ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR 11-307-000
DATE: 20120912
B E T W E E N:
HER MAJESTY THE QUEEN
D. Foulds, for the Crown
- and -
RICK A. SADLER
R. Warren and J. Collins, for the accused
HEARD: June 25, 26, 27, 28 and 29, 2012
REASONS FOR JUDGMENT
Justice Thomas A. Bielby
INTRODUCTION
[ 1 ] The accused herein is charged with three offences under the Criminal Code of Canada .
[ 2 ] All three charges relate to testimony he gave in Provincial Offences Court at Owen Sound, on January 24, 2011, during the trial of Debra Lynn Ferguson with respect to charges laid during a traffic stop.
[ 3 ] The accused testified during the Ferguson trial that, after cautioning her, he took a statement from Ms. Ferguson. He testified that the statement was in his handwriting. A voir dire was held regarding the statement and it was ruled admissible. It should be noted that, ultimately, Ms. Ferguson was acquitted.
[ 4 ] In fact, the statement in issue was not taken by the accused, nor was it in his handwriting.
[ 5 ] As a result, the accused was charged that he:
Did commit perjury by swearing falsely with intent to mislead the court; that he obtained a written statement from Debra Lynn Ferguson on or about June 9 th , 2010 contrary to section 131(1) of the Code .
Did wilfully obstruct the course of justice by testifying that he obtained a written statement from Debra Lynn Ferguson, which testimony he knew to be false, contrary to section 139(2) of the Code .
Being an official, namely a member of the Ontario Provincial Police, did commit a breach of trust in connection with the duties of his office, by testifying that he obtained a written statement from Debra Lynn Ferguson, which testimony he knew to be false, contrary to section 122 of the Code .
FACTS SUMMARY
[ 6 ] On June 9, 2010, the accused was operating a R.I.D.E. Program traffic stop in the Town of Dundalk, in Grey County. At approximately 11:49 p.m., he had cause to pull over a white Ford pickup truck operated by Debra Lynne Ferguson. He asked her to produce her licence, vehicle registration and insurance particulars but none of that documentation was in the truck or on her person.
[ 7 ] He noted the vehicle licence validation sticker had expired and later determined the licence plates on the pickup truck were not registered to that vehicle.
[ 8 ] The accused formed the opinion that Ms. Ferguson had contravened both the Highway Traffic Act and the Compulsory Motor Vehicle Insurance Act and decided to issue to her five Part 111 summons.
[ 9 ] At some point, another officer, Officer Hurley, who was assisting with the R.I.D.E. Program check, asked he if could assist the accused in regards to the Ferguson traffic stop. The accused asked him to assist by removing the plates from the pickup truck.
[ 10 ] Thereafter, Officer Hurly took a written statement from Ms. Ferguson after cautioning her about what she said could be used against her in court. The statement was in Hurley’s handwriting and was signed by Ms. Ferguson.
[ 11 ] It is this very statement which is at the center of this trial. As indicated, the accused advised the Provincial Offences Court that, in fact, the statement was taken by him and was in his handwriting. What have to be determined are the circumstances surrounding the testimony regarding the statement and the intention of the accused.
EVIDENCE
Gregory Boyd
[ 12 ] The Crown’s first witness was Gregory Boyd, a forensic examiner from the Centre for Forensic Science in Toronto. His expertise in regards to handwriting was not challenged and he testified the handwriting in regards to the statement in issue, a copy of which was entered as Exhibit 4, was that of Officer Hurley. The accused does not dispute that the statement was written by Officer Hurley.
Officer John Hurley
[ 13 ] The second witness called by the Crown was Officer John Hurley. He testified that on June 9, 2010 he was on patrol and was directed to Dundalk to participate in the R.I.D.E. check. He was unsure if it was he or the accused that set up the traffic check.
[ 14 ] Officer Hurley testified that he noticed that the accused had pulled over a vehicle on Ida Street, just off of Main Street. He noticed that it was a white pickup truck with a female driver, Debra Lynn Ferguson. Officer Hurley went over to the accused’s police vehicle and asked if the accused needed assistance. He obtained the truck’s V.I.N. number and, at the request of the accused, removed the plates from the truck.
[ 15 ] Officer Hurley testified that the accused was sitting in the driver’s seat of his vehicle and that he thought Ms. Ferguson was in the back seat of the accused’s police vehicle. Hurley again asked the accused if he could help and was told that he could get a statement from Ferguson.
[ 16 ] Officer Hurley testified that he took a brief cautioned statement from the Ms. Ferguson, reading her the caution he had in his notebook. The statement was entered as Exhibit 4. Officer Hurley believed that he stood in the open door to the back seat when he took the statement. He testified that he asked the questions and recorded both the questions and the answers.
[ 17 ] What Officer Hurley did not include on the face of the statement was that the statement was taken by him. The form used was entitled “Interview Report”. The top of the statement contains pre-printed portions which presumably are to be completely filled in. In the box “interviewed by” there is no entry.
[ 18 ] Officer Hurley could not recall what he did with the statement once he finished it. He testified that he either gave it to the accused or took it back to the detachment office to have it imputed on the computer system.
[ 19 ] For the preparation of the Crown brief, Officer Hurley testified that he was required to provide a copy of his notes and his “‘will say’” statement. He thought he may have done that later at the office. He also said he may have given the copy of his notes to the accused.
[ 20 ] The Crown Brief to the Ferguson trial was made Exhibit 8 and included the written statement of Officer Hurley which he had imputed into the computer records system and which was printed off for the brief. His statement says that he cautioned the driver and took a statement from her. By imputing the information, Officer Hurley completed his role in the investigation.
[ 21 ] Officer Hurley was never contacted to attend for the Ferguson trial. He said that, if the matter went to trial, he would have expected to have been called as a witness.
[ 22 ] On cross examination, Officer Hurley agreed that the accused was in his vehicle and the partition window between the back and front seats of the police vehicle was down. The accused could have overheard the questions put to Ferguson and her answers.
[ 23 ] It was suggested to Officer Hurley that it was the accused who asked the questions and that he only transcribed the questions and answers. To that, Officer Hurley testified that he did not recall that and that it would be quite unusual to do it that way. Officer Hurley testified that he did not record any questions asked by the accused.
[ 24 ] Hurley testified, typically, he would have asked the accused if he had everything in the statement needed by the accused since the accused was the investigating officer. The accused may have had some input into what was covered in the statement of Ferguson.
[ 25 ] Officer Hurley admitted he did not indicate on the statement of Ferguson that he took the statement. In a meeting with Officer Rowbotham in March 2011, after the Ferguson trial, Officer Hurley signed and dated the statement.
Andrew Shatto
[ 26 ] The next Crown witness was Andrew Shatto, an assistant Crown Attorney for Grey County and the prosecutor who was assigned to POA Court on January 24, 2011.
[ 27 ] Mr. Shatto testified that, at the time, the usual practise was that he would not see the files until he showed up at court that morning. He stated that, since that day, the procedure has changed in that he now receives these files in advance. Presumably, that allows him time to review the files before the court date.
[ 28 ] Mr. Shatto described the day of the Ferguson trial as very busy, with a large number of people in attendance. He testified that he is assisted by an OPP court officer. The Crown has a small office outside of the court room which is part of a larger room which includes an area where various police officers wait until their court matters are called.
[ 29 ] Mr. Shatto testified that he spoke to both Ms. Ferguson and the accused before the trial started. He said that he only had limited knowledge of the file. He testified that he looked at the synopsis and was told by the accused that Ferguson admitted to driving without insurance. He confirmed that there were three names on the witness list and that he asked the accused if they needed Officer Hurley. He was led to believe that Hurley was not needed. He was told by the accused that Hurley did not take the statement but that he just removed the plates from Ferguson’s truck.
[ 30 ] Mr. Shatto testified that, when giving evidence, the accused had Ferguson’s statement in his hand and that the statement was entered in evidence. He noted that on the typed copy of Ferguson’s statement it said taken by Hurley but that he crossed that out and wrote in the accused’s name. He made the same change on the case synopsis as well. He did that because the accused testified that he took the statement and that it was in his handwriting.
[ 31 ] Shatto, at some point, asked to see the handwritten statement to confirm the interviewer and noted that area was blank. Mr. Shatto was satisfied that after hearing the accused testify that the accused took the statement. On the typed witness statement of the accused it says that P. C. Hurley received the cautioned statement of Ms. Ferguson but Shatto testified that he did not recall seeing it that day.
[ 32 ] At trial, Ferguson testified that she was not the person who was operating the white pickup truck in issue because she had been in the hospital at the time. She provided a note from her doctor to that effect. The presiding justice of the peace dismissed the charges citing a reasonable doubt.
[ 33 ] After the trial, Mr. Shatto was concerned about the testimony of the accused relating to her alibi. The accused was certain that Ferguson was the driver of the truck in question and that it was she who he charged with the various offences.
[ 34 ] The accused and the Assistant Crown Attorney Shatto decided to continue the investigation. It was agreed that the accused would contact the doctor who provided the alibi.
[ 35 ] On February 3 rd , during that continued investigation, Mr. Shatto began having some concerns with respect to the accused’s evidence and retrieved the Crown brief relating to the Ferguson trial. He, it would appear, on that date and for the first time, reviewed the brief in detail. He testified that he could not see how the accused could have taken the statement. He sent an email to the Crown Attorney, Mr. Martin, expressing his concerns. Ultimately, it was determined that the statement of Ferguson was not in the accused’s handwriting.
[ 36 ] On cross examination, Mr. Shatto agreed that he read the synopsis which said that Hurley took the statement. He thought he was correcting it by crossing out Hurley’s name and writing in the accused’s name. He looked no further into the brief which included the witness statements. He agreed the brief contained a copy of Hurley’s notes which stated that he took the statement. The brief also contained the accused’s ‘will say’ statement which indicated Hurley took Ferguson’s statement.
[ 37 ] Mr. Shatto, on cross examination, testified that, with respect to the follow up investigation, the accused asked if the transcript of the Ferguson trial could be ordered. He reiterated that he did recall the accused saying he took the statement as part of the traffic stop and that Hurley removed the plates. He agreed that the accused, at the Ferguson trial, was concerned that the woman who sold the truck to Ferguson, Ms. Parsons, was not at court. The Crown did not think she was needed although she was one of the three witnesses listed on the Brief.
Theresa Green
[ 38 ] Theresa Green was a Crown witness and she is an administrative assistant at the police station. She described her duties which included typing statements into the information system from which the Crown brief is prepared. She testified that it is the duty of the investigating officer to prepare the brief. When imputing the information she would record who took the statement.
[ 39 ] Ms. Green testified that she typed in the Ferguson statement and recorded that it was taken by Officer Hurley. She said she would have used his name because he put a note on it when he left it in her tray or that his name was on it. She had no independent recollection of the Ferguson statement but that she was familiar with Hurley’s handwriting and, at the time, would have recognized it. She has no independent recollection of why she concluded that the statement was taken by Hurley.
[ 40 ] Ms. Green testified that once she imputed the statement she would put the original in the appropriate officer’s slot. She further testified that she would not prepare the synopsis and that both the witness statements of Hurley and the accused were entered into the computer system.
[ 41 ] On cross examination, she agreed that the accused had a very large caseload, much larger than any of the other officers.
Robert Mahlberg
[ 42 ] The next witness was Robert Mahlberg, a recently retired inspector for the OPP. He was the inspector in charge of Grey County at the time in question. The matter was brought to his attention and he determined that he had to speak to the accused. He became involved as a result of an email from the Crown Attorney. He also reviewed the transcript of the Ferguson file. As a result of all this, he had concerns.
[ 43 ] A meeting was scheduled for March 2, 2011 and in attendance were the accused, Inspector Mahlberg and Sergeant Fitzgerald, who was the accused’s supervisor. The inspector had questions as to the integrity and credibility of the accused.
[ 44 ] When the meeting commenced, he explained the purpose and that it related to the testimony that the accused had given at the Ferguson trial. He questioned the accused as to his testimony and the taking of the statement in issue. The accused confirmed his testimony at trial as set out in the transcript (Exhibit 1).
[ 45 ] The inspector then showed the accused the statement (Exhibit 4) and the accused acknowledged that it was not his handwriting. The inspector testified that the accused told him he cautioned Ferguson and asked the questions and that Hurley must have been transcribing the questions and answers. He told the inspector that in his mind he took the statement.
[ 46 ] Inspector Mahlberg testified that he said to the accused that your intention might not have been to mislead but that he felt the accused’s testimony was misleading. He further said he believed the accused’s statement to some extent but had his doubts. The inspector made the decision the matter had to be investigated.
[ 47 ] The inspector told the accused the matter would be handed over to the Police Professional Standards Branch.
[ 48 ] The inspector testified that he found it remarkable that he thought the accused did not recognize the significance of what he did and just said he made a mistake.
[ 49 ] The accused was first placed on administrative duty and then was suspended.
[ 50 ] Inspector Mahlberg made notes of this meeting but did not have it recorded. On cross examination, he agreed that prior to the meeting he gave no indication to the accused about what the subject matter of the meeting was to be. The inspector agreed that the accused told him that he cautioned Ferguson and that he asked the questions. He agreed that the accused told him that the only way it could have happened was that Hurley was transcribing the conversation between the accused and Ferguson.
[ 51 ] The inspector did not dispute the suggestion that the accused told him that he did not recall Hurley writing anything.
Sergeant Fitzgerald
[ 52 ] Sergeant Fitzgerald was the next witness and confirmed he attended the meeting. He knew in advance the purpose of the meeting. When he got to the Chatsworth Detachment where the meeting was held he took the accused aside and told him the meeting was about a statement the accused took and gave at trial. The sergeant also took notes of the meeting.
[ 53 ] Sergeant Fitzgerald testified that the accused said he initiated the traffic stop and that he cautioned Ferguson and asked questions. Further, the sergeant testified that the accused said he may have made a mistake but that he did not recall Hurley writing anything down. He said the accused was adamant that he cautioned Ferguson and asked the questions.
[ 54 ] On cross examination, the sergeant described the accused as one of the few people he knew in the police profession that was consistently professional and motivated and that integrity was never a problem for the accused. The sergeant described how the accused was on the HEAT team, which was a team of officers strictly involved in traffic control on the busier highways. He agreed that the accused carried a heavy court case load.
[ 55 ] The sergeant testified that the accused was active in his community but that some members of the community thought that the accused was a bit “over the top” which I take to mean that he was too strict in his enforcement of his traffic duties.
[ 56 ] With respect to the accused’s answers to the inspector’s question, Sergeant Fitzgerald agreed that the accused said that the only way the statement was in Hurley’s handwriting was that he recorded the accused’s interview of Ferguson.
[ 57 ] As to the accused’s demeanour at the meeting, the sergeant described it as surprised, like a deer in the headlights.
Officer Wildedoer
[ 58 ] The Crown’s case ended with the following evidentiary admissions as to what Officer Wildedoer would have said.
[ 59 ] Officer Wildedoer is an OPP constable and was the POA court officer for Owen Sound. It is his responsibility to select the witnesses for trial. For the Ferguson trial, the only witness notified by Wildedoer was the accused. His explanation for not calling the other two witnesses was that he did not flip over the Crown brief and note the list of witnesses.
Rick Sadler
[ 60 ] The only defence witness was the accused, Rick Sadler. He is 42 years of age, married with two children and resides in Markdale. He became an OPP constable in April 2006. In January 2009, he was chosen to be a member of the HEAT team reporting to the Markdale Detachment. His duties as a member of this team were, in part, to monitor traffic on major routes and enforce the rules of the road.
[ 61 ] Participating in the RIDE program was included in his duties. Clearly, this officer had a large volume caseload relating to the number of charges he laid and the amount of time he was required to be in POA Court, testifying he was involved in 20-30 trials per month. He generally worked alone.
[ 62 ] The accused testified that, with respect to every person he charged, he was required to prepare the Crown brief for trial purposes. He had to ensure all the necessary documents were in the file and he provided two copies, one as defence disclosure and the other for the Crown Attorney. The completion of the brief required the officer to input a great deal of information into the computer information system from which the brief was printed and organized. The accused testified that the Crown attorneys asked for the briefs at least two weeks in advance of court.
[ 63 ] The preparation of the brief also included the jacket in which the copies of the brief were inserted. It is noted that on the back of the jacket is listed the witnesses required for the trial. The accused testified that the Court manager uses this list to determine what witnesses to call. In this case, there were three witnesses listed: the accused, Officer Hurley and Ms. Parsons.
[ 64 ] The brief also contained copies of the officers’ statements, copies of the officers’ notes and a synopsis of the facts. Copies of other witness statements would also be included. Copies of the Part 111 summons are also included as well as MTO information.
[ 65 ] Within the jacket was another witness list, prepared by the accused, for the Crown’s purposes. With respect to the witness statement of Ms. Ferguson, a typed copy is included in the Crown brief after it is entered into the computer. It is noted on that document that the statement was taken by Officer Hurley.
[ 66 ] The statements of the officers are typed and are referred to as “‘will say’” statements.
[ 67 ] Hurley’s statement, indicating he took Ferguson’s statement, was printed out by the accused and placed in the brief.
[ 68 ] The accused testified that he kept his own case file for court purposes. He would have copies of the summons and other documents and testified that he would keep in his own file his original statement. Copies of the ‘will say’ statements and the synopsis were not kept in his own file.
[ 69 ] When on the witness stand in the Ferguson trial, the accused would have in front of him his own case file and his notebook. The accused testified that he generally did not review his files in advance of POA Court. He may have multiple matters before the court in any given day and often trials are resolved on the date the trial is set and preparation time therefore wasted.
[ 70 ] He described that there is a room outside of the courtroom which is divided in two by a partition. One part has a desk and chairs and is for the Crown. The accused testified that the other part is where the officers wait for their matters to be called in court.
[ 71 ] The accused testified that, with respect to the Ferguson trial, he looked at his notebook immediately before he gave evidence.
[ 72 ] The accused testified that, on June 9, 2010, at 11:01 p.m., he started a RIDE check in Dundalk. At some point, Officer Hurley arrived to assist. At 11:49, the accused pulled over a white pickup truck operated by Debra Lynn Ferguson.
[ 73 ] The licence plate of the truck had an expired validation sticker. Further, Ferguson could not produce her licence, ownership or proof of insurance. She was asked to sit in the rear of the accused’s cruiser.
[ 74 ] The accused testified that he recalls he read to Ms. Ferguson the standard caution and advised her she was under investigation. He continued to testify that she told him that she had recently bought the truck for $1,000.00 from Susan Parsons and that she did not have the money to register the vehicle and acquire insurance. The plates were taken from another vehicle.
[ 75 ] Exhibit 16 is a photocopy of the three relevant pages of the accused’s notebook. The notebook has no reference to the caution but does set out the admissions made by Ferguson. The notes indicated Officer Hurley attended to assist but says nothing about him taking a statement from Hurley.
[ 76 ] The accused testified that he started working on the Crown brief the next day.
[ 77 ] Between June 9 th and January 24 th , the accused testified that he would have laid between 300 - 400 charges and that on the day of the Ferguson trial he had four matters on the list, three of which were set for trial. He was also that day the designated Court Officer and was required to co-ordinate when during the day other officers had to attend court.
[ 78 ] Prior to testifying on the Ferguson trial, the accused did not review the Crown brief nor did he review his case file. The accused recalled Mr. Shatto advising him in the courtroom that Ferguson had an alibi and that he asked the accused if he was ready to testify to which the accused answered yes.
[ 79 ] The accused then testified that, when he took the witness stand in the Ferguson matter, he was not aware of the written statement signed by Ferguson but that he remembered cautioning Ferguson and questioning her. He then noticed the written statement in his file and advised the Crown of its existence. He found the statement when he was looking in his file for the original summons.
[ 80 ] The Ferguson statement in his file was the original. The accused testified that if he has an original in his file it should be his, that is, a statement he took. He advised that he has never had another officer give him an original statement.
[ 81 ] The accused testified that he believed the statement was his and that when he opened his case file, it was the first time he recalled seeing the statement. He assumed he had taken it. He testified that he was unfamiliar with Hurley’s handwriting but that the statement was in black ink and was printed as are the statements taken by the accused.
[ 82 ] The accused has no recollection of Officer Hurley taking a statement and, since he remembered cautioning and questioning Ferguson, it made sense to him that he took the statement. He could not account for it otherwise.
[ 83 ] The accused testified that, until he met with the inspector on March 2 nd , he had no idea he had done anything wrong. He testified that, on the day in the witness stand, he believed he took the statement in issue. He had nothing in his possession to suggest otherwise.
[ 84 ] At her trial, Ferguson said she could not have been the person stopped as she was in the hospital in Etobicoke. She produced a doctor’s note in that regard. The accused was 100% confident that she was the person he stopped that evening. Ferguson was acquitted of the charges and, after the trial, the accused and the Crown had a discussion about the strange turn of events leading to the acquittal. The accused wished to investigate further and it was agreed he would approach the doctor who authored the alibi note.
[ 85 ] The accused did interview the doctor who allegedly advised him that the note was based on information provided to him by Ferguson. Thereafter, the accused had ongoing communication with the Crown regarding this matter and the continued pursuit of Ferguson in regards to possible perjury. It was agreed that he could work with an OPP detective to whom the matter was turned over.
[ 86 ] The accused last met with Mr. Shatto on February 3 rd in relation to this matter.
[ 87 ] The accused testified as to his meeting with the inspector and sergeant on March 2 nd . He was questioned in detail about the taking of the statement and that his own ‘will say’ states that Hurley took the statement. The accused said that it “hit him” that he had made a terrible mistake and that he felt sick to his stomach. He said he told his superior that he testified to what he believed to be true and that he apologized a number of times. He asked what he could do to fix things.
[ 88 ] The accused testified that he was caught off guard and did not have his file with him. He told the Inspector that he could not recall Hurley taking a statement and that he remembered cautioning Ferguson and questioning her. The only explanation he could come up with was that Hurley was just a scribe and wrote down the caution given by the accused and the following questions asked by the accused and the answers given by Ferguson.
[ 89 ] On cross examination, the accused reiterated that he recognized Ferguson at the trial as the woman who was operating the white pickup truck which was stopped by him. He testified that, in fact, with the permission of his shift supervisor, he drove her home that evening as the truck was impounded and she had no way to get home. He testified that he recalled her face.
[ 90 ] He denied he knowingly lied at the trial of Debra Lynn Ferguson. He denied that he lied because he could not stand losing the case. He testified that he has lost a number of cases. He acknowledged that, on June 15, 2010, when he completed his ‘will say’ statement, he knew that Officer Hurley had taken the statement.
[ 91 ] He agreed with the Crown attorney, on cross examination, that the comments recorded in his notebook were not the verbatim answers of Ferguson, testifying that he was trying to record the gist of what she said. He testified that he wrote down a “snapshot” of what she said.
[ 92 ] The accused was asked that, if his notes make no reference to a written signed statement, why did he refer to one. He answered it was an original statement without the name of the officer who took it. It was suggested to him that he took a risk while on the stand and at best made a terrible mistake. In answer the accused testified that he made an assumption.
[ 93 ] The accused testified that he did not always record in his notebook the giving of a caution. He testified that, if he had an original statement which contained a caution, he wouldn’t necessarily put it in his book.
[ 94 ] When the Crown attorney put to him that he lied to save the case, the accused said that the suggestion was not true and that he did not think they even needed the statement to be successful.
[ 95 ] When he discovered the statement in his file while on the stand, the accused stated that he assumed it was his handwriting. He further stated that, had he realized mid statement that he had not taken it, he would have said so.
[ 96 ] The accused acknowledged that on the stand during the Ferguson trial his evidence regarding the statement was untrue, that he made an assumption and that he made a mistake.
[ 97 ] The accused denied he met with Mr. Shatto prior to going into court and could not recall telling the Crown that Hurley was not needed, as he played a minor role. He denied that, when learning Hurley was not there, he took it upon himself to produce the statement.
[ 98 ] On cross examination, the accused testified that when he had the March 2 nd meeting, his inspector repeatedly said, “I need an answer” and it was for that reason the accused offered an explanation that Hurley just recorded the conversation the accused had with Ferguson. His foundation for this was that he recalled cautioning Ferguson and asking her questions.
SUBMISSIONS
[ 99 ] Defence counsel submitted that the accused did not take the Ferguson statement and conceded that the accused gave false testimony when he testified during the Debra Lynne Ferguson trial on January 21, 2011. During the voir dire portion of the Ferguson trial, the accused testified that he gave her the caution from the standard caution kept in his notebook and that he asked her the pertinent questions. He produced a statement he said that was taken from his cruiser, in his handwriting and signed by Ferguson. He testified that he recorded her answers as best he could and that he asked her to read it over before signing. The statement was read to the court and was ruled voluntary.
[ 100 ] Defence counsel submits, however, that the accused did not intentionally mislead the Court. It is submitted that, upon finding the original statement in his file when on the stand, seven and one half months later, it was not unreasonable for the accused to think he took the statement given that the gist of the answers were recorded in his notebook. It is submitted that, at the very least, it raises a reasonable doubt.
[ 101 ] Counsel submitted that we have to consider the substantial caseload carried by the accused and the sheer number of matters in which he is required to remember and testify to.
[ 102 ] Defence counsel submitted that, while the accused may have been careless in his preparation, carelessness does not amount to criminal guilt. It was pointed out that the Crown attorney was also ill-prepared in that he did not review the brief or the typed statements which clearly stated Hurley took the statement.
[ 103 ] Defence counsel also submitted that, if the accused knowingly perjured himself, why would he be so insistent in pursuing a perjury investigation with respect to Ferguson which would require the preparation of the transcript in which it is alleged the accused perjured himself? It was submitted that it was the accused that first brought up the subject of ordering the transcript.
[ 104 ] Counsel for the accused submitted that their client is a good person and a good police officer. It is submitted that the accused withstood cross-examination with dignity and composure and provided a truthful account.
[ 105 ] The Crown submits that the accused intentionally lied under oath with the intention to mislead. He suggested, correctly, that the Crown’s case, except for intention, has been admitted.
[ 106 ] The Crown submits that the accused clearly knew he did not take the statement given that he prepared the Crown brief with its multiple indicators that the statement in issue was taken by Hurley.
[ 107 ] The Crown acknowledges that the accused did likely come to court with the intention to lie but as the circumstances unfolded and at a critical point when he was on the witness stand, made up the story of him taking the Ferguson statement. The accused realized that Hurley was not in attendance and that any officers who had contact with Ferguson up to the point of the taking of the statement would be required to testify on the voir dire relating to voluntariness.
[ 108 ] It is submitted that, when he realized this, he formed the intention to mislead. The Crown submits that it is completely unbelievable for an officer with this experience to make such a mistake. He submits the handwriting of Hurley and the accused are not similar on a cursory examination.
[ 109 ] The Crown attorney conceded that the accused made a much better witness than did Officer Hurley. He submitted, however, that the accused had an answer for everything and that he was over explanatory.
[ 110 ] The Crown further submits that the finding of perjury can be ‘nailed down’ by considering the answers the accused gave in his meeting with the inspector. It is alleged that the accused made up another lie in suggesting that Hurley just wrote down the verbal exchange between the accused and Ferguson and by doing so demonstrated a lack of respect for the truth. The Crown submitted that the accused did not have to make such an answer but could have just said he did not know.
[ 111 ] The Crown submits that the court has to question the number of mistakes we are expected to believe occurred and that, when he testified at the trial of Debra Anne Ferguson, the accused had a choice and took the wrong one.
[ 112 ] The Crown submits that, while the accused did not waffle or hesitate when giving his answers, it is simply a matter of him being prepared to say what is not true. Confidence does not equal truthfulness.
ANALYSIS
[ 113 ] All three charges relate to the circumstances surrounding the accused’s testimony. Clearly, he testified that he took the statement and that it was in his hand writing. This was false testimony.
[ 114 ] On the first count, in order to make a finding of guilt, it must be proven beyond a reasonable doubt that the accused intended to mislead the court. On the second count, it must be proven beyond a reasonable doubt the he knew his testimony to be false. On the third count, it must be proven beyond a reasonable doubt that, when testifying that he obtained the statement, he knew that to be false.
[ 115 ] The critical issue with respect to all three counts is, therefore, whether the accused, when testifying, knew that he did not take the statement. Clearly, his testimony was to be relied on by the court.
[ 116 ] I am required to approach the issue as follows. If I believe the testimony of the accused, I am required to acquit him.
[ 117 ] If I do not believe him but his testimony raises a reasonable doubt, I am required to acquit him.
[ 118 ] Finally, if I do not believe him and if his testimony does not raise a reasonable doubt, does all of the other evidence taken as a whole, prove beyond a reasonable doubt the crimes alleged?
[ 119 ] The accused, in his testimony, submits he made a mistake, albeit a very large one. As said previously, the Crown submitted that the court has to question the number of mistakes made by the accused.
[ 120 ] I agree that a number of mistakes were made. They were not, however, only made by the accused. Mistakes were made by two other officers as well as the Crown Attorney.
[ 121 ] Officer Hurley did not indicate on the Ferguson statement (Exhibit 4) that he took the statement. The form used for taking the statement, entitled Interview Report, has an administration portion at the top which includes a box which states, “Interviewed by (Name, Rank, Badge No.)”. There is no entry under this. This is mistake No. 1. Had Officer Hurley filled this information, the court would likely not have been misled.
[ 122 ] Officer Wildedoer, a constable with the OPP, was the Provincial Offences Court Officer. It was his responsibility to ensure the witnesses are summoned to court. For that reason, the names of the witnesses are listed on the back of the Crown brief envelope. The Court Officer only summoned the accused to testify and failed to call Susan Parsons and Officer Hurley who were listed as witnesses. He neglected to do so because he failed to flip over the brief. This is mistake No. 2. Had Officer Hurley been in attendance, the issue of who took the statement would have likely been properly resolved.
[ 123 ] The contents of the Crown brief contained a number of documents that indicated Officer Hurley took the statement of Ms. Ferguson. Mr. Shatto, the Crown attorney at POA Court that day, did not review the brief in any detail and did not do so until February 3 rd . This was mistake No. 3.
[ 124 ] The Crown attorney testified that at the time he did not see any of the Crown briefs in POA Court until he attended at the Court to prosecute matters. After this incident and as a result of this incident, the briefs are delivered to the Crown’s office a couple of days in advance of court. Had the Crown attorney had the opportunity in advance to review the Ferguson Crown brief in advance, he would have known who took the statement.
[ 125 ] Had any one of these mistakes or omissions not been made, the identity of the officer who took the statement would have easily been determined.
[ 126 ] I recognize that Provincial Offences Court is a busy and hectic place. On any given day, numerous matters are set for trial, many of which are resolved on the day of trial. The dockets are long and various officers are required to come and testify. The Crown Attorneys and the police officers have very little time for trial preparation. It is an atmosphere of controlled chaos. Decisions are made quickly and matters moved ahead. Time is of a premium. In these circumstances mistakes occur.
[ 127 ] I accept the explanation of the accused and believe his testimony. Given the mistakes already made, it is not a stretch for the accused to have made a very serious but unintentional mistake when he was testifying in the Ferguson trial.
[ 128 ] As noted by the Crown, the accused did not waffle or hesitate when testifying. While the Crown would suggest this is characteristic of a man prepared to lie, I accept this as evidence of credibility. The accused was not caught in any significant contradiction and his manner of giving evidence, in my opinion, was of an honest witness who told the truth and did not have to manufacture answers with respect to the questions put to him. I thought he answered the questions directly and his answers were to the point of the questions.
[ 129 ] I agree with defence counsel that the accused withstood cross-examination and that his testimony was unshaken.
[ 130 ] I also disagree with respect to a submission made by the Crown in relation to the March 2 nd interview of the accused by the inspector. I do not conclude that the accused suggesting that Hurley wrote down what was said by the accused and Ferguson was evidence of someone prepared to lie. I accept the accused had no prior knowledge of the purpose of the meeting and was caught unawares. He was searching for a response to the question put to him repeatedly and I accept he offered the explanation as a possibility as to what happened.
[ 131 ] Also, I accept the defence submission that, had the accused knowingly perjured himself, why would he push to continue to investigate Ferguson for perjury knowing a transcript was required, a transcript that would contain the misleading evidence.
[ 132 ] The Crown attorney, in his submissions, put the question, how could someone who prepared the Crown brief, in which the author of the statement is clear, make this kind of mistake. I have already discussed the issue of mistake. It also seems to me that this submission points to a lack of intent to mislead. If the accused knew from his preparation of the brief that it clearly indicates Officer Hurley took the statement, why would he intentionally mislead the court knowing he would easily be caught in a lie on a detailed review of the brief?
[ 133 ] I accept that, in the moment, given his explanation, the accused believed he had taken the statement. In his mind, there was no other reason the original statement would be in his possession.
[ 134 ] The accused’s notebook does, in fact, record the gist of the facts as set out in the written statement. This supports his testimony that he, in fact, interviewed Ms. Ferguson.
[ 135 ] Inspector Mahlberg, when he testified, said that the accused’s intention might not have been to mislead but he felt the testimony was misleading. I agree with this. The evidence of Officer Sadler, the accused, was misleading but I find on the basis of his testimony that he made a mistake and that he did not intentionally offer the evidence as his, knowing it was that of Officer Hurley.
[ 136 ] The accused did not intend to mislead the court; he did not testify that he obtained a written statement from Ferguson knowing his testimony was false; and he did not breach any trust as a police officer.
[ 137 ] At the very least, there is a reasonable doubt in that regard.
[ 138 ] On the three counts, I find Rick Sadler not guilty and the charges against him are dismissed.
Bielby J.
Released: September 12, 2012
COURT FILE NO.: CR 11-307-000
DATE: 1012-09-12
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – RICK A. SADLER REASONS FOR JUDGMENT Bielby J.
Released: September12, 2012