Court File and Parties

Ontario Court of Justice

Date: 2014-01-22

Court File No.: Kitchener 1531/13

Between:

Her Majesty the Queen

— and —

Umaru Mohammed Barrie

Before: Justice G.F. Hearn

Heard on: August 7, 2013; October 30, 2013; December 2 and 13, 2013

Reasons for Judgment released on: January 22, 2014

Counsel:

Mr. Andre Rajna, for the Crown

Mr. David Lang / Mr. Stephen Proudlove, for the defendant Umaru Mohammed Barrie

Judgment

Hearn, J.:

Background

[1] Umaru Barrie is charged that on or about April 5, 2013 at the City of Kitchener he did commit perjury at a bail hearing in the Ontario Court of Justice located at 85 Frederick Street in Kitchener by stating that he had a twin brother who was operating his motor vehicle on August 21, November 22 and December 20, 2012 and by stating that a friend was operating his motor vehicle on December 21, 2012, contrary to s. 131(1) of the Criminal Code.

[2] There is no dispute the statements leading to the charges were made by the accused during the course of a judicial proceeding on the date and at the location noted within the count. A transcript of that proceeding has been filed as an exhibit. The accused acknowledges having made the statements as set out in the transcript while having been affirmed to tell the truth.

[3] The issues to be determined in this matter are:

1. Has the Crown proven beyond a reasonable doubt that the statements made by the accused were in fact false?

2. Has the Crown proven beyond a reasonable doubt that the accused knew the statements were false at the time he made them? and

3. Has the Crown proven beyond a reasonable doubt that the accused intended the false statements to mislead the court?

[4] This matter proceeded over three days of trial. The Crown has called a number of witnesses. The defence has elected to call no evidence. At the commencement of trial Mr. Barrie was represented by counsel, but after the first day of trial Mr. Barrie elected to discharge that counsel and was without counsel for a period of time until Mr. Proudlove his current counsel stepped forward and undertook to complete this case as counsel for Mr. Barrie. The court and Mr. Barrie both owe Mr. Proudlove a debt of gratitude for doing so in the circumstances under which the retainer was completed.

[5] On December 2, 2013 evidence was completed, submissions were made and the matter has then ultimately been adjourned to today's date for judgment.

Evidence of the Crown

1. Evidence Given at the Bail Hearing on April 5, 2013

[6] Marked as Exhibit 1 is a transcript of proceedings at the bail hearing of the accused conducted in Kitchener on April 5, 2013 with respect to outstanding charges he was then facing of breach of recognizance and drive while under suspension. During the course of that bail hearing and while being cross-examined by the Crown attorney as to his knowledge of any suspension of his driving privileges that might have been in place, the accused while affirmed indicated that on the dates he was alleged to have been operating his motor vehicle, that is August 21, 2012, November 22, 2012 and December 20, 2012 it was not him that was operating the motor vehicle, but was in fact his twin brother. He also stated during the course of the bail hearing with respect to an allegation of operating a vehicle while suspended on December 21, it was not he who was driving, but a friend.

[7] When asked why his brother was not at the bail hearing he testified that the brother had left for England although he did not know specifically when. He further stated that his brother lived by himself in London, Ontario but on occasion would visit the accused and during those occasions he had access to the accused's apartment. The accused kept a spare key in that apartment and had left the key in his room. It is my understanding that at the time of the bail hearing all of the charges relating to the various dates referred to were still outstanding.

2. Evidence of Ashutosh Danak

[8] Mr. Danak rented a room in the apartment of Mr. Barrie from February 1, 2013 until Mr. Barrie was arrested on or about April 5, 2013. He had become a co-tenant as a result of answering an ad on a website. During the course of their cohabitation he and Mr. Barrie would on occasion discuss their family backgrounds "a little bit".

[9] This witness confirmed that through those discussions he had learned the accused had a mother who was not in Canada although he was not sure what country she was in. He also stated he had never been informed by the accused that the accused had any brothers or sisters. The accused had informed him that the accused's father had passed away in "some kind of war in a foreign country". He believed the accused was from Sierra Leone.

[10] Mr. Danak indicated that he and the accused were not particularly close and in fact because of his employment he was actually only in the apartment three days a week. During the time he was there Mr. Barrie never had any other person staying at the apartment and specifically never had a brother stay over.

3. Evidence of Mariatu Conteh

[11] Ms. Conteh was a delightful witness who is employed as a personal support worker at a local nursing home. She has been in Canada for 10 years, having emigrated here from Sierra Leone.

[12] She described some of the circumstances in Sierra Leone and noted that the accused is a son of her sister's although she had never met him until he himself came to Canada. She knew little of her sister's current situation and has not spoken to her sister for more than 20 years due to the warfare present in her home country.

[13] She and her sister were separated when the witness was very young. The witness was aware however that her sister had had a family, but she was unaware of all of the children her sister had had by Mr. Barrie's father. It appears Mr. Barrie's father due to the cultural setting in Sierra Leone had a number of different wives and "so many children".

[14] She testified Mr. Barrie had never indicated to her he had a twin brother and she was candid and stated she simply did not know. She had met Mr. Barrie for the first time in Kitchener in 2003 shortly after she arrived in Canada and Mr. Barrie and she discussed the situation in their homeland and how the war there had taken its toll on their families.

[15] Mr. Barrie was never asked nor did he offer information with respect to his siblings. She was never told that he had a sibling in Canada and it appears that their contact was rather sporadic although they did keep in touch.

[16] Mr. Barrie lived on his own and had come to Canada by himself, but appears to have had some contact with his aunt. There was a rather significant absence in any contact from 2009 until 2013 when her son had a child and Mr. Barrie seemed to reconnect and she would see him more often.

[17] She had never seen any other member of his family nor had she seen any brothers and sisters of Mr. Barrie in Canada.

[18] When asked by the Crown if Mr. Barrie had ever told her that any of brothers were his "twin brothers" the witness responded, "Never. Barrie never told me nothing."

[19] In cross-examination the witness confirmed that in her culture her sister's sons are also regarded as her own sons and males will often call one another brothers. This can also extend to close friends who may also be called brothers. She however had never heard of anyone referring to a very close friend as a "twin brother". She also confirmed in cross-examination that she was aware the accused had approximately 20 siblings although not from the same mother and she in fact did not know any of the siblings.

4. Sara Blanchett

[20] Ms. Blanchett works for Canadian Border Services Agency and is an immigration enforcement officer. She described the Field Operational Support System which is a database that tracks information on individuals who apply for residency in Canada.

[21] She had been asked by the investigating police force to do some checks to confirm a certain individual's status in Canada to determine whether or not they were a permanent resident or a citizen or if there was documentation available. Secondary to that she was to determine if there was any documentation on the person's family that they had listed on their application for residency.

[22] The witness had checked the documentation with respect to the accused who has for some reason noted two birthdates noted, one October 15, 1974 and one October 15, 1984. Upon checking she had determined that the accused is lawfully entitled to be in Canada. He had applied for a protected person status and had made a refugee claim which was granted and gave him permanent residency in Canada once he had arrived.

[23] He had applied for status in Gambia and this witness had reviewed various documentation and notes submitted with the original application. The material reviewed provided a reported history with respect to Mr. Barrie which is certainly very tragic. His father had been killed and he fled Sierra Leone in 1996. Documentation indicated Mr. Barrie had reported he had two sisters, but he did not know where they were. His mother and sister had been abducted and two other relatives were killed by rebels. At some point the accused, his father, his elder brother and sister had been taken to a camp where his father was killed as was his brother. The accused was able to escape and ultimately ended up in Gambia.

[24] The material that had been reviewed indicated a reference to two sisters, a cousin, mother, father and a brother. His entire family had been at their home when the rebels attended. The family was interrogated, his father killed as was his brother. Nowhere in the material reviewed by this witness had there been any mention by Mr. Barrie of a twin brother.

[25] The application had been made on October 19, 1999. This witness provided some detail with respect to how such a refugee claim proceeds.

[26] Ms. Blanchett also indicated she had been requested to search the immigration records with respect to the name Al-Husine Mohammed Barrie with the same birthdates noted for the accused to determine if there was any record of an individual by that name in immigration records. The only "hit" that came back with respect to that particular inquiry was reference to the accused. There is no record of an individual with the other name and the search revealed only the accused because of the similarity of birthdates. There is no record of an individual by that name with the same birthdates coming to Canada at any point.

[27] In cross-examination the witness indicated that if a person who resided in England was coming to visit a relative in Canada they would not require a visa nor would they be entered into the database which had been searched. It was put to the witness then if Mr. Barrie had a brother Al-Husine Barrie that was living in England for several years and who would come to visit that brother would not require a visa nor would that person be picked up by the system this witness had researched for the purposes of the trial.

[28] It was also confirmed there was nothing in the notes to indicate the reference to family members was complete and the family members referred to were those that had been involved with the revolutionary forces. There was nothing in the notes reviewed that would be inconsistent with the possibility that Mr. Barrie might have a twin brother as there was no mention of it either way. Her research had also indicated that Mr. Barrie became a Canadian citizen on April 18, 2011.

5. Constable Laurie Auguste

[29] Cst. Auguste is a member of the Waterloo Regional Police Services and on August 21, 2012 she had occasion to conduct a traffic stop with respect to a gold Honda Accord motor vehicle being operated on Weber Street. Upon running the vehicle she learned that the registered owner was Umaru Barrie and he was noted to be a suspended driver. As she approached she found the person that she identified as the accused to be the operator of the motor vehicle. The driver identified himself as Mohammed and was uncooperative in providing a last name. There was also some confusion about a date of birth and notwithstanding opportunities to properly identify himself he refused to do so and was arrested for failing to identify himself under the Highway Traffic Act.

[30] After being secured, a search of the vehicle was conducted and a driver's licence bearing the likeness of the accused before the court was found. That licence identified the accused as Umaru Barrie with the birthdate October 15, 1974 and an address in Kitchener.

[31] Mr. Barrie also provided the officer with a permit for the vehicle and inside the permit the officer found three other Part III summonses in the name of Umaru Barrie for similar offences as in no insurance and operating a vehicle while under suspension.

[32] The officer was satisfied that it was the accused that was operating the vehicle and he was released at the roadside. The accused at that time presented as remorseful and apologized for attempting to "evade his identity".

[33] In cross-examination the officer testified that she first observed the vehicle coming from a parking lot at a local nightclub. She agreed that although she did not find the driver's licence on the accused, but rather in a backpack in the vehicle she was satisfied that the registered owner of the vehicle was Umaru Barrie and that was the individual that was operating the vehicle at the time. As she put it, "I have the gentleman before me matching the likeness."

6. Constable Brian Fox

[34] Cst. Fox is also a member of the Waterloo Regional Police and on November 22, 2012 at approximately noon hour he had occasion to stop a motor vehicle which he had observed proceeding through a red light and making a left hand turn prior to the light turning green. Upon stopping the vehicle he approached the driver's side and the male driver after apparently not being able to produce a driver's licence identified himself as Umaru Mohammed Barrie with a birthdate of October 15, 1974 residing at a Kitchener address.

[35] The individual provided some Service Ontario paperwork which did not have a photograph on it, but did have his name and address on the documentation.

[36] The officer did a computer check and brought up a NICHE photo for Umaru Barrie with the date of birth that had been given and after viewing the photograph he was satisfied that the person he had stopped and who was operating the vehicle was Mr. Barrie. He then identified the accused in court as the individual who had been operating the vehicle. The photo had in fact been taken August 26, 2011 and is marked as Exhibit 2.

[37] In cross-examination some differences were pointed out between the photograph and the accused as he presented in court, but the officer was adamant he was satisfied from the picture that it matched the accused driving the motor vehicle and he believed that the accused was in fact the person operating the vehicle at that time.

7. Evidence of Constable Katrina Edwards

[38] Cst. Edwards is also an officer with the Waterloo Regional Police. She had direct involvement with the accused on four separate occasions, but also had done various record searches with respect to both the accused and another individual who was possibly a brother based on information supplied from somewhere that name being Al-Husine Mohammed Barrie. She used the same dates of birth for both individuals and discovered no records relating to either in London, Ontario nor did she find any records relating to Al-Husine Mohammed Barrie in the Region of Waterloo or with the Ministry of Transportation. The only record she was able to locate in Waterloo related to the accused before the court.

[39] This officer had involvement on a number of occasions with the accused with respect to occurrences in December 2012 and February 2013.

[40] On December 20, 2012 she attended with respect to a dispute between drivers at a gas bar in Kitchener. She spoke with the two drivers one of whom was the accused before the court who verbally identified himself to her. Upon identification being provided she learned that the accused was a suspended driver at that point. The accused advised the officer that his girlfriend had driven the vehicle to that location but she had left prior to the police arrival.

[41] As the officer was making notes she observed the accused to be leaving the gas station driving his vehicle and she advised another constable that the accused was leaving. That officer, Cst. Butler, initiated a traffic stop.

[42] This officer was present when Cst. Butler dealt with Mr. Barrie who was then arrested for driving while under suspension. While the other officer was dealing with Mr. Barrie, this officer again was able to pull up and observe the NICHE photo of Mr. Barrie taken August 26, 2011. She testified the male that the officer was dealing with and that she had dealt with earlier was the male depicted in the picture, i.e. the accused.

[43] On that occasion she had dealt with the accused for approximately 10 minutes and had him face to face in close proximity and had spoken to him. She testified she was absolutely certain that the individual she had dealt with at the gas station and that was subsequently stopped by Cst. Butler was in fact Mr. Barrie the accused before the court.

[44] On the following day December 21, 2012 she observed the same motor vehicle, i.e. a gold Honda she had dealt with the previous day travelling in the City of Kitchener. She followed the vehicle, initiated a traffic stop and found Mr. Barrie again to be operating the vehicle. She testified it was the same individual she had had contact with on two occasions the previous day. She then released Mr. Barrie on a Part III summons and charged him with driving while under suspension and at the same time seized the vehicle for "repetitive suspend drive".

[45] Her final dealing with Mr. Barrie was on February 19, 2013 when she was conducting a proactive initiative outside of a residence as she had earlier in the day seen Mr. Barrie again operating a motor vehicle knowing him to be suspended. At about 6:00 p.m. she observed the same gold Honda being operated by the accused. When the vehicle approached the building the accused saw the officer, slammed on his brakes and then quickly pulled into a parking space at the rear of the building.

[46] At that time the officer approached Mr. Barrie, found him to be the same male that she had dealt with on the previous occasions and advised him that he was again under arrest for drive while under suspension.

[47] Ultimately for a variety of reasons Mr. Barrie was arrested and lodged in a cell sometime thereafter by this officer. On this occasion the officer had continuous contact with Mr. Barrie for about 45 minutes. She again was adamant he was the same person that she had dealt with on December 20 and 21. While lodging Mr. Barrie in the cell she located an Ontario health card with a photo on it which matched the male she had in custody, i.e. Mr. Barrie.

[48] In cross-examination it was put to the officer that Mr. Barrie had been charged in April 2012 several months before her involvement with driving without insurance. The officer had not been aware of that charge, but defence counsel had some information that indicated on that particular occasion someone else was driving the vehicle. She was not aware of that, but there appears to have been some disclosure and documentation available to indicate on that particular occasion Mr. Barrie had permitted his vehicle to be used by another individual to the knowledge of the police. It was clear however on that particular occasion the individual who had been operating the vehicle did not identify himself as the accused but as Wayne Warton. Marked as Exhibit 3 on consent is a copy of the disclosure with respect to that particular matter.

8. Constable Stephen Butler

[49] Cst. Butler, a member of the Waterloo Regional Police Service was on duty on December 20, 2012. He had been dispatched to the gas bar as had Cst. Edwards and at that time noted Mr. Barrie being present for a short period of time. Cst. Edwards seemed to have the matter under control and so this officer left the scene, but parked in a driveway close by to view the gas station. At that time he observed Mr. Barrie leave the gas station driving a motor vehicle and he initiated a traffic stop. He asked Mr. Barrie for his driver's licence, but was advised that the accused did not have a driver's licence as it had been suspended. Mr. Barrie did provide an expired licence and a Conestoga College identification card with a photo on it. He compared the photo and found it to represent a photograph of the individual he was dealing with and whom he had seen earlier at the gas station.

[50] The name on the Conestoga College card was that of the accused with a birth date of October 15, 1974. This officer had an opportunity to observe the accused for about 40 minutes on that date and testified under oath that the accused that he dealt with on December 20 was in fact the same individual as that before the court, i.e. Umaru Barrie.

[51] Cst. Butler also had occasion to deal with Mr. Barrie on February 19, 2013 when he assisted with the arrest of Mr. Barrie by Cst. Edwards. On that date he had an extended period of time to observe again Mr. Barrie and was fully satisfied that he was the same person that he dealt with in December and was in fact the accused before the court.

[52] That concluded the evidence for the Crown. As noted the defence elected to call no evidence.

Admissions

[53] The Crown and the defence have agreed on consent that certain evidence can be admitted into evidence at trial without the necessity of calling various witnesses. The admissions relate to the issue of fingerprints and it is acknowledged that the fingerprints taken of the accused person on August 26, 2011, February 19, 2013, April 8, 2013 and April 30, 2013 are prints from the same individual and that individual is the accused before the court. The formal admissions in that regard have been filed as Exhibit 6 to this proceeding.

Position of the Parties

[54] The Crown submits that all essential elements of the charge before the court have been proven beyond a reasonable doubt. The statements made during the course of the bail hearing the Crown submits were false and the accused was aware of the falsity of such statements. The Crown submits that although the evidence of the aunt and the roommate is not extremely strong with respect to the existence or non-existence of a twin brother, the officers' evidence with respect to the various stops where the twin brother and a friend are alleged to have been operating a vehicle as stated by the accused during the bail hearing is credible and conclusive evidence that it was in fact Mr. Barrie operating the vehicle on those occasions.

[55] The Crown submits not only does the evidence overwhelmingly support the findings that the statements made by Mr. Barrie were false, the Crown has also proven beyond a reasonable doubt that Mr. Barrie knew when he made the statements that they were false and he made them during the course of a judicial proceeding with the intention to mislead the court. He was in fact trying to impress upon the court that he would not drive a vehicle, that he understood the suspension and to buttress his position he offered the false statement that in reality he had not actually been driving the vehicle on the dates alleged by the Crown.

[56] The defence submits that even if the Crown has proven the statements made by the accused were false, the Crown's case fails in that it has not been proven beyond a reasonable doubt that Mr. Barrie made the statements with intention to mislead. The defence points to the brief examination in-chief by counsel at the bail hearing on behalf of Mr. Barrie and the statements ultimately the subject matter of the charge before the court were elicited during cross-examination which the defence alleges was improper. The defence further submits that the answers were in any event given as a result of misunderstanding or error on the part of the accused given the way in which the questions were put to the accused during the proceeding.

Analysis of Law and Facts

[57] The charge before the court is a criminal charge and as with all criminal offences the accused in this case Mr. Barrie is presumed to be innocent until the Crown proves his guilt beyond a reasonable doubt. The burden or onus of proving the guilt of the accused rests with the Crown and it never shifts. The accused does not have to prove his innocence and I am to presume that he is innocent throughout my deliberations. I can only find him guilty if after I consider all of the evidence I am satisfied the Crown has proven the case beyond a reasonable doubt.

[58] In order to find Mr. Barrie guilty of the charge before the court the Crown must prove beyond a reasonable doubt the following elements:

1. That Mr. Barrie is the person who committed the alleged offence and that the offence occurred at the time and place set out in the count. These elements are acknowledged by the defence.

2. That statements made by Mr. Barrie were made under oath or solemn affirmation during the course of a judicial proceeding, i.e. a bail hearing as set out in the count. Again, the defence acknowledges that this element has been proven to the degree required.

3. That the statements were in fact false and Mr. Barrie at the time he made the statements knew the statements were false.

4. That the accused intended that the false statement or statements made would mislead the court.

[59] Marked as Exhibit 1 is a transcript of the proceedings at the bail hearing conducted on April 5, 2013. During the course of that bail hearing Mr. Barrie gave evidence on his own behalf. Facts were read in by the Crown with respect to an incident on February 19, 2013 when he was charged with various highway traffic offences including drive while under suspension and resist arrest. He had been released apparently on those charges and on March 20, 2013 had been arrested for breach of recognizance as well as driving while under suspension. It appears at the time there were several charges outstanding involving Mr. Barrie and the proceeding was a reverse onus situation.

[60] During that bail hearing Mr. Barrie was affirmed and gave evidence. During the course of giving that evidence he stated while affirmed that effectively the allegations with respect to driving while under suspension relating to various dates in 2012 were erroneous and in fact on three of those occasions his twin brother had been operating his motor vehicle and on the fourth occasion it was a friend operating the motor vehicle.

A. Has the Crown proven to the degree required that the statements made by Mr. Barrie were false?

[61] The problematic areas for Mr. Barrie arise as a result of statements made during the cross-examination by the Crown during the course of the bail hearing. In examination in-chief the accused had been examined very briefly by his own counsel, but during that examination he had indicated he knew "absolutely" that he was not permitted to drive a vehicle and that it was a crime to drive while under suspension. He spoke in-chief briefly about the consequences of being incarcerated, that he understood the gravity of the matters before the court and he promised to obey any conditions that might be imposed upon his release from custody. As stated earlier, the examination in-chief of the accused at the bail hearing was brief and focused on Mr. Barrie's acknowledgement of the seriousness of operating a vehicle while under suspension and his commitment to comply with any conditions that might be imposed upon release.

[62] During cross-examination he was questioned by Crown counsel as to when he had "lost his licence" and was questioned as follows in that regard:

Q: Okay. That's fine. I don't know how much of it you paid but in any event, on March 22, 2012 you were suspended for not paying your fines. Your licence was suspended. Right?

A: I don't think that was the date. It's recently I knew I was suspended.

Q: Well you certainly found out you were suspended when in August, August 21 you get pulled over and you're charged with driving under suspension. Right?

A: It's my twin brother who was in the car. It wasn't me.

Q: Oh, it wasn't you?

A: It wasn't me.

Q: So the cops made a mistake and they charged you.

A: Yes.

Q: Right. And the same thing happened oh, your twin brother. Was that the evidence? Okay. That also happened on November 22? Also your twin brother?

A: Although the transcript indicates no audible response the tape of the hearing indicates the answer appears to have been "Yes."

Q: And on December 20 also your twin brother?

A: Yes.

Q: And on December 21 also your twin brother?

A: It was a friend.

Q: Oh it was a friend on December 21?

[63] The answers to these questions morphed into further questioning with respect to "the brother and the friend" and those questions and answers are set out in the transcript filed.

[64] The question then is has the Crown proven the statements made by Mr. Barrie as to who was actually operating the motor vehicle on the dates noted were in fact false. I find the Crown has proven this essential element well beyond a reasonable doubt. It is clear the Crown has to prove the statements were false. That does not necessarily mean that the Crown has to prove Mr. Barrie did not have a twin brother or a friend. That was one option that was approached by the calling of the evidence of the roommate, the immigration official and the aunt. The Crown itself notes the evidence is not strong or at least may not be sufficient to satisfy the court to the degree required that Mr. Barrie does not have a twin brother although I strongly suspect he does not.

[65] However, as I stated I find it was not necessary for the Crown to prove the absence of a twin brother or friend in order to show the statements were false. The Crown has also elicited evidence from various police officers and that evidence in my view clearly establishes it was Mr. Barrie who was operating the motor vehicle when it was stopped by police on the various dates set out.

[66] The officers involved in those stops gave uncontradicted, consistent and credible evidence that on the various dates noted they dealt with Mr. Barrie the accused before the court. The evidence of each officer was consistent in that confirmation and the cross-examination of the various officers detracts not one bit from the reliability and credibility of their evidence.

[67] The officers obtained identification on occasion, had conversations with the accused, had opportunities to view the accused for extended periods of time (indeed on one occasion twice in one day) and compare the likeness on occasion to the individual before them with a NICHE photo filed with police taken in August 2011 of the accused before the court as was confirmed by the fingerprint evidence admitted.

[68] The evidence of the officers does not leave any doubt, let alone a reasonable doubt in the court's mind that it was in fact Mr. Barrie who was operating the motor vehicle when stopped by the police on August 21, 2012, November 22, 2012, December 20, 2012 and December 21, 2012. Two of the officers in fact had dealings with Mr. Barrie subsequent to that which gave them a further opportunity to view Mr. Barrie and confirm that he was the individual they had dealt with in December 2012.

[69] The evidence the court accepts being that of the officers is essentially overwhelming in showing that the statements made by Mr. Barrie during the course of the bail hearing were in fact false. It was he that was operating the motor vehicles on the dates noted.

B. Has the Crown proven that Mr. Barrie in fact knew the statements were false?

[70] Again here the court is satisfied that this essential element has been proven to the degree required by the Crown. It would be obvious to someone in Mr. Barrie's position the statements that he made were false and that he knew they were false. It was a very personal issue that he was addressing, i.e. the existence of a twin brother who apparently was operating the vehicle on the day in question and a friend. The falsity of the statements would be obvious to a person in his position and I am satisfied he knew the statements were false when he uttered the words while affirmed during the course of the judicial proceeding.

C. Has the Crown proven to the degree required that Mr. Barrie made the statements he did with the intention to mislead the court when he made the statements?

[71] It is important to understand it is not necessary to find that the court was in fact misled by Mr. Barrie's statements only that Mr. Barrie intended to do so. Indeed, here it would appear the court was not in fact persuaded his evidence at the bail hearing was credible or reliable and the court appears to have rejected the evidence ultimately. However, as noted it is not necessary to find the court was misled only that it was the intention of Mr. Barrie to do so.

[72] The court has already found Mr. Barrie gave the evidence that he did while affirmed and during the course of a judicial proceeding and that evidence has been found to be false. The court has also found beyond a reasonable doubt that Mr. Barrie knew that the evidence that he gave was in fact false. In dealing with the element of intention to mislead I note the Ontario Court of Appeal decision in Regina v. Prashad, [2004] O.J. No. 4298, where the issue before the court was whether or not the intention to mislead the court had to be on a material fact. The court there held that the required element was whether or not an accused had intended to mislead the court by having the court accept evidence to be credible when he knew it was dishonest and it was not necessary to prove that evidence was on a material point. During the course of the reasons the Court of Appeal also said, referring to a decision of the Supreme Court of Canada, Regina v. Wolf (1974) 17 C.C.C. (2d) 425 that although it is possible for an individual to deliberately lie without intending to mislead such a scenario will be extremely rare.

[73] Here after considering all of the evidence I am fully satisfied when Mr. Barrie made the statements he fully intended to mislead the court. The Crown has established this particular element beyond a reasonable doubt.

[74] The transcript of the entire proceeding on April 5, 2013 reveals absolutely no evidence of any confusion or misunderstanding on the part of Mr. Barrie when questioned by the Crown. In fact, the transcript clearly shows Mr. Barrie knew precisely what the questions were about without being provided details other than the dates and he knew the importance of trying to impress upon the court that he knew he was suspended and would be fully compliant with any conditions that may be imposed upon his release.

[75] When one reads the transcript it is clear Mr. Barrie was trying to impress upon the court his sincerity with respect to not operating a vehicle while under suspension for the various reasons. Further, in an almost "oh, by the way" approach he decided to throw into the mix that in fact it was not he that had been driving on the other occasions. He was stating the other occasions, which were not the subject matter of the charges at the bail hearing, should not really play into an assessment of his promise that he would not operate a motor vehicle again since he was not the one that was driving the vehicle on those dates in any event.

[76] In examination in-chief Mr. Barrie had indicated he knew it was a crime to drive while under suspension, that the costs of being in "prison" were grave and that he would follow the rules of the court if released. In fact, he stated he "absolutely" would. He would do so because he did not wish to "forfeit my school and then my apartment and my job".

[77] The questioning by the Crown did not relate to the matters that were the subject of the bail hearing but in the area to be examined related more to the credibility of Mr. Barrie when he gave that evidence. It related to his knowledge of a suspension and his alleged past conduct while possessed of that knowledge. It was relevant to the issue. It was not a collateral matter. The reliability and credibility of Mr. Barrie was an issue at the bail hearing. When one reads the transcript it is clear the Crown drifted into this area quite by accident and only in response to questions as to when Mr. Barrie became first aware of a suspension. It was Mr. Barrie that elaborated on that particular issue in reference to the dates raised by Crown counsel's questions and he did so clearly in an effort to detract from allegations that he knew about the suspension earlier and had not complied which would leave it open to the bail court to be concerned about the repetition of offences if released.

[78] Defence counsel takes issue with the fact that there is no reference other than dates referred to by the Crown and that Mr. Barrie would reasonably not have known the circumstances surrounding those dates which would lead anyone to be concerned about him driving while under suspension again. It is clear Mr. Barrie from his prompt responses and lack of request for details knew absolutely what those dates referred to. They in fact referred to dates which when he had been allegedly operating a motor vehicle while under suspension. He then tried to deflect his responsibility by making false statements that it was not he that was operating the vehicle on those occasions.

[79] The court agrees with the Crown's position that the false statements were made with the intention to mislead the bail court as to when he possessed the knowledge that his licence was suspended and that his statement that he would honour such a suspension should be taken seriously by the court. Mr. Barrie in fact as the Crown submits "opened the door to the line of questioning" by his comment that he could be trusted because he knew it was an offence to drive while under suspension. That statement was simply being tested by the Crown during its cross-examination. If the charges that were cross-examined on related to matters before the court for the bail hearing then the Crown would not have been entitled to ask those questions. However, in the circumstances here they were entirely relevant and in fact in many ways raised by the accused's own evidence in-chief and to some degree volunteered during cross-examination without questioning by the Crown at all. His utterances made with respect to outstanding charges whether or not the subject charges of the bail hearing could not be used to incriminate him with respect to outstanding matters otherwise. However, they are relevant with respect to the charge before this court.

[80] Although as I have noted it is not necessary for the statements to have been with respect to a material fact they indeed were on this occasion. The reliability of Mr. Barrie's statement that he would honour the suspension was in play and was a valid consideration for the Justice of the Peace to make at the bail hearing. I find the questions were appropriate, that the statements made were in some respects initiated by Mr. Barrie without prompting of details and that Mr. Barrie knew exactly the circumstances surrounding the dates referred to by the Crown. He tried to simply cover that off by making the false statements that he did in an attempt to mislead the court about the credibility and/or reliability of his statements made in examination in-chief concerning his bona fide intention not to operate a vehicle if he was in fact released and that he knew of the importance of the suspension apparently in place.

[81] The Justice of the Peace in his decision made it clear that there was a "great deal of concern regarding Mr. Barrie's willingness to obey court orders that may be put on him". His impugned statements were made with that in mind during the course of the reverse onus in place at the bail hearing. Such statements cannot in my view be reasonably read after finding them to be false and known to be false to indicate anything else other than Mr. Barrie intended the information to mislead the court in its deliberations. The fact that the misleading turned out to be unsuccessful is of no consequence with respect to the elements of the offence leading to a finding of guilt.

Summary

[82] In conclusion, then I find beyond a reasonable doubt that the Crown has proven all essential elements of the charge before the court and as a result there will be a finding of guilt and a conviction registered.

Released: January 22, 2014

Signed: "Justice G.F. Hearn"