COURT OF APPEAL FOR ONTARIO

DATE: 20040413

DOCKET: C35267

RE: HER MAJESTY THE QUEEN (Respondent) – and – CHARLES ROY (Appellant)

BEFORE: MACPHERSON, SIMMONS JJ.A. and JURIANSZ J. (ad hoc)

COUNSEL:

Joseph Wilkinson for the appellant

Philip Perlmutter for the respondent

HEARD: April 8, 2004

On appeal from the conviction entered on March 10, 1998 by Justice M. Paul Forestell, Superior Court of Justice.

E N D O R S E M E N T

Released Orally: April 8, 2004

[1] On March 10, 1998, the appellant was convicted of attempting to obstruct justice following a trial before Forestell J. The trial judge found that in the spring of 1996 the appellant, who was an inmate at the Niagara Detention Centre, asked a fellow prisoner to intimidate Julie Diehle. Ms. Diehle had testified at a hearing in 1994 at which the appellant had been declared a dangerous offender. In the trial before Forestell J., the Crown alleged that the appellant had requested that his fellow inmate, who was due to be released soon, deliver a message and an object (the ace of spades, a “death card”) to Ms. Diehle with a view to discouraging her from testifying at the upcoming appeal relating to the appellant’s status as a dangerous offender. It was common ground at the trial – indeed the Crown stipulated in particulars – that there would be no witnesses, including Ms. Diehle, at the appeal hearing.

[2] The appellant appeals his conviction on two grounds: (1) the trial judge erred in ruling that the offence of attempting to obstruct justice by intimidating a witness from testifying in a proceeding could be made out where no witnesses would be called; and (2) the trial judge misapprehended the evidence on crucial points.

[3] The appellant was charged under s. 139(3)(a) of the Criminal Code:

139(3) … every one shall be deemed wilfully to attempt to obstruct … the course of justice who in a judicial proceeding …

(a) … attempts to dissuade a person by threats … from giving evidence;

The appellant contends that since Ms. Diehle could not give evidence at the dangerous offender appeal hearing, he could not be convicted of attempting to obstruct justice. His conduct was an “imaginary crime”: see United States of America v. Dynar (1997), 1997 359 (SCC), 115 C.C.C. (3d) 481 (S.C.C.).

[4] We do not agree with this submission. The interpretation of s. 127 (now s. 139) of the Code was considered by Goodridge C.J.N. in R. v. Hearn (1989), 48 C.C.C. (3d) 377 at 381 (Nfld. C.A.):

The gravaman of the offence under s. 127 is the wilful attempt to obstruct justice. It does not matter that the attempt is unsuccessful or, even, that it does not have the potential for success. When there is a wilful attempt, however misguided, to influence the outcome of a trial improperly the offence is complete.

[5] Hearn was appealed to the Supreme Court of Canada: (1990), 1989 14 (SCC), 53 C.C.C. (3d) 352. The unanimous judgment of the court was delivered orally by Wilson J.:

We are all of the view that this appeal which comes to us of right must be dismissed for the reasons given by the Chief Justice of Newfoundland.

[6] There is nothing in Dynar that is inconsistent with Hearn. Indeed, although the court in Dynar considered and cited about 50 cases, Hearn was not one of them. Dynar is a case dealing with the mens rea for attempt offences, which is not in issue in this appeal, whereas Hearn deals with the actus reus for the specific offence of attempt to obstruct justice. Hearn governs this appeal. It was, therefore, open to the trial judge to convict the appellant for this offence even though the subject of his attempt, Ms. Diehle, could not testify at an appeal hearing.

[7] Finally, on this issue, we observe that we see no conflict between Hearn and R. v. Graham (1985), 1985 3644 (ON CA), 20 C.C.C. (3d) 210 (Ont. C.A.), aff’d 1988 94 (SCC), [1988] 1 S.C.R. 214.

[8] The appellant’s second ground of appeal is that the trial judge misapprehended crucial aspects of the evidence, in particular (1) he erroneously stated that the appellant denied writing personal information about Ms. Diehle on a piece of paper; and (2) he failed to give proper effect to the implausibility of the appellant asking his fellow inmate to assist him in threatening Ms. Diehle.

[9] We disagree. The trial judge’s conclusion about the appellant’s denial of authorship of the information on the paper is supportable on the record. Moreover, the trial judge carefully assessed the credibility of the fellow inmate’s testimony against the appellant.

[10] The appeal is dismissed.

“J. C. MacPherson J.A.”

“Janet Simmons J.A.”

“R. G. Juriansz J.A. (ad hoc)”