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.

 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.”