruct juries carefully on how to use that evidence in their deliberations. These principles also apply in cases where an accused is being tried by a judge alone.

31Where I have difficulty, however, is that if the accused has a prior matter which resulted in the imposition of Conditional Discharge, section 12 is an absolute bar on admissibility of the record, except in the limited circumstances I have outlined. Thus, absent character being raised, a future trial judge is robbed of the ability to engage in the Corbett balancing exercise and a future trier of fact may be robbed of the ability to consider the effect of the prior matter on the accused’s credibility. Where, as here, the prior matter involves an offence of dishonesty, this is potentially significant in that the granting of the Conditional Discharge in one proceeding might inadvertently distort the truth-finding exercise in any future proceedings (R. v. RD, 2019 ONCA 951).

32I have considered the argument that some crimes of dishonesty, such as low-level thefts and frauds, are cases where conditional discharges are routinely granted, notwithstanding the impact of section 12. As I have set out, however, Obstructing Police is different. On the continuum of crimes of dishonesty, the gravamen of this offence is more serious than a low-level theft or fraud. It is more akin to the offence of Obstructing Justice or Perjury, for which a Conditional Discharge is granted rarely.

What if Ms Merkley is a witness in any future proceedings?

33In R. v. Cullen, 1989 ONCA 7241, Justice Galligan found that the trial judge was in error for not permitting defence counsel to examine a Crown Witness on her Conditional Discharge for the offence of Possession of Burglary Tools. Notwithstanding the discharge, the prior discreditable conduct was admissible for the purpose of challenging that witness’ credibility.

34Ms Primeau further argues that if Ms Merkley were, in the future, to be a non-accused witness, she could still be cross-examined with respect to prior discreditable conduct, including the facts here.

35Unlike an accused-witness, a witness can be cross-examined on prior disreputable conduct even if a Conditional Discharge was imposed. The most recent statement on this issue is Justice Watt’s decision in R. v. Pascal, 2020 ONCA 287, where he stated:

As a general rule, an ordinary witness, unlike an accused, may be cross-examined on unrelated misconduct which has not resulted in a criminal conviction. This includes cross-examination on conduct that underlies charges outstanding against a witness at the time of their testimony. The purpose of this cross-examination is to impeach the witness’ credibility….. [7]

Other Sentencing Cases for Obstructing a Peace Officer by Lying

36In R. v. Bagg, 2005 ONCJ 6207, Justice Chester sentenced a 53-year-old mother of six who had no record. She lied to the police about her involvement in the death of a person on the highway. The lie was not exposed for over a year. There were a number of letters of reference filed on behalf of the accused. There was significant victim impact in that the family of the deceased was left wondering what happened to their loved one for a long time. There was also evidence filed with respect to the financial impact in the wasted resources of the state in the ensuing investigation which was stymied by the accused’s lies. Justice Chester found that:

...the paramount principle for me today is that of general deterrence. I have to fashion a sentence that will send a message to the community that it is important when talking to the police that you have to speak the truth and one must be completely forthright, not partially forthright or selective, or by any acts of omission that would thwart their job. [9]

37This case involved facts where the accused lied on two occasions. The first was in the early morning hours shortly after the incident involved. She lied again in a second statement, given some 12 hours later. With respect to this, Justice Chester noted that “but for the second statement…. I probably would have been persuaded to grant Ms. Bagg the benefit of a Conditional Discharge.” [10] Justice Chester suspended the passing of sentence, placed Ms Bagg on probation for a period of 12 months and required her to complete 100 hours of community service.

38In R. v. Lu, 2013 ONSC 1704, the offender was the passenger of a motor vehicle driven by her boyfriend which was involved in a fatal accident. Twenty days after the collision, police attended and asked her about the collision. She lied to police with respect to her involvement and her boyfriend’s involvement. 105 days later, she was interviewed by police again and she lied again. About a week after that, she decided she did not want to live with her lie any longer and she attended at the police station and admitted her involvement and her boyfriend’s involvement. Her boyfriend was ultimately charged and found guilty of dangerous driving causing death. She pleaded guilty to one count of obstructing police and was sentenced to a suspended sentence with community service.

39The matter came on before Justice Ratushny of the Superior Court of Justice for a hearing de novo because the collateral immigration consequences of Ms Lu’s plea and sentence were not considered on the original sentencing. Ms. Lu was young; she had no criminal record; she had no criminal liability for the events that took the life of the pedestrian; she pled guilty; she was remorseful; she had employment as a teacher and community support. Despite finding that “it is highly unlikely she will ever be before our courts again” [12] , Justice Ratushny ruled that a suspended sentence was the appropriate sentence. Her conduct “contributed to the anguish and grief suffered by the deceased’s family”. “[H]er lies were not impulsive or given spontaneously in the confusion of the moment.” [13] The immigration consequences did not mandate a conditional discharge or absolute discharge as sought by defence. Justice Ratushny noted that:

It is the serious nature of her offense that requires the reflection of the sentencing objectives of denunciation, deterrence, and reparation by way of suspended sentence. A discharge would not adequately reflect these objectives and neither would a discharge achieve proportionality according to its statement in section 718.2 of the Criminal Code. [14]

Analysis

40This case is very close.

41It is different from Bagg and Lu in that both of those cases involved lies in the face of fatalities. In both of those cases, the lies were made in the course of two separate statements. They were not immediately discovered. The conduct of the accused, therefore, contributed to delay and waste of police resources. It also exacerbated the grief and anguish suffered by the families of the victims.

42None of those factors are present here. Ms Merkley’s lies were made during the course of one statement. They were discovered almost immediately. The waste of police resources, although no doubt frustrating for the officers involved, was minimal.

43Fortunately, at age 49, this is her first brush with the law. She has lived an offence-free life to this point. I get the sense that her life has not been easy. She has raised two children. She has overcome addiction. She wishes to support her sister in overcoming her addiction. She is gainfully employed. I am not satisfied that the Court is likely to see Ms Merkley as an accused person again.

44If I was so satisfied, I would have no hesitation in agreeing with the Crown. The facts of this case, the nature of this offence and the bar on cross-examination of accused persons about prior Conditional Discharges in Section 12 of the Canada Evidence Act would be sufficient for me to find that a Conditional Discharge is not appropriate.

45In the more likely event that she is back before the court as a witness, she can be cross-examined about this offence and a trier of fact will have a full picture on which to assess her credibility – it does not matter whether she is sentenced here to a Conditional Discharge or a Suspended Sentence.

46In order to more fully satisfy the principles of general and specific deterrence and to denounce the seriousness of Ms Merkley’s offence, I have decided that the term of the probation order should be longer than that which is normally imposed when a Conditional Discharge is granted.

47Accordingly, I sentence Ms Merkley to a Conditional Discharge and 36 months probation. She will be required to complete 50 hours of community service.