Court File and Parties
COURT FILE NO.: CR-20-70000051-00MO DATE: 20200727
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – MITCHELL DUBROS
COUNSEL: K. Beaudoin, for the Crown P. Robson, for the Applicant
HEARD: 14 July 2020
BEFORE: S.A.Q. Akhtar J.
Factual Background and Overview
Introduction
[1] The applicant applies for an order for certiorari quashing the committal order made by Wolski J. of the Ontario Court of Justice ordering him to stand trial on one count of attempting to obstruct justice.
[2] At the conclusion of the hearing, the application was dismissed from the bench with brief oral reasons. A more fulsome explanation is provided with this judgment.
Background Facts
[3] The applicant is a private investigator hired by a lawyer, Calvin Barry, to assist with defending Mike Bullard, the TV personality, against criminal charges of harassment of Mr. Bullard’s ex-girlfriend, Cynthia Mulligan.
[4] As part of its case, the Crown obtained witness statements from some of Ms. Mulligan’s work colleagues employed by CityNews in Toronto, including Pam Seatle and James Tumelty.
[5] Two months before Mr. Bullard’s preliminary inquiry, the applicant approached Ms. Mulligan, Ms. Seatle and Mr. Tumelty. The Crown alleges that he sought to dissuade them from testifying by threatening them with repercussions that would harm their reputations. The applicant was arrested and initially charged with the offence of intimidating a justice participant. Subsequently, the Crown laid a replacement charge of attempting to obstruct justice.
[6] The applicant’s preliminary inquiry was held in February 2020 and the Crown called Ms. Mulligan, Ms. Seatle and Mr. Tumelty. The Crown tendered additional evidence of their conversations with the applicant through voicemail and phone conversation recordings.
[7] All three witnesses testified to their contact with the applicant.
[8] Ms. Mulligan testified that the applicant approached her enquiring of the possibility of calling Mr. Barry to see if the criminal matter with Mr. Bullard could “go away” so that “it doesn’t get any worse, any more stories, any more garbage coming out”. The applicant later left a message on Ms. Mulligan’s voicemail telling her that he did not want to investigate her or “want this to get blown out of proportion”. Ms. Mulligan said that she felt threatened and intimidated. She testified that she felt the applicant was seeking to stop her from testifying.
[9] Ms. Seatle gave evidence that the applicant tried to persuade her to “see if it’s possible that Cynthia let it go and not proceed” adding that if the proceedings continued that he “could expose all kinds of stuff and dig up every skeleton” of all three witnesses. She also testified to a voicemail left by the applicant saying that “things are gonna come out" and that he wanted clarification so that he did not have to “release this information”.
[11] Mr. Tumelty testified that the applicant had asked him to speak to Ms. Mulligan so that Mr. Bullard’s charges could be resolved by a peace bond. Mr. Tumelty also indicated that if that was not the case he could “find dirt” and “sling hearsay that would come out and taint all of your professional careers”.
[12] The preliminary inquiry judge found that the requirements of s. 548(1) of the Criminal Code mandating committal had been satisfied and committed the applicant to stand trial.
Legal Principles
The Test for Committal
[13] The Criminal Code provisions relating to committal can be found in subsection 548(1), which reads as follows:
548 (1) When all the evidence has been taken by the justice, he shall
(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or
(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.
[14] If there is sufficient evidence of the criminal charges upon which a reasonable and properly instructed jury could convict, the preliminary inquiry judge must commit an accused person to stand trial on those charges: United States of America v. Shephard, [1977] 2 S.C.R. 1067, at p. 1080. The threshold at the preliminary inquiry stage is not high: the test is whether there is “any evidence” on which a jury, properly instructed, could return a guilty verdict: R. v. Wilson, 2016 ONCA 235, at para. 21.
[15] A preliminary inquiry judge is not permitted to weigh the evidence or make credibility findings. If the Crown has adduced direct evidence on all elements of the offence, the preliminary inquiry judge must commit the accused even in the face of exculpatory evidence: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 29.
[16] An application for certiorari does not involve the reviewing judge substituting their decision for that of the preliminary inquiry judge. Upon review, the preliminary inquiry judge’s decision may only be interfered with if a jurisdictional error is shown: R. v. Manasseri, 2010 ONCA 396, at para. 28. The test is whether there is a “scintilla of evidence” upon which the preliminary inquiry could conclude that committal is justified: R. v. Martin, [2001] O.J. No. 4158 (C.A.), at para. 3.
[17] There is a distinction, however, when the Crown relies upon circumstantial evidence to justify committal. In these circumstances, the preliminary inquiry judge is permitted to engage in a “limited weighing” exercise. When they do so, the judge does not draw inferences from facts or assess credibility but evaluates “the reasonableness of the inferences to be drawn” from the circumstantial evidence: Arcuri, at paras. 29-30. Where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered: Wilson, at para. 24; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18.
[18] If there is no evidence on an essential element of the charge, it is a jurisdictional error to commit an accused for trial: United States of America v. Shephard, at p. 1080. It is also important to note that, on review, the preliminary inquiry judge’s determination of the sufficiency of evidence is entitled to the greatest deference: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 48.
The Essential Elements of Obstruct Justice
[19] Section 139(3)(a) of the Criminal Code states that “every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed, dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence”.
[20] In other words, the Crown must establish that the applicant attempted to dissuade Ms. Mulligan from testifying at Mr. Bullard’s trial by threats, bribes or other corrupt means.
[21] In R. v. Pare, 2010 ONCA 563, at para. 10, Rosenberg J.A. defined the mens rea of the offence in the following way:
In my view, the mens rea of the offence is made out where the accused intentionally offers the improper inducement for the purpose of dissuading the witness from giving evidence, even if the accused is merely trying to persuade the witness to tell what the accused believes is the truth. The term “wilfully” requires that the accused act intentionally – for example, that the words used be intended as a threat. More importantly, “wilfully” also requires proof that the threat or inducement was made for the prohibited purpose of dissuading the witness. But the Crown need not prove that the accused otherwise had an improper motive. Equally, it is no defence that the accused’s motive was to ensure that the truth was told at the judicial proceeding. For the purposes of this case it is unnecessary to decide whether recklessness would also suffice to establish that the accused acted wilfully. See R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369 (Ont. C.A.), at 379-82.
The Evidence at the Preliminary Inquiry
[22] The evidence in this case was more than sufficient to establish committal.
[23] Ms. Mulligan was the central Crown witness in Mr. Bullard’s trial.
[24] The evidence called at the preliminary inquiry revealed that the applicant turned up, uninvited, on Ms. Mulligan’s doorstep and proposed that the Bullard matter “go away”. His suggestion was complemented by the prospect of further investigation and “more stories, more garbage coming out”. The applicant’s later voicemail referred to “damage control” and his reluctance to let “this get blown out of proportion” if Ms. Mulligan refused to accept the resolution of a peace bond.
[25] Ms. Seatle also testified extensively about the applicant’s efforts to get her to persuade Ms. Mulligan to end matters. She repeated the applicant’s threats to investigate “you guys”, throwing out the spectre of “how stories can get twisted and perceptions…”. There were further threats of “exposing Ms. Mulligan and talking to neighbours. He also told Ms. Seatle that “I can be ruthless. I can go and I can expose all kinds of stuff. I can dig up every skeleton of you and [Ms. Mulligan] and [Mr. Tumelty] and everybody and ex-husband and I don’t want to do it. But, you know, after tomorrow’s brief hearing or if this continues, I’m gonna have to do my job”. The applicant added that he did not want to investigate Ms. Mulligan or Ms. Seatle but if a peace bond was not the end result, he would do so. He added that Ms. Seatle had been “at City for 25 years” and “what better way to salvage the rest of your life than to drop this crap”. Finally, in a voicemail message, the applicant told Ms. Seatle that “things are gonna come out and I just want to get clarification so I don’t have to release this information”.
[26] Finally, the applicant’s comments to Mr. Tumelty were equally woven with threats and inducements. He told Mr. Tumelty that he was “in the middle” of the stories that were going to emerge. The applicant stated he wanted to resolve matters and wanted to do so "without exposing all the things that I’ve discovered and I haven’t even gotten my feet wet yet”. The applicant threatened to find “dirt” and sling “hearsay that would come out and taint all of your professional careers, just the murmurs of it”. He told Mr. Tumelty that he had to protect Ms. Mulligan.
[27] There was clearly a scintilla of evidence that the applicant sought to dissuade Ms. Mulligan from testifying using threats and other corrupt methods.
[28] Accordingly, I find that the judge did not commit jurisdictional error by ordering the applicant to stand trial on the count of obstruct justice at the Superior Court of Justice. The application to quash is dismissed.
[29] For these reasons, the application for certiorari is dismissed.
S.A.Q. Akhtar J.
Released: 27 July 2020
COURT FILE NO.: CR-20-70000051-00MO DATE: 20200727
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – MITCHELL DUBROS
REASONS FOR JUDGMENT S.A.Q. Akhtar J.
