ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-10-767-00
DATE: 20121019
B E T W E E N:
HER MAJESTY THE QUEEN
Paul Renwick
Respondent
- and -
OMAR BROOKS
Russell Silverstein
Appellant
REASONS FOR JUDGMENT
Justice M.H. Tulloch
[ 1 ] Mr. Omar Brooks stands charged:
That he, on or about the 22nd day of January, 2007, at the City of Brampton, in the Central West Region, did commit perjury at the preliminary hearing in the Ontario Court of Justice, at 7755 Hurontario Street, Brampton between Etienne Martin and the Queen by swearing falsely and with intent to mislead the court that he did suffer from a medical condition which affected his memory and that he was being treated for said condition by medical doctors, contrary to section 131 of the Criminal Code of Canada .
[ 2 ] Mr. Brooks re-elected to be tried by a judge of the Superior Court without a jury, and pleaded not guilty before me, and his trial commenced in April 2012.
[ 3 ] During the proceedings Mr. Brooks brought a Charter application to exclude certain evidence, which I dismissed with reasons to follow. I released those reasons today.
[ 4 ] The trial unfolded in a most efficient and orderly fashion – and I thank counsel for their very able and professional conduct in that regard. Agreed statements of fact and transcripts were filed, and I heard from two witnesses. Mr. Brooks elected to call no evidence and I heard final submissions.
Background
[ 5 ] Etienne Martin was charged with and has since been convicted of the murder of Lamar Philip, which occurred on July 13, 2005. Mr. Brooks was a friend of Mr. Philip and Mr. Martin. In the proceeding against Mr. Martin for murder, Mr. Brooks testified at the preliminary inquiry, on January 22, 2007, while he was in custody on other unrelated charges of his own, and at the trial, on March 12 & 13, 2008, under subpoena.
[ 6 ] In the proceedings before me two agreed statements of fact were filed, essentially conceding that Mr. Brooks gave evidence in the Etienne Martin proceeding on those two occasions, that he testified under oath or affirmation, and that the transcripts filed in this proceeding are a true and accurate record of that testimony.
[ 7 ] Although I have reviewed and considered the entire transcripts filed in this proceeding from the preliminary inquiry and trial of Etienne Martin, the following is a summary of the relevant testimony as it relates to this trial. I may make further references to parts of that evidence in the course of my judgment.
[ 8 ] At the preliminary inquiry of Etienne Martin, Mr. Brooks claimed to have a poor memory of the events surrounding the murder of Lamar Philip, and the statements he apparently gave to the police. When asked directly about whether he remembered some things about July 13, 2005, he replied “slightly”. When asked directly whether there was some reason that he was struggling with his memory, he replied, “Yeah, I was in the hospital.” He could not remember exactly when he was at the hospital. When asked further why he was at the hospital, he replied “Not enough oxygen to the brain.” When asked what cut off the oxygen to his brain, he indicated, “Smoking too much.” When asked what, he replied, “Weed.” He then indicated he had no recollection of giving a statement to the police, or about talking to Mr. Martin about Lamar Philip’s death. When further questioned, “So how is it that this lack of oxygen to your brain has affected your memory,” he replied, “’Cause it’s smoking weed.” He indicated he smoked a lot of weed and smoked it every day. Mr. Brooks was then given an opportunity to speak to a lawyer.
[ 9 ] Although he did not speak to his own lawyer, Mr. Brooks spoke to a duty counsel. Upon resuming, the Crown continued to question Mr. Brooks in-chief. Mr. Brooks continued to indicate that he could not “really remember that day.” He was given an opportunity to review portions of a transcript purported to be of a video statement he gave to the police on July 16th, 2005. He denied it assisted in refreshing his memory, but indicated that he would not have lied to the police about details from the statement, and said “If I said that, then it was the truth.” He did not recall how many times he had talked to the police. He was shown another transcript dated July 28th, 2005. Mr. Brooks similarly indicated that this transcript did not assist his memory.
[ 10 ] Mr. Brooks agreed that he had told the police about his memory problems on a previous occasion he had been to court, on December 22, 2006. Mr. Brooks denied being afraid about testifying. He also indicated he could not remember a meeting he had with the Crown and a police officer in March, 2006. He was then asked about what doctors were treating him for his memory loss. He indicated the name of his family physician, and that the doctors he had seen at the hospital. He was then asked, “So do you expect that if we talk to these doctors they’re going to tell us that you can’t remember anything because you smoked too much weed?” Mr. Brooks replied, “Yeah.” The Crown then asked, “You think that’s what’s going to happen?” Mr. Brooks replied, “I know that’s going to happen.”
[ 11 ] Mr. Brooks then specifically denied remembering that he told the police that Mr. Martin had told him that he had stabbed Lamar Philip. However, he indicated that if he had told the police that, he was telling the truth. Under cross-examination by Mr. Martin’s counsel, Mr. Brooks reiterated that he had no recollection of telling the police this, but he did admit to generally remembering talking to the police, and once again he said he would not lie to the police.
[ 12 ] At the trial of Etienne Martin, almost 14 months later, Mr. Brooks was called again as a witness. I summarized much of the relevant evidence from that proceeding in my reasons on the Charter application, and I incorporate that summary into these reasons insofar as it becomes relevant to my judgment.
[ 13 ] I pause here for a moment to note that Mr. Brooks is charged with committing perjury in the preliminary inquiry held in the Etienne Martin matter, and not in the trial. I also note parenthetically that the Crown had originally charged two counts in the indictment, the second being a perjury charge relating to the trial. However, the Crown did not proceed on that charge.
[ 14 ] In accordance with my reasons in the Charter application in this matter, and in accordance with the authorities reviewed by Justice Wein in R. v. R.D. , (2004) 2004 66303 (ON SC) , 182 C.C.C. (3d) 545, and Justice Code in R. v. Wilson , (2011) 2011 BCCA 252 () , 272 C.C.C. (3d) 269, I have considered the trial testimony insofar as it may qualify any of the testimony from the preliminary inquiry, or provide further relevant evidence to the matrix of facts, relevant to the alleged perjury at the preliminary inquiry.
[ 15 ] Having said that, to continue, in the proceedings before me, on April 10, 2012, two witnesses were called by the Crown: Dr. Saeedi-Tabar and Dr. Robarts. Dr. Saeedi-Tabar was Mr. Brooks’ family physician, and saw him on October 30 th , 2006. Dr. Robarts is an emergency room doctor at Credit Valley Hospital, and he saw Mr. Brooks there later the same week, on November 2 nd , 2006, approximately 12 weeks before he testified at the preliminary inquiry. They both testified about Mr. Brooks’ health complaints, and what diagnoses they made and what treatments they prescribed. Neither made note of any complaint of memory loss issues. Under cross-examination, Dr Saeedi-Tabar agreed: that Mr. Brooks’ heavy marijuana use contributed to his respiratory symptoms; that generally it is a well-recognized phenomenon in medicine that heavy use of marijuana can effect memory; and in extreme cases of shortness of breath and bronchial spasm there can be some compromise of oxygen in the lungs and there can be light-headedness associated with that. Under cross-examination, Dr. Robarts agreed that it appeared that since seeing his family physician Mr. Brooks had been to the Trillium Medical Centre, where he had a chest x-ray done, and was given other instructions from doctors there. I did not hear or receive any direct evidence of what transpired at the Trillium Medical Centre.
The Position of the Parties
[ 16 ] Both parties confirmed that the sum total of the evidence before me in this matter is: the preliminary inquiry and trial transcripts of Mr. Brooks’ testimony in the Etienne Martin matter, the two agreed statements of facts, and the testimony of Dr. Saeedi-Tabar and Dr. Robarts on April 10, 2012, of which I also received a transcript.
[ 17 ] Crown counsel filed written submissions as an aide to his presentation, and then made oral submissions.
[ 18 ] As an overview, the Crown submits that Mr. Brooks’ testimony from the trial and preliminary inquiry provide sufficient circumstantial evidence of guilt on all the elements of perjury. Justice Code, in Wilson at paragraph 10 reviewed Canadian appellate caselaw that confirms there is no corroboration required (pursuant to s. 133 of the Criminal Code ) in a perjury prosecution in which the accused gave inconsistent testimony. Nevertheless, Drs. Saeedi-Tabar and Robarts corroborate each other, and contradict Mr. Brooks’ testimony.
[ 19 ] The crown submits that the elements of perjury that need to be proven are: falsity, knowledge of falsity, and the intent to mislead.
[ 20 ] The Crown submits it is clear from the evidence that Mr. Brooks did not want to be involved with the investigation and in answering certain questions while testifying. His explanation for memory loss is all a subterfuge to mask his desire to not answer questions. At the preliminary inquiry, Mr. Brooks knew the Crown did not have his medical records because he had refused to consent to allow police to have his medical records. With that knowledge, and with a great deal of conviction and certainty, the Crown argues, Mr. Brooks indicated that the doctors he had seen would corroborate that he has memory loss from smoking to much weed and not getting enough oxygen to his brain.
[ 21 ] The Crown also argues that Mr. Brooks contradicted himself. At the preliminary inquiry he did not deny what he had said to the police, but claimed that he did not remember that he told police that Etienn Martin told him that he had stabbed Lamar Philip. However, he testified, if he had told the police that, he would not have lied. On the other hand, at the trial, Mr. Brooks denied telling the police this, and indicated that if he had said this it was a lie, because at the trial he knows the Crown who is cross-examining him has his medical records. This contradiction is evidence of the falsity of and his knowledge of the falsity of his preliminary inquiry evidence.
[ 22 ] The Crown also argues that it is clear from all the evidence that Mr. Brooks must have actually known that: he didn’t complain to any of his doctors about any memory loss, he was not diagnosed with any lack of oxygen to the brain, and he was not told anything about memory loss by the doctors.
[ 23 ] With respect to the elements of the offence, the Crown submits that there are two particulars that the Crown has to prove: that Mr. Brooks “did suffer from a medical condition which affected his memory” and “that he was being treated for said condition by medical doctors.”
[ 24 ] The Crown submits that from the evidence at preliminary inquiry and trial, and from the doctors who testified in this proceeding, it is clear that Mr. Brooks never sought treatment for memory loss and he did not have a condition causing memory loss.
[ 25 ] With respect to the knowledge that his statements were false, the Crown submits, the evidence shows that Mr. Brooks knew that he had not asked the doctors about memory loss; he admits that at the trial.
[ 26 ] With respect to his intention to mislead, the Crown submits that there are several instances in the testimony Mr. Brooks gave that clearly reflect his desire not to be involved in the investigation, and his desire not to answer questions.
[ 27 ] The Crown further argues that the inconsistency in the two accounts Mr. Brooks gave at the preliminary inquiry and the trial establishes the falsity and the knowledge of the falsity elements – corroboration is not required. Nevertheless, the doctors’ evidence is direct evidence of the state of Mr. Brooks’ medical condition, and also corroborative evidence of Mr. Brooks’ knowledge that he did not have the medical condition he claimed.
[ 28 ] The Crown also notes, that the Wilson case, at para. 36 holds that the third element of perjury, the intent to mislead, can be inferred from proof of the other two elements, falsity and knowledge of falsity, in some cases. The Crown also notes that in R. v. Wolf , 1974 161 (SCC) , [1975] 2 S.C.R. 107, the Supreme Court of Canada held that perjury is not only proven by positive falsities, like telling a specific lie, but also falsities in a negative sense, like the feigning of memory loss. The Supreme Court pointed out that if it were otherwise, the offence of perjury “would be toothless.”
[ 29 ] Turning to the evidence; in reviewing the evidence of the doctors, the Crown stresses that Dr. Saeedi-Tabar considered memory loss to be a serious complaint that he would write down.
[ 30 ] The Crown makes many references to specific parts of the testimony and argues the interpretations and implications the excerpts have in relation to the elements of the offence.
[ 31 ] The Crown argues that Mr. Brooks’ first indication that he was at the hospital was the beginning of the subterfuge. When he claimed to not have had enough oxygen to his brain – this is the explanation of why he is at the hospital. Later there is direct testimony confirming that he is aware that the police did not have his medical records. The key, the Crown argues, to Mr. Brooks’ perjury at the preliminary inquiry occurs in the following questions he was asked and the answers he gave:
Q. So prior to getting arrested last Wednesday or Thursday, what doctors were treating you for your memory loss?
A. Well, I was seen my, my, my home doctor, Dr. Saeedi.
Q. Have you seen any other doctors about your memory loss?
A. Yeah, the ones at the hospital. [ CONT’D …]
Q. What are their names?
A. I don't know their name.
Q. So do you expect that if we talk to these doctors they're going to tell us that you can't remember anything because you smoked too much weed?
A. Yeah.
Q. You think that's what's going to happen?
A. I know that's going to happen
[ 32 ] The Crown then similarly refers to many excerpts from the trial testimony, and argues what inferences may be drawn from them. At the trial, the Crown argues, Mr. Brooks admits he did not talk to his doctors about loss of memory, contradicting his preliminary inquiry position. Mr. Brooks clearly indicates his reluctance to be involved in the investigation, which, the Crown argues, is evidence of his intent to mislead. Mr. Brooks’ testimony about when he stopped smoking weed, and how this enabled him to regain his memory is ludicrous, argues the Crown, but is also evidence of his knowledge of the falsity of his earlier claims at the preliminary inquiry and his intent to mislead. The Crown points out that only later in his testimony, Mr. Brooks indicates that he only assumes that the memory loss was a lack of oxygen in his brain, and that no doctor had told him that. And then later, he acknowledges that he knows bronchitis does not cause memory loss.
[ 33 ] While the Crown pointed out these key portions of the transcript, the Crown also submits that I should review the whole context of the testimony to come to a clear view of the matter.
[ 34 ] The Crown submits that there are significant differences between the preliminary inquiry and trial testimony and the only logical inference is that the preliminary inquiry testimony is false, particularly about seeking treatment. The Crown argues that at the trial Mr. Brooks knew what he said at the prelim was not going to fly, so he had to come up with something that had more of a ring of truth about what he said at the prelim. The only inference to draw from this is that Mr. Brooks knew what he said at the prelim was false. The Crown also argues that the shifting of Mr. Brooks’ position shows that he is tailoring his evidence to make his previous lies make sense. By the end of the trial transcript Mr. Brooks simply “lost the plot … amidst this web of lies that he has tried to construct.” [12:29:19-31]
[ 35 ] With respect to the intent to mislead, the Crown relies upon circumstantial evidence based on all of the context of his testimony, but stresses the absolute certainty of Mr. Brooks’ story that the doctors are going to come and back him up.
[ 36 ] There was a break in the preliminary inquiry when Mr. Brooks was given an opportunity to speak to a lawyer, and the Crown asks me to draw an inference from that sequence of events, and the persistence of Mr. Brooks claim to have a memory loss and a medical condition, that Mr. Brooks had a deliberate intent to mislead the court.
[ 37 ] Finally, the Crown concluded:
It’s all a flimsy house of cards, it comes crashing down around Mr Brooks and as it does he’s vainly trying to hold them up by making up new lies. But it’s clear that at the prelim this first story, I have no memory and I went to get treatment by doctors – his conveying of the position is not: I had a loss in memory I went to the doctor, its I went to the doctor because I had a memory loss, I smoked weed. The only inference to draw from that is he’s starting right out knowing that he’s going to tell a tall tale, he’s got to back it up, he knows the crown can’t go out and say anything against him that day, and that’s where he starts with this air of conviction, certainty and defiance. In all of the circumstances he’s guilty of count number one.
[12:34:01-12:35:01]
[ 38 ] Counsel for Mr. Brooks makes the following submissions:
The Crown drafts the indictment and set out for itself what it must prove. In this case the Crown has chosen not to charge the offence of giving inconsistent evidence under oath, nor to allege perjury with respect to any specific portions of the testimony. Rather, the Crown chose, in this case, to charge Mr. Brooks with perjury by testifying that, (1) he did suffer from a medical condition which affected his memory and (2) that he was being treated for said condition by medical doctors. The Crown must prove both of these branches of the indictment, and a failure to prove either should result in an acquittal.
[ 39 ] Moreover, to prove both of these branches of the indictment, the Crown must prove beyond a reasonable doubt all of the following:
(1) That Mr. Brooks testified that he suffered from a medical condition that affected his memory;
(2) That Mr. Brooks did not suffer from any medical condition that affected his memory;
(3) That Mr. Brooks knew that he did not suffer from any medical condition that affected his memory, and that when he testified about this, he was purposefully misleading the court;
(4) That he testified that he was being treated for “said condition” by medical doctors;
(5) That he was not being treated by any medical doctors for “said condition”; and
(6) That Mr. Brooks knew he was not being treated by any doctors for “said condition”, and when he testified about this he was purposefully misleading the court.
[ 40 ] Failure of the Crown to prove any one of these six facts beyond a reasonable doubt must lead to an acquittal.
[ 41 ] The indictment in this case is vague – especially with respect to the term “medical condition”, as well as with the term “said condition”. The Crown is stuck with this vagueness.
[ 42 ] Mr. Brooks’ testimony at the trial can only serve as circumstantial evidence of the state of mind of Mr. Brooks, at the time he gave his testimony months earlier at the preliminary inquiry. That evidence can also serve to exculpate the accused.
[ 43 ] Mr. Brooks’ testimony at the preliminary inquiry was essentially to the effect that he lost his memory from smoking too much marijuana. And indeed, Dr. Saeedi-Tabar testified that memory loss from smoking too much marijuana is a recognized medical phenomenon.
[ 44 ] The Crown has certainly failed to prove that Mr. Brooks has suffered from some memory loss from smoking marijuana, which is a recognized medical phenomenon. The testimony of the doctors in this case actually corroborated that Mr. Brooks was a heavy user of marijuana. And Mr. Brooks testified he could not remember from smoking too much weed. So the evidence actually supports the view that Mr. Brooks did in fact suffer from a medical condition that affected his memory. At the very least the Crown has not proven otherwise beyond a reasonable doubt. Failure to prove this ends the case.
[ 45 ] Failure to complain to the doctors of his memory loss does not prove that he did not suffer from memory loss. At the time he was seeking medical attention for a breathing or lung problem.
[ 46 ] Mr. Brooks’ interpretation of how marijuana may affect memory, although perhaps naïve, was not an unreasonable lay interpretation of that phenomenon. The evidence reasonably reflects his misunderstanding of the mechanism by which marijuana affects memory loss. In the context of the entire record, he appears to be sufficiently lacking in knowledge of the effect of marijuana such that it cannot be said beyond a reasonable doubt that Mr. Brooks did not believe marijuana and a lack of oxygen was causing his memory loss.
[ 47 ] Mr. Brooks’ trial testimony is actually quite consistent and it essentially conveys that before the preliminary inquiry Mr. Brooks went to the hospital because he was smoking a lot of marijuana and he was coughing and had trouble breathing. Then at the preliminary inquiry when he was having memory problems, he attributed that to his health problems with his breathing and lungs, which were contributed to by smoking marijuana. He believed, but was not told, that it had to do with not getting enough oxygen to his brain. He did not go to the doctor or the hospitals for a memory problem. But when he testified and could not remember he attributed his memory loss to his earlier health problems brought on, from his point of view, by his marijuana use.
[ 48 ] Going back to the preliminary inquiry, Mr. Brooks testimony is not significantly different, until the Crown asks him, and he answers:
Q. So prior to getting arrested last Wednesday or Thursday, what doctors were treating you for your memory loss?
A. Well, I was seen my, my, my home doctor, Dr. Saeedi.
[ 49 ] That is the only place where it is suggested that Mr. Brooks testified that his medical was a loss of memory. His response cannot be interpreted as accepting that he went to the doctor because had a problem with loss of memory.
[ 50 ] In response to the Crown’s submission that Mr. Brooks was reluctant to cooperate with the police investigation, his counsel submits that Mr. Brooks, like any of us, has a right to not want to cooperate with any police investigation. Related to this, there was also no evidence of motive for him to want to mislead the court. While he was a friend of the accused, he was also a friend of the victim.
[ 51 ] Counsel for Mr. Brooks makes further submissions with respect to the second branch of the indictment, especially in relation to the ambiguity of the phrase “said condition”. He submits that the manner in which this indictment is framed, it is grammatically impossible for the Crown to prove both branches of this count.
[ 52 ] Finally, counsel submits that even if I come to the general conclusion that Mr. Brooks was testifying reluctantly, and had the intent to mislead the court, I must nonetheless, ask myself whether the Crown has proved beyond a reasonable doubt the offence as specifically framed.
[ 53 ] Counsel for Mr. Brooks conveniently summarized his submissions as follows:
[ 54 ] With respect to the first branch of the indictment, yes indeed Mr. Brooks did testify that he suffered from a medical condition that affected his memory. However, the Crown must also prove that he did not suffer from any medical condition that affected his memory, and the Crown has failed to do that. Mr. Brooks was also not purposefully intending to mislead the court with respect to this issue. With respect to the second branch of the indictment, Mr. Brooks never said he was “being treated”. The phrase, “said condition” is ambiguous, and he was in fact being treated for a medical condition. Finally, the doubt is magnified by the fact that there is no direct evidence with respect to the Trillium Medical Centre.
[ 55 ] In reply, counsel for the Crown submitted that there was another albeit brief part of Mr. Brooks’ testimony, at the trial, that could be viewed as Mr. Brooks accepting that he went to the doctor for a loss of memory. Also, that there was some evidence from Mr. Brooks about the treatment he received at Trillium. And finally that the indictment is not grammatically ambiguous as counsel for Mr. Brooks suggests.
Analysis
[ 56 ] As I said earlier, the parties are agreed that the sum total of the evidence before me in this matter is: the transcripts of Mr. Brooks’ testimony from the preliminary inquiry and the trial in the Etienne Martin matter, the agreed statements of fact filed in this matter, and the transcript from April 10th in this proceeding, of the evidence of Dr. Saeedi-Tabar and Dr. Robarts. I have reviewed all of this evidence, with particular attention to what Mr. Brooks has said in the entire Etienne Martin proceeding.
[ 57 ] A number of things do not appear to be in dispute. Mr Brooks was friends with both Mr. Martin and Mr. Philip. He lived at the building where Mr. Philip was murdered. Mr. Brooks was questioned as part of the investigation into that murder. The police apparently recorded at least part of what Mr. Brooks told them and transcripts of those recordings were produced. It was the position of the Crown in the Etienne Martin murder proceeding that Mr. Brooks made further statements to the police that were not recorded.
[ 58 ] There is no dispute that Mr. Brooks testified at the preliminary inquiry and the trial of Etienne Martin, and that the transcripts filed in this proceeding are a true and accurate record of his testimony in that proceeding. There is also no dispute that, some 12 weeks prior to testifying at the preliminary inquiry, Mr. Brooks had some health problems that included various symptoms including lung congestion, coughing, and shortness of breath. It was serious enough that he attended his family doctor, and two hospitals in the course of a week, and had a chest x-ray at one of them. Ultimately, it appears he was diagnosed with bronchitis and recovered. Significantly, Dr. Robarts confirmed from the personal history he obtained from Mr. Brooks that he was a heavy marijuana user, smoking some 10 joints each day. Under cross-examination, Dr. Saeedi-Tabar also confirmed that memory loss is associated with heavy marijuana use.
[ 59 ] The transcripts speak for themselves in the specifics, but in the course of my determination I must infer what is being communicated, and the intentions that underlie what is being communicated.
[ 60 ] It appears both Crown and defence are agreed on the general elements of perjury. It includes the making of a false statement under oath or affirmation, knowing it was false and having the specific intention to mislead the court. Both Crown and defence also appear to be agreed that both branches of the indictment, as framed by the Crown, must be proven beyond a reasonable doubt. Counsel for Mr. Brooks purports to apply the elements of perjury to each of the branches of the indictment as drafted by the Crown, which then creates in his view at least six individual elements the Crown must prove. I am not so certain that this is the proper construction of the elements in a case such as this. However, I agree that the Crown has framed its indictment relatively specifically in this case, and at the same time somewhat ambiguously.
[ 61 ] The way I interpret the indictment, at least one of the elements the Crown must prove beyond a reasonable doubt is that Mr. Brooks did not believe he was suffering from a medical condition that affected his memory.
[ 62 ] Incidentally, in this regard, having reviewed the transcripts in great detail and also from a broad perspective, I can say that I do not believe Mr. Brooks ever meant to imply that he had gone to see his doctor or to the hospital because he had a loss of memory. In the very few instances where the words might imply that, in the broader context of those words, and particularly how the questions that were being put to him were asked, I believe he did not mean that. Indeed, when questioned most extensively at the trial of Etienne Martin, he made it quite clear that was not his motivation for seeking medical attention. On the other hand, I have grave doubts that he actually had a loss of memory, at least as extensively as he purported. I am most persuaded of this because of the number of suggestions he denied from the Crown, and the number of suggestions he agreed to when made by Mr. Martin’s lawyer. Whether he was biased is not the issue. Whether he actually feigned his loss of memory is also not the issue, as he was not charged with perjury with respect to that. He is charged with lying that he had a medical condition that affected his memory and that he was being treated for said condition by medical doctors.
[ 63 ] I return to whether Mr. Brooks did not believe he had a medical condition that affected his memory. I note first that I believe while giving the many answers he gave, and having regard to the manner and context in which he gave them, that he did not have a coherent plan in explaining his loss of memory. It seems to me that he did not expect to be asked why he could not remember things, nor that he would be asked to give further explanations about that. It appears, although his first answer as to why he could not remember things related to his being recently sick and to a hospital, whereas on balance he placed more emphasis on the fact that he was a heavy marijuana user. It then appears as though those two issues were related, both in his mind and circumstantially as regard to his treatment, as it appeared significant to both the doctors I heard from that Mr. Brooks was a marijuana smoker, one of whom agreed that heavy use affects memory. While I am certainly not convinced that Mr. Brooks actually had a medical condition that affected his memory, I do have a reasonable doubt that he did not believe he had one. The Crown has failed to prove in all the circumstances this essential element of the offence as framed in their indictment. Having so found it is unnecessary for me to address the other arguments posed by counsel for Mr. Brooks.
[ 64 ] Before I finish I might say that Mr. Brooks was quite obviously a reluctant witness in this matter. He resisted answering many questions when I suspect there were very good grounds to believe he could answer. I would go so far as to say I think he was probably feigning his loss of memory. It is a sad reflection on our society and Mr. Brooks’ place in it when someone such as him cares not to make every effort to assist the courts in finding the truth and doing justice, especially in the murder of another human being.
[ 65 ] For all these reasons, the charge is dismissed.
Justice M.H. Tulloch
Released: October 19, 2012