DATE: 20050221

DOCKET: C38165

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – LILLIEMAY YARLASKY (Appellant)

BEFORE:

WEILER, GOUDGE and GILLESE JJ.A.

COUNSEL:

Clayton C. Ruby

for the appellant

Ian D. Scott

for the respondent

HEARD & RELEASED ORALLY:

February 15, 2005

On appeal from the conviction entered by Justice Robert N. Fournier of the Ontario Court of Justice dated April 11, 1997.

E N D O R S E M E N T

[1] On April 11, 1997 the appellant pled guilty to one count of attempting to obstruct justice contrary to section 139(2) of the Criminal Code.

[2] The essential elements for a conviction on a charge of obstruction are 1) that the accused must have done enough for there to be a risk, without any further action by him or her, that injustice will result, and 2) the attempt by the accused to obstruct justice must have been wilful. A defence of honest mistake of fact is a defence to the charge of obstruction of justice.

[3] The appellant appeals from her conviction on the bases that: 1) the facts as admitted did not support her conviction 2) the appellant was denied the right to effective assistance of counsel and 3) the appellant’s plea of guilt was not fully informed. The appellant’s submissions are based primarily on the admissibility of proposed fresh evidence that the appellant honestly believed that what she was saying was true.

[4] The background facts giving rise to this appeal are as follows. On March 11, 1997 the appellant’s husband was charged with uttering a threat to kill a police officer. The police learned of the husband’s threat when his social worker relayed it to the police who subsequently arrested him. On that same day, the appellant, not knowing that the social worker was the informant, telephoned her and ask her to visit the husband in jail. The social worker then told the appellant that it was she who had relayed the threat to the police, leading to the charges against her husband. The appellant asked the social worker to change her statement and to tell the police that the reason the appellant’s husband had made the threat was because of drugs that he was taking. The social worker refused to do so. The appellant persisted. The appellant then informed the social worker that she would sue her if she failed to provide the police with this information. The social worker stated that what the appellant said was untrue and hung up.

[5] On March 14, 1997 the appellant was charged with attempting to obstruct justice. At the time of her arrest, the appellant was facing other criminal charges. A lawyer, (not counsel on this appeal) represented the appellant on these previous charges, and she also contacted him to represent her on the obstruction charge.

[6] On April 9, 1997, while the appellant was still in custody, she received a letter from her lawyer. The letter outlined the position of the Crown and contained a statement as to what the appellant would have to show in her defence at trial. The letter also recommended that the appellant plead guilty to the charge.

[7] On April 11, 1997 the appellant pled guilty to the charge of obstruction. She was sentenced to time served, which had amounted to twenty-eight days, and to probation for one year.

[8] In February 2000 the appellant first spoke to appellate counsel about her conviction. It was at this time that she realized she had a possible defence to the charge of obstruction. On May 3, 2002 the appellant was granted an extension of time within which to file an appeal of her conviction. The appellant now appeals the conviction and applies to have fresh evidence admitted in accordance with the protocol for ineffective assistance of counsel. The fresh evidence tendered was not found in the trial record and is relevant to the appellant’s contention that her solicitor was incompetent.

[9] The Crown’s position is that the court should examine the fresh evidence for the purpose of determining its admissibility but that it should not admit the proposed fresh evidence for two reasons. First, the fresh evidence does not meet a threshold finding of credibility. Second, even if the evidence shows that the appellant believed what she was saying to the social worker was true, her conduct was still enough to constitute the essential elements for obstruction. We disagree.

[10] There is a credible evidentiary basis for the submission that the appellant believed what she was saying was true both from the transcript of the appellant’s bail hearing and in the fresh evidence filed. That evidence could give rise to the inference that the appellant believed her husband was taking Ativan at the relevant time and that it made him aggressive. The appellant’s counsel at the time did not identify and investigate this defence. He therefore failed to provide meaningful advice on the likelihood of the appellant’s success at trial. Also, as a result, the appellant’s plea of guilt was not fully informed.

[11] Finally, after the social worker said that the evidence the appellant was asking her to give was untrue, the social worker hung up and the appellant did not repeat her request. The appellant did not attempt to get the social worker to change her statement after the social worker had explicitly told her that she did not believe what the appellant was saying was true.

[12] Accordingly, we would allow the appeal, set aside the conviction, and order a new trial.

“K. M. Weiler J.A.”

“S. T. Goudge J.A.”

“E. E. Gillese J.A.”