R. v. Valentine, 2003 CanLII 2465 (ON SC). Click here. In R. v. Toney; R. v. Ali (1993), 97 Cr. App. R. 176 (C.A.), the Court held that the offence is committed where a person, intending that a potential witness give evidence that differed from the evidence that the witness would otherwise give, interferes with the witness by bribing the witness, threatening the witness, placing undue pressure on the witness or employing other unlawful means.
R. v. Valentine, 2003 CanLII 2465 (ON SC)
COURT FILE NO.: P79/03
DATE: 20030923
ONTARIO
SUPERIOR COURT OF JUSTICE
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HER MAJESTY THE QUEEN
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CLINTON VALENTINE | ) ) ) | M. Doyle, for the Accused |
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| ) | HEARD: August 21, 2003 |
Dambrot J.
[1] Clinton Valentine is charged with one count of willfully attempting to obstruct justice. Specifically, he is charged that, between the months of August and September 2000 in Toronto he did willfully attempt to obstruct, pervert or defeat the course of justice by attempting to dissuade A.F. from proceeding with her complaint of sexual assault against Joseph Igbinosun. He elected to be tried by me without a jury. The trial was very brief. Counsel agreed that I could rely on the evidence taken on the preliminary hearing, together with a taped conversation that was filed on consent. The authenticity of the tape is not in issue.
The Facts
[2] The uncontested facts, in brief, are as follows.
[3] A.F. resides in Brantford, Ontario. She is married and has two adult children. She is a slot attendant at (…) Casino. Prior to this employment, she worked as a social worker for ten years. In 1999, her son D. was charged with some drug offences, and required the services of a lawyer. A young man that she had seen around town came by her home and recommended that she contact Joseal Igbinosun, whom he said was a good lawyer. She did contact him, and her son retained Mr. Igbinosun.
[4] On June 24, 2000 Ms. A.F. attended at Mr. Igbinosun’s office in connection with her son’s defence. She alleges that Mr. Igbinosun sexually assaulted her in his office. As a result, he has been charged with sexual assault.
[5] At some point during the summer of 2000, Ms. A.F.’s husband told her that while she had been away from home, the accused Clinton Valentine, who was a stranger to Ms. A.F., had been by the house and wanted to speak to her regarding Mr. Igbinosun. He left his phone number with Mr. F. Despite her fears she called Mr. Valentine and agreed to meet him. Mr. Valentine returned to Ms. A.F.’s home in order to speak to her.
[6] Feeling threatened by Mr. Valentine’s contact with her, and fearing that she might need to protect herself in some fashion, Ms. A.F. surreptitiously taped her conversation with Mr. Valentine. I do not propose to describe the conversation in detail, but I will make some brief comments about it.
[7] Mr. Valentine was very circumspect and evasive throughout the conversation. When asked about the purpose of the meeting, he indicated that it concerned the charges laid against Mr. Igbinosun. He indicated that he had given Mr. Igbinosun’s name to the person who had recommended him to Ms. A.F. He said that he was not there to be an intermediary between Ms. A.F. and Mr. Igbinosun, but that it was his intention to see if they could work on the situation. He said that he was there to see if there was any way that the whole thing could … [He did not finish this thought, but Mr. F. offered the word “slide away” to complete it. Mr. Valentine did not demur.] Mr. Valentine explained that Mr. Igbinosun had a lot to lose, and that he had been a good friend to Mr. Valentine, helping him escape his period of troubles with the police and getting him into university and a better lifestyle.
[8] Mr. Valentine said that he didn’t come to “freak” Ms. A.F. out, and was not telling her that she had to “do this”, but, he said, “if there is anything that could be done, you know what I’m saying…” He didn’t complete this thought. When asked by Ms. A.F. what he thought could be done, he replied, “I really don’t know this.”
[9] After a while, Ms. A.F. asked Mr. Valentine what his role was at her house that day. He never provided a clear response. Later she said, “So am I hearing you correctly that you would like me to do something on the sweet side for Mr. Joseal Igbinosun, is that what I’m hearing?” He replied, “To tell you the truth, I’m not going to lie to you know, I thought well since he helped me all that much if you could do anything you know what I’m saying.” Ms. A.F. asked, “To help him?” Valentine replied, “To help him.”
[10] Later on Mr. Valentine said, “But like again what I’m trying to say if there is any way you know what I’m saying.” Ms. A.F. replied, “Stop this process. Aid him.” Mr. Valentine responded, “Yeah that’s the way you could put it in truth.”
[11] In the end, Ms. A.F. told Mr. Valentine that she felt that she had to disclose this conversation about Mr. Igbinosun to the police. Mr. Valentine said that he didn’t want to be dragged into court, and asked if there was any way that she could leave this part out. Ms. A.F. said that there was not.
[12] Ms. A.F. testified that she felt threatened during this conversation, although the accused did not use threatening words. She also agreed that he did not specifically offer her anything. He simply stated that he wished that there was something “we” could do, because Mr. Igbinosun had so much to lose.
The submissions of Counsel
[13] The Crown alleges that Mr. Valentine’s conduct falls within s.139(2) of the Criminal Code, which prohibits attempts to obstruct, pervert or defeat the course of justice by any means other than a manner described in subsection (1). Subsection (1) relates to sureties, and has no application here. Without restricting the generality of subsection (2), subsection (3) deems certain conduct to fall within subsection (2). Of relevance here, paragraph (a) of subsection (3) lists dissuading or attempting to dissuade a person by threats, bribes or other corrupt means from giving evidence as one of the types of conduct that fall within subsection (2). The Crown, however, disavows specific reliance on this provision. Mr. McGarry argued that merely by trying to persuade a witness not to proceed with a charge, the accused has committed the offence. If there needs to be some form of quid pro quo to bring such an effort within the ambit of the offence, Crown counsel argued that the language of the accused, despite its convolutions, amounts to asking the witness what it would take to get her not to proceed, implying that he would try to provide whatever she demanded.
[14] Mr. Doyle, for the defence, argued that it was equally open to view Mr. Valentine actions as nothing more than a misguided effort by a friend of Mr. Igbinosun to bring to the witness’s attention certain favourable aspects of the character of Mr. Igbinosun. This, he says, would not be culpable. Even if Mr. Valentine was attempting to convince Ms. A.F. not to proceed with the charges against Mr. Igbinosun, this would only be culpable if it was done by corrupt means. Here, the means was simple persuasion, which is not corrupt.
Analysis
[15] In approaching this matter, I say immediately that I view any effort to attempt to interfere with or inappropriately influence a witness as a very serious affront to the administration of justice. But not every contact with a witness is criminal. The line between an approach to a witness that is merely suspicious, and an approach that is criminal is not always easy to discern.
[16] I will begin my analysis by referring to two English cases. I do so because they influenced the Canadian cases relied on by counsel in argument before me. In R. v. Kellett (1975), 61 Cr. App. R. 240 (C.A.) the Court held that a threat or promise to a witness, if made with the intention of persuading the witness to alter or withhold evidence, amounts to an attempt to pervert the course of justice, whether or not what was threatened or promised was otherwise a lawful act. In R. v. Toney; R. v. Ali (1993), 97 Cr. App. R. 176 (C.A.), the Court held that the offence is committed where a person, intending that a potential witness give evidence that differed from the evidence that the witness would otherwise give, interferes with the witness by bribing the witness, threatening the witness, placing undue pressure on the witness or employing other unlawful means. The Court went on to find that the offence can be committed in the absence of unlawful means if the accused had the intention to pervert the course of justice, and gave as an example a man coming up to a witness for the prosecution as he is entering the courtroom and saying, “Tell the court that the defendant had nothing to do with it.” The court held that “the gist of the offence lies in telling a potential witness what he should or should not say with the intention of influencing his evidence, not in the means adopted.”
[17] In R. v. Targon (1981), 1981 CanLII 3326 (ON SC), 61 C.C.C. (2d) 554 (Ont. Co. Ct.), Salhany Co. Ct. J., as he then was, expressed the view that an attempt to procure the withdrawal of a charge, including an attempt to persuade a complainant to “withdraw” her complaint, falls within the offence of attempting to obstruct justice, provided that it is done corruptly. He reached the conclusion that corruption is an element of the offence by application of the ejusdem generis rule, noting that the words "or other corrupt means" appear in s.139(3)(a) immediately following the words "threats, bribes". It was not necessary in that case for Salhany Co. Ct. J. to identify the meaning of “corruptly” other than to note that it was defined in the 5th edition of Black's Law Dictionary as "a wrong design to acquire some pecuniary or other advantage", and that in his view it included an offer to pay any form of compensation to a witness for the stated purpose.
[18] In R. v. Kotch (1990), 1990 ABCA 348 (CanLII), 61 C.C.C. (3d) 132, the Alberta Court of Appeal appears to have adopted the test in Targon, viewing it as more favourable to the accused than the English test expressed in Kellett. In doing so, the Court specifically excluded from the reach of the provision bona fide negotiations for the withholding, withdrawal or reduction of a given charge that are conducted with a law officer of the Crown. The Court meant bona fide in the sense that no collateral benefit or disadvantage “is laid before, or on, the offeree.” The Court also excluded honestly going to a witness who had made a false or mistaken statement and by reasoned argument supported by material facts, trying to dissuade him or her from giving perjured or erroneous testimony.
[19] The test in Targon was also adopted by Ewaschuk J. in R. v. Ranger, [1998] O.J. No. 1240 (Ont. Sup. Ct.)
[20] Crown counsel in this case seeks to avoid the strictures of s.139(3)(a) insofar as it requires that the dissuading of a witness from giving evidence be done by threats, bribes or other corrupt means, by noting that s.139(3)(a) is a deeming provision which, on the plain language of s.139(3), does not restrict the generality of s.139(2), the offence creating provision. Section 139(2) speaks of willfully attempting to obstruct, pervert or defeat the course of justice “in any manner.”
[21] In my view, Crown counsel is plainly correct that s.139(3)(a) does not exhaust the possible ways in which interference with a witness may amount to an offence contrary to s.139(2). After all, an attempt to have a witness testify untruthfully, or an attempt to have a witness try to persuade Crown counsel not to proceed with the charge could obviously amount to attempting to obstruct justice, but equally obviously do not fall within s.139(3)(a), which is concerned exclusively with attempts to dissuade a witness from giving evidence. I am further of the view that the ejusdem generis cannot be the basis for reading the word “corruptly” into the offence of attempting to obstruct justice. At the same time, as a matter of sound policy, it cannot be that any approach to a complainant concerning his or her complaint, or concerning his or her proposed evidence, amounts to an offence. I am sympathetic to the view underlying the judgment in Targon that something in the nature of the element of corruption proposed by Salhany Co. Ct. J., is needed in the definition of the offence of attempting to obstruct justice in order to provide some constraint on the scope of the offence. Indeed such a constraint on the scope of the offence, as will be seen, has found itself into most of the Canadian cases, albeit in a formulation that is different than the one proposed by Salhany Co. Ct. J. It is found, instead, in the way both the actus reus and the mens reus of the offence have been defined.
[22] In R. v. Graham (1985) 1985 CanLII 3644 (ON CA), 20 C.C.C. (3d) 210 (Ont. C.A.), at 212, Howland C.J.O. stated:
It has been held by this Court in R. v. May (1984), 1984 CanLII 3489 (ON CA), 13 C.C.C. (3d) 257 (leave to appeal to the Supreme Court of Canada refused December 20, 1984 [56 N.R. 239n]) that s. 127 [now .139] creates a substantive offence. As Martin J.A. stated at p. 260:
| Although the offence created by s.127(2) of the Code is framed in the language of an attempt we think that s.127 in fact 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: see Smith and Hogan, Criminal Law, 5th ed., p. 700. [Emphasis added.] |
[23] On appeal from this judgment to the Supreme Court of Canada, Estey J. stated, for the Court:
We are all of the view that there is no error in the disposition of this appeal by the Court of Appeal of Ontario. Accordingly, the appeal is dismissed.
[24] To the same effect is the helpful judgment of Lord Lane in the English Court of Appeal in R. v. Murray, [1982] 2 All E.R. 225. He stated, at p.228:
| So what the learned judge in the present case had to decide was whether there was evidence which was fit to go before the jury, that first of all this man had the intention to pervert the course of justice (which plainly he did), but, much more importantly, whether there was evidence that what he did had a tendency to have that effect. In the view of this court, there must be evidence that the man has done enough for there to be a risk, without further action by him, that injustice will result. In other words, there must be a possibility that what he has done "without more" might lead to injustice. It seems to us that he does not himself have to introduce the evidence into the process of justice, as counsel for the appellant invites us to rule. It is sufficient that what he has done "without more" has a tendency to produce that result. |
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| To establish a tendency or a possibility, you do not have to prove that the tendency or possibility in fact materialised.
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[25] The formulation of the mens rea of this offence adopted by the Ontario Court of Appeal in Graham has been adopted by other Canadian appellate courts (see, for example, R. v. Savinkoff, 1962 CanLII 554 (BC CA), [1963] 3 C.C.C 163 (B.C.C.A.); R. v. Hoggarth (1956), 1956 CanLII 515 (BC CA), 119 C.C.C. 234 (B.C.C.A.); R. v. Charbonneau (1992), 1992 CanLII 2979 (QC CA), 74 C.C.C. (3d) 49 (Que. C.A.) (leave to appeal refused (1992) 75 C.C.C. (3d) vi); and R. v. Guess (2000), 2000 BCCA 547 (CanLII), 148 C.C.C. (3d) 321 (B.C.C.A.), (leave to appeal refused, April 5, 2001)).
[26] The formulation of the actus reus of this offence adopted by the Ontario Court of Appeal in Graham has also been adopted by other Canadian appellate courts (see R. v. Charbonneau, supra; R. v. Guess, supra).
[27] In my view, requiring that the conduct of the accused tend to pervert or obstruct the course of justice, and that it be done for the purpose of perverting or obstructing the course of justice more than adequately substitutes for the proposal that the word corruptly be read into the offence.
[28] I turn next to the question whether asking the complainant in a criminal case to attempt to withdraw the charge is an act that has a tendency to pervert or obstruct the course of justice. Obviously threatening a witness, bribing a witness or offering to compensate a witness for refusing to cooperate with the Crown are all overtly improper acts that would inevitably have such a tendency. Similarly counseling a witness, however politely, to commit an offence or otherwise act in an illegal manner must be treated as having the tendency to pervert or obstruct the course of justice, even if unaccompanied by a bribe, threat or offer of compensation. So for example, advising a witness to refuse to take the oath or, having done so, to refuse to answer questions asked of him or her in the witness stand; urging a witness under subpoena not to attend court as required; or asking a witness to lie under oath or to testify in a manner that differs from the witness’s recollection of an event, whether or not that recollection is actually accurate, all, in my view, amount to attempts to obstruct justice, whether or not accompanied by a threat, bribe or offer of compensation.
[29] But what about advising a complainant to ask the Crown to withdraw a charge? This is conduct that is neither overtly improper, nor does it involve counseling an illegal act. Nonetheless, in my view, it may have a tendency to pervert or obstruct the course of justice, depending on the circumstances. I say this because the course of justice contemplates that criminal charges be disposed of on the merits, unless Crown counsel decides not to proceed for proper reasons. While wide discretion whether or not to continue a prosecution is reposed in the Crown, it must be exercised in a principled manner. It has come to be recognized in Canada that Crown counsel is justified in discontinuing a prosecution where he or she is of the view that there is no realistic prospect of a conviction (this test is formulated differently by different prosecution services, but all formulations approximate this one) or that the prosecution is not in the public interest. The fact that the consequences of a conviction would be unduly harsh or oppressive is a proper factor to be taken into account when the public interest is considered. For this reason, in my view, if a person tries to influence a complainant to drop charges without threatening or bribing the witness or offering some compensation to the witness, but on a basis that related neither to the prospect of conviction, nor to a public interest consideration, then the attempt would tend to pervert or obstruct the course of justice. It would involve, in the words of Deane J. in R. v. Meissner (1994), 130 A.L.R. 547 (High Court of Australia) at 558, “an adverse interference with the proper administration of justice”, or, in the words of Lord Lane quoted above, “a risk that injustice will result”.
[30] One could imagine, for example an approach being made to a witness on the basis of race. If a person urged the complainant to withdraw the allegation because both she and the accused were black, that would have the tendency to obstruct the course of justice. Similarly, if an important person in the community approached a complainant and urged her to withdraw the charge because the accused was a friend of his, or if any person urged the complainant to withdraw the charge because the accused himself was an important person, in either case that would also have the tendency to obstruct the course of justice. On the other hand, merely asking a complainant, out of sympathy for the consequences that a prosecution would have on the accused, to ask Crown counsel not to proceed with a charge, would not seem to me to have the tendency to obstruct the course of justice. Forbearing from prosecuting on such a ground is perfectly proper. Crown counsel do refrain from time to time from prosecuting cases despite the existence of a reasonable prospect of conviction on public interest grounds of this nature.
[31] What is the implication for all of this in the present case? Mr. Valentine’s approach to Ms. A.F. is most troubling. It is impossible to imagine that any witness would not feel uncomfortable with such an approach. Ms. A.F.’ evidence that she felt threatened is unsurprising. But there are three aspects of Mr. Valentine’s overture that are relevant to the outcome of this case that are difficult to interpret. First, it is not easy to know what Mr. Valentine wanted Ms. A.F. to do. Second, it is not easy to know what, if anything, he was offering her in return. Third, it is not easy to know whether or not what Mr. Valentine was proposing would have a tendency to pervert or obstruct the course of justice, or whether he made his proposal for that purpose.
[32] With respect to the first issue, it is beyond dispute that Mr. Valentine wanted Ms. A.F., as she put it, “to do something on the sweet side” for Mr. Igbinosun, such as stopping the process or aiding him. Mr. Valentine himself suggested that his mission was “to see if they could work on the situation”, and “see if there was any way that the whole thing could … [slide away]”. But what does this mean? It could cover anything from withdrawing the charge (it may be that Mr. Valentine thought that it is open to a complainant to do so), to asking Crown counsel not to proceed, to refusing to testify, to committing perjury. I am unable to say with certainty that I know what benefit Mr. Valentine sought from Ms. A.F. I am inclined to the view that he wanted Ms. A.F. to do what she could not do, that is, to withdraw the charge.
[33] With respect to the second issue, although Ms. A.F. felt threatened, she acknowledged that there was no threat. Similarly there was no bribe, or other offer of compensation of any kind. The words spoken by Mr. Valentine, however, are open to the interpretation that if Ms. A.F. wanted something in return, she should name it and he would consider it. This could be inferred from his reference to his mission being to see if “they” could work on Mr. Igbinosun’s situation. Crown counsel argued that when Mr. Valentine asked “if there is anything that could be done”, he was asking if there was anything he could do to induce Ms. A.F. to help. In my view, however, those words are at least equally consistent with Mr. Valentine asking Ms. A.F. if there was anything that she could do for Mr. Igbinosun. Overall, I am inclined to the view that Mr. Valentine was not offering Ms. A.F. anything in return for her aiding Mr. Igbinosun.
[34] With respect to the third issue, I am not satisfied beyond a reasonable doubt that Mr. Valentine approached Ms. A.F. for any reason other than his affection for a man who had helped him when he needed support, and his sincere desire that that man’s life not be ruined. While Crown counsel was unlikely to be moved by such an entreaty, it would not be improper to take into account the proportionality of the consequences of a conviction on the accused in deciding whether or not to proceed against him. In other words, I am not satisfied that what Mr. Valentine was proposing would have a tendency to pervert or obstruct the course of justice. Nor am I satisfied that he made his proposal for that purpose.
[35] In all of the circumstances, I am satisfied that Mr. Valentine did an exceptionally stupid thing in approaching Ms. A.F. as he did. A moment of thought would have led him to the conclusion that his actions would, at the least, be misinterpreted, and more likely would be perceived by Ms. A.F. as ominous and threatening. He has no one to blame other than himself for the undoubtedly unpleasant voyage through the criminal courts that he has endured. But I am not satisfied beyond a reasonable doubt that he is guilty of the offence of attempting to obstruct justice. He will be acquitted.
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M. Dambrot
Released: Sept. 23, 2003
COURT FILE NO.: P79/03
DATE: 20030923
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
CLINTON VALENTINE
REASONS FOR JUDGMENT
M. Dambrot J
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Released: September 23, 2003
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