CITATION: R. v. Reynolds, 2010 ONCA 576

DATE: 20100908

DOCKET: C49110

COURT OF APPEAL FOR ONTARIO

Sharpe, Blair and MacFarland JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Gordon Reynolds

Appellant

Joseph Di Luca, for the appellant

Deborah Krick, for the respondent

Heard: April 28, 2010

On appeal from the conviction entered by Justice A. W. Bryant of the Superior Court of Justice on May 20, 2008.

MacFarland J.A.:

[1] The appellant was convicted of attempting to obstruct the course of justice and breach of recognizance on a particularized indictment alleging that he did:

… on or about the 3^rd day of June 2005, at the Town of Newmarket … wilfully did attempt to obstruct the course of justice in a judicial proceeding by dissuading Glenn Page, a witness in a criminal proceeding from giving evidence by a threat or other corrupt means, contrary to section 139(2) of the Criminal Code.

and further that he did

… on or about the 3^rd day of June 2005, at the Town of Newmarket … being at large on a recognizance entered into before a justice and being bound to comply with a condition of that recognizance directed by the said justice failed without lawful excuse to comply with that condition, to wit: keep the peace and be of good behaviour, contrary to section 145(3) of the Criminal Code.

[2] The appellant appeals his conviction and submits that the trial judge erred in law by misapplying the test for the “corrupt means” element of the offence and misapprehended pieces of evidence and in so doing arrived at an unreasonable verdict.

[3] Originally the indictment on the obstruct justice charge did not include the words “by a threat or other corrupt means”. At the outset of trial counsel for the appellant brought a motion requesting that the indictment be amended to provide particulars pursuant to section 587(1)(f) of the Criminal Code – to particularize the means by which the appellant was alleged to have obstructed the course of justice.

[4] Following Glen Page’s evidence-in-chief, the trial judge ordered that the indictment be particularized to include the words “by threat or other corrupt means”. The motion was, at the time, unopposed by Crown counsel.

[5] On the second day of trial Crown counsel moved pursuant to s. 601 of the Criminal Code requesting that the indictment be amended to return it to its original language that is, without the words “by threat or other corrupt means”.

[6] The trial judge denied the Crown’s motion in written reasons which stated in part:

The amendment seeks to change the basis of the Crown’s case near the conclusion of the cross-examination of its sole witness. Thus, if the amendment is granted, the accused and his counsel were misled as to what was alleged by the Crown after the sole witness has been cross-examined on the particularized count. It is prejudicial to delete the particulars because it changes the case the accused must meet at this late stage of the cross-examination.

THE FACTS

[7] In 2005 the appellant and one Sean Donovan co-owned a business that provided civil engineering services. The complainant, Glenn Page was an employee of that business. In the course of that business relationship two events occurred which form the backdrop to this case.

[8] First, on one occasion Page borrowed a truck from the business for his personal use during which time it was damaged and required repairs. The truck’s warranty had expired and so to avoid having to pay for repairs himself, he (Page) provided the serial number from a different truck also owned by the business to the repair shop. In so doing he fraudulently claimed the repairs under warranty from a different vehicle.

[9] Secondly, some construction equipment disappeared from a worksite run by the company. The appellant and his business partner Sean Donovan were both charged criminally in relation to the disappearance. Page was subpoenaed as a witness to the preliminary inquiry in relation to those charges, scheduled to begin June 10, 2005.

[10] On June 3, 2005 the appellant telephoned Mr. Page. Factual details of the conversation were disputed at trial. Mr. Page testified that the appellant called him and they had a friendly conversation. The appellant gave him (Page) a “heads up” that Sean Donovan’s lawyer (the appellant and his business partner Sean Donovan were jointly charged) was planning to cross-examine him (Page) at the preliminary inquiry on the past incident involving the fraudulent repair of a company truck. Page testified that he did not want to come to court to be asked questions about that fraudulent transaction. Page said the appellant told him not to show up for court. Page said the appellant told him that his evidence was like a chapter in a book and it would slow down the proceedings and possibly lead to a mistrial if Page didn’t attend because it would take too long to complete the case. When Page said he had to attend because he had been subpoenaed, the appellant said he would need a good reason not to attend such as a note from a doctor saying he was injured.

[11] The appellant testified and did not deny he called Page or that he told him about the planned cross-examination strategy of his co-accused, Sean Donovan. He also agreed he’d told Page that he would need a doctor’s note to miss court. The appellant denied telling Page not to attend court and further denied telling Page that by not attending it would delay the case and may cause a mistrial.

[12] The trial judge rejected the appellant’s evidence and found that the appellant wilfully attempted to dissuade Page from giving evidence in a criminal proceeding by corrupt means during the course of a telephone conversation on June 3, 2005. The trial judge identified the corrupt means as the appellant’s suggestion that Page obtain a false doctor’s note stipulating that he was injured.

[13] He convicted the appellant of attempting to obstruct justice and conviction on the breach of recognizance charge flowed from that.

ANALYSIS

[14] The offence of obstructing justice is proscribed in s. 139 of the Criminal Code which provides:

139(1) Every one who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding,

(a) by indemnifying or agreeing to indemnify a surety, in any way and either in whole or in part, or

(b) where he is a surety, by accepting or agreeing to accept a fee or any form of indemnity whether in whole or in part from or in respect of a person who is released or is to be released from custody, is guilty of

(c) an indictable offence and is liable to imprisonment for a term not exceeding two years, or

(d) an offence punishable on summary conviction.

139(2) Every one who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

139(3) Without restricting the generality of subsection (2), everyone shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed,

(a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence;

(b) influences or attempts to influence by threats, bribes or other corrupt means a person in his conduct as a juror, or

(c) accepts or obtains, agrees to accept or attempts to obtain a bribe or other corrupt consideration to abstain from giving evidence, or to do or to refrain from doing anything as a juror.

[15] The trial judge’s critical findings are set out in paragraphs 23, 24 and 25 of the appellant’s factum as follows:

23. The trial judge then made a series of findings of fact, including:

(ii) Mr. Reynolds telephoned Mr. Page on June 3, 2005. The conversation commenced in a normal manner but Mr. Reynolds directed the conversation to the upcoming preliminary hearing concerning a charge of fraud against him and Mr. Donovan relating to the disappearance of the Badger equipment.

(iii) Mr. Reynolds was not represented by a lawyer. Mr. Reynolds told Mr. Page during this telephone conversation that Mr. Donovan’s lawyer intended to cross-examine him concerning the fraudulent warranty repair of the Badger truck and might suggest that Mr. Page may have been involved in the disappearance of the equipment. Mr. Page would be concerned for himself and his friend if the warranty fraud were revealed.

(iv) Mr. Reynolds suggested to Mr. Page that he should not attend court (“not show up”) for the upcoming preliminary hearing. The purpose was to delay and lengthen the proceedings, which might cause a “mistrial”. Mr. Reynolds previously provided Mr. Page with an incentive not to attend court when he suggested that he had exposure for the warranty fraud.

(v) When Mr. Page asked Mr. Reynolds how he might avoid attending the preliminary hearing in accordance with his subpoena, Mr. Reynolds suggested to Mr. Page that he could obtain a note from his doctor saying he was unable to attend.

24. Later in the Reasons for Judgment, the trial judge stated that he “finds beyond a reasonable doubt” the following:

(i) Mr. Reynolds told Mr. Page not to attend the preliminary hearing of June 10, 2005 in order to delay the proceeding Mr. Reynolds’s conduct had a tendency to obstruct the course of justice.

(ii) the corrupt means was the suggestion to Mr. Page that he obtain a false doctor’s note for not attending court.

(iii) Mr. Reynolds intended to obstruct the course of justice.

25. The trial judge concluded:

I find beyond a reasonable doubt that Mr. Reynolds wilfully attempted to dissuade Glen Page from giving evidence in a judicial proceeding by corrupt means during the course of a telephone conversation with Mr. Page on June 3, 2005. The corrupt means was the suggestion to the witness that he should obtain a doctor’s note stipulating that he was injured. I find Mr. Reynolds guilty of count 1 in the indictment.

[16] The appellant argues that the Crown is required to prove beyond a reasonable doubt the allegations set out in the indictment. Where the indictment has been particularized, as here, to specify the wrongful act relied on, the Crown must prove the facts as set out therein. Here the indictment was particularized to specify the wrongful act as “dissuading Glen Page, a witness in a criminal proceeding from giving evidence … by a threat or other corrupt means”. This language mirrors that set out in s. 139(3)(a) of the Criminal Code. Hence the Crown had to prove:

(a) the appellant dissuaded Glen Page from giving evidence, and

(b) that he did so by a threat or other corrupt means.

[17] The trial judge concluded beyond a reasonable doubt[^1] that the appellant told Page not to attend the preliminary hearing of June 10, 2005, in order to delay the proceeding and that his conduct had the tendency to obstruct the course of justice. That finding is not seriously challenged in this court. Had the indictment not been amended and particularized as it was, this finding would have been sufficient to support a conviction under section 139(2). However, the particularized indictment required that the Crown prove not only that Page was dissuaded from giving evidence but that he was dissuaded by a threat or other corrupt means. In this regard the trial judge concluded that the corrupt means was the suggestion to Page that he obtain a false doctor’s note for not attending court.

[18] The appellant first argues that the trial judge’s finding in relation to the “false” doctor’s note does not in law amount to a “corrupt means” within the meaning of the Criminal Code. The “means” must be the methodology used to dissuade the witness from giving evidence i.e.) a threat or other corrupt means. On these facts that could only be the information that Page would be cross-examined in relation to a prior fraudulent act he had committed.

[19] The appellant further argues that the record does not support the finding of a “false” doctor’s note and that in coming to this conclusion the trial judge misapprehended the evidence. The appellant says there was no argument by the Crown that there had been the suggestion that Page obtain a false doctor’s note. Page’s evidence on this point at trial was as follows:

MR. KANDOLA: Q. You made reference earlier that in your conversation he suggested that you see a doctor and get a note or something;

A. That’s correct.

Q. Which conversation did that …

A. Out of the two that was in the first one.

Q. And how did that come about?

A. Just because I had a subpoena I would need to not show up, you would have to have a legitimate reason because the court was asking you to be there and the only way to do that would be to have some sort of acknowledgement from a doctor that you were not able to appear.

Q. Did you respond to that?

A. Not – I don’t know how to describe I responded. I just – just carried on from there, and he just said, “that would be the way you would have to do it,” ‘cause I had said like how could I – “why would I do that,” or, “How could I not appear, I have a subpoena,” and he led into that you’d need a – a good reason, a note from a doctor saying you’re injured somehow.

and when cross-examined in relation to the doctor’s note Page’s evidence was:

Q. Right, ‘cause you were under oath, OK? So that’s why I’m suggesting to you that one of the things Mr. Reynolds said to you is, “If you decide not to come you have to have a good reason ‘cause you’re under subpoena, you can’t just not show up”, right, that’s how the conversation went.

A. Um, part of it, yeah.

Q. You said, “How could I do that, how could I not come to court when I’m subpoenaed”, and Mr. Reynolds response is, “Well, if you’re not going to show up you better have a good reason”, right?

A. Yeah, I wasn’t asking for a method how, I was just referring to like, “How could I do that, I’ve been subpoenaed?”

Q. How could one do that generally, right?

A. Yeah, I have to go.

Q. Right.

A. Yeah.

Q. About the court process, like how does that work, right?

A. Not how does it work, just how could someone not do that, not – I wasn’t asking for a way, I was just saying basically I was saying, “I have to go, like I’ve been subpoenaed, I have to go.”

Q. But you did ask that question, “How could someone do that? How could I do that, how could I not show up?”

A. How could I not show up was a …

Q. And his response is, “If you don’t show up, you better have a good reason”, right?

A. Correct.

Q. And one of the things he said after that was, “Like for example, if you were sick you’d need a doctor’s note”, do you agree with that?

A. Yes.

[20] The argument simply put is that the evidence does not amount to a suggestion by the appellant to Page to get a false doctor’s note. The discussion was that when a person is under subpoena he or she would need a legitimate reason for not showing up in response to a subpoena and by way of example the appellant was suggesting if the witness was ill he would require a doctor’s note. The Crown did not advance the theory that the suggestion from the appellant to Page was that he obtain a false doctor’s note.

[21] In his submissions to the trial judge in relation to the doctor’s note Crown counsel said in part:

The clearest example of the corrupt means is suggesting a doctor’s note. I would go further and say that the – the – the content and the context of the discussion was corrupt but a – a material example clear in the evidence, corroborated by both sides, is the area of the doctor’s note.

[22] The obvious question arises whether in any event, even a false doctor’s note can, in law, amount to a “means” of dissuading a witness from giving evidence.

[23] Section 139(3)(a) reads:

139(3) Without restricting the generality of subsection (2), 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,

(a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence …

[24] It wasn’t the doctor’s note that would cause Page to be concerned, if anything, it was the likelihood of being cross-examined by Donovan’s counsel about the warranty fraud he had been earlier involved in. Yet that was not the theory advanced by the Crown nor the subject of a finding by the trial judge.

[25] The “means” needs to be the reason the person is not testifying; the means of persuasion used to dissuade the witness from testifying. On this indictment, the Crown is required to prove the means of persuasion was a threat or other corrupt means.

[26] The Crown concedes that it was required to prove that the appellant attempted to dissuade Page from giving evidence by a threat or other corrupt means[^2].

[27] The only issue then is whether the appellant’s suggestion of a false doctor’s note satisfied the “corrupt means” element of the offence.

[28] In my view the evidence was sufficient to support the trial judge’s finding that the appellant suggested that Page obtain a false doctor’s certificate. During Page’s evidence-in-chief the following exchange took place:

THE COURT: All right, who – wait a minute. Suggested that you not attend court, and who was confused, or he suggested you were confused?

A. No, I – I was confused as to why he was asking me that or – you know, how someone would do that. He suggested that I get – see a doctor and get a note saying I was sick or something.

[29] In my view this evidence together with Page’s other evidence of what the appellant had said to him and specifically that he not show up in response to the subpoena that had been served on him support the reasonable inference that what was being suggested was that Page obtain a false doctor’s certificate – one that would say he was sick when he in fact was not.

[30] The more difficult question is whether such could constitute “other corrupt means” of dissuading Page from giving evidence. There was no suggestion from Page that the appellant’s phone calls were anything other than a “friendly heads-up”. He agreed the appellant’s tone throughout was friendly and there was never anything threatening about it. The appellant told him not to show up because Donovan’s lawyer was going to cross-examine him about the earlier warranty fraud which may get him (Page) and his friend Brent who was also involved, in trouble.

[31] In my view it was not the false doctor’s note that would cause Page not to show up rather it was the apprehension, fear or concern that his involvement in the earlier warranty fraud would be brought to light. It may result in him (Page) being charged criminally in relation to it or at the least embarrass him and put him in a bad light in front of the court.

[32] The charge required that the Crown prove that the appellant attempted to dissuade Page from giving evidence by threat or other corrupt means. As this court said in R. v. S.S., [2002] O.J. No. 678 at paragraph 4:

The offence of attempt to obstruct justice can be committed in many ways. Here, the Crown alleged that the obstruction lay in the causing of the witnesses to make false statements. As pled, the charge required that the Crown prove both that the statements were false and that the appellant knew they were false. We cannot agree that this allegation is surplusage. It describes the means by which the offence was committed.

[33] Those words are apt to this case. As pled, the Crown was required to prove that the appellant attempted to dissuade Page from giving evidence by threat or other corrupt means. I agree with observations of the trial judge in his December 14, 2007 ruling on the Crown’s motion to further amend the indictment by deleting the particulars ordered by the court in relation to the obstruction of justice count in the indictment on the earlier motion of the defence where he noted:

The particularized count contained essential averments of nature of the offence, the date of the offence, the identity of the witness and the manner in which the Crown alleged the accused committed the actus reus of the offence. The particularized count was not surplusage.

[34] The Manitoba Court of Appeal, in R. v. A.D. (2007), 2007 MBCA 65, 222 C.C.C. (3d) 217, considered the surplusage rule in relation to a charge under section 139 of the Criminal Code. The facts of that case are not dissimilar.

[35] In November, 2002 the appellant, A.D., was told by her then five-year-old granddaughter that she had been sexually assaulted by her father, the appellant’s son. According to the testimony of the granddaughter and her brother, who was present when the granddaughter made the disclosure, the appellant told them “don’t tell anyone or Dad will go to jail”. Later when the children’s mother, who was estranged from the children’s father, called to speak to the children, her daughter was crying and the mother could not understand her. When she spoke to her son, and asked what was going on he told his mother that he’d been directed by A.D., the appellant not to tell. Later when the children returned home the mother learned of the allegation, contacted police and the father was charged and eventually pled guilty on April 30, 2004. The appellant, AD, had been interviewed by police November 10, 2002, but was not charged until February 21, 2004 with the offence of attempting to obstruct justice.

[36] The indictment against the accused read:

THAT SHE, the said A.D., on or about the 2^nd Day of November, 2002 at or near Oakpoint, in the Province of Manitoba, did unlawfully and wilfully attempt to dissuade [J.D.], and [B.D.] by threats from giving evidence in a judicial proceedings to wit: the Queen versus [W.D.]

[37] A.D. argued that the indictment was flawed:

1. as of November 2, 2002 no judicial proceeding had been initiated against her son, and

2. the indictment did not specify the manner in which the obstruction of justice was said to have occurred.

[38] The appellant A.D. further argued that the trial judge erred when she indicated that the specifics contained in the indictment which was based on s. 139(3) of the Criminal Code were mere surplusage.

[39] In ruling against the accused the trial judge stated:

… I have ruled that the lack of evidence as to the giving of evidence in a judicial proceeding and any attempt to obstruct justice in that respect, would arise under subsection (3) of section 139 of the Criminal Code which allows the Crown to rely on that in proof, the court then, deeming proof of the offence. I want to make it clear that I am not satisfied that that kind of evidence, in terms of by threat, attempting to dissuade the children from giving evidence in a judicial proceeding against their father has been established. The Crown has not sought to have me draw any deeming conclusion, based on that lack of evidence.

So what I am left with is determining under s. 139(2) whether the Crown has established all of the essential elements of the offence beyond a reasonable doubt …

[40] In its reasons the Court of Appeal noted:

The trial judge accepted the Crown’s argument that the wording in the indictment that paralleled s. 139(3) was mere surplusage, and did not constitute an essential element of the offence that had to be proved. The judge noted that s. 139(3) operated to deem certain types of conduct as falling within the broader language of s. 139(3); however, she found that “the substantive offence” was contained in s. 139(2). She further found that “[t]he language of the indictment contains the general provision of section 139(2) in this case, as well as some of the wording of section 139(3).” The judge concluded that the appellant would not be prejudiced by the application of the surplusage rule.

[41] The court then went on to review the surplusage rule and concluded in paragraph 26 and following:

Based on this review of the surplusage rule, I am of the view that the judge erred in relying upon it in the circumstances of this case. What should have transpired, based on the evidence, is that the Crown should have formally sought, and in my view, would have been granted an amendment to the indictment to reflect the true state of affairs. The accused was not being caught by surprise but the indictment, as framed, did not fully reflect the evidence.

In summary, therefore, it is clear from the trial judge’s finding that the evidence in this case did not correspond with the wording of the charge in the indictment. While it may possibly be argued that the current wording of the indictment was sufficient to charge the appellant under s. 139(2), it would have been preferable if the indictment had been amended. In fact, the trial judge implicitly severed or amended the indictment to reflect the broader wording of s. 139(2).

[42] While the conclusions of the trial judge differ in this case, the principles expressed in A.D. are nevertheless apt.

[43] For the reasons earlier expressed I am of the view that the trial judge erred when he concluded that the corrupt means was the suggestion to Page that he obtain a false doctor’s note. His conclusion, however, that the appellant told Page not to attend the preliminary hearing on June 10, 2005 in order to delay the proceedings and that his conduct had a tendency to obstruct the course of justice was fully justified on the record before him.

[44] The Crown requests that if this court were to conclude that the “corrupt means” element was not established, that the court amend the indictment pursuant to its power in s. 683(1)(g) of the Criminal Code and remove the particulars “by threat or other corrupt means” that were added by the trial judge. And further as set out in paragraph 20 of her factum:

Though appellate courts take a cautious approach to exercising the amending power, in the unique circumstances of this case, there is no prejudice to the appellant as the Crown’s theory of liability remains unchanged. The appellant attempted to obstruct justice by contacting a witness under subpoena and telling him not to attend court. The appellant told Mr. Page that he would (sic) cross-examined about a previous fraudulent incident and would be identified as a possible perpetrator of the crime that was the subject of the proceedings. The appellant said that Mr. Page might “get into trouble” as a result. The appellant also suggested Mr. Page obtain a false doctor’s note to escape any consequence for failing to attend court as required. In these circumstances, the essential elements of the offence of obstruct justice are satisfied.

[45] The appellant resists the Crown’s request to amend the indictment and argues that the request constitutes a collateral attack on the trial judge’s ruling wherein he refused the Crown’s motion to amend the indictment by deleting the particulars after the second day of evidence.

[46] While the Crown seeks in this court the same relief that was refused by the trial judge, the request cannot be considered a “collateral” attack of that ruling – if anything it is a direct attack. There is no procedure under the Criminal Rules for a cross-appeal as there is in the civil rules.

[47] The Crown’s first position is that the trial judgment be affirmed in all respects. If, however, this court is of the view that the “corrupt means” aspect has not been made out, then in that event seeks an amendment.

[48] In R. v. Irwin (1998), 1998 CanLII 2957 (ON CA), 123 C.C.C. (3d) 316, this court held that s. 683(1)(g) permitted an amendment on appeal where the amendment cured differences between the charge laid and the evidence led at trial. This power however, could only be exercised if an accused was not misled or prejudiced in his defence or appeal.

[49] In A.D., the court cited this court’s decision in Irwin and stated at paragraph 31:

Thus it would appear that whether or not an amendment should be ordered by this court is governed primarily by the prejudice that might flow to an accused if such an amendment were made.

The prejudice alleged in this case is that, based on the wording of the charge, cross-examination was focused in a particular fashion. As well, the accused notes in her factum that “certain aspects of the evidence of the child witnesses became significantly less important to challenge or offset when the charge or charges are worded in a certain fashion as in the instant case”. The accused argues this prejudice could only be overcome by ordering a new trial on a charge laid under s. 139(2).

[50] The argument made against amendment and the alleged prejudice to the accused in A.D. are not unlike the arguments made in this case. Here the appellant argues that his cross-examination of the witnesses was geared to defeat the particulars.

[51] In A.D. the Crown argued, in response to the appellant’s argument in relation to prejudice:

The Crown argues that the accused was not prejudiced, as section 139(3) is merely a deeming provision, it did not afford the accused a complete defence to the charge of obstructing justice. The accused would still have been liable to conviction for obstruction of justice under s. 139(2), even if the deeming provision (s. 139(3)) was not engaged. As such the Crown submits that the accused has not actually suffered any prejudice.

As previously noted, the trial judge clearly found that s. 139(3) was inapplicable, but did not formally amend the charge in the indictment to reflect this finding. Instead, she found that the wording of the charge that paralleled s. 139(3) was merely surplusage, and that the indictment was sufficient to ground the appellant’s conviction under s. 139(2).

In my view the accused was well aware of the transaction or events giving rise to the charge, she was not “caught by surprise”. The low threshold set by s. 581(2)(c) must be borne in mind. (citation omitted)

Given that s. 139(3) is extricably limited to and is only a subset of s. 139(2), the result of a new trial would invariably be the same as the trial already held. As such I believe this is an appropriate case to formalize the amendment implicit in the trial judge’s findings, which I now do, and thus, I dismiss this ground of appeal.

[52] The only difference between this case and A.D. is that the amendment sought in this court was specifically sought and refused in the court below. The only question that remains is whether in such circumstances this court should refuse to amend the indictment and acquit the accused or order a new trial.

[53] At the completion of the evidence the Crown moved before the trial judge to further amend the indictment by deleting the particulars earlier added on the appellant’s motion which, at the time, the Crown did not oppose. The trial judge dismissed the Crown’s motion and in his reasons noted that the particulars were not mere surplusage.

[54] The appellant’s defence was directed at defeating the particulars alleged against him. His cross-examination of witnesses was directed at the particulars alleged against him in an effort to defeat the Crown’s theory of liability against him.

[55] In my view it would be prejudicial to the appellant to amend the indictment in the manner sought by the Crown at this late stage. It would in effect give the Crown the ability to change its theory of the case at the appellate level to accord with the evidence when the theory on which it prosecuted the case was not made out at trial.

[56] In the circumstances, this court is left with little alternative but to set aside the appellant’s convictions and enter an acquittal in their place.

[57] The appeal is allowed. The convictions set aside.

RELEASED: September 8, 2010 “RJS”

“J. MacFarland J.A.”

“I agree Robert J. Sharpe J.A.”

R.A. BLAIR J.A. (dissenting):

[58] I have read the draft decision of my colleague, Justice MacFarland. I agree with her recitation of the facts and with her conclusion that it was open to the trial judge to draw the inference he did, namely that the appellant suggested to Mr. Page that he (Mr. Page) obtain a false doctor’s note to avoid having to testify at the appellant’s trial. The trial judge did not misapprehend the evidence in this regard.

[59] Respectfully, however, I take a different view of whether the trial judge erred by misapplying the test for the “corrupt means” element of the offence. In my opinion, he did not. The Crown succeeded in proving the charge of obstruct justice, as particularized in the Indictment.

[60] That Indictment alleged that the appellant:

… on or about the 3^rd day of June 2005, at the Town of Newmarket … wilfully did attempt to obstruct the course of justice in a judicial proceeding by dissuading Glenn Page, a witness in a criminal proceeding from giving evidence by a threat or other corrupt means, contrary to section 139(2) of the Criminal Code. [Emphasis added.]

[61] The pertinent provisions of the Criminal Code are the following:

139(2) Every one who wilfully attempts in any manner other than a manner described in subsection (1)[^3] to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

139(3) Without restricting the generality of subsection (2), everyone shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed,

(a) Dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence; …

[62] I accept that, having particularized the offence to charge dissuasion “by a threat or other corrupt means”, the Crown must prove the elements of the Indictment as particularized, namely that,

a) the appellant dissuaded Glenn Page from giving evidence; and,

b) he did so by a threat or other corrupt means.

[63] I also agree with my colleague that the trial judge was entitled to find on the evidence, as he did, that the first of these elements was made out: the appellant told Mr. Page not to attend the appellant’s preliminary hearing in order to delay that proceeding; this conduct had the tendency to obstruct justice.

[64] Where I part ways with my colleague is with her conclusion that by suggesting Mr. Page accomplish this objective by deceiving the court through the presentation of a false doctor’s certificate, the appellant was not “dissuading” Mr. Page “from giving evidence by a threat or other corrupt means.” In my respectful view, he was.

[65] In his skilful argument on behalf of the appellant, Mr. DiLuca drew a distinction – which my colleague accepts – between the method of persuasion (which is what must constitute the “corrupt means”) and the means of implementing Mr. Page’s desire not to testify. On this view of the elements of the actus reus of the offence as charged, the appellant’s method of persuasion was providing the incentive not to testify. This was accomplished by holding out the potential that Mr. Page would be embarrassed (or worse) when cross-examined by counsel for the appellant about his fraudulent truck repair claim. The false doctor’s note, says Mr. DiLuca, was simply “a logistical detail” offered as a means of implementing the failure to testify.

[66] I do not see it that way. The distinction between the method of persuasion and the suggested means of carrying out the desired goal, which is the object of the persuasion, is too subtle for me to accept in this context. The actus reus of the offence cannot be so finely parsed if the “corrupt means” language in subsection 139(3)(a) is to be given any meaningful effect.

[67] Briefly put, the appellant’s act of dissuasion consisted of saying this to Mr. Page: “You are going to be exposed to potential embarrassment, if not criminal liability, if you testify at my preliminary hearing, and you can get out of this dilemma, and avoid your subpoena, by presenting a false doctor’s certificate to the court.” This is an improper, dishonest, method of dissuasion – akin to a bribe or threat – and one that is inherently corrupt because it involves deceiving the court.

[68] In assessing the particularized Indictment, and the provisions of subsection 139(3)(a), the method of persuasion – or, more accurately, dissuasion – must be viewed as a whole. Suggesting a facile, albeit deceitful, way of accomplishing the desired objective is just as much a part of the “persuasion package” as providing the incentive to carry out the desired objective in the first place. Both form part of the same chain of events designed to convince Mr. Page not to testify and thus effect the sought-after result. The suggestion of providing a false doctor’s note was not simply a logistical detail; it was an integral part of the overall persuasive package. Its purpose was to delay and obstruct the course of justice.

[69] To corrupt is “to induce to act dishonestly”: The Shorter Oxford Dictionary on Historical Principles, Third Edition, Clarendon Press, Oxford. That is precisely the means the appellant was employing to dissuade Mr. Page not to testify.

[70] The trial judge was therefore on sound ground, in my view, when he concluded that the appellant’s suggestion to Mr. Page that he avoid attending the preliminary hearing by deceiving the court through a false doctor’s certificate constituted dissuasion by “corrupt means” as contemplated in subsection 139(3)(a) of the Code, and convicted the appellant. The Crown had proved the charge of obstruct justice as particularized in the Indictment.

[71] Accordingly, I would dismiss the appeal.

“R. A. Blair J.A.”

[^1]: Reasons for Judgment, para. 48.

[^2]: Crown factum para. 20.

[^3]: Subsection (1) deals with sureties.