CITATION: R. v. Tyldesley, 2017 ONSC 4688
COURT FILE NO.: CR-17-00000005
DATE: 2017/08/02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Crown/Respondent
– and –
Staci Tyldesley Accused/Applicant
David King, for the Crown/Respondent
Jeffrey Manishen, for the Accused/Applicant
HEARD: June 28 and 29, 2017
The honourable mr. justice g.e. taylor
Ruling re application to Quash Counts
Introduction
[1] Staci Tyldesley was committed to stand trial after her preliminary inquiry on 1 count of obstructing justice and 7 counts of fabricating evidence. She was discharged on 2 other counts of fabricating evidence. Pursuant to s. 574(1)(b) of the Criminal Code, the Crown added 2 counts to the indictment alleging charges of forgery which counts rely on essentially the same evidence as the Crown sought to rely on to prove the 2 counts of fabricating evidence on which the preliminary inquiry judge refused to commit for trial.
[2] Staci Tyldesley brings this application to quash the 2 forgery counts and argues that the facts disclosed by the evidence at the preliminary inquiry do not support the adding of those counts to the indictment.
The Evidence at the Preliminary Inquiry
[3] At the conclusion of the preliminary inquiry, Staci Tyldesley was discharged on the following two counts which were numbered 8 and 10 in the information respectively:
that Staci Tyldesley on or about the 19th day of September in the year 2014 at the City of Hamilton in the said region did with intent to mislead fabricate a Provincial Offence Notice, #3533534B, with intent that it should be used as evidence in a proposed judicial proceeding contrary to Section 137 of the Criminal Code of Canada;
and,
that Staci Tyldesley on some date prior to the 20th day of September in the year 2014 at the City of Hamilton in the said region did with intent to mislead fabricate a Provincial Offence Notice, #3533537B with intent that it should be used as evidence in a proposed judicial proceeding contrary to Section 137 of the Criminal Code of Canada.
[4] Count 8 related to an individual by the name of Jose Flores. On September 19, 2014, the portion of Provincial Offence Notice #3533534B which would normally be given to the person charged was found in a bin of papers destined to be shredded. This particular portion of Provincial Offence Notice #3533534B, to use the Crown’s terminology, was in “pristine” condition. Jose Flores did not testify at the preliminary inquiry.
[5] On the back of the portion of Provincial Offence Notice #3533534B entitled Enforcement Agency Record, Staci Tyldesley made the following notes: “Vodka in open water bottle - denied - said water w/ salt Kept throwing ticket on ground”. There is also a notation in Staci Tyldesley’s notebook for September 19, 2014 which reads: “1 Jose Flores 1962/07/07 NFA drinking liquor in clear plastic bottle Dumped out Issued PON LLA 31(2)”. In the left margin of the notebook next to the words: “Issued PON LLA 31(2)” is the word “Refused”.
[6] Count 10 related to Provincial Offence Notice #3533537B purportedly issued to Telford Adams on September 20, 2014 at 5 P.M. for an infraction contrary to the Liquor Licence Act section 31(2). However, portions of this Provincial Offence Notice were found on September 19, 2014 in the bin of documents to be shredded. There is an entry in Staci Tyldesley’s notebook for September 20, 2014 which reads: “1700 PON for LLA 31(2)”.
[7] There was evidence presented at the preliminary inquiry that Staci Tyldesley was aware, on September 19, 2014, of the search of the bin containing documents destined for the shredder.
Discussion and Analysis
[8] Counts 9 and 10 on the indictment are the counts which were added by the Crown pursuant to s. 574(1)(b) of the Criminal Code which read as follows:
that between the 19th day of September and the 15th day of October, 2014, at the City of Hamilton, [Staci Tyldesley] did knowingly cause or attempt to cause a person to act upon a forged document, to wit, a notebook entry, as if it were genuine contrary to section 368(1)(b) of the Criminal Code of Canada;
and,
that between the 19th day of September and the 15th day of October, 2014, at the City of Hamilton, [Staci Tyldesley] did knowingly cause or attempt to cause a person to act upon a forged document, to wit, the Enforcement Agency notes of PON 3533534B, as if it were genuine, contrary to section 368(1)(b) of the Criminal Code of Canada.
[9] Count 9 on the indictment corresponds to count 10 in the information and count 10 on the indictment corresponds to count 8 in the information.
[10] In summary, the Crown’s position is that the evidence presented at the preliminary inquiry in relation to counts 8 and 10 in the information discloses the commission of the forgery charges contained in counts 9 and 10 on the indictment. The Crown argues that, after learning about the search of the shredder bin on September 19, 2014, Staci Tyldesley made false entries in her notebook and Agency Enforcement notes, in an attempt to cover up that she had not actually issued Provincial Offence Notices to either Jose Flores or Telford Adams.
[11] With respect to count 9 on the indictment, the forgery charge in relation to the Provincial Offence Notice in the name of Telford Adams, the Crown submitted that a trier of fact could conclude that the Offence Notice found in the shredder container on September 19, 2014 which was dated September 20, 2014 was a forged document. If the only evidence at the preliminary inquiry was that an Offence Notice dated September 20, 2014 was found on September 19, 2014 in the container of documents destined for the shredder, I might agree that it would be speculation to conclude that the document was a forgery. But there is additional evidence. In Staci Tyldesley’s notebook for September 20, 2014 there is an entry about a Provincial Offence Notice being issued at 1700 hours, or 5 P.M., for an offence contrary to section 31(2) of the Liquor Licence Act. It would be a reasonable conclusion that this notebook entry refers to the Provincial Offence Notice made out to Telford Adams. On the same notebook page are Staci Tyldesley’s notes for September 19, 2014 which immediately precede the notes for September 20, 2014. If the Offence Notice had been mistakenly dated September 20, 2014, there would be no corresponding entry in the notebook for September 20, 2014.
[12] With respect to count 10 on the indictment, the forgery charge in relation to the Agency Enforcement notes regarding Jose Flores, I come to a different conclusion. The Crown submitted that a trier of fact could conclude, based on the “pristine” condition of the copy of Provincial Offence Notice #3533534B normally given to the person who is charged, that Jose Flores had not repeatedly thrown his copy of the Offence Notice to the ground and accordingly that he had not refused to accept the Offence Notice. The Crown also submitted that, with respect to this Offence Notice, the trier of fact could conclude that the word “Refused” in the notebook was added after the fact.
[13] In my view, it would be speculation to conclude from the evidence relied on by the Crown that Staci Tyldesley committed forgery by making the notation on the Agency Enforcement notes that Jose Flores had repeatedly thrown his copy of the Offence Notice on the ground because the piece of paper does not appear to be soiled or crumpled in any way. Also, absent any other evidence with respect to the notebook entry “Refused”, in my view it would be speculative to conclude that the entry was made after the fact.
Conclusion
[14] Therefore, the application to quash count 9 on the indictment is dismissed but the application to quash count 10 is granted.
G.E. Taylor, J.
Released: August 2, 2017
CITATION: R. v. Tyldesley, 2017 ONSC 4688
COURT FILE NO.: CR-17-00000005
DATE: 2017/08/02
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Staci Tyldesley
RULING RE APPLICATION TO QUASH
COUNTS
G.E. Taylor, J.
Released: August 2, 2017