Her Majesty The Queen v. Jeremie Naidoo

Court File No.: CR-15-40000229-0000 Date: 2017-03-03 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – JEREMIE NAIDOO

Counsel: J. Andres Hannah-Suarez, for the Crown Deryk Gravesande, for Mr. Naidoo

Heard: January 23-27, 2017

Reasons for Judgment

A.J. O’Marra J.

Introduction and Background

1Mr. Jeremie Naidoo is charged with two counts of attempting to obstruct justice, contrary to s. 139 (2) and one count of committing a breach of trust in connection with the duties of his office, contrary to s. 122 of the Criminal Code.

2Jeremie Naidoo, a court clerk in the employ of the Ministry of the Attorney General at the Ontario Court of Justice in Scarborough, Ontario on Friday November 16, 2012 was charged with impaired driving and having over .08 milligrams of alcohol in his blood while operating a motor vehicle. He was released on a promise to appear in the same courthouse in which he worked.

3Ms. Cindy Woodcock, now deceased, at the time worked in the same courthouse as a court services representative. She worked in the administrative offices and her main responsibility was to receive the sworn informations, which set out an accused’s charges, from police officers and enter them into the provincial data base tracking system, known as the Integrated Court Offences Network, (ICON). The system generates court dockets and tracks the informations through the judicial process.

4It is alleged that Mr. Naidoo approached Ms. Woodcock at her desk on Tuesday, November 20, 2012 where he told her he had been charged with drinking and driving offences the previous Friday and asked her not to enter the information relating to his charges into ICON when given to her by the police officer. Further, he told her he had spoken earlier with a senior Assistant Crown Attorney, Tom Pittman, who would be dealing with the matter.

5Ms. Woodcock reported Mr. Naidoo’s request of her to her Group Leader, Mr. Peter Deligioridis, who took her to speak with Mr. Kyle Bichan, their Court Operations Manager. After he was told about Mr. Naidoo’s request, he in turn notified Ms. Rosa Martelli, Senior Manager of Court Operations, his supervisor. Ms. Martelli, also now deceased, arranged an interview with Mr. Naidoo and his union representative referred to as an “allegation meeting” for November 23, 2012.

6Mr. Bichan testified after he reported the matter to Ms. Martelli he received from her a form entitled “Allegation Meeting Framework” that set out Ms. Martelli’s outline of the allegations, which were to be read to Mr. Naidoo at the start of the meeting and an open portion in which he recorded the questions and answers given during the interview.

7The notes of the meeting read in part as follows:

Question: Jeremie, the Ministry is conducting an investigation into allegations regarding your conduct on November 20, 2012 when you allegedly approached your colleague and informed her that you were criminally charged with “refusal to provide a breath sample” and requested your colleague upon receipt of the criminal information to not enter the information into the Integrated Court Offences Network (ICON) as the information has not been filed with the courthouse. … Did you approach C. Woodcock on November 20, 2012 at approximately 5:00 p.m. and advised her of an infraction you received on the previous Friday night?

Answer: I told Cindy what happened. It’s being dealt with by a senior Crown. On advice of the senior Crown, I did not tell management. The Crown is a possible witness.

Question: Did you advise Cindy Woodcock that you spent the previous Friday being the 16th of November in detention at 41 Division after being pulled over for drinking?

Answer: I did. I told Cindy what happened to me, as a friend. I don’t know why this was brought to management’s attention. I should have a lawyer present.

Question: Do you want to stop the meeting? Answer: No go ahead.

Question: Did you advise Cindy Woodcock not to enter the information on ICON when she received it?

Answer: I did not. I have nothing to do with infos. I only told Cindy what happened to me as a friend.

Question: Did you also speak to Mr. Pittman, a Crown at Scarborough about this and if so what did you ask him and what did he say? Did he advise you that he would be taking care of it after speaking to the officers at 41 Division?

Answer: I told him what happened because he was with me that night. I just let him know what happened to me, confidentially as a friend.”

8Just before the first meeting Mr. Bichan was informed by Mr. Deligioridis that Mr. Naidoo had earlier that morning approached Ms. Woodcock a second time. Because Ms. Martelli had arrived late for the meeting he advised her of the second approach after the November 23 meeting had completed.

9When Ms. Martelli learned of the second request of Ms. Woodcock not enter the information into ICON, a follow-up interview was conducted on November 28, 2012. Again, Ms. Martelli conducted the interview, in which Mr. Naidoo was with his union representative and Mr. Bichan recorded the question and answer portion of the interview. which read in part as follows:

Question: Jeremie, the Ministry is conducting an investigation previously advised in our allegations meeting of November 23, 2012, into allegations regarding your conduct on November 20, 2012 when you allegedly approached your colleague and informed her that you were going to be criminally charged with “refusal to provide a breath sample” and requested your colleague upon receipt of the criminal information to not enter the information into the Integrated Court Offences Network (ICON) as the information has not yet been filed with the courthouse. Subsequent to that meeting we later became aware of another incident whereby you further approached your colleague on November 23rd once again and requested her not to enter any information into the Integrated Court Offences Network ICON system once she received the criminal information from police and instead to seal it in an envelope for your attention. The purpose of today’s meeting is to give you an opportunity to respond to this further allegation made against you. …

Did you approach Cindy Woodcock on November 23, 2012 for a second time and again requested her to not enter any information into the Integrated Court Offences Network (ICON) once she received the criminal information from the police and instead to seal it in an envelope for your attention?

Answer: No, I did not. I left the building with Myra after our meeting.

Kyle: This allegation occurred prior to the meeting.

Jeremie: No. It’s common sense. Why would I do it again, allegedly? I did not speak to anyone about this because I was frustrated with the situation.”

The Evidence

10Ms. Cindy Woodcock died August 17, 2015 after she testified at the preliminary inquiry in this matter. Her transcripted testimony, given April 1, 2015 was admitted into evidence pursuant to s. 715 of the Criminal Code. In substance, her evidence was that after she arrived for work on November 20, 2012:

Mr. Naidoo came to me probably 15, 20 minutes after I got in and sat down beside me and very quietly said that there had been an incident on Friday and he had been charged and that when the information comes to me, not to enter it in the system. That he had already spoken with Mr. Pittman and Mr. Pittman would deal with it. … and I said to him “Are you serious? Like really serious” and I went about my work. …

Question: With regards to what he said about not entering it into the system?

Answer: He said when the information comes to you don’t put it into the system. Just put it in an envelope and take it to Mr. Pittman… “Go to speak to Tom Pittman”.

11Further, she testified that on the Thursday of that week he approached her again and asked if the information had come in, to which she said “No”. “He said that when it comes in you’re still going to give it to Tom Pittman… just put it in an envelope when it does come in and then give it to Tom”. She said her response was “This is ridiculous” and walked away from him.

12Ms. Woodcock provided a written description of the two incidents as well. Although there was an opportunity to cross-examine Ms. Woodcock at the preliminary inquiry, defence counsel, not Mr. Gravesande, made no reference to her earlier written statements. As the Crown’s principal witness was unavailable to be cross-examined on the trial counsel for Mr. Naidoo was permitted the opportunity to reference any inconsistencies as between those brief written statements and Ms. Woodcock’s sworn testimony at the preliminary inquiry in argument for the court to consider in assessing her credibility and reliability.

13On Thursday, November 22, 2012 she wrote the following as to the first instance of November 20, 2012:

During the day on Tuesday, I had been approached throughout the day by about half a dozen co-workers in the building asking me if it was true what they had heard about Jeremie Naidoo. At about 5:00 p.m. on Tuesday evening Jeremie came and sat beside me at my desk. There were no other co-workers around. He started a conversation by saying that he had spent the previous Friday night in jail at 41 Division after being pulled over for drinking. He told me that if/when I received the new information from the warrant officers to not enter it into ICON. He also told me he had spoken to the Crown Mr. Pittman and that Mr. Pittman would be “taking care of it” as he was trying to get in touch with the officers at 41 Division. I responded by saying “What are you? An idiot?”

14On Friday, November 23, 2012, she wrote as to the next encounter:

This is a follow-up to the original letter I gave to Kyle Bichan. I was approached again this morning by Jeremie, and he repeated when the information comes to my desk just put it in an envelope and do not enter it into ICON that Mr. Pittman will be dealing with it.

15Mr. Tom Pittman, a senior Assistant Crown Attorney in the Scarborough Crown Attorney’s office testified that he knew Mr. Naidoo not as a friend but only as a court clerk that worked in the same courthouse he worked and with whom he spoke to from time to time in the courthouse.

16He had seen him outside the courthouse the Friday before in a nearby bar after work. Mr. Pittman and a number of colleagues from the Crown’s office went to the bar to have a few drinks with a colleague who had worked his last day in their office. He noted that there were other court staff in the same bar celebrating something else which included Mr. Naidoo. He interacted briefly with Mr. Naidoo only insofar as he had been asked to sit and have a drink with another court officer he knew and with whom Mr. Naidoo was sitting. That was his last contact with Mr. Naidoo until the following Monday morning.

17On Monday, November 19, 2012, sometime between 9:00 and 10:00 a.m. Mr. Naidoo came to his office where he advised Mr. Pittman he had been arrested and charged with impaired driving. Mr. Naidoo asked him if he could help him. He told Mr. Naidoo that when he got disclosure he could come back to him and he would recommend a defence counsel. He did not offer him any more assistance than that. Mr. Naidoo said “thank you” and then left.

18He testified that at no time did he suggest to Mr. Naidoo that the information relating to his charges be brought to him or tell him to not tell management about being charged, contrary to Mr. Naidoo’s assertion in his interview with Ms. Martelli.

19The next day Mr. Naidoo came to speak with him again and asked whether the police could keep his car impounded for seven days. Mr. Pittman said he did not know the answer. He would look into it because he believed the law had changed. He had no further interaction with Mr. Naidoo thereafter.

20He testified that Mr. Naidoo had not asked him to help him have the case disappear and if he had he would have “corrected him immediately”, likely with profane language. His offer of help was to review the disclosure and recommend a defence counsel to assist him.

21Mr. Pittman was asked about the consequences of an information not being before the court at the accused’s first appearance date. He indicated that without the consent of the accused to permit the court to rely on a copy of the information in the Crown’s brief, the court would lose jurisdiction and a new information would be required with additional process to regain jurisdiction.

22Defence counsel argued that there are a number of inconsistencies in the evidence of Cindy Woodcock given at the preliminary inquiry and her written statements that undermine her credibility and reliability as a witness, which in totality should raise a reasonable doubt as to the alleged request.

23As to the inconsistencies, counsel submits that in Mr. Deligioridis’ evidence Ms. Woodcock only told him of being approached by Mr. Naidoo and being asked not to enter the information into ICON. He was not told that Mr. Naidoo had told her to put the information in an envelope to the attention of Mr. Pittman or that Pittman would speak to officers at 41 Division as set out in the allegation form read by Ms. Martelli.

24In my view, it is clear that Ms. Woodcock advised Mr. Deligioridis the important information as it related to her function and the request made by Mr. Naidoo for her not to enter the information into ICON.

25Counsel submitted there is an inconsistency as to whether Ms. Woodcock first told Mr. Deligioridis about the accused’s request inside or outside of the building before the meeting with Kyle Bichan. At the preliminary Ms. Woodcock stated she met with Mr. Deligioridis outside the court while having a cigarette where she told him about Mr. Naidoo’s request. Mr. Deligioridis testified that his recollection was that she met him at his work station and not outside the courthouse. However, he did recall that after the meeting with Mr. Bichan that morning he went outside of the courthouse with Ms. Woodcock where she had a cigarette.

26In my view, this difference in recollection as to where Ms. Woodcock told Mr. Deligioridis is inconsequential with respect to the underlying information conveyed consistently by Ms. Woodcock to him and others that Mr. Naidoo had requested her not to enter the information into ICON.

27Similarly, as to whether he requested she put it in an envelope and take it to Mr. Pittman, or to put it aside and to give it to him is of no moment with respect to the main thrust of her evidence that he approached and asked her not to put the information into ICON. There is a consistency with respect to his asking her to not enter the information into the system and averting to Mr. Pittman’s involvement in the matter. Although he denies asking Ms. Woodcock to put the information aside in his interview with Ms. Martelli, he did acknowledge he had spoken with Mr. Pittman, which was confirmed by Mr. Pittman.

28Another inconsistency with her evidence given at the preliminary inquiry and her earlier written statement was she indicated Mr. Naidoo first approached her in the morning and she went thereafter to tell Mr. Deligioridis about it. Whereas, in her statement of November 22, 2012, she said he approached her about 5:00 p.m. on a Tuesday evening, made the request. She thought about what she should do overnight, then approached Mr. Deligioridis in the morning about what he asked of her. It is clearly an inconsistency, but not one that diminishes her credibility as to the substance of the alleged behaviour of Mr. Naidoo – asking her not to do her job, enter the information into ICON. Something she found disturbing. She is also consistent that she spoke with Mr. Deligioridis in the morning and afterwards met with Mr. Bichan.

29Contrary to Counsel’s suggestion, there was nothing in the evidence Ms. Woodcock bore any personal ill will or animus towards Mr. Naidoo. Indeed, Mr. Naidoo in his interview with Ms. Martelli stated that he told Cindy about being charged “as a friend”.

30I consider the totality of the inconsistencies or differences pointed out by defence counsel as relatively minor and insignificant and not sufficient to undermine the reliability or credibility of Ms. Woodcock’s evidence that Mr. Naidoo asked her to not enter the information into the ICON system, to put it aside or in an envelope and to give it to Tom Pittman.

The Applicable Law

31Section 122 of the Criminal Code sets out the offence of breach of trust by a public official:

122. Every official who, in connection with the duties of his office commits fraud or breach of trust is guilty of an indictable offence… Whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.

32In Regina v. Boulanger, 2006 SCC 32, [2006] 2 S.C.R. 49, McLachlin C.J. at para. 56 sets out the elements which must be proved beyond a reasonable doubt to establish the offence of breach of trust by a public officer:

1. The accused is an official;
2. The accused was acting in connection with the duties of his or her office;
3. The accused breached the standard of responsibility and conduct demanded of him or her by the nature of the office;
4. The conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and
5. The accused acted with the intention to use his or her public office for the purpose other than the public good, for example, for dishonest, partial, corrupt, or oppressive purpose.

33In Boulanger, the accused, a superior police officer asked a subordinate officer, who investigated a car accident involving Boulanger’s daughter to prepare a second more complete accident report. It led to the conclusion that his daughter was not at fault in the accident, which led to the accused not having to pay an insurance deductible. Because he had received a personal benefit he was charged with breach of public trust and on that basis convicted at trial. The Court of Appeal upheld the conviction, however, the Supreme Court reversed the conviction holding that the offence had not been made out. While he was a public official and he acted in connection with the duties of his office, he had not directed the falsification of the report or sought to mislead the insurance company, but rather to have a more complete report had been submitted. Even though he knew he would benefit from the report that alone did not establish beyond a reasonable doubt a culpable state of mind.

Analysis: Breach of Trust

34In this instance, Mr. Naidoo, a court clerk in the employ of the Ministry of the Attorney General, was a public official. As an in-court clerk he would necessarily handle informations for the matters on the court docket in the court to which he was assigned. However, he had no role in processing the sworn informations and entering them into the ICON system. That was Ms. Woodcock’s function. He was not her supervisor or any authority over her.

35The Crown argued that because of his position in the court he knew who to approach to suppress the information - to keep it out of court. However, that in itself does not establish a sufficient nexus with his duties as a public official. While he may well have breached a standard of employee conduct in asking Ms. Woodcock not to do her job, which she clearly declined to do in stating, “What are you? An idiot!” and reporting his request, he was not acting in connection “with the duties of his office”.

36In my view, in considering the second factor set out in Boulanger the Crown’s case falters with respect to Mr. Naidoo breaching the trust of his office. When he approached Ms. Woodcock and asked her to not enter the information relating to his charges into the ICON system he was not acting in connection with the duties of his office. It was Ms. Woodcock’s responsibility to enter information and he had no authority over her to direct her to withhold the input of the informations as part of her public office duties.

37Accepting for the purpose of the analysis that his actions were in connection to the duties of his office, did he have the requisite intent for breach of trust by a public officer? As noted in Boulanger at para. 56 the bar for mental culpability for the offence of public malfeasance is an “elevated one”.

Mistakes did not suffice. Nor did errors of judgment. To quote Abbott C.J. in Barron:

…the question has always been, not whether the act done might, upon full and mature investigation, be found strictly right, but from what motive it had proceeded; whether from the dishonest, oppressive, or corrupt motive, under which description, fear and favour may generally be included, or from mistake or error. In the former case, alone, they have become the objects of punishment. [pp. 721-22]

In principle, the mens rea of the offence lies in the intention to use one’s public office for purposes other than the benefit of the public. In practice, this has been associated historically with using one’s public office for a dishonest, partial, corrupt or oppressive purpose, each of which embodies the non-public purpose with which the offence is concerned.

38Mr. Naidoo’s request of Ms. Woodcock, which I accept as having occurred, and his denial of doing so when confronted by Ms. Martelli in my view, make it likely in my view he had a dishonest intent to have the information suppressed for his personal benefit. However, I am left in a state of reasonable doubt as to his intention for two reasons – he made no secret of having talked to Mr. Pittman both in speaking with Ms. Woodcock and during the allegation meeting with Ms. Martelli. When he did speak to Mr. Pittman he made no request of him to breach his ethical obligations as an officer of the court to help make it disappear.

39What would have been the expected personal benefit to Mr. Naidoo in having the information given to Tom Pittman who was no more than a courthouse acquaintance of Mr. Naidoo? I accept Mr. Pittman’s evidence that he would not have done anything to suppress it. He would not have breached the trust of his public office. The help he offered was to look at the disclosure when Mr. Naidoo had it and to recommend a lawyer to help him.

40In the result, I find the offence of breach of trust by a public official has not been proven beyond a reasonable doubt.

Analysis: Obstructing Justice

41The offence of obstructing justice is set out in s. 139(2) which states:

Everyone who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence…

42While I am satisfied that the actus reus of the offence has been established, Mr. Naidoo asking Ms. Woodcock twice not to enter the information into the system, the question here, as with the breach of trust offence - did Mr. Naidoo have the requisite intent to obstruct the course of justice? Even though I reject the evidence relied on by the accused, his denial as expressed in the allegation meeting, I must still be satisfied beyond a reasonable doubt on the evidence I do accept that he had the necessary intent.

43To prove this offence, the conduct attributed to the accused must be considered wilful. The requisite intention for this offence is that the accused wilfully attempted to obstruct, pervert or defeat the course of justice in a judicial proceeding.

44Without an information the court could lose jurisdiction. That in and of itself would not have prevented the matter from continuing, either with the consent of the accused or by process being reissued and proceeding on a new information. However, as noted in Regina v. Hearn (1989), 48 C.C.C. (3rd) 376 (Nfld. C.A.), aff’d. , [1989] 2 S.C.R. 1180 it does not matter that the attempt was unsuccessful, or in fact could not have succeeded (see also United States of America v. Dynar, [1997] S.C.J. No. 64.)

45Was his intent to thwart the course of justice? He asked Ms. Woodcock twice not to enter the information into the data/tracking system, however as noted above he also acknowledged openly he had spoken with Mr. Pittman about having been charged with impaired driving, and Mr. Pittman testified that he had not been asked to help make the matter disappear. Others in the courthouse were aware Mr. Naidoo had been charged. Ms. Woodcock testified at the preliminary inquiry that it was widely known amongst the court officers that Mr. Naidoo had been charged. In my view, although it is quite likely, as evidenced by his requests for the information not be entered into the system he hoped the matter would disappear, largely because of his open involvement with Mr. Pittman who offered to help him by referring a lawyer leaves me with a reasonable doubt he was attempting to obstruct the judicial process.

Conclusion

46In the result, I find Mr. Naidoo not guilty of attempting to obstruct justice and breach of trust by a public official.

A.J. O’Marra J. Released: March 3, 2017