COURT FILE NO.: CR-18-40000059-0000 DATE: 2019-01-16 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 and 16, 2019

REASONS FOR DECISION

BOUCHER, J.

Publication Ban

There is a ban on the publication of the name of the prior homicide case referenced in these proceedings (not the Chouart and Marshall case).

Reasons for Publication Ban

In the course of this case, it became apparent that there might be a publication ban in effect for one of the prior cases in which Mr. King testified. The parties were not able to produce the wording of the publication ban or advise of the exact scope of the ban. Accordingly, out of an abundance of caution, based on the submissions of counsel and my review of the prior case, there is a ban on the publication of the name of the prior homicide case referenced in these proceedings (not the Chouart and Marshall case) so as to attempt to respect the terms of that prior publication ban. I note that there was no application made to this Court to rescind that prior publication ban and there was otherwise no indication of whether there was any expiry date on that prior order.

To clarify, there is no ban on publication of Mr. King’s name, or of the fact that he has testified in multiple prior cases. It is only the name of the one prior homicide case that is protected from publication. This ban necessarily includes non-publication of the name of the prior case as it is referenced in Exhibit 1, Tab 4, as well.

I. OVERVIEW

[1] Mr. Albert Edward King is charged with perjury contrary to s.131(1) of the Criminal Code.

[2] Mr. King was a witness in the preliminary hearing of R. v. Chouart and Marshall, unreported, a first-degree murder case, on August 4 and 5, 2016, in Toronto. Mr. King allegedly obtained a confession from Mr. Marshall while they were incarcerated together at the Toronto South Detention Centre. The Crown alleges that Mr. King provided several false statements during the preliminary hearing, and that in so doing King intentionally misled the Court about his history as a jail-house informant witness in prior homicide cases and other serious cases.

[3] Specifically, the Crown alleges that Mr. King falsely told the Court that he had never testified in court prior to Chouart and Marshall, and that he had never received a jail-house confession in the past. The Crown also alleges that Mr. King gave a purposely false answer about the number of times he used the Crime Stoppers service to contact the homicide investigators in the Chouart and Marshall investigation.

[4] The Defence argues that Mr. King did not intend to mislead the preliminary hearing court. In Chouart and Marshall, Mr. King had testified that he thought his prior evidence was subject to a “gag order”. The Defence argues that Mr. King’s belief creates a reasonable doubt about Mr. King’s intent to mislead. The Defence argues that the questions put to Mr. King about the number of times he had previously received confessions were confusing and unclear, as was the evidence flowing from the questions, such that Mr. King’s evidence was not intentionally false and was at most merely inconsistent. The Defence also argues that the evidence about Crime Stoppers was not false, or not purposely false, based on the wording in the transcript.

[5] For the reasons set out below, I find that Mr. King purposely misled the preliminary hearing court about his prior jail-house informant activities. He gave false evidence intending to mislead the Court about the number of times he previously testified as a jail-house informant and about how many times he had previously received confessions from fellow inmates. I am not, however, certain that he provided false evidence about his use of Crime Stoppers in the case, based on the wording of the transcript.

[6] Mr. King’s reliance on previous publication bans as an excuse for his misstatements about his prior jail-house informant activities amounts to a mistake of law. A mistake of law is not a legally available defence in Canada, except in the case of an “officially induced error”. Mr. King has not established that there was an officially induced error.

[7] I find beyond a reasonable doubt, considering all the evidence, that Mr. King committed perjury as charged.

II. FACTS

R. v. Marshall and Chouart – Background Facts

[8] Clyde Marshall and Sabrina Chouart were charged with first-degree murder. Mr. King testified at their preliminary hearing. Detective Sergeant Scott Patterson of the Toronto Police Service testified that the pair pled guilty sometime after the conclusion of the preliminary hearing; Mr. Marshall plead guilty to first degree murder and Ms. Chouart to second degree murder.

[9] The Chouart and Marshall sentencing decision is not a reported case and no evidence was called about the factual basis for the guilty plea or sentences. I do not know what, if any, use was made of Mr. King’s evidence, although the lead officer suggested that the case was very strong even without it. Having said that, there is no requirement that the Crown prove the Court was misled, only that the accused intended to mislead the Court: R. v. Buzeta [2003] O.J. No. 1547. The use and impact of Mr. King’s evidence in R. v. Chouart and Marshall is likely only relevant to the sentencing stage of this perjury case: see R. v. Reyat, 2014 BCCA 101.

Police Contact with Mr. King

[10] Detective Sergeant Patterson was the lead investigator in Chouart and Marshall. D.S. Patterson testified that Mr. King contacted him and his partner, Detective Shawn Mahoney, through the Crime Stoppers program in the summer of 2015. D.S. Patterson explained that Mr. King used Crime Stoppers to contact them, as it was an easier means to “patch through” to the homicide investigators – Mr. King was not looking to be treated as a confidential informer. D.S. Patterson understood that Mr. King had information to provide that was relevant to the case.

[11] Mr. King was in custody at the Toronto South Detention Centre. Arrangements were made to transfer Mr. King to the 23 Division police station, where he provided a video recorded statement. Mr. King provided a second recorded statement at a later time in Hamilton-Wentworth, after he had been transferred out of Toronto South. These witness statements were given at the police stations, because the jail conditions were not conducive to taking statements, and because there would be a potential risk to Mr. King in giving these statements at the jail.

[12] According to D.S. Patterson, Mr. King’s initial motive for contacting them appeared be to obtain “consideration”, specifically to “be able to get out to see his daughter”. D.S. Patterson testified that they were very clear with Mr. King that no consideration was promised to him for his statements.

[13] D.S. Patterson testified that during the video statement, Mr. King told the police that he had not previously testified in court. D.S. Patterson testified that he had no knowledge of Mr. King prior to this contact.

Preparation for the Preliminary Hearing

[14] D.S. Patterson explained that he assisted with Mr. King’s witness preparation for the preliminary hearing in Chouart and Marshall. D.S. Patterson said that they had a traditional witness preparation session with Mr. King: they allowed him to review video statements and transcripts, and discussed any concerns he raised. D.S. Patterson testified that Mr. King never said anything to them about being unable to testify about certain matters, and never sought guidance on any points of law. During their preparation meeting, Mr. King again told D.S. Patterson that he had never previously testified in court.

Mr. King’s Evidence at the Preliminary Hearing

[15] A transcript of Mr. King’s evidence at the preliminary hearing was filed at trial as Tab 4 in Exhibit 1. The transcript shows that he was sworn in as a witness in the proceeding (at pg.1).

[16] In the preliminary hearing, Mr. King provided a detailed story of his interactions with Mr. Marshall while they were housed together on the same range at the Toronto South Detention Centre. Mr. King alleged that over the course of several conversations, Mr. Marshall shared numerous details of the murder; the planning and preparation for the robbery, the commission of the murder in the course of that robbery and the extortion, as well as Mr. Marshall’s use and disposal of the victim’s property, and other post-offence conduct. Mr. King said that in his initial efforts to build a relationship with Mr. Marshall, he lied about the reason he was in custody, falsely claiming he was also charged with a homicide and that he too was in for a long sentence. Mr. King said that he lied to make Mr. Marshall think they were at the same level.

[17] During cross-examination at the Chouart and Marshall preliminary hearing, Mr. King made several contradictory statements on what would appear to be material points related to his own credibility. Mr. King admitted the falsity of several of those points in the course of the cross-examination, as I will detail below. The evidentiary record in support of the perjury charge is bolstered by the cases filed by the Crown in Exhibit 1: R. v. Brooks, [1998] OJ No 3918 (CA), R. v. Brooks 2000 SCC 11, [2000] 1 SCR 237 and the transcript of Mr. King’s evidence in the preliminary hearing for R. v. J., unreported.

III. ANALYSIS

Statutory Provisions/Elements Of The Offence

[18] Section 131(1) of the Criminal Code, RSC 1985, c C-46 sets out the offence of perjury:

“… 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”.

[19] In order to establish the offence of perjury, the prosecution must prove: 1) that the accused made a false statement under oath or solemn declaration; 2) that the accused knew the statement was false when it was made; and 3) that the accused made the false statement intending to mislead the Court: Calder v. The Queen, 1960 SCC 73, [1960] S.C.R. 892; 129 CCC 202 (SCC), R. v. Eriksen, 2006 YKCA 13, at para 12.

Admissible Evidence

[20] The offence of perjury is an exception to the protections against self-incrimination found in s. 13 of the Canadian Charter of Rights and Freedoms, Constitution Act, 1982, s.52, and s. 5 of the Canada Evidence Act, RSC 1985, c C-5. Section 23 of the Canada Evidence Act provides that prior judicial proceedings may be proved through certified transcripts.

[21] Here the Defence and Crown jointly agree that the certified transcripts in Exhibit 1 are admissible evidence at this trial. I accept their concession. The transcript of Chouart and Marshall contains the alleged perjured evidence itself and would be an exception to the hearsay rule. The J. transcript is not tendered for the truth of the matters therein but merely for the fact that Mr. King testified in that prior proceeding for a lengthy period of time. I would note as well that the evidence in J. could pass the hearsay admissibility threshold, it being a detailed prior statement under oath subject to cross-examination. Accordingly, Mr. King’s prior evidence in the preliminary hearings set out in Exhibit 1 at Tabs 3 and 4 is admissible as tendered by the Crown as evidence in support of the perjury charge, showing that Mr. King testified in those prior proceedings.

[22] The Supreme Court of Canada and the Ontario Court of Appeal’s reported decisions in Brooks were also tendered as evidence by the Crown in Exhibit 1. In submissions, the Crown took the position that the cases should be used as a record of judicial proceedings, documenting that Mr. King testified in those prior proceedings as a jail-house informant. The Defence argued that the facts related by the appellate courts are not admissible as evidence before this Court. In the context of my factual findings below, I determine it unnecessary to resolve this question completely. It will suffice to say that I accept from Brooks that Mr. King testified against Mr. Brooks at his murder trial as a jail-house informant, as Mr. King himself confirmed, as that was the key issue in the reported case. I do not need to consider any other facts from Brooks, because the Crown withdrew the perjury allegation related to receipt of “consideration” for prior testimony.

Corroboration

[23] Perjury is one of the few offences in the Criminal Code that still requires corroboration. The corroboration requirement is set out in s. 133, which states:

“No person shall be convicted of an offence under section 132 on the evidence of only one witness unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused [emphasis added]”.

[24] The consensus in the case law is that the s. 133 corroboration requirement applies only to cases where a singular third-party witness directly alleges the accused committed perjury. The section does not apply where the perjury prosecution is based on circumstantial evidence to prove the accused committed perjury (as opposed to a prosecution dependent on a witness claiming the accused’s statement was perjured): R. v. Reyat, 2012 BCCA 311, leave to SCC refused (2013) 35030. The section does not apply where the accused’s own prior false evidence is the basis for the prosecution: R. v. Wilson, 2011 ONSC 3385, paras. 20-35.

[25] In following that line of authority, I find that corroboration is not legally required for the transcripts of the accused’s prior evidence in the Chouart and Marshall and J. matters.

[26] The transcript of Mr. King’s evidence in Chouart and Marshall at Tab 4 records that he was sworn in as a witness and that he testified before a judge authorized to hear the preliminary inquiry in the Ontario Court of Justice. That aspect of proof is established.

Allegations

[27] The Crown alleges that the following portions of Mr. King’s prior testimony were false.

1. Mr. King’s evidence that he had never, prior to Chouart and Marshall, testified as a witness.
2. Mr. King’s evidence that he had never, prior to Chouart and Marshall, received a confession.
3. Mr. King’s evidence was false in that he had only “used the Crime Stoppers to get a hold of the investigating officers in the Clyde Marshall case”, and agreed that he “only used it that time” (see Exhibit 1, Tab 4, pg. 90).

[28] Below, I set out my findings as to whether these statements were perjured. I will first assess whether the statement was false, and if so, whether the false statement was made with an intention to mislead. I will analyze these issues allegation by allegation.

1. Perjury Regarding History as a Witness

[29] The Crown alleges Mr. King gave false evidence about whether he had testified in court prior to Chouart and Marshall. The Crown alleges he knowingly told two lies at the preliminary hearing about being a witness: a) his evidence that he had not yet testified in the J. preliminary hearing at the time he made his witness statement to investigators, and b) his evidence that he had not testified in any other matters prior to Chouart and Marshall. The Crown argues that these lies were intended to mislead the preliminary hearing court. The Defence suggests that the statements were merely inconsistent, not perjurous, and the inconsistency resulted from the defence lawyer not properly refreshing Mr. King’s memory.

a. False Evidence Regarding R. v. J. Preliminary Hearing

[30] Mr. King gave evidence at the J. preliminary hearing, as recorded in Exhibit 1. The participants at the Chouart and Marshall preliminary hearing did not have the benefit of this transcript.

[31] Mr. King’s evidence at the Chouart and Marshall preliminary hearing was confusing and contradictory as to whether he had testified in J., but as is apparent from the context outlined below, King made false statements about this point, as opposed to merely inconsistent statements.

[32] When Mr. King was first questioned about whether he had already testified at the J. preliminary hearing, he unequivocally said that he had testified. Mr. King initially only disputed the date of the preliminary hearing. Defence counsel, Ms. Myers, at pg. 67 asked Mr. King, regarding J., “Did you testify in that case”, and his answer was “Yes, I did”. She then at pg. 67 asked Mr. King if his testimony occurred “in July of 2015” and Mr. King responded “No”. Ms. Myers asked him when it was, and Mr. King replied, “I can’t remember the exact date, like I said”.

[33] The false statements about the J. preliminary hearing happened later in the evidence, at pgs. 68 and 70. The nature of the evidence as summarized below show that these were purposely false statements, as opposed to simple problems of recollection.

[34] Ms. Myers asked Mr. King a series of questions about his transfer out of the Toronto South Detention Centre (“Maplehurst”), and then tried to have Mr. King estimate the date of his preliminary hearing testimony with reference to his transfer date.

[35] Ms. Myers then asked: “When is it that you testified in court?” Mr. King replied: “The incident took place at Maplehurst – when I was at Maplehurst Detention Centre”. And then at pg. 68, he continued saying: “So, I was removed out of Maplehurst for security reasons, that this guy had made threats, to Hamilton and then I…ended up going out to Toronto for his preliminary…” Mr. King then made the false statement: “but I didn’t testify, like to testify – the lawyer withdrew himself from the case, so I was sent back.”

[36] Mr. King then tried to maintain this false representation about the preliminary hearing. Ms. Myers at pg. 70 tried to confirm Mr. King’s evidence as to whether he testified when he had been returned to Toronto in July for J., since this new evidence was contrary to his earlier evidence on the point. She asked: “Did you testify that same day in court?” Mr. King repeated the false assertion “Uh no – like I said it didn’t proceed “cause the lawyer withdrew from the case”. While the Defence suggests there was confusion about the date being discussed, Mr. King clearly went beyond the date itself in this passage, and tried to convey the impression that he did not testify at the preliminary hearing because the matter did not proceed, as he had explained earlier.

[37] Ms. Myers then asked Mr. King three pages of additional questions related to his transfer away from Maplehurst at that time, and then returned to the topic of the J. matter. Ms. Myers asked a series of somewhat confusing questions, wherein it was unclear as to whether she was referencing the trial or preliminary hearing in J. She then asked Mr. King a more all-encompassing question at pg. 74: “And although you gave a statement in that case, you haven’t had to testify in relation to that at all?” It was only at this point that Mr. King backed away from his prior assertion, replying: “Well, I -- I was at his prelim, when I was in the Toronto South, but I haven’t gone his trial, no, “cause his lawyer withdrew from the case”.

[38] Ms. Myers followed up at pg. 74 with the question: “So, you did testify at the prelim?” to which he answered: “Yes.” She then asked: “And you did give evidence on that day?” to which he answered: “At the prelim, yes, but not the trial. The lawyer withdrew. I was supposed to go – I was going back for trial but the trial didn’t continue.”

[39] In summary, while Mr. King initially gave a correct answer about testifying at the preliminary hearing, and eventually provided a true answer on this issue after repeated and more precise questioning by pg. 74, I find that he made two separate false statements that he did not testify at the preliminary hearing at pg. 68 and again at pg. 74, as outlined above. It was only when pressed that he eventually gave a correct answer. The issue was not one of mere date confusion – aside from asserting that he did not remember the date, he gave answers that left the false impression that the preliminary hearing did not happen at all at the relevant time and tied it to the transfer for the Marshall matter, when in fact the J. preliminary hearing did happen, and included lengthy jail-house related-evidence from King.

[40] The third element of the offence of perjury requires the Crown to prove that Mr. King intended to mislead the Court in making the false statement. A trial judge can infer whether the accused intended to mislead from the evidence establishing the false statement: Calder v. the Queen (1960) 1960 SCC 73, 129 CCC 202 at 206; R. v. Wilson 2011 ONSC 3385 at paras. 36, 41-43. It is not necessary for the Crown to prove that Mr. King actually misled the Court. Perjury is an “inchoate offence”, provable by establishing the attempt to mislead: Wilson, at para 38; Wolf v. The Queen, 1974 SCC 161, [1975] 2 SCR 107.

[41] From the context of the examination taken as a whole, I infer that he intended to mislead the Court about whether the preliminary hearing had occurred. His choice of words used at the mid-point of his evidence to describe whether or not he testified reads as designed to obscure the fact of his testimony in those proceedings; trying to convey the impression that it had not yet occurred through a detailed account of the matter not going ahead, which he related to the time of transfer back to Maplehurst (the time of the preliminary hearing). The questions at the midpoint were clearly asking Mr. King to recount whether he testified around the time of his transfer, and at that point he chose to obscure the truth. Only when he was backed into a corner did he provide the correct information to the Court. The fact that he eventually corrected the impression left does not negate the earlier attempt to obscure his evidence with the language he used at the mid-point of the testimony.

b. Did King Provide False Evidence Regarding Other Prior Cases?

[42] The Crown also alleges that Mr. King gave false evidence about his status as a witness in other matters, in addition to his false statements about J. The Defence on this issue argues that Mr. King’s answers were not clearly false and that any inaccuracies may have resulted from the Defence not refreshing Mr. King’s memory.

[43] Looking at Mr. King’s answers in the full context of his evidence at the preliminary hearing and Patterson’s evidence about Mr. King’s dealings with police, I find that Mr. King made false statements about his prior activities as a witness. In a similar style to that described above, Mr. King provided inconsistent and contradictory answers to questions about whether he had previously been a witness in other criminal cases.

a. Initially, Mr. King told the Court that he had testified in matters prior to the J. preliminary hearing. At pg.74 of Exhibit 1, Tab 4, Ms. Myers asked Mr. King whether his preliminary hearing testimony in J. was “the first time you’d ever testified in court”, to which he replied: “No”. b. At pg.75, Ms. Myers followed up, asking: “What are the other times that you’ve testified in court?” Mr. King responded that he had testified previously saying: “The other times – it was a long, long time ago. I can’t really remember. It was a long time ago. It was, like, back in, like, early 90s. c. On day two of Chouart and Marshall, defence counsel, Mr. Posner, began his cross-examination. At pg.65 of the transcript, Mr. Posner asked Mr. King to verify the veracity of a statement he made to D.S. Patterson: “So, that is actually true then, that when Officer Patterson asked if you had ever testified in court and you said you hadn’t, that was true, right?” Mr. King responded: “Yes”. I note that the correct answer would have been “No”, since Mr. King had testified in multiple proceedings. Accordingly, this statement is false. d. The Court then took a break, after which Mr. Posner asked several follow up questions about Mr. King’s gambling. Mr. Posner then directed Mr. King to the statement he made to Detectives Mahoney and Patterson, and asked at pg.72 whether there “is anything that you were deceptive [sic], whether by omission or commission? That’s something you left out or something that you added that wasn’t quite true in your dealings with Officers Mahoney and Patterson? Anything? Is there something you left out?” Mr. King replied: “I can’t recall”, and at pg.73 he said: “There’s been so many conversations, I’m not sure. Like I can’t – I can’t recite to you everything that was said”. e. Mr. Posner then asked follow-up questions, and had Mr. King confirm that he had not deliberately attempted to mislead or lie to the police. At pgs. 75-76, Mr. King confirmed that he understood the seriousness of the first-degree murder preliminary hearing that they were engaged in, and that he understood lying would constitute perjury. f. Mr. Posner asked Mr. King at pg. 77 whether he thought he had fooled the officer into thinking he had never testified before. They engaged in a back and forth exchange about whether King had fooled the officer. g. At pg. 78, Mr. Posner asked: “Well, you know you’ve testified before, right”? Mr. King replied, with a false statement: “I – about my friend, yes. But I didn’t like testify, testify under oath and…all that stuff”. h. Mr. Posner immediately confirmed whether Mr. King understood the meaning of testifying, which he confirmed in the middle of pg. 78. i. Mr. Posner next asked Mr. King at pg. 78: “…you’re saying now you did not have him fooled when you told him that, “Hey, I’ve never testified before” and that’s because what you told him was the God’s truth, correct?” Mr. King’s reply: “I – I told him the facts were the truth when I had the video statement, yes…they were the truth”. j. Mr. Posner again confirmed with Mr. King at the bottom of pg. 78: “The assertion by Albert Edward King that I – to Officer Patterson that, “I have never given sworn testimony, I’ve never given testimony before”, that was the God’s truth, correct?” Mr. King answered: “Yes” at the top of pg. 79, confirming the false information. k. Mr. Posner then at pg. 79 asked Mr. King whether he had testified in the Brooks case. Mr. King replied: “Yes”, that he testified at Brooks’ trial, contrary to his prior answer. At pg. 80, Mr. Posner asked him whether he “committed perjury right now, correct” (As outlined above, Mr. King had confirmed that he understood perjury to mean lying in court). Mr. King answered: “By saying that I didn’t testify before? Yes”. l. Mr. King then at pg. 80 tried to interrupt Mr. Posner’s next question, saying: “‘cause technic…”. Mr. Posner reconfirmed Mr. King’s understanding of the seriousness of testifying in a murder case and the seriousness of perjury. m. Mr. Posner at pg. 80 then asked: “Fair to say that you assumed or you assessed things that the police – you assumed they didn’t know - - you assumed Mr. Fassler didn’t know that I didn’t know that you had given evidence in the matter of Mr. Brooks’ case, right?” Mr. King answered: “From my understanding, I – that was a gag order”. n. Mr. Posner gave Mr. King a further opportunity to confirm this answer at pg. 81, asking: “This is your chance now to now clear it all up; the truth when you said you did not ever testify…you committed perjury”. Mr. King replied: “Yes.”, confirming his false evidence about being a witness in the past. o. Mr. King also admitted at pg. 83, contrary to his earlier assertion, having testified in an additional prior murder trial. p. Mr. Posner asked Mr. King if he had forgotten about the prior proceedings. Mr. King, at pg. 83, said “No”. q. At pg. 84, Mr. King testified about his understanding of the gag order: “No. But I figure a gag order is like where it can’t be revealed what I ….That’s what I figure…it can’t be –be mentioned. That’s – ‘cause there was a gag order on it, so that’s why I didn’t….”. r. At pg. 87, Mr. Posner asked about Mr. King’s prior evidence in the other murder case, and asked him about the gag order. Mr. King explained, “Well, a gag order is like nobody’s to know about my testimony”. s. Mr. Posner told Mr. King that his name was in the reported decision in Brooks. Mr. King at pg. 88 said that he did not know it had been published and that he “figured the gag order was that nobody was to know my testimony”.

c. Intention to Mislead – Mistake of Law

[44] Mr. King’s position at his perjury trial was that he did not intentionally mislead the preliminary hearing court with incorrect information about his prior activities as a witness – rather, Mr. King asserts that, based on the wording of the preliminary hearing transcript, he thought the matters were sealed, or that they were subject to a “gag order”. I determine that this position does not constitute a defence for Mr. King in the circumstances, and I have no reasonable doubt about his intention to mislead based on a full examination of the evidence.

[45] Mr. King is effectively arguing that he relied on a court order to excuse his misrepresentation of facts to the Court, suggesting that this impacts the required mens rea for the offence. Mr. King’s assertion about the “gag order” or his belief in a publication ban amounts to a “mistake of law”. Ignorance of the law is not an excuse for committing an offence, according to the s. 19 of the Criminal Code statement of this well-known common law principle, unless the accused can establish that there was an “officially induced error” excusing the offence.

[46] The defence of officially-induced error has not been established, as conceded by the defence. Mr. King would be required to satisfy the six-part test set out in Levis (City) v Tetrault, 2006 SCC 12 to raise that defence.

1. that an error of law or of mixed law and fact was made;
2. that the person who committed the act considered the legal consequences of his or her actions;
3. that the advice obtained came from an appropriate official;
4. that the advice was reasonable;
5. that the advice was erroneous; and
6. that the person relied on the advice in committing the act.

[47] While there was information that a publication ban was in place for one of the homicide cases, and for the preliminary hearing evidence in J., there was insufficient evidence to explain whether and why Mr. King believed those publication bans would allow him to give false information to the preliminary hearing court. There is no evidence that he sought clarification or advice of the scope of any of these bans, and also see Exhibit 1, Tab 4, pgs. 111, 140-141, where Mr. King claimed his lawyers did not know he was testifying and that he had not sought advice about testifying. There is insufficient detail in the transcript about the scope of any “gag order” to assess whether the alleged order would permit Mr. King to lie to a court about having been a witness. In any event, I am unaware of any legal authority that would permit a witness to lie about such a fact – the witness would perhaps be permitted at best to raise an objection to questions about prior testimony in such a circumstance – but not to lie about it or take any other self-help remedies to enforce the publication ban.

[48] Moreover, there is no evidence that there was any publication ban in place for the Brooks matter, only Mr. King’s assertion that he thought it was – however Brooks was a reported case, and it included Mr. King’s name and the details of his evidence.

[49] Even if there is some doubt as to whether Mr. King sincerely thought there was a “gag order”, this would not constitute a defence for misleading the Court, as I outline above, given the constraints of the officially-induced error test, and the absence of evidence about an actual publication ban in Brooks.

[50] Mr. King’s intention to mislead the preliminary hearing court is clear from the entirety of his evidence in Chouart and Marshall about his status as a witness in other proceedings, particularly when viewed in light of D.S. Patterson’s evidence that Mr. King also lied to them about his never having testified before. This misrepresentation at the trial would appear to be a continuation of the misrepresentation to the police. There is no ambiguity that he intended to mislead. As outlined in the evidence summary above, even though he initially referenced other times that he testified, King later repeatedly confirmed under oath his false statement that he had never testified before, and that he had never taken the oath in a proceeding. He testified at pg. 83 that these false statements were not the result having forgotten these matters. This makes sense in light of the gravity of those cases and that they involved jail-house confession matters, despite the intervening years in between the trials.

2. Perjury Regarding Prior Confessions

[51] The Crown alleges that Mr. King also committed perjury by attempting to mislead the Court into believing that Marshall was the first person to confess to Mr. King. The Defence argues that the statements are not clearly false or misleading, or are subject to the same gag order considerations.

[52] In cross-examination, at pg. 102 of Tab 4, Ms. Myers asked Mr. King whether it was strange that Mr. Marshall confessed to him. The questions and answers from pgs. 102-105 show that Mr. Marshall made the following false statements:

a) Mr. King answered: “Again, it’s what people – what people say”. b) Ms. Myers followed up with: “Particularly, the first time you meet them or when they don’t know you, it’s even rarer then, right?” Mr. King answered: “I don’t wanna say ‘cause I don’t know. I’ve never been in that kinda situation where somebody’s gone through and, you know, what they wanna tell me”. c) Ms. Myers asked him to clarify. Mr. King said: “Like, I’ve never gone through somebody who wanted to tell me what they had done….This is the first time that I’ve actually met somebody that is – that had told me what he had done”. d) Ms. Myers said: “This is the first time someone’s ever confessed to you?” Mr. King replied: “In that -- in jail, yes.” Ms. Myers clarified: “Never before has anyone confessed to you in jail?” Mr. King replied: “Not about, like this particular, like, murder or anything no?”. e) Ms. Myers clarified: “Not about any murder”, and Mr. King said: “No.” f) Ms. Myers clarified: “Not about anything serious like that?” and Mr. King replied: “I don’t recall, no”. Ms. Myers then asked if he would remember because it so unusual, and Mr. King said: “possibly”, after which he said: “I remember one case a long time ago, but that was a friend of mine”. g) Ms. Myers specified: “One case a long time ago and that was a friend of yours?” Mr. King answered: “Yes, but it was not a total stranger”. Ms. Myers then clarified after a few questions: “We’ve Marshall that confessed to you that you didn’t know and a good friend. Any others?” Mr. King’s answer was: “No.” h) Mr. King again reiterated the two prior confessions (Mr. Marshall and the friend), and mentioned J. but said that J. did not involve a confession.

[53] This series of questions and answers was exhaustive, and was clearly aimed at having Mr. King provide an account of how many prior times he had received confessions. Mr. King misrepresented his history of receiving confessions, which as noted in the section above, includes at least Brooks and the other prior case, and arguably J. in addition to Chouart and Marshall and the stolen vehicle matter.

[54] The matters that Mr. King omitted were not minor matters that could logically be forgotten over the course of time, as suggested by defence. These matters were grave and serious – Mr. King himself noted that Brooks was a “child killer” and he immediately named both Brooks and the other murder case once Mr. Posner revealed he knew about Brooks.

[55] As noted above, there is no evidence of mere forgetfulness – Mr. King himself testified that he had not forgotten those matters, and only revealed them once he was caught in the misstatement by Mr. Posner. I infer from the overall evidence as recounted that Mr. King intentionally misled the Court about receiving prior confessions, in the same way that he misled the Court about having testified in prior matters. As I explain above, his assertion in the preliminary hearing transcript that he thought the matters were sealed or subject to a gag order lacks detail, and would otherwise constitute an unavailable mistake of law defence. In all the circumstances, there is no reasonable doubt on the evidence.

3. Perjury Allegation Regarding Crime Stoppers Use In Marshall Case

[56] I have a reasonable doubt that this portion of the facts constitutes perjury. This makes no difference to the conclusion on guilt on the single count indictment. This finding merely informs the scope and extent of the perjury for the purpose of the sentencing hearing.

[57] Mr. King provided an unclear answer about the issue of his use of Crime Stoppers for contacting the investigating officers in Chouart and Marshall. He said at Tab 4, Pg. 90 that he “only used the Crime Stoppers to get a hold of the investigating officers in the Clyde Marshall case”. Ms. Myers asked whether he “only used it that time”, to which Mr. King answered: “Yes… To get in contact with Mr. Mahoney”. Later in the evidence, Mr. King clarifies that they spoke through Crime Stoppers on more than one occasion.

[58] I am not satisfied beyond a reasonable doubt that Mr. King’s evidence on this point is false on its face, or in its overall meaning. The question asked of Mr. King did not clearly specify a single point of contact, and his response is equally non-specific.

IV. CONCLUSION

[59] I find beyond a reasonable doubt, considering all the evidence, that Mr. King committed perjury as charged.

Addendum - Regarding Jail-House Informants

[60] As noted, the case of R. v. King involved perjured evidence from a jail-house informant in a first-degree murder case. Commissions of inquiry into wrongful convictions and related appellate decisions have raised significant concerns about the reliability of evidence from jail-house informants. Consequently, most attorney’s-general, prosecution services and police forces in Canada have (or should have) protocols and policies on the use of jail-house informants. The events in the prosecution underlying this case may identify an issue that should be examined in terms of either the design or implementation of the applicable protocols.

Boucher, J.

Released: January 16, 2019

COURT FILE NO.: CR-18-40000059-0000 DATE: 2019-01-16 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ALBERT EDWARD KING REASONS FOR decision Boucher, J. Decision Released: January 16, 2019