CITATION: R. v. Walbourne, 2026 ONSC 2453

COURT FILE NO.: CR-25-0096-00

DATE: 20260424

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

HOLLY WALBOURNE

Samuel Walker and Matthew Asma, for the Crown

Frank Addario and Nicola Langille, for Holly Walbourne

HEARD: April 13-17, 21, 2026

REASONS FOR JUDGMENT

R.F. GOLDSTEIN J.

I. Introduction.................................................................................................................................. 2

II. Factual Background.................................................................................................................... 3

The TBPS Conduct The Webster and HomeSense Investigations.......................................... 4

Morriseau Expresses Concern To Hughes And Is Visited By Walbourne............................... 4

Hughes And Rybak Have A Call On November 10................................................................ 5

Walbourne Emails Hauth And Hughes On November 19....................................................... 5

The November 19 Call Between Hughes and Rybak.............................................................. 6

The Criminal Investigation Commences................................................................................. 6

The November 30 Conference Call......................................................................................... 6

Walbourne Views Occurrence Reports On December 1......................................................... 7

Forshaw Applies For A Production Order............................................................................... 7

Walbourne And Hauth Meet With Hannam On December 9.................................................. 7

Walbourne Speaks to David Humphrey on December 9 and 17............................................. 7

Walbourne Views And Prints Occurrence Reports on December 9........................................ 9

The Investigation Is Referred To The OPP............................................................................. 9

Relations Begin To Deteriorate Between Hauth And Hughes................................................ 9

Hannam Raises The Morriseau Issue With Other Members Of The Board............................ 9

The OPP Investigates............................................................................................................ 10

Relations Deteriorate Between Walbourne And Hughes...................................................... 10

Memoranda Are Prepared For The Board............................................................................. 10

The OCPC Investigates Hauth, Hughes, And Walbourne..................................................... 11

III. Issues And Analysis................................................................................................................. 11

IV. The Obstruction Of Justice Count........................................................................................... 13

(a) Did Ms. Walbourne make false statements and/or misleading statements and/or statements containing material omissions?................................................................................................................... 13

Ms. Walbourne’s awareness on November 30 of the Morriseau criminal investigation....... 16

Ms. Walbourne’s claim of a phone call with Hughes on December 9.................................. 20

Ms. Walbourne’s claim of surprise to learn of the Morriseau criminal investigation........... 21

Ms. Walbourne’s claim to not have reviewed Morriseau investigative file.......................... 22

Conclusion On This Question............................................................................................... 26

(b) Did Ms. Walbourne tend to obstruct, pervert, or defeat the course of justice?............. 26

(c) Did Ms. Walbourne intend to obstruct, pervert, or defeat the course of justice?.......... 26

V. The Breach Of Trust Count....................................................................................................... 26

(a) Was Ms. Walbourne acting in connection with the duties of her office?...................... 26

(b) Did Ms. Walbourne breach the standard of responsibility and conduct demanded by the nature of her office? 26

(c) Did Ms. Walbourne’s conduct represent a serious and marked departure from the standards expected of an individual in a position of public trust?........................................................................... 26

(d) Did Ms. Walbourne act with the intention to use her office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose?..................................... 27

IV. Disposition............................................................................................................................... 27

I. Introduction

1Holly Walbourne faces a charge of obstruction of justice and a charge of breach of trust by a public official. The Crown alleges that she made false statements or material omissions during two interviews with the Ontario Civilian Police Commission (“OCPC”). The false statements and material omissions related to the state of her knowledge about an investigation into Georjann Morriseau, the chair of the Thunder Bay Police Services Board (“the Board”).

2This case concerns four investigations, each growing out of the other. In the summer of 2020 the Thunder Bay Police Service (“TBPS”) was conducting an internal investigation into an alleged leak to local bloggers. The second investigation involved a conversation between an unknown TBPS officer and Morriseau about aspects of the first internal investigation. The second investigation sought to identify the unknown TBPS officer. It spawned a third investigation. The third investigation was a criminal investigation into whether Morriseau had obstructed the second internal TBPS investigation. The criminal investigation was later referred to the OPP. The OPP investigation spawned a fourth investigation, an investigation by the OCPC into the decision of the TBPS to initiate a criminal investigation into Morriseau. Ian Scott was appointed by the OCPC to conduct the investigation. Scott subpoenaed Ms. Walbourne and others to answer questions. He interviewed Ms. Walbourne on March 22 and May 5, 2022. The Crown alleges that Ms. Walbourne made false or misleading statements or material omissions during those interviews, thus committing the crimes of obstruction of justice and breach of trust.

3One of the purposes of a judge’s reasons is to communicate not only to the parties but also to the community the how and why a decision is made. Before I delve into my reasons for decision, I am aware that there is a significant interest in this case in the Thunder Bay community. I feel compelled to mention that this case needs to be viewed in the light of a troubling background. It is obvious to me as an outside observer that in 2020 and 2021 the TBPS was experiencing significant internal conflict at the senior levels. There was disclosure of confidential information to outside parties. Officers were investigating each other. Senior people were making complaints about each other. Officers expressed mistrust of each other. I have no view about who was right and who was wrong, but I do have a view that these conflicts and investigations led to internal upheaval. That upheaval, and the distractions it created, undoubtedly hampered the ability of the police to serve this community. Four investigations – and I am aware that these were not the only four – into alleged wrongdoing by officers and civilian officials of a police service cannot help but roil it. I understand that the events I will be summarizing in these reasons are only a small part of it, but they do form an important part of the background that led to these charges.

4What follow are my reasons for judgment.

II. Factual Background

5In 2020 Georjann Morriseau was the Chair of the TBPS Board. Sylvie Hauth was the Chief of the TBPS and Ryan Hughes was Deputy Chief. Holly Walbourne was counsel to the TBPS, which meant that she was the Chief’s lawyer. Not Hauth’s personal lawyer, of course, but her lawyer in her capacity as Chief.

6Much of what follows includes hearsay statements from witnesses. Unless I state otherwise, anytime I refer to something that is clearly hearsay, it is not for the truth of its contents but rather evidence that the words were said.

The TBPS Conduct The Webster and HomeSense Investigations

7There were two investigations within the TBPS in 2020. The first of these was the Webster criminal investigation. In 2020 local bloggers – one of whom was named Webster – published confidential information that appeared to be leaked from within the TBPS. On July 24, 2020, a text message was discovered on a TBPS phone. It appeared to have been from Webster. The officer who discovered it had recently taken over the phone from another officer. It appeared that the officer who originally had the phone was a possible source of the leaks. The small number of officers who knew about this text message were ordered to keep it confidential. Detective Sergeant Irwin was the officer in charge of the Webster investigation.

8The second internal investigation grew out of the first investigation. Morriseau was shopping at HomeSense, a retail store in the summer of 2020. A police officer approached her. She did not know this officer. He was wearing a mask, as this was during the period where COVID restrictions were in place. The officer told her about the text message. The officer was concerned that the text message was not being dealt with properly. On August 7, 2020, Morriseau called Deputy Chief Hughes about the incident. She was unable to identify the officer. Hughes testified that this call was concerning as the officers who knew about the text message were ordered to keep it confidential. He initiated an internal investigation into the identity of the officer in HomeSense3 store. This was the second internal investigation. It was conducted under the Police Services Act (“PSA”). The PSA was then the legislation governing the operation of police services in Ontario and the conduct of disciplinary investigations. The PSA has since been repealed and replaced by other legislation. The officer in charge of this investigation was Staff Sergeant Gambola. One of the officers under suspicion was Sergeant Jason Rybak. Morriseau was interviewed on August 17, 2020, by Inspector Fennel as part of the Webster investigation. She was interviewed again on August 20, 2020, by Gambola as part of the HomeSense investigation under the PSA. She was asked in both interviews whether Rybak was the officer in HomeSense. Morriseau, who knew Rybak, said he was not and testified that she began to feel under suspicion.

Morriseau Expresses Concern To Hughes And Is Visited By Walbourne

9On October 2, 2020, Morriseau contacted Hughes to express concerns about the investigation. She testified that she was concerned she was the target of an investigation. Shortly after that Hughes went on medical leave. He returned on December 14, 2020, but still conducted police business from his home. He had a police-issued cell phone and email access. In November 2020 Morriseau refused to participate in a photo lineup with Staff Sergeant Gord Snyder.

10Hughes testified that he did not recall whether Ms. Walbourne was involved in the HomeSense PSA investigation. He does not recall having any conversations with her about this investigation. She may well have, however, as she was a person who could prosecute PSA disciplinary offences.

Morriseau testified that at one point Ms. Walbourne came to Morriseau’s house although she could not remember when. In cross-examination Morriseau mentioned September. She testified that Ms. Walbourne suggested that the police thought she was untruthful about the identity of the officer in HomeSense, although Ms. Walbourne told Morriseau that she did not think she was lying.

Hughes And Rybak Have A Call On November 10

11On November 10, 2020, Hughes talked to Rybak. Rybak thought the Webster investigation was concluded. He did not know why his name continued to be brought up in the Morriseau investigation. Hughes was surprised that someone would have told him about the Morriseau investigation. He was suspicious that Ms. Morrisseau had told Rybak because he was aware that Rybak’s name had been put to Morriseau. Hughes memorialized this conversation in an occurrence report dated November 20, 2020, ten days later.

12Hughes testified that on November 10, 2020, he contacted Ms. Walbourne by phone. He briefed her about the conversation he had with Rybak. In his mind they were heading towards a criminal investigation for obstruction, but it was not yet there. He often ran things by her for her opinion during the 2-3 years that they worked together. She did not give him advice during that phone call. He shared his thoughts about a possible criminal investigation with her. She did not say anything about a possible conflict of interest into a criminal investigation of the Board chair. He made no notes of the conversation. He agreed in cross-examination that he cannot be certain of the date of the discussion with Ms. Walbourne. It was some time between November 10 and November 19, 2020. It did not occur to him that it might be improper for the TBPS to investigate its own Board chair, and nobody warned him that it would be. He understood that someone was deliberately interfering with a police investigation, but it was only a theoretical possibility at that point. It had not crystallized into a criminal investigation. He did not yet have the evidence and would not get it for at least 9 more days.

13Hughes did not mention the conversation with Ms. Walbourne in his occurrence report about the conversation on November 10, 2020, with Rybak.

Walbourne Emails Hauth And Hughes On November 19

14November 19, 2020, was an important day in this saga. Ms. Walbourne emailed Hauth and Hughes. She noted that Morriseau had been avoiding calls amounting to a wilful obstruction of an investigation. She stated that she believed that there was an obligation to inform the Board. In cross-examination, Hughes agreed that it is possible to interfere with a PSA investigation without committing a crime. He also agreed that the real interpretation was that “it is not right that Morriseau is not helping us.” Hughes interpreted Ms. Walbourne’s email to refer to a criminal investigation into obstruction. The email, however, stated that Morriseau was refusing to return Snyder’s calls, and that Snyder had at least one more interview to conduct. Snyder was conducting the PSA investigation, not the criminal investigation.

The November 19 Call Between Hughes and Rybak

15Later, during the morning of November 19, 2020, Hughes and Rybak had another call. Rybak said that it was Morriseau who told him that his name had come up in an investigation. It was at that point, Hughes testified, that he had a basis to start a criminal investigation. He did not tell Ms. Walbourne about this second conversation with Rybak.

The Criminal Investigation Commences

16On November 23, 2020, Hughes emailed Hauth without copying Ms. Walbourne. He told Hauth that Ms. Walbourne was aware of Rybak’s first call but not his second. Hauth responded in an email with “10-4”, which Hughes took to mean that he was authorized to proceed with a criminal investigation.

17Staff Sergeant Dan Irwin testified that on November 25, 2020, Hughes tasked him to conduct an interview of Rybak. He was to interview Rybak to determine if he was aware how it transpired that Morriseau had known about the text message received on the TBPS cell phone. He understood that this was a criminal investigation into breach of trust and obstruction. Hughes said it was only Irwin, Hauth, and Detective Constable Forshaw who would be aware of the investigation.

18On November 26, 2020, Hughes informed Hauth in an email that Irwin would be interviewing Rybak later that day. The next day, on November 27, Hughes instructed Irwin by email to task Forshaw with generating a request for a production order. The idea was to determine if Ms. Morriseau’s phone had communicated with Rybak’s phone. He also emailed Hauth and recommended that Ms. Walbourne become involved in discussing the next step. He testified that the next step was to present to the Board, and he wanted her advice.

19In the occurrence report setting out the summary of the interview of Rybak on November 27, Irwin stated he told Rybak that Ms. Walbourne was not aware of what was going on. Hughes testified that was true as far as he was aware.

20Between November 23 and November 30, 2020, there were several emails between Hughes and others in the TBPS, including Hauth, where investigative steps – such as obtaining a production order – were tasked or discussed. Ms. Walbourne was not copied on any of them.

The November 30 Conference Call

21A telephone meeting between Hauth, Hughes, and Ms. Walbourne was arranged for November 30, 2020. The conference call was held with Ms. Walbourne and Hauth that day. Hughes testified that the call was about 15 minutes. The Morriseau investigation was discussed, as well as the production order that had been sought.

22Hauth’s notes of the November 30, 2020, conference call were attached to an Agreed Statement of Facts. In the notes, Hauth writes “connect both phones for context through prod. Order (Forshaw).” She also writes “reach out to Sandler for advice on OCPC process etc.” Hughes testified that he could not recall if he mentioned Forshaw. Stopping the investigation was not discussed, or of the possibility of a conflict of interest. Hughes also did not recall whether the possibility of external legal advice was discussed. He did not have a discussion with Ms. Walbourne about whether the production order had been granted. Hughes’ notes indicate that there was a brief on the reports; they were waiting for the results of the production order (which had not yet been applied for); and that a report will be compiled for the OCPC.

23In cross-examination, Hughes testified that in December 2020 he did not recognize that it was a conflict of interest to investigate a member of a civilian police board. He also misunderstood that a Criminal Code production order was not available for a PSA investigation.

Walbourne Views Occurrence Reports On December 1

24On December 1, 2020, the day after the conference call between Hauth, Hughes, and Ms. Walbourne, a person with the username “hwalbourne” accessed the TBPS computer system. Five occurrence reports concerning steps in the Morriseau investigation were displayed. It is an obvious inference that the person who accessed those occurrence reports was Ms. Walbourne, and I draw that inference.

Forshaw Applies For A Production Order

25Also on December 1, 2020, Forshaw applied for the production order. It was shortly signed by a justice of the peace. He emailed a copy of the order to TBayTel the same day. It is an agreed fact that Forshaw had no communication with Ms. Walbourne about the Morriseau investigation and only dealt with Hauth when she came to obtain a copy of the Information to Obtain (“ITO”) into the production order.

Walbourne And Hauth Meet With Hannam On December 9

26John Hannam was the secretary to the Board and the former City Clerk of Thunder Bay. He met with Hauth and Ms. Walbourne on December 9 to discuss the Board meeting set for December 15, 2020. Hauth told him that Morriseau might have been involved in an internal police investigation and might have acted improperly. Hauth was going to prepare a report for the Board. As far as Mr. Hannam was aware, however, she did not produce one at that time.

Walbourne Speaks to David Humphrey on December 9 and 17

27Also on December 9, 2020, Ms. Walbourne spoke to David Humphrey, a Toronto criminal lawyer. On December 2, Ms. Walbourne had initially approached another Toronto criminal lawyer, Mark Sandler, for advice. Mr. Sandler determined that had a conflict and could not act. He referred Ms. Walbourne to Mr. Humphrey. She contacted Mr. Humphrey by email. In the original email, Ms. Walbourne stated that she needed advice about possible misconduct but did not mention criminal misconduct. She also did not mention anything about a production order.

28During their discussion on December 9, Ms. Walbourne gave Mr. Humphrey some general information about Morriseau. She informed him about a pre-existing criminal investigation about leaks from the TBPS. There was mention of a connection to a police officer. Ms. Walbourne also informed him about a second internal PSA investigation. He learned that an officer had disclosed confidential information to Morriseau. Morriseau had spoken to an unidentified officer in a HomeSense. That generated an investigation into the identity of the officer. He also learned that Morriseau became upset over the questioning and her version of events changed over time. He learned from Ms. Walbourne that Morriseau had told Rybak that his name had come up in the investigation. That had come up in a phone call between Rybak and Hughes. Ryback had been called in by investigators for an interview. Mr. Humphrey also learned that a criminal investigation into Ms. Morriseau had commenced and that a production order had been obtained. There had been discussions with Hughes about how the investigation was no longer an internal investigation but had become a criminal investigation. It was not clear to Mr. Humphrey who had initiated the criminal investigation and who had sworn the ITO for the production order, but he did learn that Ms. Walbourne had spoken to Hughes. It is not clear when she had spoken to him. Mr. Humphrey also understood that Ms. Walbourne learned about the production order after it was issued, which was when she understood that the investigation had become criminal.

29During the call, Mr. Humphrey realized that the real question was about an investigation into the chair of the police services board. His view was that it was a simple issue. It was a basic conflict of interest for a police service to investigate the chair of their own police services board. Such an investigation could not generate confidence that it was truly independent. He advised referring the investigation to the OPP. He also advised that there should be no immediate disclosure to the Board. Investigative steps and disclosure should be left to the OPP.

30Ms. Walbourne later provided the information to obtain the production order and Mr. Humphrey reviewed it. Mr. Humphrey and Ms. Walbourne had a further call on December 17. She informed him that they had referred the investigation to the OPP. He has a note that Ms. Walbourne “met Deputy on Monday”. December 17, 2020, was a Thursday.

31In cross-examination, Mr. Humphrey agreed that Ms. Walbourne was surprised that the matter had gone from a PSA investigation to a criminal investigation. Mr. Humphrey understood that the criminal investigation had been up and running when she learned about it. Her view was that it would be a significant thing for investigators within a police service to investigate without going to the Chief or going to the Chief without independent legal advice. She appeared to be surprised or vexed that a decision was made to obtain a production order before legal advice had been obtained. She did not blame anyone. He also noted that the investigation was on hold either on her advice or consistent with her advice that the investigation should be on hold.

32On the same day that Ms. Walbourne first spoke to Mr. Humphrey, December 9, 2020, Hauth went to the office of the TBPS Intelligence Unit and obtained a copy of the ITO for the production order regarding Morriseau’s phone.

Walbourne Views And Prints Occurrence Reports on December 9

33Also on December 9, 2020, a person with the username “hwalbourne” accessed the TBPS computer system. For the reasons I mentioned earlier, I draw the obvious inference that it was Ms. Walbourne. She viewed four occurrence reports. The Crown suggests that Ms. Walbourne opened these occurrence reports and viewed them during or before the call with Mr. Humphrey on December 9. That is a logical inference and I agree with it. Mr. Humphrey had a lot of detail and Ms. Walbourne likely provided it through the mechanism of the occurrence reports.

34Later the same day, December 9, 2020, Ms. Walbourne accessed and printed seven occurrence reports (generally the same reports she had already viewed).

The Investigation Is Referred To The OPP

35Hughes testified that he met Ms. Walbourne and Hauth on December 14. He learned that the investigation was being referred to the OPP. He understood that Snyder would be the liaison to the OPP. He was not told to hold off on investigating. He did not tell Irwin to stop investigating. The meeting on December 14 is consistent with Mr. Humphrey’s note from their discussion on December 17 that Ms. Walbourne had met with Hughes on “Monday”.

36On December 17, 2020, Hauth wrote to Thomas Carrique, Commissioner of the OPP, to request that the OPP take over the investigation due to a conflict of interest. Commissioner Carrique wrote back on February 23, 2021, agreeing to take on the investigation.

Relations Begin To Deteriorate Between Hauth And Hughes

37On December 18, 2020, Hughes sent Hauth an email, indicating that he was caught off guard by her assertion that he did not keep her informed of the Morriseau investigation. He recounted the emails where he did keep her informed. He came to feel that he was being “thrown under the bus” as he put it later.

Hannam Raises The Morriseau Issue With Other Members Of The Board

38On December 15, 2020, Councillor Kristen Oliver became the new chair of the Board. It was a routine rotation of duties. Mr. Hannam thought he needed to raise the Morriseau issue with the other Board members. He raised it with Councillor Oliver and Mayor Bill Mauro but did not say anything to Morriseau.

The OPP Investigates

39Morriseau testified that she was interviewed by the OPP in February 2021. Some time prior to March 2021, Morriseau learned that she had been the target of an investigation. She raised the issue of the investigation with the Board during the March 16, 2021, meeting. The OPP eventually determined, after consultation with Crown counsel, that reasonable and probable grounds to charge Morriseau with breach of trust did not exist. That finding was set out in an executive summary dated September 20, 2021.

Relations Deteriorate Between Walbourne And Hughes

40Hughes testified that in the summer of 2021, his relationship with Ms. Walbourne deteriorated significantly. Prior to that their relationship had been professional. On August 20, 2021, Ms. Walbourne wrote a very lengthy and detailed email to Hughes alleging that he had allowed a toxic workplace environment to develop.

Memoranda Are Prepared For The Board

41The OPP sent the executive summary of their investigation to Ms. Walbourne on September 21, 2021.

42Between October 6 and October 8, 2021, Ms. Walbourne and Hauth exchanged a draft memorandum for the purpose of providing information to the Board. The memorandum went through five drafts.

43On October 8, 2021, Hauth sent Hughes an email with the final version. Hughes testified that he was not aware of any memoranda prior to that. He interpreted the memo as placing the blame for the investigation on him. As I said, he felt he was being thrown under the bus. He sought to correct the record and in a meeting with Hauth he told her that the memo was inaccurate. He believed that the memo had been written by Ms. Walbourne. He sent Hauth a series of emails from 2020 setting out the events and the timing as attachments to his email. A second memo was sent to the Board but the first was not corrected.

44Nyomie Ray (then Nyomie Korcheskie) testified that she had some involvement with the formatting and correction (but not the content) of the October 12 and 18 memoranda to the Board. The memos were prepared and sent to John Hannam and his assistant. She did not discuss the content of the memos with Hughes and was not present for any conversation between Hauth, Hughes, or Ms. Walbourne.

45Hughes testified that on October 18, 2021, he went over the amended memo with Hauth. They never went over the first memorandum.

46Given that Ms. Walbourne and Hauth still face outstanding charges in relation to the memoranda submitted to the Board, it is best if I do not make any findings about these memoranda except those that are strictly necessary for the resolution of this case.

47In January 2022, Hughes lodged a complaint with the OCPC about Hauth and Ms. Walbourne. He testified that he asserted in the complaint that the memos sent to the Board by Hauth were false. On January 28, 2022, Hughes was suspended. He remained suspended for about a year.

The OCPC Investigates Hauth, Hughes, And Walbourne

48In April 2021, Board Chair Oliver wrote to the OCPC asking for an investigation. The letter was prepared by Mr. Hannam in consultation with Don Jarvis, counsel to the Board. On February 10, 2022, the OCPC formally initiated an investigation. Ian Scott was retained as outside investigative counsel. The terms of reference of the OCPC investigation were set out by Sean Weir, executive chair of Tribunals Ontario, on February 10, 2022. Scott was to investigate whether:

• Hughes initiated a criminal investigation of Morriseau without sufficient grounds and without the Chief’s knowledge, despite an apparent conflict of interest.

• Hauth failed to take steps to address Hughes’ unauthorized action, provided misinformation to the TBPS Board, and failed to take appropriate steps to address allegations of misconduct by members of the TBPS.

• Hauth, Hughes, and Ms. Walbourne colluded in their responses to inquiries from the OCPC relating to the TBPS Board’s request for an investigation.

49Scott interviewed Ms. Walbourne on March 22 and May 5, 2022. He also interviewed Hauth, Hughes, and other members of the TBPS.

III. Issues And Analysis

50The Crown alleges in the indictment that Ms. Walbourne obstructed justice by practicing deception, including the making of false statements and material omissions. The Crown has also alleged in the indictment that Ms. Walbourne committed a breach of trust in connection with the duties of her office by practicing deception. If the Crown cannot prove the making of false statements or material omissions, then both counts must be dismissed. That is the key issue in this trial.

51I take the elements of the offence of obstruction of justice that the Crown must prove beyond a reasonable doubt from Watt’s Manual of Jury Instructions. The elements are:

1. Ms. Walbourne made false statements and/or misleading statements and/or statements containing material omissions during her interviews with Ian Scott;

2. Ms. Walbourne tended to obstruct, pervert, or defeat the course of justice; and,

3. Ms. Walbourne intended to obstruct, pervert, or defeat the course of justice.

52The elements of the offence of breach of trust that the Crown must prove beyond a reasonable doubt were set out in R. v. Boulanger, 2006 SCC 32, [2006] 2 S.C.R. 49, at para. 58:

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

53On the breach of trust count, there is no doubt that Ms. Walbourne was an official. There is some question about whether she was acting in connection with the duties of her office when Mr. Scott compelled her to attend for an interview. Assuming she was, however, there is no doubt that if she did intentionally make false and/or misleading statements, or material omissions during an official inquiry, then either:

• she breached the standards of responsibility and conduct demanded of her by the nature of her office; and,

• her conduct represented a serious and marked departure from the standards expected of an official in a position of trust.

54As all parties recognize, therefore, the key issue in this trial is whether Ms. Walbourne intentionally made false and/or misleading statements, or material omissions in her interviews with Ian Scott. Proving that she did is a necessary but not sufficient condition for the Crown to obtain convictions on both counts. If the Crown cannot prove that she did, it is a sufficient condition for an acquittal.

55I will deal the issues in a series of questions, first on the obstruction of justice count:

(a) Did Ms. Walbourne make false statements and/or misleading statements and/or statements containing material omissions? If not, she is entitled to an acquittal on both counts. Otherwise, I must consider the rest of the questions in sequence.

(b) Did Ms. Walbourne tend to obstruct, pervert, or defeat the course of justice?

(c) Did Ms. Walbourne intend to obstruct, pervert, or defeat the course of justice?

56I will then deal with the breach of trust count and ask the following questions:

(a) Was Ms. Walbourne acting in connection with the duties of her office?

(b) Did Ms. Walbourne breach the standard of responsibility and conduct demanded of her by the nature of the office?

(c) Did Ms. Walbourne’s conduct represent a serious and marked departure from the standards expected of an individual in a position of public trust?

(d) Did Ms. Walbourne act with the intention to use her office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose?

IV. The Obstruction Of Justice Count

(a) Did Ms. Walbourne make false statements and/or misleading statements and/or statements containing material omissions?

57The Crown provided a list of four areas of false statements or omissions that it alleges are the actus reii of the offences, principally practicing deception by making false or misleading statements or material omissions in her OCPC statements:

• First, Ms. Walbourne’s awareness on November 30, 2020, of a criminal investigation into Morriseau, including:

• Her awareness on November 30 of a production order for Morriseau’s phone records;

• Her awareness on November 30 of an interview of Rybak in the criminal investigation of Morriseau; and,

• Whether Ms. Walbourne or Hauth directed Hughes during the November 30 meeting not to investigate pending external legal advice.

The Crown alleges 4 instances in the March 22 interview and 9 instances in the May 5 interview that it argues are false statements or material omissions.

• Second, Ms. Walbourne’s statement that there was a December 9 call with Hughes. The Crown alleges 4 instances in the May 5 interview that it argues are false statements or material omissions.

• Third, Ms. Walbourne’s statement that she was surprised on December 9 to learn of the criminal investigation, including the production order. The Crown alleges 4 instances in the May 5 interview that it argues are false statements or material omissions.

• Fourth, Ms. Walbourne’s statement that she had never reviewed an investigative file regarding the Morriseau criminal investigation prior to October 2021. The Crown alleges 1 instance in the March 22 interview and 3 instances in the May 5 interview that it argues are false statements or material omissions.

58Section 139(2)(a) of the Criminal Code states that “every person who intentionally attempts in any manner… to obstruct, pervert or defeat the course of justice is guilty” of an offence. The Criminal Code section sets out an inchoate offence – an attempt – because it is not necessary that the offender actually obstruct, pervert, or defeat the course of justice. The offence is complete upon attempt. The reason for that is obvious. The harm is in the attempt itself. That proposition is illustrated in R. v. Graham (1985), 1985 3644 (ON CA), 20 C.C.C. (3d) 210 (Ont. C.A.). The accused was charged with various offences related to an assault on his girlfriend. While in custody he wrote a letter asking his brother to threaten the witnesses out of testifying. The letter was never delivered. It was intercepted by a correctional officer. The trial judge granted a directed verdict on the grounds that the offence was never completed because the letter had not been delivered. The Court of Appeal held that was an error. The Court cited R. v. May (1984), 1984 3489 (ON CA), 13 C.C.C. (3d) 257 (Ont. C.A.), where Justice Martin stated that the section creates a substantive offence, “the gist of which is the doing of an act which has a tendency to pervert or obstruct the course of justice and which is done for that purpose.” Sending the letter was the act in and of itself that tended to pervert or obstruct the course of justice.

59Both parties appear to agree that if Ms. Walbourne intentionally made false or misleading statements or material omissions in her interviews it would constitute offence of obstruction of justice: R. v. Spezzano (1977), 1977 1371 (ON CA), 15 O.R. (2d) 489, 34 C.C.C. (2d) 87 (Ont. C.A.), at para. 8. In that case, Justice Martin also made a comment at p. 15 that has application to this case:

Whether a particular false statement to a police officer investigating a crime made by a suspect from motives of self-protection will attract criminal liability depends on the nature of the false statement and the particular circumstances in which it was made.

60I would think that would be obvious, but it bears repeating: the simple fact that a statement is wrong or incorrect is not enough on its own to attract criminal liability.

61That is illustrated in R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at para. 52. Obstruction of justice is a specific intent offence. That means that the Crown must prove beyond a reasonable doubt that the accused person intended to “act in a way tending to obstruct, pervert, or defeat the course of justice. A simple error of judgment will not be enough.” The actus reus of this element is the making of the false or misleading statement or the material omission. The mens rea of this element is that the accused person intended to make a false or misleading statement or material omission.

62Thus, to answer “yes” to this element of the offence in this case, the Crown must prove beyond a reasonable doubt that Ms. Walbourne not only made a false or misleading statement, or a material omission, but that she did so wilfully and intentionally. It is not enough that she probably did so, and if she did, that she may have done so intentionally. It is also not enough that she made a mistake or an error. The Crown must prove the intentionality. The intentionality is the intent to make a false statement or material omission. Whether the intentionality related to the specific purpose of defeating or perverting the course of justice is relevant to the second and third elements of the offence of obstruction of justice.

63Before dealing with the actual areas of alleged misstatement, I want to deal with the question of a motivation to lie. The Crown argues that Ms. Walbourne was motivated by animus towards both Hughes and Morriseau. Ms. Walbourne and Hauth realized that the investigation into Morriseau was a liability and sought to blame Hughes for it. The Crown also argues that Ms. Walbourne was embarrassed to admit, especially to David Humphrey, that she had somehow missed the obvious conflict of interest.

64I have some difficulty with the notion of animus towards Morriseau. It appears that they had professional conflict during the collective bargaining process. That is hardly unusual in any professional setting. There was no evidence of any personal conflict. During the meeting with Morriseau at her home, Ms. Walbourne specifically told Morriseau that she did not agree with the officers who said she was lying. That was consistent with her emails about the Morriseau investigation. Ms. Walbourne did not suggest that she was obstructing the investigation by lying. She suggested that Morriseau was obstructing the investigation by failing to cooperate. Ms. Walbourne told Mr. Scott during the interview on March 22, that at the time she did not think Morriseau was lying, but that thought had since crossed her mind. With respect, I simply do not think that is enough to demonstrate animus.

65I have less difficulty with the notion of animus towards Hughes. Clearly there were significant professional and personal conflicts, as demonstrated by Ms. Walbourne’s August 2021 letter about a harassment investigation. That animus likely goes both ways, as Hughes was suspended based on accusations that he considers false by Ms. Walbourne and Hauth. And yet, both parties accept that his testimony was credible despite some obvious mistakes. To draw the inference that Ms. Walbourne was motivated by animus to lie not only to Scott but also to David Humphrey would require speculation, in my respectful view.

66I also see no evidence at all to suggest that Ms. Walbourne was embarrassed about her failure to grasp that there was a conflict of interest. In fact, I think the evidence suggests the opposite. She clearly raised the issue during the meeting of November 30, at least in relation to the professional standards investigation. If she had not perceived a possible conflict of interest, she likely would not have raised the question of Mark Sandler and obtaining independent legal advice. It is obvious that Mr. Sandler’s name could only have come from Ms. Walbourne. She had alluded to it by advising in the November 19 email there was an obligation to inform the Board that the Chair may have been obstructing an investigation. With respect, I think it would be speculative to find that she was motivated by embarrassment. It would mean accepting that Ms. Walbourne, a lawyer, was not embarrassed to tell her client, Hauth, that she needed outside legal advice to resolve a legal problem but was embarrassed to tell Humphrey because he was a senior and respected criminal lawyer. I find this especially hard to believe given the privileged and confidential nature of the discussion between Ms. Walbourne and Humphrey. I do not accept that argument.

67Frankly, I find it difficult to see any motivation for Ms. Walbourne to lie during her interviews with Scott. That does not mean she did not, of course. The Crown is not required to prove that she had a motive. It is not an element of the offence. But an absence of a motive to lie is a factor to consider when assessing Ms. Walbourne’s intentions and state of mind, and I find that there was an absence of a motive to lie.

68I turn to each of the four areas set out by the Crown.

Ms. Walbourne’s awareness on November 30 of the Morriseau criminal investigation

69Crown Counsel, Mr. Walker, submits that the November 30 meeting is the key event in this trial. The Crown argues that it is clear, from a combination of notes and testimony, that the production order was discussed during that conference call. The Crown says that three things were clearly raised:

• The fact that a production order would be applied for (this is set out in Hauth’s notes);

• The possibility of an OCPC investigation; and,

• Consultation with outside counsel for advice (with a reference to Mark Sandler).

70Some of the examples noted by the Crown include the following from the March 22, 2022, interview, at p. 38:

SCOTT: Okay. So on November 30th, you weren't aware of the production order.

HOLLY: No.

SCOTT: Were you aware of the fact it was being applied for?

HOLLY: No.

71Ms. Walbourne’s answers were fairly consistent after that: she did not recall the mention of a production order on November 30, even after she had the opportunity to review Hauth’s notes:

SCOTT: Okay. So the term-, you may not have a memory of it, but it appears that the words production order were discussed at this meeting.

WALBOURNE: Based on her-, on these notes, yeah. My recollection is that it was not.

72With respect, I think an answer to the allegation that Ms. Walbourne misled Mr. Scott on her awareness of a criminal investigation as of November 30, 2020, is found in the transcripts of the interviews. For example, pp. 37-38 of the March 22, 2022, interview:

SCOTT: Just before we get to the actual email, the date here is November 30th, 2020. Were you aware at that point that a criminal investigation had begun against Morriseau for the alleged leak?

HOLLY: What time's the email at?

SCOTT: This is November 30th at 1:08 p.m.

HOLLY: I had a conversation that morning.

SCOTT: With?

HOLLY: The chief and the deputy.

73And at p. 12 of the May 5, 2022, interview the following exchange took place:

SCOTT: Well, I guess you-, let me ask you this. When did you first become aware that this was a criminal investigation?

WALBOURNE: Oh, so I don't become aware of any sort of criminal steps taken until December 9th.

SCOTT: Okay, but forget about the steps, did you-, when did you first understand that the issue of it being a criminal investigation was on the table?

WALBOURNE: November 30th.

74While the question of a production order was raised at the conference call, it seems obvious to me that Ms. Walbourne understood that a criminal investigation was “on the table” but did not grasp that steps had been taken. I agree with Mr. Addario that the same thing seems to have happened to Hughes. He did not recall – and it is not in his notes – that Ms. Walbourne said that they needed advice from external counsel. His memory was not refreshed by looking at Hauth’s notes. In fact, he later told the OCPC that he did not learn about external legal counsel until later; he also did not recall the name of Mark Sandler being mentioned or make a note of it. He agreed that if someone mentioned Mr. Sandler, it simply did not register. I infer that the same thing happened with Ms. Walbourne. I cannot see how she would have any reason to tell Scott that she was aware that a criminal investigation was “on the table” but not admit that a production order had been discussed. While she was clearly wrong about the mention of a production order, the evidence does not support that it was intentional.

75Chief Hauth’s notes of the November 30 conference call state:

connect both phones for context through prod. Order (Forshaw)

Once done & have grounds go to OCPC w/ all info.

Misconduct of the chair (not proper conduct)

reach out to Sandler for advice on OCPC process etc.

76This note is also consistent with the apparent confusion of senior members of the TBPS about the availability of a Criminal Code production order to obtain information for the Board or the OCPC. I agree with Mr. Addario’s submission that the participants in the November 30 conference call seem to have been focussing on different things, talking past each other.

77It is also, with respect, not apparent to me that Ms. Walbourne said anything inaccurate about her state of knowledge of the Rybak interview as of November 30. During the May 22, 2022, interview, at pp. 15-16 she stated:

SCOTT: … What is your independent-, I mean maybe I shouldn't have shown you this note, but what's you independent recollection of the meeting?

WALBOURNE: It doesn't change my recollection of this meeting, so…

SCOTT: Okay.

WALBOURNE: …my recollection is that the discussion was what is for sort of conduct, so the deputy speaks to us that he has spoken to Rybak and Rybak has indicated that Morriseau had informed him that his name came up in an internal investigation, so in a Police Services Act investigation. I do not recall, and still do not recall, any mention of a production order. Essentially, this portion is quite short, and essentially, my advice at that time is we really should 1 be seeking external advice here on what this is. I didn't feel comfortable giving the advice, and so I was asked to reach out to external counsel, the chief had directed me to do so, to determine what we're dealing with here. Are we dealing with a misconduct, are we dealing with something that could be criminal on behalf of the board chair at the time.

SCOTT: Okay. So-, but you have no recollection of this word production order being mentioned at the meeting?

WALBOURNE: No.

78Ms. Walbourne was not copied on any of the emails setting up the interview with Rybak and reporting the results. She stated during her interview:

SCOTT: Okay. Do you recall whether it was clear that the interview had been done?

WALBOURNE: No.

SCOTT: Okay. 'Cause if we refer to the emails, it's very, very clear this-, the interview had been completed, fair?

WALBOURNE: Yes, I was not privy to any notes at the time.

SCOTT: All right. And then the next line says, connect both phones for context through production order, bracket, Forsham[sic], bracket, right?

WALBOURNE: Right.

SCOTT: And Forsham is the writer of informations to obtain for production orders, is that fair?

WALBOURNE: Forshaw, yes.

SCOTT: Okay. So the term-, you may not have a memory of it, but it appears that the words production order were discussed at this meeting.

WALBOURNE: Based on her-, on these notes, yeah. My recollection is that it was not.

79I frankly cannot see anything misleading or false about Ms. Walbourne’s comments about the state of her knowledge on November 30. Knowing it is “on the table” may not be the same thing as understanding that it had progressed to the point of a production order or an interview of Rybak. If the Crown’s position is that she had complete knowledge of the investigation because a production order was mentioned during the conference call, I find that, with respect, to be untenable. At that point it is a question of semantics – what does “on the table” mean? In my respectful view, a question of semantics is not enough to find someone guilty beyond a reasonable doubt. Otherwise, the ambit of criminal liability is cast too widely. It must be a deliberate lie, deliberately told. As for her awareness of a production order, Ms. Walbourne never indicates that a production order was not discussed – her position is that she cannot recall. There is nothing implausible about that. It happens to witnesses all the time – including in this case. Moreover, I cannot see the point of lying about it to Scott. Even if she was motivated by animus towards Hughes – which had not yet developed in November and December 2020 – it is hard to see what difference it would make if he had disclosed the production order at the November 30 conference call or not. Hauth already knew. It was memorialized in the emails tasking Irwin and Forshaw. It is difficult to see how Ms. Walbourne could have been calculating that somewhere down the road it would get Hughes into trouble.

80As well, the reference to obtaining outside legal advice is consistent with Ms. Walbourne’s understanding that a criminal investigation was “on the table”. As noted, the comments in Chief Hauth’s notes do suggest Mr. Sandler was to be consulted about conducting a criminal investigation of the Board chair, but rather the OCPC process.

81I also cannot agree that the telephone call between Ms. Walbourne and Hughes sometime between November 10 and 19 (Hughes testified at first that it was on November 10) should have tipped her to anything more than the possibility of a criminal investigation. There is nothing in any of the emails that Ms. Walbourne was copied on to suggest that Hughes had commenced or was thinking about a criminal investigation. He also testified that in his own mind his grounds had not crystallized. I cannot accept that Ms. Walbourne should have understood that the TBPS was contemplating a criminal investigation at that point.

Ms. Walbourne’s claim of a phone call with Hughes on December 9

82Ms. Walbourne told Mr. Scott during her May 5 interview that she had a phone call with Hughes on December 9, 2020. The Crown argues that this is a false statement and that she did not have a call with Hughes. Hughes has no recollection of the call and made no note of a call. Hughes testified that he did not usually make notes of his conversations with Ms. Walbourne. They had many calls, as demonstrated by his cell phone records. He generally had no recollection of the contents of those calls. As he put it, she was a resource, and he consulted her. It is true that there is no record of a call between his cell phone and Ms. Walbourne’s cell phone on December 9, but there is nothing to suggest that Ms. Walbourne did not use her TBPS landline. There is evidence that she regularly used her landline for TBPS business. I take nothing from the fact that Hughes cannot recall a call with Ms. Walbourne on December 9.

83Mr. Humphrey testified that Ms. Walbourne was relating information to him that she learned from Hughes. That information was apparently similar to, if not the same as, the information that she later gave to Mr. Scott during her interviews.

84In my view, the call with Humphrey is consistent with the claim that Ms. Walbourne had a conversation with Hughes on or about December 9 and later conveyed the information to him. To be clear, when I speak of consistency, I do not mean corroboration in the sense of a prior consistent statement. Prior consistent statements are, of course, inadmissible for the truth of their contents. As well, I do not mean corroboration in the impermissible sense of bolstering credibility: R. v. W.E.G., 2021 ONCA 365, at paras. 19-22. Rather, I am speaking of Ms. Walbourne’s state of mind when she spoke to Humphrey and then later to Scott. The offence of obstruction of justice requires the Crown to prove intention. It is hard to understand why Ms. Walbourne would have intended to lie to Humphrey about a call with Hughes. It is not clear to me what would have been the point of a lie to Humphrey. Her conversations with Humphrey were privileged and there was no reason to think that they would one day be disclosed. Indeed, the behaviour that generated the OCPC investigation and the interviews with Mr. Scott had not yet occurred. I have already rejected notions of embarrassment or animus. I find nothing misleading or untruthful about Ms. Walbourne’s claim that she spoke to Hughes on December 9, even if she may have been incorrect about the date.

Ms. Walbourne’s claim of surprise to learn of the Morriseau criminal investigation

85Ms. Walbourne told Mr. Scott during the May 5 interview that she was surprised to learn as of December 9 that the production order had been executed. She stated at pp. 21-22:

SCOTT: … Now help me with this. Was there a phone call or something between you and Deputy Chief Hughes before this 2:15 meeting on on...

WALBOURNE: Yeah.

SCOTT: …that day?

WALBOURNE: Yeah.

SCOTT: And he told you at this point that the production order had been executed, fair?

WALBOURNE: Yes.

SCOTT: So was this a big shock to you?

WALBOURNE: Yes.

SCOTT: Even though-, well, I guess you have no memory of the production order being mentioned in the November 30th meeting, right?

WALBOURNE: No, which is why I go to external counsel, and you have those emails in which I state, look, we're looking at misconduct and we need some advice on this. And so it did come as a shock to me that it had been determined sort of to be criminal and that's the (inaudible) they had taken.

86This issue, of course, is related to the issue of the state of Ms. Walbourne’s knowledge on December 9 (May 5 interview, p. 22):

SCOTT: Okay. But I mean the original emails that you sent to Mr. Sandler starting on, I think, December 1st, like right after the November 30th meeting...

WALBOURNE: Yeah.

SCOTT: ...you were sending to him on the basis that this was not a criminal investigation. Let me put it this way, the criminal investigation had not been started, initiated.

WALBOURNE: Exactly, yeah.

SCOTT: Right. So all of those emails going back and forth between Mr. Sandler, and then I think he refers you to Mr. Humphrey…

WALBOURNE: Yeah.

SCOTT: …none of them have to do with telling them that a criminal investigation had been initiated because you didn't know one had been initiated before December 9th, 2020, right?

WALBOURNE: Exactly. And you'll see that I think the night of December 8th email that I'm writing Mr. Humphrey saying that, look, we're dealing with misconduct of the board chair. That's the night of the 8th.

87The Crown has not framed this question as one of objective fact – for example, whether Ms. Walbourne expressed surprise on one occasion and then said that she had not expressed surprise. The problem with the use of the word “surprise” in this context is that it is subjective. Surprise is a human emotion. It is an inherently subjective response to something. Human memory is malleable, particularly over time. Ms. Walbourne may not have been all that surprised on December 9, 2022, to learn of a criminal investigation, but that memory or an emotion may have changed over the course of the approximately 18 months until the statement was taken. With great respect, that is a very thin reed upon which to found a criminal conviction.

88Moreover, Ms. Walbourne was clear in her interview that she knew that a criminal investigation was “on the table” as of November 30 and that Morriseau was the target. To me, the obvious inference is that if she was taken by surprise about anything, it was the existence of the production order.

89Hughes confirmed that Ms. Walbourne was not consulted or put on the email chain instructing Irwin to task Forshaw with obtaining a production order. The email of November 27 from Hughes to Hauth suggesting that Ms. Walbourne get involved resulted in the conference call on November 30. There is no evidence that Ms. Walbourne was briefed prior to November 30. There is also no evidence that Ms. Walbourne was briefed that Forshaw had obtained the order on December 1, or that anyone had briefed Ms. Walbourne on the investigative steps between December 1 and December 9. There are, however, the occurrence reports and to a very large degree, the Crown’s argument that Ms. Walbourne was well aware of the criminal nature of the investigation rests on the next allegation: the review of the occurrence reports.

Ms. Walbourne’s claim to not have reviewed Morriseau investigative file

90This allegation is the Crown’s most compelling. Ms. Walbourne clearly viewed occurrence reports on December 1 and December 9, 2020, and printed occurrence reports (mostly, but not entirely the same ones) on December 9. The Crown points to four instances where it says Ms. Walbourne made false or misleading statements in the interviews about viewing these occurrence reports.

91The first instance pointed to by the Crown (the March 22 interview, at p. 44) deals with when Ms. Walbourne saw the production order and I have already dealt with that issue.

92The second instance deals with notes (the May 5 interview, at p. 17-18). I agree with Mr. Addario on this point that a full reading of the interview transcript is that Ms. Walbourne and Mr. Scott were referring to Chief Hauth’s notes. Ms. Walbourne pointed out that she had not reviewed Chief Hauth’s notes prior to the interview with Mr. Scott. There is no evidence to contradict her on that point, and I do not accept that it was a misleading statement.

93The third is this the statement from the May 5 interview at p. 28, which the Crown argues is false:

SCOTT: Okay, but in this case, did you review any of the documents that were included in the Morriseau investigation, that particular number which I don't have in my head right now.

WALBOURNE: No. So I had seen some of them at this point of drafting this memo because it was just an overview for the board, you know, and I hadn't seen the emails or anything.

94I have bolded the key point because it is likely, or at least plausible, that Ms. Walbourne is referring to occurrence reports because she differentiates them from the emails. This statement was in the context of the discussion of the drafting of the October 2021 memoranda from Chief Hauth to the Board. I find from reading the entire context of the statement that the documents Ms. Walbourne is saying she did not read are the emails, rather than other documents such as occurrence reports (May 5 interview, at p. 29):

SCOTT: Okay. So you draft the email based upon, really, I guess a conversation based on November 30th and the conversation based on December 9th, 2020, is that fair?

WALBOURNE: Yes.

SCOTT: Without reference to any of the emails of DC Hughes, fair?

WALBOURNE: Yeah, I don't have them at that time.

95I am unable to find that this third instance is an example of a false or misleading statement.

96The fourth instance is the most troubling allegation of a false or misleading statement or a material omission. It is taken from the same interview at pp. 29-30, right after that exchange:

SCOTT: Okay. Or reference to any of the documents in the investigative file, fair?

WALBOURNE: Fair because what, obviously, has gone to the OPP to do the criminal investigation for them to make that determination, so I didn't feel it was appropriate to opine or sort of have the chief opine on the real investigative step because the issue that was coming-, we had asked the OPP, the OPP provides us their final report, but attached to it says, this is confidential, not to be shared. So to be prudent, I write the OPP, the detective superintendent, Chief Superintendent Kari Dart and say, are you able to draft an executive summary of your investigation? And so my understanding is that even though we may have had files as part of the investigation, it becomes the OPP's investigation, so we are not able to disclose that, so that is why the OPP, I had the OPP or the chief had the OPP draft an executive summary because they're the holders of all of the reports at that point.

97Mr. Scott clearly differentiated between the emails, which Ms. Walbourne had not seen, and the “documents in the investigative file”. He does not define the term “investigative file”, but it would have been obvious to any lawyer involved in police work that it could include occurrence reports.

98While it is clear to me that Ms. Walbourne’s statement was inaccurate, it is not clear to me that she intentionally misled Mr. Scott either by directly lying about having seen the occurrence reports, or by deliberately omitting mention of them. I say that because Mr. Scott’s question, regrettably, invited a range of possible responses. When he said “reference” was he asking about documents that Ms. Walbourne had seen? Or documents that are not referred to in the memoranda? The fact that the question is itself ambiguous makes it difficult to fix Ms. Walbourne with an intention to mislead by commission or omission.

99As well, the questions were asked in the context of the drafting of the October 2021 memoranda to the Board. Mr. Scott was asking whether the memoranda to the Board were drafted without reference to the emails or to the investigative documents. The conversation about the drafting of the memoranda began on page 27 of the May 5 interview. It appears that Ms. Walbourne does, in fact, refer to some documents she had seen – documents that were clearly not the emails.

100I will cite the key questions and answers that, I think illustrate the proposition (some of which is repeated):

SCOTT: Okay, but let's go to the first draft. On what-, what was your sort of informational basis for the drafting of this memo?

WALBOURNE: The very first one?

SCOTT: Yes…

WALBOURNE: So this is based on my recollection which you and I just discussed.

SCOTT: This is based on your recollection?

WALBOURNE: Yeah. So it's not unusual-, (inaudible) with you. I draft a lot of the correspondence for the service. I can't tell you why, but becoming-, since becoming in-house, I'm utilized to draft a lot and then I'll send out for review for accuracy, right, so I can only draft what I can based on my recollection, what I'm told, and then I send it out to that individual such as the chief to review and tell me if I'm-, if there's anything that needs to be changed.

SCOTT: Okay, but in this case, did you review any of the documents that were included in the Morriseau investigation…

WALBOURNE: No. So I had seen some of them at this point of drafting this memo because it was just an overview for the board, you know, and I hadn't seen the emails or anything.

SCOTT: Okay. And clearly, you didn't get any input orally from DC Hughes before you drafted the memo?

WALBOURNE: I didn't get any input from-, I drafted it for the chief…

SCOTT: Okay. So you draft the email based upon, really, I guess a conversation based on November 30th and the conversation based on December 9th, 2020, is that fair?

WALBOURNE: Yes.

SCOTT: Without reference to any of the emails of DC Hughes, fair?

WALBOURNE: Yeah, I don't have them at that time.

SCOTT: Okay. Or reference to any of the documents in the investigative file, fair?

WALBOURNE: Fair

101I have bolded the key statement. It is not clear which documents Ms. Walbourne had seen, but it is clear that they were not the emails. Is it possible that she was referring to the occurrence reports? In my respectful view, it is at least possible. The problem with fixing an intention to lie, however, is that Ms. Walbourne did say at an earlier point that she had seen documents other than the emails, and as I think is likely, she was referring to occurrence reports. In other words, at one point she says she did see documents other than emails, and at another point she says she did not.

102I realize that this gets into the kind of semantics that only lawyers and judges could find relevant, but when determining the ambit of criminal liability, it is critical. I think it is notable that when Ms. Walbourne says she has seen documents she is asked “did you review” them. But when she says she has not, the question from Scott is “did you reference” the documents. This is my point about a possible range of responses. Scott asks both whether she had referenced documents when drafting the memo, and whether she reviewed documents when drafting the memo. It seems entirely possible to me that Ms. Walbourne interpreted the question about referencing to mean whether the emails or documents were quoted in the memorandum. In my view, it is insufficient to find that she deliberately lied.

Conclusion On This Question

I am not satisfied beyond a reasonable doubt that Ms. Walbourne intentionally made false statements and/or misleading statements and/or statements containing material omissions during her interviews with Ian Scott.

(b) Did Ms. Walbourne tend to obstruct, pervert, or defeat the course of justice?

103Given my finding on the first issue, it is unnecessary to answer this question.

(c) Did Ms. Walbourne intend to obstruct, pervert, or defeat the course of justice?

104Given my finding on the first issue, it is unnecessary to answer this question.

V. The Breach Of Trust Count

(a) Was Ms. Walbourne acting in connection with the duties of her office?

105I will assume that the answer is “yes” for the purpose of this question.

(b) Did Ms. Walbourne breach the standard of responsibility and conduct demanded by the nature of her office?

106Given my finding that Ms. Walbourne did not make false or misleading statements or material omissions, the answer is “no” and she is entitled to an acquittal on this count.

(c) Did Ms. Walbourne’s conduct represent a serious and marked departure from the standards expected of an individual in a position of public trust?

107Again, given my finding that Ms. Walbourne did not make false or misleading statements or material omissions, the answer is “no” and she is entitled to an acquittal on this count.

(d) Did Ms. Walbourne act with the intention to use her office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose?

108It is not necessary for me to answer this question.

IV. Disposition

109I find Holly Walbourne not guilty of obstruction of justice. I also find her not guilty of breach of trust by a public official.

R.F. Goldstein J.