Court File and Parties

COURT FILE NO.: CR-18-40000059-0000 DATE: 2019-04-04 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ALBERT EDWARD KING Accused

Counsel: Imran Shaikh, for the Crown Stephen Proudlove, for the Accused

HEARD: January 7-10, 14, 16, March 28, 2019

REASONS FOR SENTENCING

BOUCHER J.

Overview

[1] These are the reasons for sentence in R v Albert King. Mr. King was a jailhouse informant in the first-degree murder case of R v Chouart and Marshall. During the investigation of the offence and its preliminary hearing, Mr. King purposely misrepresented his history as a jailhouse informant witness, falsely claiming that he had never been a jailhouse informant in the past and that he had never previously testified. Mr. King was convicted of perjury on January 16, 2019 following a judge alone trial before me in the Superior Court. Given the circumstances of the offence and the offender, the applicable principles of sentencing, the aggravating and mitigating circumstances and the range of sentences, Mr. King is sentenced to 2 years imprisonment.

Circumstances of the Offence

[2] The full facts of this case are detailed in the trial judgment for this matter. In summary, Mr. King allegedly obtained a confession from Mr. Marshall in relation to his first-degree murder charges. Mr. King informed the police of the details of that confession. In his discussions with the police and the Crown, Mr. King portrayed himself as a first-time witness. Mr. King maintained that position at the preliminary hearing, testifying under oath that Marshall was the first person who had ever confessed to him. During cross examination, the defence uncovered the fact that Mr. King had been a jail-house informant on multiple prior occasions, including in the notable example of R. v. Brooks, a case reviewed on appeal by the Supreme Court of Canada on the issue of jailhouse informants and whether Mr. King’s testimony in that case warranted a Vetrovec-type warning. During the preliminary inquiry, Mr. King also purposely obscured the fact that, in the days leading up to the preliminary hearing, he had testified in a separate matter where he had also provided jail-house confession-type evidence.

[3] Mr. King did not testify at his perjury trial. He instead relied on the transcript of his testimony at the Chouart and Marshall preliminary inquiry, where he had testified that he lied about his prior jailhouse informant roles because he believed there was a “gag order” or sealing order for the prior matters. That explanation, if believed, would have amounted to a mistake of law, since any publication ban would not permit a witness to later lie under oath about the fact of having testified in the past. Moreover, any publication ban would not have permitted a witness to lie in court about prior jailhouse activities. There was no evidence put forward to demonstrate how Mr. King could have permissibly drawn the inference that it was lawful to lie about his prior witness status, and no evidence was led that would have even raised a reasonable doubt about this issue.

Legal Parameters – Maximum/Minimum Sentence

[4] Under s. 132 of the Criminal Code, perjury is an indictable offence that carries a maximum penalty of 14 years in prison.

Principles of Sentencing

[5] All sentences must conform to the principles of sentencing in the Criminal Code. The fundamental purpose of sentencing, as described in s.718, “is to contribute… to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives”, which include the denunciation of unlawful conduct, deterrence of the offender and others who might be similarly tempted, rehabilitation, restraint and the promotion of a sense of responsibility in the offender, and the separation of the offender from society where necessary. The balancing of the principles of sentencing is a case-specific exercise governed by all the circumstances. Sentences also must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[6] For the offence of perjury, deterrence and denunciation are key sentencing principles. Perjury is an offence “that strikes at the heart of the judicial system”: R. v. Jordan, 1986 ABCA 168. “The freedom, or…the incarceration of accused persons in serious criminal offences depends totally upon the truthfulness of those witnesses”: R. v. Glauser (1981), 16 CCC (2d) (ONCA); R. v. Schertzer, 2015 ONCA 259. Perjury is always considered to be serious and the courts tend to impose sentences of significant incarceration even in cases where the perjury had minimal practical impact: see R. v. Reyat 2014 BCCA 101 at para. 31.

[7] The objective of denunciation has heightened significance in perjury offences with certain classes of offenders who have special issues attached to their credibility. For example, perjury is treated more seriously when committed by police officers who have special duties of faithfulness to the justice system: R. v. Schertzer, 2015 ONCA 259 at para. 136; R. v. Millington, 2015 BCSC 1380 at para. 69.

[8] There are also special concerns with respect to jailhouse informants, requiring truthful and full disclosure of their histories and circumstances. Justice Major in R. v. Brooks 2000 SCC 11 at paras. 81-83 underlined the heightened concerns with the testimony of jailhouse informants, as revealed in Commissions of Inquiry into wrongful convictions:

Since the decisions of this Court in Vetrovec and Bevan, the extreme dangers of relying on the use of “jailhouse informers” as witnesses in criminal prosecutions has been highlighted in the Report of The Commission on Proceedings Involving Guy Paul Morin (the “Kaufman Report”) released in 1998 where the Honourable Fred Kaufman, C.M., Q.C., stated at p. 602:

In-custody informers are almost invariably motivated by self-interest. They often have little or no respect for the truth or their testimonial oath or affirmation. Accordingly, they may lie or tell the truth, depending only upon where their perceived self-interest lies. In-custody confessions are often easy to allege and difficult, if not impossible, to disprove.

The evidence at this Inquiry demonstrates the inherent unreliability of in-custody informer testimony, its contribution to miscarriages of justice and the substantial risk that the dangers may not be fully appreciated by the jury. In my view, the present law has developed to the point that a cautionary instruction is virtually mandated in cases where the in-custody informer’s testimony is contested: see R. v. Simmons, [[1998] O.J. No. 152 (QL) (C.A.)]; R. v. Bevan, (1993), 82 C.C.C. (3d) 310.

Since the release of the Kaufman Report, the Ministry of the Attorney General of Ontario has revised its internal policies to reflect many of the Report’s recommendations. New policies include the establishment of an “In-Custody Informer Committee”, the function of which is to review the use of all in-custody informers in criminal trials to determine whether their use as a witness is in the public interest.

The Ministry has also adopted into its Policy Manual the Kaufman Report’s recommended list of factors to be considered in assessing an informer’s reliability or lack thereof. The factors also serve as a useful guide to a trial judge when determining whether a Vetrovec warning is necessary. The list is at pp. 607-9 and may be paraphrased as follows:

1. The extent to which the statement is confirmed by independent evidence;
2. The specificity of the alleged statement. For example, a claim that the accused said “I killed A.B.” is easy to make but extremely difficult for any accused to disprove;
3. The extent to which the statement contains details and leads to the discovery of evidence known only to the perpetrator;
4. The degree of access that the in-custody informer has to sources of outside information (e.g. media reports, preliminary inquiry transcripts, etc.);
5. The informer’s general character, which may be evidenced by his or her criminal record or other disreputable conduct;
6. Any request the informer has made for special benefits and any promises that may have been made;
7. Whether the informer has in the past given reliable information to the authorities;
8. Whether the informer has previously claimed to have received statements while in custody;
9. Whether the informer has previously testified in any court proceeding and the accuracy or reliability of that evidence, if known;
10. Whether the informer made some written or other record of the words allegedly spoken by the accused and, if so, whether the record was made contemporaneously with the alleged statement of the accused;
11. The circumstances under which the informer’s report of the alleged statement was taken (i.e., how soon after it was made and to more than one officer, etc.);
12. The manner in which the report was taken by the police;
13. Any other known evidence that may attest or diminish the credibility of the informer, including the presence or absence of any relationship between the accused and the informer;
14. Any relevant information contained in any registry of informers.

Another useful factor not expressly referred to in the Kaufman Report, but added to the list in the Attorney General for Ontario’s Policy Manual is the following:

15. Any medical or psychiatric reports concerning the in-custody informer where relevant....

The trial judge in this case did not have the benefit of this report. However, with its availability trial judges should consider such factors as these in determining whether or not a Vetrovec warning is necessary in the circumstances of a particular trial.

[9] As is evident from the above-cited passage, factors related to jailhouse informant history of obtaining confessions and receiving benefits for doing so are key to a trial judge’s decision whether or not to give a Vetrovec warning to a jury. Even if the factors did not rise to the level of requiring a Vetrovec warning, the information is nonetheless still important to the judge or jury’s own determination about the credibility and reliability of the alleged confession. For these reasons, denunciation and deterrence have significant weight in circumstances where a jailhouse informer has purposely lied to a court about their history.

Sentencing Range – Parity

[10] The sentencing range for perjury or giving contradictory evidence in a homicide case is between two and six-years’ imprisonment, depending on case specific factors and the relative seriousness of the offence: see R. v. Burmudez 2013 ONCJ 113.

[11] Canadian courts generally considered the following factors from the Alberta Court of Appeal’s decision in Jordan in determining an appropriate sentence in a perjury case:

1. The relative seriousness of the offence with respect to which the perjured testimony was given;
2. The effect, if any, on the outcome of the trial by reason of the perjured evidence;
3. Whether the testimony dealt with a vital part of the evidence;
4. Whether the perjured evidence lead to the implication of an innocent person in a crime, which would ordinarily be a most aggravating factor;
5. Whether the perjury was planned and deliberate or the result of a sudden temptation in the course of giving evidence.

[12] The following cases illustrate the application of the Jordan factors and the sentencing range for perjury in serious cases.

[13] R. v. Jordan and Sager, 1986 ABCA 168, leave denied [1987] SCCA No 36: Jordan and Sager provided alibi evidence in a first-degree murder case. Prior to testifying they had spoken with the accused on trial in the murder case. The accused told them to review the transcripts of other witnesses’ evidence from the preliminary inquiry, but to deny having done so as to make their accounts more believable. The jury ultimately rejected the alibi defence and convicted the accused of first-degree murder. The perjury was deemed serious because it was planned, deliberate, and counselled by the accused. The perjury was also vital to his alibi defence. Ms. Jordan was the accused’s girlfriend and was under his domineering influence. She had a minimal criminal record. Sager had a more significant record. The court of appeal established the now entrenched sentencing principles for perjury cases and increased Ms. Jordan’s sentence to 2.5 years’ jail and Mr. Sager’s to the equivalent of four years’ jail.

[14] R v. Jonas, [1998] OJ No. 436: Jonas lied at his own bail hearing stage about the circumstances of a prior conviction, by suggesting that the circumstances of the conviction arose from his involvement in assisting police. His defence at trial was that he did not intend to mislead. He had a prior lengthy record including administration of justice offences and had three times served penitentiary sentences. He had a recent good work report, and a limited work history due to prior sentences. He was sentenced to 15 months for perjury consecutive to his 7-year sentence for offences including robbery and kidnapping.

[15] R. v. C.D., [2000] OJ No. 1668 (CA): CD committed perjury in circumstances intended for his own benefit. He had applied for bail pending appeal from his sexual assault convictions. In his supporting affidavit, he had falsely sworn that two employers knew of his convictions and were willing to hire him notwithstanding if he were to be released. The court of appeal noted that graver circumstances, such as giving false evidence in the trial of a serious matter, would generally merit a heavier sentence. His 1-year sentence, which was consecutive to his sexual assault sentence, was recognized as being within the range.

[16] R. v. Dorn, 2010 ONSC 2631: Dorn was an important witness in a murder trial of four accused. He gave contradictory evidence at the trial and preliminary hearing in the matter on several points in his narrative. The evidence had implications for the degree of responsibility of the various accused and was part of a sustained campaign to benefit his friends who were accused of the murder. He had one prior related conviction involving the same matter. The impact of the contradictory evidence on the result of the trial was difficult to ascertain, though it made the jury’s task more difficult, and it had impaired the truth-seeking function of the trial. The perjury also had a negative emotional impact on the family of the victim. Dorn had an extremely positive presentence report. He had separated himself from his prior associates. He had two young children and was the primary earner in the family. He plead guilty. Dorn was sentenced to 2 years’ prison.

[17] R. v. White, 2010 ONSC 6539: White gave perjured evidence in his own trial for possession of a firearm and possession of marijuana for the purpose of trafficking. Had the accused’s evidence been accepted, it would have resulted in the police evidence being rejected. In mitigation the accused was an involved parent of two children. In aggravation, the perjury was planned and deliberate, and his sister assisted by corroborating his perjured evidence. The evidence accused the police of lying and had been repeated in multiple proceedings (in a first trial, and on the retrial following an appeal). The underlying offence was very serious. White was sentenced to 30 months’ jail.

[18] R v. Bermudez, 2018 ONCJ 113: Burmudez plead guilty to eight counts of giving contradictory evidence in the proceedings related to his former common-law partner’s second-degree murder charge. The charge related to the death of her two-year old daughter. He gave contradictory evidence at various points in the proceedings about significant aspects of the evidence involving the commission of the offence, and his contradictions resulted in delays in the proceedings. He had a prior conviction for fraud and breach of probation. His motivation was related to his relationship with the accused. He had been abusing substances since the death of the child and his own child had been apprehended and made a ward of the state. He had a supportive family and had maintained gainful employment. He was sentenced to three years imprisonment.

[19] R. v. Talbot, 2013 ONSC 4400: At his bail hearing for a breach of probation charge, the accused provided two fabricated letters and gave false oral evidence suggesting that he was employed and that he required bail to maintain that employment. These actions were found to show significant planning and deliberation. The evidence was for his own benefit and it resulted in him ultimately receiving an intermittent sentence for the underlying offence. He accused was indigenous and had a history of substance abuse. He had a lengthy prior record. He plead guilty and he had participated in counselling and rehabilitative efforts. He was sentenced to 16 months’ jail.

[20] R. v. Reyat, 2014 BCCA 101: A jury found Reyat guilty of perjury in proceedings that alleged 19 false statements. Reyat was a key witness in the murder trial of two Air India bombers, Malik and Bagri. Reyat had falsely claimed he did not remember important details of the narrative. His evidence foreclosed a relevant line of questioning and related to central events in the matter. His conduct was characterized as a stain on the process of a mass murder trial and was a deliberate attempt to frustrate justice. Reyat had also been convicted of three counts of manslaughter related to the Air India bombing prior to the Malik and Bagri trial. He received the longest sentence in Canadian history for perjury, 9 years’ imprisonment.

[21] R. v. Schertzer, 2015 ONCA 259: the accused police officers provided false evidence at an apartment occupant’s preliminary hearing, falsely claiming they searched the apartment after receiving a search warrant. They were also sentenced for obstructing justice for falsifying their notes. The court noted police officers’ special duty to be faithful to the justice system and the importance of police honesty to the system’s integrity. The Court of Appeal increased their conditional sentences to three years’ imprisonment.

[22] R. v. Millington, 2015 BCSC 1380: Millington made false statements at the inquiry into the death of Robert Dziekanski at the Vancouver International Airport. He was one of the four police officers who had detained Mr. Dziekanski at the airport. Millington applied a taser to Mr. Dziekanski five times, which led to Dziekanski’s death. The perjury was on material aspects of the encounter, and his evidence had been contradicted by video. The testimony frustrated the ability of the inquiry in its search for answers. His evidence continued over several days and unfairly cast the victim in a negative light. Millington had no prior record and many letters referencing his good character. The court referred to numerous prior cases setting out the sentencing range for perjury. The court rejected the option of a conditional sentence because it would not adequately meet the need for deterrence and denunciation. He was sentenced to 30 months’ imprisonment.

Aggravating Factors

[23] Here, as noted above and as outlined in the trial judgment, the perjury was serious. Mr. King misrepresented his history as a jail-house informant. His status as a repeat jail-house informant may have caused the police and Crown to undertake additional verification steps prior to having him testify, and the defence would have had a more accurate picture of the issues impacting Mr. King’s credibility. His history was a key issue to the assessment of his credibility and the reliability of the details of the alleged confession.

[24] The false testimony was given in proceedings that are among the most grave and solemn in the criminal justice system – a first degree murder case, and one involving two perpetrators. Witnesses must treat such proceedings with the utmost respect and commitment to truthful evidence to allow the courts to arrive at just verdicts. Mr. King was aware of the solemnity of the proceedings, and of the high stakes involved for those accused of the crime.

[25] The perjured testimony did not appear to implicate any innocent person or result in a wrongful conviction, based on the limited evidence before this court about the substantive details of the homicide case.

[26] While there is no evidence before this court that the perjured testimony had any impact on Mr. Marshall’s guilty plea and sentence, the perjury nonetheless had some impact on the proceedings at the preliminary hearing. The preliminary hearing is an important procedural step in the proceedings, where the credibility of witnesses is tested and where the sufficiency of evidence for trial is evaluated. He caused significant time and effort to be spent pursuing the line of inquiry related to his history as he persisted in maintaining the falsehoods.

[27] The defence argues that the perjury did not benefit Mr. King. However, it is clear from the trial evidence that Mr. King wanted to give the impression that he was a first-time witness. As detailed in the trial judgment, he started with this falsehood at the investigative stage and persistent in it through the preliminary inquiry, continually trying to obscure his history as a witness and jailhouse informant. The evidence strongly indicates that the perjury was designed to benefit Mr. King in that sense – to create this impression of himself, in whatever way that served him.

Mitigating Factors – Circumstances of the Offender

[28] Mr. King is 50 years old. He grew up in an abusive home, and he was taught to steal at a young age by his step-father, factors which the pre-sentence report author links to his history of criminality. He suffers from depression and arthritis and reports being in chronic pain.

[29] The pre-sentence report paints a positive picture of Mr. King’s current lifestyle and behaviours. Though he has an extensive criminal record for break and enter with offences in nearly every year between 1985 and 2002, he had a 14-year gap in criminal convictions. The report notes that he has in the past abused crack cocaine, but that he has not done so for several years. He also participated in Gamblers Anonymous meetings throughout 2017 as a term of a probation order for breaching a recognizance.

[30] The report describes Mr. King as having significant family and social support. Mr. King is the parent of a young child, and he shares custody of his child with his ex-spouse. He is described as a “doting and attentive” father, and frequently picks up his child from school. He is concerned for her well-being should he be sentenced to jail.

[31] The author of the pre-sentence report notes that because Mr. King had prior positive responses to community supervision and given the positive family relationships, he appears to be a suitable candidate for community supervision at this time.

[32] The author recommends that if a term of probation were ordered, that Mr. King be directed to report as required and to participate in counselling directed by the supervising probation officer.

[33] Mr. King also relies on his “mistake of law” regarding the publication ban as a mitigating factor in these circumstances. This factor has limited weight in these circumstances. While there is evidence that some type of publication ban about his identity was in place for one prior case over twenty years ago, there is no evidence of a publication ban about his identity in Brooks. There is no evidence as to why Mr. King thought there was any kind of publication ban in the other cases, nor was there any credible evidence suggesting that he was entitled to lie to a court about being a witness in any of those prior cases or that he thought the order allowed him to lie. There was no evidence that he tried to inform himself properly about the scope of any prior bans and no evidence of measures taken to lawfully protect his identity or safety in court context, if that was issue. Any mistake of law was not objectively reasonable in the circumstances. Moreover, there is little foundation for establishing that that this belief was even subjectively held since there was essentially no basis for him to believe he was entitled to identity protection or that he could lie about his activities. In the circumstances, he has not met the burden on a balance of probabilities for establishing a mitigating factor.

[34] The defence argues that the discoverability of Mr. King’s lies and the lack of diligence by the state in discovering his history is mitigating. While it is indeed regrettable that his history was not discovered in advance, Mr. King should not benefit from this failure to discover it, as the failure does not make his sustained efforts to obscure his history less intentional or problematic. I do agree however that the case may reveal issues in the system design of implementation for providing checks and balances for jailhouse informants.

[35] More important as mitigating factors are the lack of actual damage occasioned in the murder case, and the lack of clarity about the direct personal benefit Mr. King would have received for having lied in the case about his prior status (although the lies may have been related to whether he thought he would have been believed if his history was known, or his custodial status or conditions or security, this was not fully established at trial).

Position of Crown and Defence

[36] The Crown requests a sentence of 2.5 years based on the range of sentencing for perjury in homicide cases, and in light of the Jordan factors for determining the seriousness of the offence. This position taken into account the mitigating factors in placing it at the lower end of the range.

Defence

[37] The defence requests a sentence of suspended sentence and probation, based on Mr. King’s mitigating factors, the significant break in his record, his rehabilitative steps with drugs and gambling, his family situation, the lack of impact on Mr. Marshall’s conviction, the subject matter of the lies and the discoverability of the lies, and the need for rehabilitation. The defence recommends a sentence that would be very similar to a conditional sentence, which is not available given the maximum penalty for the offence. Alternately, the defence requests a 90-day sentence so that it could be served intermittently, to allow Mr. King to continue working.

Sentence Imposed

[38] Given all the above considerations, I sentence Mr. King to 2 years’ imprisonment. This sentence is in line with other perjury sentences in serious cases where there was either no impact on the verdict or the where the impact was unclear, and where mitigating factors were present. The sentence is mitigated by the lengthy period of time he was free of convictions and reportedly not abusing drugs and was making rehabilitative efforts dealing with gambling problems. The sentence is denunciatory of the grave nature of the misconduct though recognizing that, on the evidence before this court, the perjury had no impact on the murder convictions.

[39] This Court also imposes a DNA order, as the offence is a secondary offence under section 487.051(3) of the Code.

Boucher J. Released: April 4, 2019