R. v. Khan, 2013 ONCJ 194

ONTARIO COURT OF JUSTICE (Peel Region)

Between:

HER MAJESTY THE QUEEN Respondent

-and-

SHAZAD KHAN Applicant

J U D G M E N T

Justice B. Knazan April 15, 2013

Appearance: Ms. A. Lepchuk For the Crown Mr. R. Litowski For Mr. Khan

Mr. Khan is charged with obstructing Lisa Gray, a police constable engaged in the execution of her duty, by giving false information during a lawful police investigation.

The prosecution has proven and Mr. Khan admits that he gave false information, a false name, to Officer Gray, that she was in the execution of her duty and that he did so with the intent to mislead her.

Therefore, the case turns on one issue, the only one that Mr. Khan raises. That is, did he in fact obstruct Officer Gray as required by the section and the charge. Officer Gray quickly learned Mr. Khan’s correct name from another police officer, and Mr. Khan argues that at the time she was not obstructed. Simply put, he submits that the prosecution has not proven the actus reus of this offence.

On May 17th, 2012 Mr. Khan was at Pearson airport. Officer Gray was patrolling the arrivals area in terminal three, looking for scoopers, taxi drivers who are not permitted to pick up passengers but who solicit them at the arrivals area. She thought that she recognized Mr. Khan and had seen him with other police officers but she could not remember his name.

Gray approached Khan to investigate him for trespassing. She requested identification. Khan gave the admittedly false name of Nadeem Owasi.

Almost at that moment, Officer Collins, also on patrol, approached. He had pictures of scoopers who had been given trespass notices for being at the airport soliciting passengers. He carried this document around because he was new to the airport.

He heard Khan identify himself as Owasi. He heard a conversation between Gray and Khan in which Khan said that he was picking up his cousin and saw that Khan appeared nervous and was fidgeting in his chair. It dawned on him that the man could have been a scooper so he took out his list with pictures and looked at it and saw Mr. Khan’s picture. Gray looked at the pictures and realized she was dealing with Shazad Khan.

Gray asked Khan his name again and he said Shazad Khan. She arrested Mr. Khan and placed him in handcuffs. No issue was taken with the arrest. Once handcuffed Mr. Khan again said that his name was Shazad Khan and he apologized.

I say that Collins arrived at almost the same moment that Khan was lying to Gray because the whole incident lasted two minutes, from the time that Gray approached Khan to the time that Collins arrested him. The brevity of the investigation is essential to Mr. Khan’s submission that there was no actus reus because there was no obstruction.

When does lying to the police amount to obstruction of justice?

Mr. Khan relies on a decision of the Alberta Provincial Court, R. v. Whalen, 1993 CanLII 16340 (AB CJ), [1993] A.J. No. 618, 143 A.R. 234 in which Justice Fradsham concludes that the offence of obstruct justice in Canadian law requires that the act make it more difficult for the police to carry out their duties. Justice Fradsham acquitted the accused because he found that the conversation between the police and the accused, in which the accused had provided a false name, “was not significantly long nor out of the ordinary for a police officer’s duty.”

Mr. Khan further relies on the decision of Justice Clements in R. v. McGregor [2005] O.J. No. 5836 where the Court at paragraph 13 summarized the decision in R. v. Darlington [2001] O.J. No. 3410 as follows:

It goes on to say the officer was inconvenienced by the accused, but there must more than causing the officer fleeting or momentary diversion, or expenditure of effort.

In R. v. Cole [2009] O.J. No. 5838, Justice Kitely, sitting as a trial judge and not a Summary Conviction Appeal Court cited both Whalen and McGregor with approval. In particular she stated:

I agree with the conclusion reached by Fradsham J. in R. v. Whalen, 1993 CanLII 16340 (AB CJ), [1993] A.J. No. 618 that parliament did not intend the full weight of the law to be brought to bear on such an accused for such a lapse of judgment that was quickly corrected.

The decision of a judge of the Superior Court of Justice deserves respect but does not bind this court when the judge is sitting as a trial judge and not a Summary Conviction Appeal Court Judge.

In Cole, Justice Kitely went on to acquit Cole because she was not persuaded beyond a reasonable doubt that Cole obstructed the police when he gave a false name to avoid being arrested. In that case the police had a name, Andrew Finnikin in relation to a car, and when they asked Cole if he was Finnikin he said that he was Dennis Brown in order to avoid being arrested. But it happened that Finnikin had a recognizance that Cole would have been breaching if he were him and the police still arrested Cole as Finnikin. Within not much more than 15 minutes, Cole correctly identified himself.

Justice Kitely found as a fact that Cole’s lie did not make the work of the police more difficult because the officer would have conducted the same type of investigation as he did if Cole had given his true name. She acquitted Cole because she did not find as a fact that there was any obstruction. So although she clearly approved of the view in Whalen and McGregor that something more significant than a lie to the police that lasted a short time is required to establish that the police were obstructed in the course of their duty, that view could be considered as obiter.

Justice Kitely mentioned but did not comment on the correctness of the decision in R. v. Walcott, 2006 ONCJ 367, [2006] O.J. No. 3947. There Justice Robertson respectfully disagreed that Whalen and McGregor correctly stated the law.

Justice Robertson held that Whalen seemed to be saying that dealing with certain obstructive behaviour on behalf of an accused is part of the routine duties of the police, and is to be accepted by the Courts as not capable of being an obstruction. He not only disagreed with that conclusion but went on to review the decision of other judges who also disagreed with the conclusion in Whalen.

Justice Robertson also referred to the decision of the Supreme Court of Canada in R. v. Moore, [1997] 1 S.C.R. 195 where Justice Spence wrote that,

the refusal of a citizen to identify himself under such circumstances (a cyclist whose identification the police requested) causes a major inconvenience and obstruction of the police in carrying out their duties.

I agree with Justice Robertson’s comment in relation to Moore that:

If failure to provide proper identification to the police when lawfully required to do so is a major inconvenience and obstruction to police, then surely the giving of a false name is even worse.

The fact that a lie can amount to an obstruction of justice is made even clearer in the dissenting judgment of Justice Dickson in Moore. The minority judges disagreed that the failure of the cyclist to identify himself at all amounted to an obstruction of justice but explained that a lie to the police might amount to an obstruction of justice. Justice Dickson said:

There is no duty at common law to identify oneself to police. As was stated by Lord Parker in Rice v. Connolly [[1966] 2 All E.R. 649 (Q.B.D.).] at p. 652:

It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority, and to refuse to accompany those in authority to any particular place, short, of course, of arrest.

The case stands for the proposition that refusal to identify oneself to the police could not constitute obstruction of the police. The Court distinguished a refusal to answer, which is legal, from a "cock and bull" story to the police, which might constitute obstruction. No other distinction was made. Lord Parker said, p. 652:

In my judgment there is all the difference in the world between deliberately telling a false story, something which on no view a citizen has a right to do, and silence or refusing to answer something which he has every right to do.

This suggests that the law in Canada is that a “cock and bull story” might constitute obstruction.

There is no requirement that the obstruction go on for a long time as Whalen, McGregor and Cole seem to suggest and no basis for holding that “Parliament did not intend the full weight of the law to be brought to bear on an accused for such a lapse of judgment that was quickly corrected”, as decided in Cole or that “inconvenience to the officer is not enough. There must be more than causing the officer fleeting or momentary diversion or expenditure of effort” as decided in McGregor. Rather, the questions is always and only, as correctly stated in McGregor - did the lie as to identity in fact obstruct the officer in the execution of her duty.

Did Mr. Khan’s lie obstruct Officer Gray as charged?

Mr. Khan submits that the investigation was so short, two minutes, that PC Gray did not believe him from the outset and that Collins produced the photograph that did identify Mr. Khan so quickly that there was no obstruction in fact.

But there was and it is uncontradicted. In cross-examination Officer Gray testified that she did check the false name of Owasi that Khan gave her. Instead of checking for Mr. Khan and continuing with her duty to investigate scoopers that the police had identified, she went looking for a name that was not the name of the person in front of her. It is true that the whole investigation was short – it took her around two seconds to run the other name. But though she thought she knew Khan, she was not one hundred percent sure. But she did something that she would not have done had Mr. Khan not lied and therefore in that moment she was not able to do what she should have been doing.

The Crown has proven the actus reus of the offence as the lie did in fact obstruct Officer Gray in the execution of her duty. Although it is not an offence to lie to the police in and of itself, it is an offence to obstruct the police.

Mr. Khan is guilty.

Brent Knazan

Ontario Court of Justice

April 15, 2013