Court File and Parties

COURT FILE NO.: CR-11-00009290 DATE: 20170315

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – DANIEL COSTA Defendant

Counsel: Tony VandenEnde, for the Crown Mark J. Sandler and Amanda M. Ross, for the Defendant

HEARD: March 14 and 15, 2017

Reasons for Decision

EDWARDS J. :

Overview

[1] Mr. Costa is charged with perjury, contrary to the provisions of s. 132 of the Criminal Code (the Code). Specifically, it is alleged that Mr. Costa intentionally misled homicide detectives of the York Regional Police by making a false statement under oath, by repeatedly stating to the homicide investigators that he had no knowledge of the whereabouts of his brother who was a person of interest in a homicide investigation. The case for the Crown consisted of an agreed statement of facts and a videotaped statement of Mr. Costa. At the completion of the Crown’s case, Mr. Sandler on behalf of Mr. Costa, sought a directed verdict largely on the basis that Mr. Costa could not in law be convicted of perjury as he is a person “who is not specially permitted, authorized or required by law”, to make the statements which form the substance of the charge (s. 131(3) of the Code). As such, it is argued that Mr. Costa is exempt from liability as contemplated by s. 131(1) and an acquittal should, therefore, be entered.

[2] For the purposes of the motion, it is conceded by the Crown that Mr. Costa cannot be found guilty of perjury. The Crown, however, argues that it should be allowed to continue the prosecution against Mr. Costa, on the basis that attempt obstruct justice is an included offence of perjury as described in the indictment. The sole issue that this Court has to decide is whether or not attempt obstruct justice is an included offence of perjury, as set forth in the indictment.

The Law

[3] The relevant sections of the Code are sections 131 to 132. Section 131(1) provides as follows:

Subject to subsection (3), every one commits perjury who, with intent to mislead, makes before a person who is authorized by law to permit it to be made before him, a false statement under oath or solemn affirmation, by affidavit, solemn declaration or deposition or orally, knowing that the statement is false.

(3) Subsections (1) and (1.1) do not apply to a statement referred to in either of those subsections that is made by a person who is not specially permitted, authorized or required by law to make that statement. [Emphasis added]

[4] The words “permitted, authorized or required by law to make that statement”, as set forth in s. 131(3) quoted above, have been interpreted by the Supreme Court of Canada in R. v. Boisjoly, [1972] SCR 42, in what was then s. 114 of the Code. Section 114 provided:

Everyone who, not being a witness in a judicial proceeding but being permitted, authorised or required by law to make a statement by affidavit, by solemn declaration or orally under oath, makes in such a statement, before a person who is authorised by law to permit it to be made before him, an assertion with respect to a matter of fact, opinion, belief or knowledge, knowing that the assertion is false, is guilty of an indictable offence and is liable to imprisonment for fourteen years. [Emphasis added]

[5] In Boisjoly, supra, the accused had been contacted by the police in relation to allegations which had been made against him in a newspaper article. No charges had been laid against him, and he attended at the local police station and answered various questions. In response to those questions he denied having taken any part in the matter which was under investigation, and signed a document in which his answers had been recorded and certified its accuracy by affidavit. It was eventually concluded that the accused had knowingly made false statements and he was charged with perjury under what was then s. 114 of the Code. He was found guilty at trial and was acquitted by the Court of Appeal. The question of law that ultimately came before the Supreme Court of Canada, was whether the statement made by the accused was a statement which the person making it was “permitted, authorized or required by law” to make by affidavit or orally under oath. The Supreme Court dismissed the Crown’s appeal and held:

We must at this point observe that if it may be generally correct to assert that all that is not prohibited by law is permitted, it follows that it is also equally correct to say that any permission given by the legislator implies a measure of exception to a rule or principle in effect. Otherwise, we would have to conclude that the legislator had acted to no purpose in permitting what was already permitted. This is certainly not the case with respect to the right to use the oral oath, the affidavit or the solemn declaration to attest the truth of a statement of fact. (Para. 5)

[6] In this case, Mr. Costa was a person who the Crown concedes was “not specially permitted, authorized or required by law” to make the statements forming the basis of the charge before the Court. Like the accused in Boisjoly, Mr. Costa voluntarily answered questions which were put to him by the York Regional Police, questions which were put in the context of an ongoing criminal investigation. As such, Mr. Costa, not being under any statutory or common law obligation to do so, cannot be convicted of perjury. This is conceded by the Crown. I therefore move to the question of whether or not attempt obstruct justice is an included offence of perjury.

[7] In this case, the Crown argues that the charge set forth in the indictment is worded in such a way that it necessarily includes the offence of attempt obstruct justice. The Crown correctly concedes that it was open to the Crown to have charged Mr. Costa with both perjury and attempting to obstruct justice, but for unexplained reasons chose not to do so. It is also conceded by the Crown that he is unaware of any other case in which a Court has found that attempt obstruct justice is an included offence of perjury.

[8] The general principles regarding included offences are set forth in the Supreme Court of Canada decision in R. v. G.R., 2005 SCC 45.

[9] In the introduction of Binnie J. in G.R., supra, he makes clear that it is fundamental to a fair trial that an accused knows the charge or charges that he or she must meet. As further noted by Binnie J. at para. 12, “An important function of an indictment is thus to put the accused on formal notice of his or her potential legal jeopardy…”

[10] The question I have to ask myself is whether the indictment, as presently worded, would put Mr. Costa on notice that he was potentially facing the included offence of attempt obstruct justice. The importance of framing the questions in this way is particularly important for Mr. Costa, as he was told at the time of his arrest that he was being charged with perjury and that he was not being charged with mischief or obstruct justice.

[11] In G.R., Binnie J. set forth the law governing included offences as follows:

An offence is “included” if its elements are embraced in the offence charged (as described in the enactment creating it or as charged in the count) or if it is expressly stated to be an included offence in the Criminal Code itself. The test is strict. It must “necessarily” be included…what is not “necessarily included” is excluded.

[12] Binnie J. went on dealing with the law governing included offences to further state:

The strict interpretation of s. 662 is linked to the requirement of fair notice of legal jeopardy, as emphasized by Sheppard J.A. in R. v. Manuel (1960), 128 C.C.C. 383 (B.C.C.A.):

Further, to be an included offence the inclusion must form such an apparent and essential constituent of the offence charged that the accused in reading the offence charged will be fairly informed in every instance that he will have to meet not only the offence charged but also the specific offences to be included. Such apparent inclusion must appear from “the enactment creating” the offence or “from the offence as charged in the count”; either of those two may be considered under [s. 662(1)] but not the opening by counsel or the evidence”. [Emphasis added]

[13] A successful prosecution of a perjury charge requires the Crown to prove the following:

a) that the statement was made under oath or solemn affirmation; b) that the statement was made to a person authorized by law to permit it to be made before him or her; c) that the statement as specifically provided in the indictment was in fact false; d) that the accused knew making the statement that it was false when made; e) that the statement was given with the intent to mislead; and f) that the statement was not made by a person who is not specially permitted, authorized or required by law to make the statement.

[14] There is nothing in a charge of perjury that requires proof that the statement was made with the intent to obstruct, pervert or defeat the course of justice, or that it would tend to obstruct, pervert or defeat the course of justice. In this case, the indictment as worded against Mr. Costa states:

THAT on or about the 7th day of July in the year 2011, at the City of Vaughan, in the Regional Municipality of York, did intentionally mislead Detective Constable COOKE #817 and Detective Constable NASIOS #1028 of the York Regional Police Homicide Unit, by making a false statement under oath, namely stating repeatedly to the said investigators that he had no knowledge of the whereabouts of his brother, a person of interest in a homicide investigation, knowing the statement to be false, contrary to Section 132 of the Criminal Code.

[15] Nowhere in the indictment is it alleged that Mr. Costa’s false statement tended to obstruct, pervert or defeat the course of justice or that he intended to obstruct, pervert of defeat the course of justice. Neither the actus reus nor the mens rea of obstruct justice can be found in the indictment as worded against Mr. Costa. Mr. Costa knows from the indictment that he is charged with perjury. When he was arrested he was specifically told he was not being charged with obstruct justice. Mr. Costa does not have fair notice that the indictment potentially exposes him to any other charge other than perjury.

[16] It would have been open to the Crown to have charged Mr. Costa with attempt to obstruct, pervert or defeat the course of justice, by intentionally misleading Detective Constables Cooke and Nasios by making a false statement under oath. The indictment is not worded in that fashion. Mr. Costa had no notice of the fact that he was potentially facing an included offence of attempt obstruct justice.

[17] In this case the Crown fairly concedes that there are two competing interests at stake: the interests of fairness to the accused and the interests of the Crown and the community in having a matter dealt with on its merits. In this case the interests of the community and the Crown could have been easily protected. It should have been known to the drafter of the indictment that Mr. Costa fell within a class of persons against whom there never could be a successful prosecution for perjury. It was open to the Crown, recognizing the problem presented by the application of Boisjoly, supra, to have laid a charge of attempting to obstruct justice. The Crown’s request for a ruling that the offence of attempt obstruct justice is an included offence of perjury is simply an attempt to rectify a mistake that could easily have been rectified many years ago when the indictment was originally drafted. Mr. VandenEnde should not be faulted for the relief that he sought on behalf of the Crown as he only very recently was assigned this prosecution. Unfortunately for Mr. VandenEnde, he had to deal with the facts as they were presented to him.

[18] Mr. VandenEnde argues that Mr. Costa should have known from the wording of the indictment that he was potentially facing not only a charge of perjury but also the included offence of attempt obstruct justice, because the indictment makes reference to the fact that his false statement related to the whereabouts of his brother who was a person of interest in a homicide investigation. There are number of problems with this assertion. First, when he was arrested he was specifically told he was not facing a charge of obstruct justice. Furthermore, how can an accused know he faces an included offence of attempt obstruct justice when the indictment he faces is a nullity. Put differently, if Mr. Costa on the indictment before the Court cannot be convicted of perjury because of the application of Boisjoly, how could he know he also faced an included offence of attempt obstruct justice.

[19] In essence, what the Crown wants this Court to do is precisely what Binnie J. in R.G. at para. 35, adopting the language of Phillimore L.J. in R. v. Woods, [1969] 1 Q.B. 447 at p. 451, says the Court cannot do:

It is of the first importance that a man charged with an offence should know with certainty what it is he may be convicted of. No court should be encouraged to cast around to see whether somehow or other the words of the indictment can be found by some arguable implication the seeds of some other offence. (My emphasis)

[20] I see no justifiable reason why this Court should stretch the wording of the indictment to include the offence of attempt obstruct justice, simply because the Crown made a mistake in charging Mr. Costa with perjury with the full knowledge that the Crown should have had that there was no prospect for a conviction. Mr. Costa was entitled to know what he was charged with and to mount his defence on the basis of that charge. If he had been charged with both perjury and attempt obstruct justice he may have framed his defence in a manner quite different from the manner presently before the Court. The Crown’s request for a ruling that the offence of attempt obstruct justice is an included offence to the offence of perjury is denied.

Justice M.L. Edwards

Released: March 15, 2017

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – DANIEL COSTA Defendant REASONS FOR DECISION Justice M.L. Edwards

Released: March 15, 2017