R. v. Smyth, 2019 NLCA 73

Joseph Smyth (appellant) v. Her Majesty the Queen (respondent) (19/35) Indexed As: R. v. Smyth 2019 NLCA 73 5 C.A.N.L.R. 173 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L., Hoegg and Goodridge JJ.A. November 12, 2019

Summary: Joseph Smyth, a constable with the Royal Newfoundland Constabulary, was convicted of obstructing justice for knowingly issuing aticket for which he had no reasonable grounds to do so. Mr. Smyth had issued a ticket to Mr. Sayed Husaini for driving through a redlight. However, at trial, Mr. Husaini provided dashcam footage showing that the light was in fact green when he proceeded through theintersection. The trial judge convicted Mr. Smyth of willfully obstructing justice for issuing a

summary offence ticket to Mr. Husaini.Mr. Smyth appealed the conviction, in part arguing that the trial judge erred by failing to find that he had the specific intent to obstructjustice. Held: Appeal allowed. Hoegg J.A. (Fry C.J.N.L. and Goodridge J.A. concurring): The heightened mens rea, or specific intent, required proof not only that Mr.Smyth knew that Mr. Husaini had driven through a green light and gave him the ticket in spite of that knowledge. The trial judge erredby failing to address whether Mr. Smyth had the specific intent to obstruct justice.

As such, the appeal was allowed and a new trial wasordered (paragraphs 21-43). Cases cited: R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190 R. v. Tatton, 2015 SCC 33, [2015] 2 S.C.R. 574 R. v. Boulanger, 2006 SCC 32, [2006] 2 S.C.R. 49 R. v. Murray (2000), (ON SC), 48 O.R. (3d) 544, 186 D.L.R. (4th) 125 (Ont. S.C.J.) R. v. Nelson, 2016 SKCA 127 R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3 Statutes considered: Highway Traffic Act, RSNL 1990, c. H-3 Criminal Code, RSC 1985, c. C-46,

section 686 Counsel: Jerome P. Kennedy Q.C., for the appellant; Arnold W. Hussey Q.C., for the respondent.

The appeal was heard on June 21, 2019 before Fry C.J.N.L., Hoegg and Goodridge JJ.A. The following judgment was filed on November 12, 2019 by Hoegg J.A. for the Court. ______________________________________________________________ Hoegg J.A.: INTRODUCTION [ 1 ] The wilful obstruction of justice is a serious offence. It is an offence of specific intent, in that a conviction requires proof of a heightened mens rea .

This means that an offender must not only have intended to carry out the actions leading to the charge, but he or she must also have intended to obstruct the course of justice by carrying out those actions. [ 2 ] When a police officer swears that he or she has reasonable grounds to believe an offence has been committed knowing the offence has not been committed, the officer sets in motion a legal process requiring an innocent person to appear in court, muster a defence, and risk being wrongfully convicted.

A police officer who does such a thing jeopardizes the integrity of the justice system by deliberately using it for an improper purpose, thereby wilfully obstructing justice. It is especially serious for a police officer to be convicted of wilfully obstructing justice, for the offence goes to the heart of police work and the trust society places in the police to carry out their duties according to law. [ 3 ] In this case, Joseph Smyth, a constable with the Royal Newfoundland Constabulary, was convicted of obstructing justice for knowingly issuing a ticket to Sayed Husaini for which he had no reasonable grounds.

Mr. Smyth had sworn that he had reasonable grounds to believe that Sayed Husaini breached a provision of the Highway Traffic Act , RSNL 1990, c. H-3 , by driving through a red light. However, Mr. Husaini did not drive through a red light; he drove through a green light. At the same time Mr. Smyth issued three other tickets to Mr. Husaini alleging other breaches of the Highway Traffic Act . [ 4 ] The incident giving rise to the issuance of the four tickets involved Mr. Husaini driving his orange motorcycle on May 12, 2017. Mr.

Husaini had a dashcam recorder on his motorcycle which showed that he had driven through a green light. When Mr. Husaini received notice of the trial dates set for the four alleged Highway Traffic Act breaches, he brought the dashcam recording to the attention of the RNC authorities and all four tickets were withdrawn. Nevertheless, Mr. Husaini made a complaint about Mr. Smyth. The complaint was investigated, and ultimately Mr. Smyth was charged with wilfully obstructing justice for “issuing a

summary offence ticket to Sayed Husaini knowing the offence alleged had not been committed.” [ 5 ] Mr. Smyth was convicted of the offence after trial. He appeals his conviction, alleging that the Trial Judge erred in convicting him by: 1. failing to find that he had the specific intent to obstruct justice; 2. not properly considering his (Mr. Smyth’

s) testimony; 3. improperly using video evidence; 4. not properly considering the expert evidence of a treating psychologist; and 5. improperly restricting defence counsel’s cross-examination of Mr. Husaini in breach of his (Mr. Smyth’

s) right to make full answer and defence. Mr. Smyth also argues that the verdict is unreasonable and cannot be supported by the evidence within the meaning of

section 686 of the Criminal Code . [ 6 ] For the reasons that follow, I would allow Mr. Smyth’s appeal. In my view, the Judge erred in convicting Mr. Smyth by failing to find that he specifically intended to obstruct justice. The Judge correctly identified the issue but did not find that Mr. Smyth specifically intended to obstruct justice or reach a conclusion that Mr. Smyth’s specific intent was established. He also failed to consider the evidence which supported a lack of intent to obstruct justice and explain why he did not find it persuasive. As well, the Judge failed to properly consider Mr.

Smyth’s defence of mistake in that he did not explain why he was not left in a reasonable doubt by it. BACKGROUND [ 7 ] While on patrol in Paradise on May 12, 2017, Mr. Smyth received information on the Royal Newfoundland Constabulary (RNC) police radio that an orange motorcycle was spotted on Torbay Road, in the east end of the city of St. John’s. An orange motorcycle had been the subject of reckless driving allegations on social media, and an orange motorcycle was also the vehicle to which Mr. Smyth had given short chase for excessive speeding in a school zone a few weeks or so earlier.

When he heard the information, Mr. Smyth made his way towards Torbay Road, several kilometers away. En route, he stopped for 19 minutes on the Outer Ring Road to issue a speeding ticket. When he exited the Outer Ring Road, he drove onto Torbay Road heading south. As Mr. Smyth approached the intersection of Torbay Road and Highland Drive, he spotted an orange motorcycle driving north on Torbay Road, in effect coming toward him from the opposite direction. He saw it proceeding northbound through the intersection as he (Mr.

Smyth) drove into the southbound left turning lane and because he believed he had a red light, he believed Mr. Husaini had driven through a red light. [ 8 ] When Mr. Smyth was able, he executed his turns and drove north on Torbay Road. He testified that while waiting to execute and executing his turns, he was glancing over his left shoulder and saw the orange motorcycle weaving through traffic while heading

north on Torbay Road. When he caught up to the motorcycle he pulled it over. Because the traffic on Torbay Road was heavy, he asked Mr. Husaini to move to the Starbucks parking lot on Stavanger Drive where it would be safe to meet. [ 9 ] Once on the Starbucks parking lot, Mr. Smyth discussed with Mr. Husaini the social media complaints of reckless driving as well as the driving infractions Mr. Smyth said he had just witnessed. Mr. Smyth also observed that one of Mr. Husaini’s motorcycle tires was so bald that some of the steel belt was visible. [ 10 ] Mr. Smyth issued four tickets to Mr. Husaini.

They were for (1) driving through a red light, (2) failing to signal when passing, (3) improper passing, and (4) driving with defective equipment (the bald tire). The ticket at issue in this case is the ticket for driving through a red light. The Trial [ 11 ] At trial, Mr. Husaini described Mr. Smyth’s interaction with him as unprofessional. He said that Mr. Smyth told him he would give him every ticket possible. He said he found the interaction repulsive, that the officer stepped toward him in a threatening manner, and that he saw his gun. However, Mr. Husaini testified that when Mr.

Smyth mentioned the red light infraction, he actually thought he had gone through a red light because Mr. Smyth seemed honest. He did not deny that he was driving close to the centre line between the two northbound lanes or that he was passing other vehicles as he drove north on Torbay Road after driving through the intersection. Mr. Husaini acknowledged that Mr. Smyth advised him he could dispute the tickets in Traffic Court. He also acknowledged that his motorcycle tire was bald but said he did not consider it dangerous to drive on. [ 12 ] Mr. Smyth described his interaction with Mr. Husaini as routine.

His testimony, as described in paragraph 7 above, was effectively that the southbound turn light was red for him so he assumed that the orange motorcycle had a red light as well. He acknowledged that other northbound traffic had proceeded through the intersection with the motorcycle, but said that this could be because the red light was fresh. He said that while executing his turns, he was looking over his left shoulder and saw the motorcycle weave through two lanes of northbound traffic and pass vehicles without signaling. [ 13 ] Mr. Smyth accepted that Mr. Husaini drove through a green light. Mr.

Smyth said that he believed at the time that Mr. Husaini had gone through a red light, but after seeing the video, realized he was mistaken. He explained that his judgment of the situation was based on split second views over his left shoulder while he was navigating left turns to proceed north through traffic to pursue the orange motorcycle. Mr. Smyth said that it is not uncommon for drivers to refute allegations of driving infractions so when Mr. Husaini challenged Mr. Smyth on the tickets, Mr. Smyth advised Mr. Husaini that he could dispute the tickets in Traffic Court. [ 14 ] Much of Mr.

Husaini’s driving and the contact between him and Mr. Smyth was captured by Mr. Husaini’s dashcam recorder. The video recording was entered into evidence. [ 15 ] The Crown called a witness from the City of St. John’s Traffic Department to explain how the traffic lights at the intersection of Torbay Road and Highland Drive operate. The witness explained that, due to the lights being prompted by traffic, when a vehicle in the southbound left-turning lane on Torbay Road at the intersection of Torbay Road and Highland Drive had a red light (like Mr.

Smyth believed he had), the light for traffic proceeding in the opposite direction could be green (like Mr. Husaini had). However, the Judge found that the left arrow in the northbound lane was off and therefore the lights were green in both directions when Mr. Husaini drove through the intersection. This means that Mr. Smyth wrongly believed that he had a red light and wrongly assumed that Mr. Husaini also had a red light. [ 16 ] The Crown argued that Mr. Smyth was “out to get” Mr. Husaini in order to get even with him because he had successfully fled from Mr. Smyth a few weeks before.

In this regard, several internal RNC emails were admitted into evidence which showed RNC efforts to identify and locate the driver of the orange motorcycle on the earlier occasion so as to address the social media concerns. Mr. Smyth’s supervisor testified about the investigative work done by Mr. Smyth and others in this regard. The supervisor also gave evidence respecting the volume of

summary offence tickets issued by the RNC police in given years, of which many would be in relation to traffic offences, and the fact that many of them were challenged in court. He stated that he had never known of an obstruction of justice charge against an officer for issuing a traffic ticket. The Judge’s Decision [ 17 ] The Judge did not accept the Crown’s argument that Mr. Smyth was “out to get” Mr. Husaini. The Judge stated that Mr. Smyth’s pursuit of the orange motorcycle was good police work in response to the concerns expressed on social media.

The Judge also found that there was no malice or unusual behavior demonstrated by Mr. Smyth toward Mr. Husaini (as shown on the video) saying “there was nothing noticeable in the behavior of either party” and “[nothing] noteworthy said or done by the officer at the time of writing the ticket”. The Judge also noted Mr. Husaini’s evidence that Mr. Smyth told him he was going to give him (Mr.

Husaini) every ticket possible, but said that “that is the job of a policeman”. [ 18 ] The Judge summarized his assessment of the evidence respecting the RNC investigation into the reckless driving complaints: [9] As regards the police investigation, it is true that Mr. Smyth was conducting an investigation into the activities of the driver of the motorcycle which was the focus of the social media complaints. A number of emails were entered into evidence (consent #7) and the court heard from Mr. Smyth and Paul Didham regarding these.

The emails were also reviewed by Andrew Steele, the investigator from the Alberta Serious Incident Response Team (ASIRT). The GPS tracking device in the unmarked patrol vehicle being operated by Mr. Smyth on May 12 th was also entered into evidence and in all of this there is nothing to suggest that it was other than a routine investigation conducted in a competent and professional manner. [ 19 ] The Judge considered the evidence respecting the operation of the lights at the intersection and the dashcam video and compared it with Mr. Smyth’s testimony. He concluded that the timing of Mr.

Husaini’s travel did not jive with Mr. Smyth’s evidence and that what Mr. Smyth said he saw was not accurate, calling it “inexplicable”. He did not accept that Mr. Smyth made a mistake as to the color of Mr. Husaini’s light:

[31] … But I do not find that there was an error. I do not believe Mr. Smyth saw what he believed to be a red light. There is nothing herethat could lead one to the conclusion that Mr. Husaini went through a red light short of an out and out hallucination. Everything thatoccurred and everything Mr.

Smyth would have observed, even if only for a split second or several seconds, would lead any competentdriver to the opposite conclusion, given the colour of the traffic signals (green), the flow of traffic and the actions of all the cars aroundhim; all the cars, both moving and stopped. [20] Despite his findings that Mr. Smyth was not motivated to “get” Mr. Husaini and that Mr. Smyth had not acted unprofessionallythroughout his investigation of the matter and in his interaction with Mr. Husaini, the Judge convicted Mr.

Smyth of wilfully obstructingjustice, saying: The only way he could have concluded the light was red would be in defiance, in spite of what he saw, not because of what he saw. I findhim guilty as charged. THE LAW [21] In R. v. Beaudry, 2007 SCC 5, the Supreme Court of Canada considered the mens rea required to establish the offence ofobstruction of justice. In Beaudry, a police officer was found guilty at trial for wilfully obstructing justice by failing to administer abreathalyzer test to a fellow police officer in circumstances which clearly indicated that the fellow officer was driving while impaired.

The evidence showed that Mr. Beaudry had disregarded his duty to properly investigate the offence by failing to administer thebreathalyzer to his fellow officer and by advancing a recently concocted excuse for exercising his discretion not to charge him. As well,there were evidentiary conflicts between the initial incident reports and the trial evidence of Mr. Beaudry and defence witnesses whichraised credibility concerns. The Supreme Court of Canada upheld the trial judge’s conviction, saying that his findings of fact were amplesupport for his “perfectly reasonable” conclusion that Sgt.

Beaudry had acted out of favoritism and had thereby wilfully intended toobstruct justice. [22] At paragraph 52 of Beaudry, Charron J. clarified that obstruction of justice is a specific intent offence, and that in order to convictfor that offence, actual intent to obstruct justice must be proved: …, it must be determined whether the offence of obstructing justice, the parameters of which are well established, has been committed.To sum up, the actus reus of the offence will be established only if the act tended to defeat or obstruct the course of justice (R. v. May(1984), (ON CA), 13 C.C.C. (3d) 257 (Ont.

C.A.), per Martin J.A.; see also R. v. Hearn (1989), (NL CA), 48 C.C.C. (3d) 376 (Nfld. C.A.), per Goodridge C.J. N., aff’d (SCC), [1989] 2 S.C.R. 1180 (S.C.C.)). Withrespect to mens rea, it is not in dispute that this is a specific intent offence (R. v. Charbonneau (1992), (QC CA), 13C.R. (4th) 191 (Que. C.A.)). The prosecution must prove beyond a reasonable doubt that the accused did in fact intend to act in a waytending to obstruct, pervert or defeat the course of justice. A simple error of judgment will not be enough.

An accused who acted ingood faith, but whose conduct cannot be characterized as a legitimate exercise of the discretion, has not committed the criminal offenceof obstructing justice. [23] All crimes are composed of an actus reus and mens rea. Mens rea is the intention that must be proved in order to convict. Whilemost criminal offences are crimes of general intent, there are some crimes of specific intent. In crimes of general intent, the actus reus isthe action that is the foundation for the charge, and the mens rea is the intention to commit the actus reus.

The mens rea in specificintent offences is something more than the simple intent to commit the actus reus of the offence; it is an intent that goes to theconsequences or potential consequences of, or ulterior purpose for, the actus reus. [24] In R. v. Tatton, 2015 SCC 33, the Supreme Court of Canada attempted to clarify the difference between crimes of general intentand crimes of specific intent. At paragraph 21, Moldaver J. observed: 21 … The mental element of specific intent crimes is no more “specific”, in the everyday sense of the word, than the mental elementof general intent crimes.

Rather, as we shall see, the distinction lies in the complexity of the thought and reasoning processes that makeup the mental element of a particular offence, and the social policy underlying the offence. [25] At paragraph 35, Justice Moldaver explained the mens rea of general intent crimes by referencing the offence of assault: For general intent crimes, the mental element simply relates to the performance of an illegal act. Such crimes do not require an intent tobring about certain consequences that are external to the actus reus: Bernard, at p. 863; George, at p. 877 (per Fauteux J.).

Assault is aclassic example. The accused must intentionally apply force; however, there is no requirement that he intend to cause injury. Likewise,crimes of general intent do not require actual knowledge of certain circumstances or consequences, to the extent that such knowledge isthe product of complex thought and reasoning processes. In each instance, the mental element is straightforward and requires littlemental acuity.

At paragraph 37, he described the mens rea in specific intent crimes as involving a “heightened mental element,” saying: … For such crimes, the accused must not only intend to do the act that constitutes the actus reus, he must also act with an ulteriorpurpose in mind: Manning and Sankoff, at p. 386. For example, assault with intent to resist arrest is an offence containing an ulteriorpurpose. The accused must not only commit the assault, he must also act with the ulterior purpose of resisting arrest.

It is irrelevantwhether he actually succeeds in resisting arrest; the offence simply requires that he act with that purpose in mind. [26] Justice Moldaver summarized the mens rea required for crimes of specific intent at paragraph 39: … specific intent offences contain a heightened mental element. That element may take the form of an ulterior purpose or it may entailactual knowledge of certain circumstances or consequences, where the knowledge is the product of more complex thought and reasoningprocesses.

Alternatively, it may involve intent to bring about certain consequences, if the formation of that intent involves more complexthought and reasoning processes. General intent offences, on the other hand, require very little mental acuity.

[27] In R. v. Boulanger, 2006 SCC 32, the Supreme Court of Canada addressed the mens rea required in specific intent offences. Boulanger involved the offence of breach of trust by a public officer. At paragraph 57, McLachlin C.J.C. explained the kind of evidencewhich could support a finding of specific intent: 57 As with any offence, the mens rea is inferred from the circumstances. An attempt by the accused to conceal his or her actions mayoften provide evidence of an improper intent: Arnoldi.

Similarly, the receipt of a significant personal benefit may provide evidence thatthe accused acted in his or her own interest rather than that of the public. However, the fact that a public officer obtains a benefit is notconclusive of a culpable mens rea. Many legitimate exercises of public authority or power by a public servant confer incidentaladvantages on the actor. As Widgery J. (as he then was) stated in R. v. Llewellyn-Jones (1966), 51 Cr. App. R. 4, at p. 7: . . .

I would not be prepared to say that it would be misconduct for this purpose for a registrar to make a decision which did affect hispersonal interests, merely because he knew that his interests were so involved, if the decision was made honestly and in a genuine beliefthat it was a proper exercise of his jurisdiction so far as the beneficiaries and other persons concerned came into it. [Cited by WidgeryL.C.J. in Dytham, at p. 394.] [28] Other cases have also grappled with the nature of the intent to obstruct justice. [29] In R. v.

Murray (2000), (ON SC), 48 O.R. (3d) 544, 186 D.L.R. (4th) 125, a criminal defence lawyer wasaccused of attempting to obstruct justice by failing to disclose to police videotaped evidence of serious crimes committed by his client. The lawyer’s evidence was that he believed that he had no legal duty to disclose the evidence in the circumstances. He was acquitted ofthe charge because the Judge had a reasonable doubt about the lawyer’s intention to obstruct justice by failing to disclose the evidence. [30] R. v.

Nelson, 2016 SKCA 127 involved a police officer who was found guilty at trial of wilfully obstructing justice bysuppressing evidence which had the effect of interfering with a prosecution. The Saskatchewan Court of Appeal allowed the officer’sappeal on the basis that the judge had “failed to consider material evidence going to the issue of criminal intent, while overemphasizingevidence which went to the impropriety of and the consequences of the accused’s actions” (at para. 9). [31] R. v. Villaroman, 2016 SCC 33 also pertains.

In Villaroman, the Supreme Court of Canada ruled that “inferences consistent withinnocence do not have to arise from proven facts” (at para. 35), and a trier of fact should, in applying the principle of reasonable doubt,consider other plausible theories and possibilities “which are inconsistent with guilt” when assessing circumstantial evidence (at para.37). ANALYSIS [32] The Judge did not accept the Crown’s argument that Mr. Smyth was “intent on punishing” Mr. Husaini. Nothing in the videosuggested that Mr. Smyth was anything other than professional in his dealings with Mr. Husaini.

As well, the Judge concluded that theinternal emails disclosed that the RNC investigation was routine police work competently and professionally undertaken to address apublic concern. I also note Mr. Smyth’s uncontested testimony that he took approximately 45 minutes to get to Torbay Road fromParadise, having executed a 19-minute traffic stop en route. This does not show the zealousness one might expect to see if Mr. Smythwas “out to get” Mr. Husaini. [33] In this case, the heightened mens rea, or specific intent, that had to be proved was not only that Mr.

Smyth intended to give Mr.Husaini the ticket for driving through a red light, but that he knew that Mr. Husaini had driven through a green light and gave him theticket in spite of that knowledge, thereby intentionally and wrongfully subjecting Mr. Husaini to the rigors of being a defendant in thecriminal justice system. Deliberately using the justice system for a wrongful purpose is wilful obstruction of justice. [34] It appears that the Judge did not accept Mr. Smyth’s explanation for why he thought Mr. Husaini went through a red light. However, I find the Judge’s words problematic. He said “I do not believe Mr.

Smyth saw what he believed to be a red light. There isnothing here that could lead one to the conclusion that Mr. Husaini went through a red light short of a hallucination.” At trial, and in hisASIRT statement, Mr. Smyth explained that he saw Mr. Husaini drive through the intersection on what he assumed was a new red lightbecause he believed he (Mr. Smyth) had a red light. Although Mr. Smyth stated in his notes that Mr. Husaini went through a red light,Mr. Smyth did not say he saw that Mr. Husaini’s light was red. The Judge’s statement may indicate that he misapprehended Mr.Smyth’s evidence.

However, possible misapprehension is not a basis for overturning a verdict; misapprehension must be actual (R. v.Sinclair, 2011 SCC 40 at para. 53). [35] In any event, the Judge made, in my view, a more material error by failing to address whether Mr. Smyth had the specific intentto obstruct justice. Instead, the Judge focused on the fact that Mr. Husaini’s light was green when he drove through it.

With the benefitof the video recording and the City’s traffic officer, he reasoned that no competent driver could have been so mistaken about the colourof the light, even observing the situation for a split second or several seconds. The Judge therefore concluded that Mr. Smyth must havedeliberately issued the ticket to Mr. Husaini knowing his light was not red. In effect, he reasoned that it was so obvious the light wasgreen that Mr. Smyth could not possibly have thought it was red. With respect, the issue is not what any competent driver would haveconcluded about the colour of the light. The issue is Mr.

Smyth’s subjective intention to obstruct justice. The Judge’s reasonsrespecting the colour of the light, without more, do not, in my view, equate to wilfully obstructing justice by knowingly issuing a ticketfor which there are no reasonable grounds. What is required is some evidence, such as the prospect of personal benefit or the absence ofgood faith, from which an inference of wilfulness can be drawn. [36] The Judge was entitled to disbelieve Mr. Smyth’s explanation for believing Mr. Husaini drove through a red light, but he wasstill required to find that Mr.

Smyth wilfully obstructed justice by deliberately issuing the ticket knowing he did not have the grounds todo so. In this regard, Cory J.’s three-step analysis in W.D. is instructive. In Justice Cory’s analysis, even when a Judge does not acceptthe evidence of an accused, he or she must be satisfied that the evidence they do accept supports convicting beyond a reasonable doubt. It is this last step that I find missing in the Judge’s decision. [37] Although the Judge referenced the law stipulating that the offence was one of specific intent, he did not apply that law to the factsand argument before him.

He did not refer in his reasoning to the requirement for wilfulness to obstruct justice to be proved or evidence

of wilfulness or evidence from which he could infer such wilfulness. In this regard, I refer to Chief Justice McLachlin’s words in Boulanger (at para. 57 ) and note that Mr. Smyth’s trial evidence did not vary from his initial notes or his statement to the ASIRT investigator and that he acknowledged his mistake and did not come up with any new explanation for his actions. Neither was there evidence that Mr. Smyth had attempted to conceal his actions, nor that he gained personal benefit by issuing the ticket to Mr. Husaini. And, as stated above, the Judge found no evidence of malice and that Mr.

Smyth’s carriage of the file was professional throughout. And, nothing in the emails detailing police communications respecting finding the orange motorcycle showed that Mr. Smyth had an animus toward Mr. Husaini or that he was intent on punishing him. [ 38 ] As well, Mr. Smyth argued that there was evidence that tended to show that he did not intend to willfully obstruct justice. If he were so intent on obstructing justice, why did he freely admit, in his notes, in his interview with ASIRT, and in his testimony, that other traffic was also moving through the intersection with Mr.

Husaini in the few seconds he observed the situation, or why did he stop for 19 minutes to issue a ticket en route to Torbay Road? [ 39 ] As well, I note that the Judge was unable to say that three of the four tickets issued to Ms. Husaini were improper: [8] As regards the validity of the other tickets, I cannot say, from a review of the video and the testimony, whether they were improper. As was argued by Defence counsel, the view of the video is restricted, to say the least. The ticket regarding the bald tire is generally conceded by all to be valid. The only determination that can be made is that even if Mr.

Smyth did not say he was going to give every ticket possible, it would appear that this is in fact what he did, at least according to what is on the video and according to what he said he saw the driver of the motorcycle doing. But, that is the job of a policeman. One is left to question why Mr. Smyth would deliberately issue a fourth ticket knowing that it was based on false information if he felt he already had reasonable grounds to issue three other tickets. [ 40 ] In convicting Mr. Smyth, the Judge’s reasoning does not touch on the heightened mens rea required or evidence going to whether Mr.

Smyth wilfully put into play a legal process knowing that it was based on false information. The Judge’s reasoning seems to be that the evidence that the light was green was so overwhelming that it was not possible for Mr. Smyth to be mistaken about it. With respect, this is not enough. [ 41 ] Neither is it enough for the Judge to say that he did not believe Mr. Smyth in rejecting his defence. While a trial judge is not required to address in his reasons each piece of evidence adduced at trial, a judge should consider “plausible theories” and “reasonable possibilities” which are inconsistent with guilt.

In this case, the Judge focused exclusively on the color of the light and did not consider Mr. Smyth’s defence in any meaningful way or explain why he was not left in a reasonable doubt by it ( Villaroman , at paragraph 37 ). [ 42 ] The law respecting the defence of mistake stipulates that the mistake does not have to be proved, it only has to raise a reasonable doubt. This was the thrust of the Court’s reasoning in Murray , where Mr. Murray’s stated belief that he was not obligated to pass over evidence to the Crown raised a reasonable doubt that he intended to obstruct justice.

In Nelson , the trial judge had failed to consider whether and how the evidence supported, or did not support, wilful obstruction. In this case, the Judge erred in failing to reconcile the evidence with proof of the requirement for the heightened mens rea and that Mr. Smyth had the specific intent to obstruct justice. [ 43 ] In my view, for the above reasons the conviction cannot stand. I would therefore allow the appeal and order a new trial. Appeal allowed.