HER MAJESTY THE QUEEN v. Rodney J. Gillis, Q.C., 2013 NBPC 3

2013 NBPC 3 FILE NUMBER: 04313811 CANADA PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT BETWEEN: HER MAJESTY THE QUEEN -and- Rodney J. Gillis, Q.C. BEFORE: Provincial Court Judge Irwin E. Lampert AT: Moncton, New Brunswick DATE OF DECISION: January 31, 2013 APPEARANCES: Peter Craig appearing on behalf of the Attorney General of Canada,

Maria G. Henheffer, Q.C. and Hélène L. Beaulieu, Q.C., appearing on behalf of the Accused. R.v. RODNEY J. GILLIS INTRODUCTION [ 1 ] The Accused is Rodney J. Gillis, Q.C. The charge alleges that he attempted to obstruct justice. [ 2 ] The actual wording of the Information, sworn to on November 25, 2011, is as follows; Rodney J.

Gillis, 60 Highland Avenue, Rothesay, New Brunswick, on or about the 10 th day of December, A.D. 2009 at Bathurst, New Brunswick, did willfully attempt to obstruct, pervert or defeat the course of justice in a judicial proceeding by attempting to dissuade a person by threats, bribes or other corrupt means from giving evidence, and did thereby commit an indictable offence contrary to Section 139(2) of the Criminal Code of Canada and amendments thereto.

SECTION 139 of the CRIMINAL CODE 139.

(1) Everyone who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding, (

a) by indemnifying or agreeing to indemnify a surety, in any way and either in whole or in part, or (

b) where he is a surety, by accepting or agreeing to accept a fee or any form of indemnity whether in whole or in part from or in respect of a person who is released or is to be released from custody is guilty of (

c) an indictable offence and is liable to imprisonment for a term not exceeding two years, or (

d) an offence punishable on

summary conviction.

(2) Everyone who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

(3) Without restricting the generality of subsection (2), every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed, (

a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence; (

b) influences or attempts to influence by threats, bribes or other corrupt means a person in his conduct as a juror; or (

c) accepts or obtains, agrees to accept or attempts to obtain a bribe or other corrupt consideration to abstain from giving evidence, or to do or to refrain from doing anything as a juror. BACKGROUND [ 3 ] The Crown alleges that during a conversation the Accused had with Alain Jean-Paul Landry at the Bathurst court house during the Preliminary Inquiry of Mr. Gillis’ client, Frank Branch, Mr. Gillis made a proposal to Mr. Landry, verbally and in writing, which involved Mr. Landry stopping certain Crown witnesses from testifying and which constituted an attempt to obstruct justice.

[ 4 ] The date and location of the alleged offence, the jurisdiction of the court and the identification of the Accused have all been proven to my satisfaction. [ 5 ] Following is a brief sketch of the main witnesses who testified at trial, in order to give better context to what transpired. Rodney J. Gillis (“Gillis”) [ 6 ] Gillis has been practicing law in Saint-John since 1971 with the firm Gilbert, McGloan, Gillis. He specializes in commercial law and litigation and deals with personal injury actions, medical malpractice suits, admiralty, wrongful dismissal cases and criminal law.

Gillis has practiced in Small Claims Court, Provincial Court as well as in the Court of Queen’s Bench, and claims that more than 400 of his cases have been reported. He says he has been involved in suits involving as much as approximately 100 million dollars and estimates that during his career, he has spent approximately 1500 days in court at trial. [ 7 ] At the relevant time, Gillis, and his law partner Frank Rogers, were representing Frank Branch, charged with five Criminal Code offences, at a Preliminary Inquiry being held in Bathurst.

Alain Jean-Paul Landry (“Landry”) [ 8 ] On December 10, 2009, Landry was, and still is, the General Manager of the North Shore Forest Products Marketing Board (“the Board”). He officially took over as General Manager of the Board on February 28, 2007. However, he had been working there, since July, 2006. There are seven such marketing boards in New Brunswick and these boards represent private wood lot owners. At the relevant time, Landry was in Bathurst attending Branch’s Preliminary Inquiry.

It is during this time when the critical conversation took place, between Gillis and Landry, the conversation on which the Crown’s case stands or falls. Frank Branch (“Branch”) [ 9 ] Branch, a former member of the legislature of New Brunswick, was the General Manager of the Board for ten years, until 2005, when he was removed for cause. He was suspended and removed from Board offices on October 12, 2005, but was not formally dismissed until March, 2006. Five criminal charges were subsequently laid against him, involving his dealings with the Board, certain individuals and with the Province of New Brunswick.

The charges are: breach of trust, two counts of fraud and two counts of extortion. He was also involved in civil suits with the Board. Linda Gould-McDonald (“Gould-McDonald”) [ 10 ] Gould-McDonald is currently Executive Director of the New Brunswick Forest Products Commission. The Commission oversees the seven forest product marketing boards in New Brunswick and makes certain that the individual marketing boards work within their regulatory powers.

After a complaint was filed against Branch in October, 2005, alleging certain wrong doings, the Commission took from the Board the powers it had and placed Gould-McDonald in charge of this Board. Tim Quigley and Gould-McDonald were mandated to investigate the Branch matter. In January, 2006, the investigators turned over to the Bathurst City Police the results of their investigation and, subsequently, the five charges were laid against Branch. David Nathan Rogers (“Rogers”) [ 11 ] Rogers described himself as being a lawyer, sea captain and business man.

He holds a law degree from the University of New Brunswick and a Masters in Law from Tulane University. Rogers has practiced with the Gillis firm for approximately 32 years and has been Gillis’ law partner for approximately 22 of those years. He practices in a wide range of areas, both civil and criminal. In the field of criminal law, he claims to have extensive experience and to have handled every type of criminal case. In the civil field, he maintains that he has been involved in a large volume of plaintiffs’ work, in the areas of wrongful dismissal, insurance, construction, defamation and admiralty.

Rogers was co-counsel with Gillis in representing Frank Branch at the Preliminary Inquiry on the five criminal charges. Sergeant Mark Lord (“Lord”)

[ 12 ] He is currently a member of the Fredericton Police Department and has been a police officer since 1992. He was asked to investigate this case involving Gillis and became the lead investigator. He eventually took a statement from the Accused. Landry turned over to Lord the offer of settlement (Exhibit C-1) which Gillis had given to him. Lord subsequently lost this document and was unable to explain to the Court what happened to it. However, he had made a photocopy before it disappeared and this became an exhibit with consent of defense counsel.

David Duncan Young (“Young”) [ 13 ] He is a lawyer with the firm McInnis, Cooper, Robertson and has been a member of the New Brunswick bar since 1982. At the relevant time, he was representing the Board in the civil matters involving Branch. THE EVIDENCE [ 14 ] The critical conversation between Landry and Gillis in the Bathurst court house occurred on December 10, 2009. No-one else heard the conversation, although Gould-McDonald, who attended almost all of Branch’s Preliminary Inquiry, was in the hallway with Landry. When Gillis started speaking to Landry, she moved on and heard nothing.

However, she did see Gillis hand a piece of paper to Landry. This was the offer of settlement. (Exhibit C-1) [ 15 ] It was during the noon recess of Branch’s Preliminary Inquiry when Gillis approached Landry with what he claims was a proposal for the resolution of all outstanding civil matters involving the Board and Branch, as well as the criminal matter which was then ongoing.

Gillis asked Landry if he could speak with him, and following are excerpts from Landry’s testimony (I have edited out some comments by myself, crown counsel Craig and the counsel for Gillis, which are irrelevant): ( Partial transcript: August 16, 2012, pages 3-4, commencing at 9:44 a.m.) A. “Rod Gillis said to me. Can I speak to you? So he took me aside. David Rogers walked away and Linda Gould continued her walk. He showed me the piece of paper. THE COURT: Just hold on please. Sorry sir you may go ahead. A. He was standing there.

He had a pen in his hand and he showed me a piece of paper or a sheet which was in a note book and he said I have an offer for you. THE COURT: Hold on a sec please. Okay go ahead. A. Now, this we went through this offer that he had written down. First part was a summation of numbers.” (Partial transcript: August 16, 2012, pages 5-8, commencing at 9:44 a.m.) “Q. Okay, if you would please continue Mr. Landry. A .What it shows, what this document shows is a, the top part are, are numbers and different events and this is what Mr. Gillis went through.

Number one was the criminal which is the legal cost that it would cost Mr. Branch for his criminal trial which was $200,000. The civil matter Branch vs. the board, I’m going to go over the board cost first. It’s going to cost the board $300 or $200,000 in legal and they’re going to gain $300,000 in damages so he was telling me they were going to win the civil and he was going to be awarded $300,000. THE COURT: Just hold on a sec please. Okay.

A. So you take, he was taking the $300,000 from over to the board and he was putting in as a negative $300,000 for the civil because it was going to be, it was going to be funds that Mr. Branch was going to be able to recuperate. Number three is the civil. Is the lis pendens that the board put on Mr. Branch’s properties he said it was going to cost the board another $100,000 in legal for the lis pendens. So the total amount of the board cost was $600,000 and Branch was going to be recuperating $100,000.

Once he paid his $200,000 received the $300,000 he was going to be $100,000 to the good and it was going to cost the board $600,000. Q. Okay. So just so Judge Lampert is clear so what you’ve just described in your testimony who explained that to you? A. Mr. Gillis explained that to me. It was only Mr. Gillis and I that were there. Q. And it was Mr. Gillis who gave you this piece of paper. A. Yes sir. Then we went down to the criminal defence. Q. So what did Mr. Gillis if anything tell you about that portion of the document. A. The criminal defence. Q. Yes. A.

Okay the criminal defence he said was going to be messy. There was two cabinet ministers that were involved that they were. THE COURT: Just hold on, hold on please. Okay. A. That the two cabinet ministers were going to be called to testify for their involvement and that the conduct of the board was going to be put into question. So then he says I have an offer for you. THE COURT: Just hold on a minute please. Okay sir. A. Offer criminal, offer no evidence. Number two civil discontinuance of all civil actions plus there would be a confidentiality agreement signed on both parties.

Number three that the payment of Branch legal fees in the amount of $200,000. Q. Okay, so Mr. Landry when Mr. Gillis said what you’ve just described and presented this offer to you. How did you respond? A. My first response was the payment of the $200,000 I said to Mr. Gillis. I said our organisation has audited financial statements I can’t cut you a cheque for $200,000 I don’t have that power and I said what, what, why, you know why, why do you propose? He said well, what we can do he said, we can run it trough as professional fees.

We can run it through our firm as professional fees and you can get away with it that way, you can. But that, that bothered me extremely because here we were dealing in a case of fraud and he was basically asking me to, to my

interpretation is that he was asking me to not really doctor the books but miss-represent the books. Okay. THE COURT: Hold on please. Go ahead sir. A. Because I have auditors I have to explain the $200,000 and he would have, he would have, I would have an invoice from Mr. Gillis’ firm for $200,000 in legal where the board has not approved them as, they have not been hired as lawyers or anything of that nature. And the second

part I asked him, I said, the criminal offer no evidence. what do you mean? I have no control over the criminal part and he said to me, he said, they are your witnesses you make sure that they don’t testify. THE COURT: Hold on a sec please. Okay A. They’re your witnesses you make sure that they don’t testify and the crown will not have a case. Q. So how did you respond to that Mr. Landry? A. I said look, I said I don’t have any powers over this.

I will consult and I will get back to you and he said, well you better hurry because this offer won’t be on the table for very long…” [ 16 ] As mentioned earlier, during their conversation, Gillis gave to Landry an offer of settlement. It is Exhibit C-1 and is reproduced below:

[ 17 ] After his conversation with Gillis, Landry met for about ten minutes with Gould-McDonald in a private room and explained to her what had transpired. Landry then called solicitor Young to explain to him what had happened but Young was tied up. They spoke later in the day and met the following day in Bathurst.

Landry subsequently made a formal complaint to the Bathurst City Police on December 16, 2009. [ 18 ] Landry described the conversation he had with Gillis as being “pretty intimidating” and said that he was “not comfortable”. [ 19 ] Landry also testified that Gillis invited him to bring the offer to the Board and went on to say that at no time did Gillis tell him to keep the offer confidential. [ 20 ] Gould-McDonald testified that there was no way the Board would accept the offer made by Gillis. [ 21 ] Sergeant Lord took a statement from Gillis on September 9, 2011, at the Saint-John City Police station.

Gillis was not told in advance why Lord wanted to interview him and was arrested upon his arrival at the police station. Gillis was described by Lord as being very cooperative and waived his right to counsel. Lord explained that more than a year passed between the alleged incident and the arrest of Gillis because the file was a “sensitive” one, but he admitted it was not a difficult one.

Because of the sensitivity of the file, Lord said the police were careful how they proceeded and they had consulted counsel. [ 22 ] Gillis categorically denies the comments attributed to him by Landry, with respect to making sure Board witnesses did not testify against Branch. Specifically, he denies making the comment “they’re your witnesses you make sure that they don’t testify and the crown will not have a case”.

However, he also testified that he did not remember the precise words he used. [ 23 ] Gillis explained the financial terms of the offer of settlement as follows: Branch was claiming approximately $500,000 from the Board for his alleged wrongful dismissal. If he was found guilty of the criminal charges, he would obviously be entitled to none of his claim. If, on the other hand, he was acquitted, then the anticipated return from the suit would probably be about $250,000.

So, Gillis proposed to Landry that the Board pay the Gillis’ firm $200,000 for legal fees, following which all pending civil matters between Branch and the Board would be settled. The lis pendens would be discontinued, the

properties would remain vested in Branch’s children, there would be Minutes of Settlement and a Confidentiality Agreement would be executed by the parties. Gillis went on to say that having the criminal matter resolved was always first and foremost on Branch’s mind. [ 24 ] Gillis explained why he preferred having the criminal matter resolved by the Crown calling no evidence, rather than the charges being withdrawn. He said that if the Crown were to simply withdraw the charges, there was always the possibility that they could relay them.

However, if no evidence was called, it would be autrefois acquit and it could be argued that the matters were res judicata . [ 25 ] Gillis testified that neither the Board nor Landry were to have any role with respect to no evidence being called on the criminal charges. He acknowledged that the decision whether or not to continue the prosecution belonged solely to the Crown. [ 26 ] Gillis testified that the offer of settlement was written out with the intention that Landry bring it before his Board of Directors and, perhaps, Young.

He also maintained that no restrictions whatsoever were imposed on Landry with respect to their discussions or the written offer of settlement. [ 27 ] Gillis was asked specifically about the key words attributed to him by Landry: (Partial transcript: September 20, 2012, page 19, commencing at 10:55 a.m.) Q. “Mr. Landry alleges that you said to him, when he asked for an explanation of what criminal offer no evidence meant, and I’m quoting “They’re your witnesses make sure they don’t testify and the crown won’t have a case”. Did you say that Mr. Gillis?” “A. I never said that. Mr.

Landry is mistaken…” [ 28 ] Gillis was asked how he could be sure that he did not make those comments to Landry. His reply: (Partial transcript: September 20, 2012, page 20, commencing at 10:55 a.m.) “A. I’m absolutely sure I did not say that. I’ve practised law for 40 years. I’ve spent 1000, 1500 days in court examining and cross- examining witnesses I’ve never said that ever. And I would remember if I did…” [ 29 ] David Rogers testified that the idea of proposing a settlement to the Board was his and not Gillis’.

He explained in detail the agreement that he had devised, as to the possible resolution of all matters involving the Board and Branch. He said it was agreed that Gillis would approach Landry and attempt to resolve the wrongful dismissal matter by way of a payment of money by the Board to Branch. If that could be resolved, along with the other pending civil matters, he, Rogers, would then approach the Crown Prosecutor dealing with the Branch Preliminary Inquiry, to determine if the Crown was agreeable to resolving the criminal matter as well.

The idea was that if the Crown Prosecutor would agree to this, Branch would re-elect trial by Provincial Court Judge on the five charges, the Crown would call no evidence, and the presiding judge would then be invited to dismiss all five charges. Rogers testified that Branch was explained the possible resolution and he agreed with it. [ 30 ] Rogers was asked to explain the meaning of the words “Criminal-offer no evidence” which was on the offer of settlement given by Gillis to Landry and which he claims he authored.

He explained that it meant that if all civil matters could be resolved, he would ask the Crown to present no evidence in the criminal matter and he’d also ask the court to dismiss all charges. [ 31 ] Rogers testified that he was never asked by anyone to explain or clarify what the offer meant. As well, he was never contacted by anyone from the police to discuss his involvement in this matter. However, neither did he contact the police to explain his role in this case.

[ 32 ] Rogers also explained why it was Gillis, rather than himself, who approached Landry to discuss a possible settlement. He said that Gillis knew Landry from having been involved with him previously in some other litigation and, therefore, it was decided that Gillis would approach Landry. ISSUES: [ 33 ] There are two issues to be decided: 1. Did Gillis, in fact, say to Landry the words which Landry attributed to him? 2. If so, do these words, along with the offer of settlement presented by Gillis to Landry, constitute an attempt to obstruct justice? POSITION OF THE PARTIES [ 34 ] For the defence, Ms.

Beaulieu maintains that , for the numerous reasons referred to later in this decision, there is not sufficient evidence to satisfy the court that Gillis said to Landry the precise words claimed by the latter. Further, she takes the position that this case is nothing but “a huge misunderstanding”. She claims that what Gillis said to Landry had nothing to do with an attempt to obstruct justice but, rather, was an attempt to settle the civil and criminal matter involving Branch and the Board.

She says that Gillis, being a knowledgeable and highly sought after lawyer, is certainly not likely to do that which he is accused of doing and maintains that there is no “air of reality” to the Crown’s case. She further claims her client was a very credible witness and should be believed. Ms. Beaulieu suggests that the investigation by the police was of very poor quality. She opines that Gillis had no motive to do that which he is accused of doing. Ms. Beaulieu maintains that the Crown has not proven the allegations against her client beyond a reasonable doubt. [ 35 ] For the Crown, Mr.

Craig is adamant that this case is not about a huge misunderstanding. He says Gillis didn’t care about the Code of Conduct of the New Brunswick Law Society and “didn’t play by the rules”. The Crown further maintains that the fact that Gillis violated the Code of Conduct of the New Brunswick Law Society should be an indicator of his integrity and credibility. He described this case as being “about a man who did not care about the rules and did not play within the rules”. Mr. Craig claims that this ethical breach escalated into criminal conduct on the day of the alleged offence.

He opined why a seasoned lawyer like Gillis would do something like this: he simply didn’t care about the rules. Craig points out that Gillis, in fact, during cross examination, admitted that he doesn’t specifically remember the exact words he used with Landry, while making the proposal , and suggests that Landry would have been able to, in effect, “call off the Board” and prevent Board employees from testifying at Branch’s Preliminary Inquiry and/or trial. Craig illustrates the inconsistencies between the Statement Gillis gave to the police and his viva voce testimony in court.

With respect to the testimony of David Rogers, the Crown maintains that the Court should not put any weight on it. Mr. Craig believes that Landry is very credible and should be believed. He says that the Crown has proven its case against Gillis beyond a reasonable doubt. CREDIBILITY of WITNESSES and ANALYSIS [ 36 ] Numerous cases have identified some of the main factors courts consider in assessing the credibility of witnesses. These factors are: 1. His/her intelligence, general integrity, general powers of recollection and observation 2.

Is the witness honestly endeavoring to tell the truth and is he/she sincere and frank or reticent and evasive? 3. The witness’ bias, either for the prosecution or for the defense and how well the witness stood up to cross-examination. 4. Congruence or lack of congruence with the rest of the evidence. The last of these tests is of great importance. When a witness testifies to a particular fact, the more his evidence fits with the known and proven facts, the more one is inclined to believe his evidence; the less it fits, the less is one inclined to believe his evidence. [ 37 ] As Russell J. said in R. v.

C.V.S . [2004] N.B.J. No. 462 a decision of the New Brunswick Court of Queen’s Bench, paragraph 9:

“ In assessing credibility of a witness -- and that is critical here -- Courts have been instructed to focus on some factors. Some of theseare: How did the witness appear when giving evidence? Was the witness forthright and responsive to questions? Or was she evasive, hesitant,or argumentative with counsel? Was the testimony of the witness reasonable and consistent, or did the witness contradict herself? Was the witness's testimony externallyconsistent with the testimony of other witnesses?” [38] Campbell J. of the Ontario Superior Court of Justice in R. v. Williams, [2012] O.J.

No. 4666 at paragraphs 200-202, set out howthe credibility of witnesses should be assessed, and I adopt his approach: “ When assessing credibility of a witness and the reliability of their testimony, the court must approach the testimony of each witnesswith scrutiny. A witness' testimony must be examined critically and analyzed rationally. I must consider whether the evidence isreasonable in and of itself and whether it is reasonable having regard to the admitted facts or other credible evidence.

Inconsistenciesand weaknesses of material issues are capable of undermining the reliability of the witness' evidence and his or her credibility.Contradictions in the evidence are important issues and may also be considered in deciding the weight to be given to the evidence. I can accept some, all or none of the witness' testimony in arriving at my conclusions. It is important for me to distinguish betweencredibility of a witness and the reliability of their evidence. The court needs to scrutinize each witness' testimony to decide if he or she istrying to be truthful in giving evidence.

It is also important to assess the reliability of each witness' evidence. A witness may be credible but for any number of reasons thefactual accuracy of what the witness says is questionable and cannot be relied upon. Therefore, concluding evidence is credible inaccepting a witness' account in deciding the material facts in this case I must find the witness is trying to be truthful and his or heraccount is reliable”. [39] And, in R. Nordman, [2004] B.C.J. No. 1809, a decision of the British Columbia Supreme Court, Rice J. put it this way atparagraph 27: “Mr. Carter for the defendant kindly referred me to R. v.

B.T.H., [2001] B.C.J. No. 583, where the court referred to other well knownauthorities and analyzed the issue of credibility and the considerations that come into play in assessing credibility of a witness. In thatcase references were made to Faryna v. Chorny (1951), (BC CA), 4 W.W.R. 171 (B.C.C.A.), where the court said atpages 174 to 175, among other things: Opportunities for knowledge, powers of observation, judgment and memory, ability to describeclearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, ...” R. V.

W.(D.) [40] As credibility is, obviously, critically important in this case, I have followed the guidelines set out by the Supreme Court ofCanada in R. v. W. (D.)[D.W.], (SCC), [1991] 1 S.C.R. 742. Bell J.A. of the New Brunswick Court of Appeal, in R. v.S. S., 2011 NBCA 75 , [2011]N.B.J.

No. 282, 376 N.B.R. (2d) 146, speaks about the “correct application of the reasonabledoubt standard when credibility is an issue” and reviews the framework set out in W. (D): • First, if you believe the evidence of the accused, obviously, you must acquit. • Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. • Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused." [para. 28] [41] At paragraphs 35 and 36, Mr.

Justice Bell elaborates on the application of this framework: “ Therefore, during the W.(D.) analysis, if a trial judge accepts part of the accused's testimony, in order to convict, he or she mustexplain at the second stage of the W.(D). test, why the accused's evidence nonetheless does not raise a reasonable doubt. Alternatively, ifa trial judge perceives inconsistencies in the complainant's evidence, he or she must explain, at the third stage of the W.D. test, why thetotality of the evidence nonetheless proves guilt beyond a reasonable doubt in order to convict (see R. v.

Gharabaghi, 2005 BCSC 1641,[2005] B.C.J. No. 2568 (QL)). Choosing one testimony over another without engaging in the W.(D). analysis shifts the burden of proof onto the appellant to explainaway the other witnesses' evidence (see R. v. Y.M., (ON CA), [2004] O.J. No. 2001 (C.A.) (QL). As a result, toensure fairness of the process the trial judge must explain to the parties why he or she did not accept the accused's testimony, or at leastfind that it did not raise a reasonable doubt.”

Issue # 1 : Did Gillis, in fact, say to Landry the words which Landry attributed to him? CREDIBILITY OF ALAIN J. LANDRY [ 42 ] As mentioned earlier, the Crown’s case stands or falls on the testimony of Landry. It is he and only he who spoke with Gillis at the critical time and received the offer of settlement . Earlier, I provided a verbatim text of exactly what Landry told the court happened between him and Gillis. Defense counsel cautions the court not to accept what Landry says as representing exactly what Gillis told him, and suggests many reasons why.

They include the fact that the conversation was very short and Landry was mostly interested in the financial aspects of the proposal; Landry made no notes of the conversation, either at the time of the conversation or thereafter; Landry “interpreted” what Gillis said ; Landry acted normally during and after the conversation; Landry did not immediately decide to make a criminal complaint; the accuracy of what Landry said Gillis told him could have been influenced by subsequent discussions he had with various people; no clarification of the offer was sought; there was a great deal of animosity between Gillis and Young and Landry remembered additional details of the conversation long after it took place. [ 43 ] I do not find any of these suggestions convincing for the following reasons: (

a) While Landry did not make any notes of the conversation, we have Exhibit C-1, which was written by Gillis himself. It provides some explanation of what he was proposing to Landry and confirms much of what Landry says. (

b) The conversation lasted 2-3 minutes, according to Gillis, 3-5 minutes according to Landry, during which Gillis did more than deliver the offer of settlement. He explained in detail to Landry how he had arrived at the figures shown in the offer and why the settlement would be beneficial to the Board. He also told Landry that if the criminal matter proceeded, “it is going to get messy” and that two cabinet ministers would have to testify. He also threatened that the conduct of the Board would be called into question. Some of this can be seen on Exhibit C-1 (

c) With respect to the criminal proposal, Landry asked for clarification and Gillis provided it. It was not a case of Gillis simply laying it on the table. He was asked to and did explain it in detail. (

d) Landry was obviously profoundly affected by what he heard from Gillis, regarding settlement of the criminal matter. He described the approach by Gillis and the offer as “pretty intimidating” and said he was not comfortable with it. He immediately told McDonald about it and they discussed the matter for 5-10 minutes. Later that day, he attempted to contact his lawyer, Young, but Young was tied up so he spoke with Young’s secretary. Later that day, he briefly discussed the matter directly with Young. He met with him the next day.

Landry contacted the Bathurst City Police shortly thereafter to file a complaint, on December 16, and later on, on a number of occasions contacted the police, to find out what was transpiring in this case. (

e) There is no evidence whatsoever before this Court that any of Landry’s testimony was influenced by subsequent discussions he may have had with anyone. (

f) There is no evidence before me to suggest that there existed any animosity between Landry and Gillis , that Landry would have any reason to want to harm Gillis, or slant his evidence in a manner that would present Gillis in a negative light. In fact, Gillis testified that he knew Landry from having dealt with him before and there was no suggestion of animosity between the two.

There did appear to be animosity between Gillis and Young but I cannot, and do not, believe that this would, in any way, color Landry’s testimony. [ 44 ] In Defence Counsels’ Post Trial Brief , mention is made of some of Landry’s testimony which was either contradicted by other witnesses, or was admitted by Landry to be incorrect. For example, Landry testified that the offer of settlement ( Exhibit C-! ) was torn from a notebook or notepad, when in fact it appears to have been written on a single sheet of paper. Landry testified that Gillis had “sort of pushed Ms.

Gould-MacDonald away” but admitted on cross-examination that this had been a “bad choice of words”. Landry also made an error in the date on which Branch had been dismissed. And, finally, while Landry testified that Gould-MacDonald was twenty feet away while Gillis and Landry spoke, Gould-MacDonald said that she was three feet away. [ 45 ] None of the above errors are significant or troubling. I do not believe they were deliberate and none have any bearing on Landry’s credibility.

They appeared to be honest, insignificant errors which, in no way, affect the credibility of Landry or cast any doubt on the reliability of his account of the critical part of his conversation with Gillis. [ 46 ] Alain Landry appeared to be quite an intelligent man, a man who has occupied a senior position for a number of years. I found him to be a very credible and honest witness. He appeared to be making every effort to relate what happened as precisely as possible, and realized how important accuracy was in all of his testimony.

His testimony was direct, never vague, and he held up well to a quite vigorous and thorough cross-examination. He was a credible witness and I am satisfied that his testimony was reliable

CREDIBILITY OF DAVID ROGERS [ 47 ] I regret to say that Mr. Rogers cannot be believed on many matters about which he testified. In so concluding, I am quite aware that Rogers is an officer of the court. [ 48 ] I will provide some examples of testimony I do not believe: 1. Despite his protestations to the contrary, it is obvious to me, and I am convinced, that for at least a 2.5 month period following Gillis’ meeting with Sgt. Lord in Saint John on September 9, 2011, Rogers was counsel for Gillis (see exchange of e-mails, Exhibits C-4, C-5, C-6 and C-7).

Rogers’ testified that at no time did he ever really represent Gillis in this matter, that he only represented him “in a very limited sense”, that he was only communicating with the crown prosecutor “ to see if I could make this case go away”, all this despite the fact that he advised the Crown that he was “not available” on the original date set for Gillis to make his first appearance in Bathurst Court. As well, Rogers inquired whether the Crown would be proceeding summarily or by indictment, asked the Crown to forward any disclosure material to him and also received supplementary disclosure from the Crown.

On the stand, Rogers admitted that at no time did he ever advise the Crown of what he calls his “limited” role in representing Gillis. [ 49 ] Rogers’ testimony on this issue is simply not believable. 2. Rogers testified that because he didn’t “want to taint my own evidence”, he had never seen the Statements given to the police by Gillis, Landry and McDonald. I find this difficult to believe, in that he received from the Crown the disclosure, in which these Statements would have been a part.

And, Exhibit C-7 contains an e-mail dated November 24, 2011, Rogers to Craig, in which Rogers says: “I had an opportunity to review the disclosure”. 3. Rogers testified that he did not know the names of any of the various parties involved in the civil proceedings involving Branch. Neither did he know the names of any of their counsel, except for Young. I believe that Rogers had to have known the names of at least the parties involved in the lis pendens matter, as he testified that he was involved in that piece of litigation. 4.

I also find it difficult to believe that if Rogers was, in fact, the author of this whole scheme, as he claims, but which Gillis never mentioned in his testimony, and innocently was attempting to settle both the criminal and civil matters in an honest and legal manner, he did not go to the police and volunteer this information, as soon as he found out that Gillis was being charged.

If, as he testified, he was communicating with Craig solely for the purpose of trying to “make this case go away”, why would he not do the most logical thing and tell his story at that time , either to Craig or to the police? [ 50 ] I do not believe that Rogers gave his testimony in a straight forward, honest and believable manner. Much of his testimony simply did not have the ring of truth to it. He was evasive at times, and, simply, not credible. He did not stand up well under cross examination and was argumentative not only during cross-examination but in direct, as well. [ 51 ] In

summary, I do not believe that Rogers was the author of this scheme. Neither do I accept his explanation as to why this whole scheme was created. CREDIBILITY OF RODNEY J. GILLIS [ 52 ] Mr. Gillis provided the court with a general overview of his role in Frank Branch’s civil and criminal cases. His evidence differs from that of Rogers in some important aspects. For example, Rogers claims that the idea to propose a settlement to the Board was his.

Gillis, on the other hand, in his Statement to the police and at trial, never once suggested that the settlement proposal submitted to Landry came from anyone but himself. [ 53 ] Gillis’ testimony was contradictory on some major issues. For example, during his direct examination, Gillis testified that it was most important for Branch to, in some manner, get rid of the criminal charges against him:

(Partial transcript: September 20, 2012, pages 2-3, commencing at 10:11 a.m.) “Q. What were the discussions sir between yourself, Mr. Branch and Mr. Rogers concerning the criminal matter? A. Mr. Branch always wanted to have the criminal matter resoved that was first and foremost on his mind?” With this in mind, Gillis says he decided, with Branch’s blessing, to attempt to resolve both the civil and criminal matter. Subsequently, the approach was made to Landry. [ 54 ] Gillis said basically the same thing, about the importance of resolving the criminal matter, when being questioned by Sgt. Lord in Saint John.

Here is what he said on this issue (Exhibit C-3): “The North Shore Forest Product Marketing Board ah has a significant exposure and one could quantify what their exposure was on the civil side but that’s only part of it. The criminal side is what would damage Mr.

Branch’s name and even though being charged causes problems going through a Preliminary, but, I guess it would come down to ah, if one wanted to resolve the civil side, we’d have to resolve the criminal side (underlining mine) and we’d have to go to the Crown and talk with the Crown to see if they would proceed and decide to offer no evidence, or whatever the case may be”. And further on: “ Gillis: So, if the civil side wasn’t prepared to be settled for a dollar figure, ah, then really us going to the Crown and seeing if they’re prepared to consider dropping the charges. Lord: OK.

Gillis: …it was not in the cards. Lord: All right Gillis: We have never asked the North Shore Forest Product Marketing Board to offer no evidence. Lord: OK. Gillis: But one has to at least say that this is a full and complete resolution of all issues and that’s, I would think, what it was all about”. (underlining mine) [ 55 ] Yet, on questioning from the Court, as to whether there was in fact a linkage between settlement of the criminal charges and settlement of civil suits, Gillis denied that there was.

Here is an excerpt from his testimony: (Partial transcript: November 13, 2012, pages 1-2, commencing at 3:28 p.m.) “THE COURT: I just wanted to ask you, I believe, one thing. I believe you were saying here in cross-examination that there was no linkage between – in your offer of settlement – between the civil settlement and the criminal matter? What I’m asking, in other words, if, if Landry would’ve taken this to the Board and the Board would have said, “Fine. We’ll accept it.” - A. Yeah. THE COURT: - but you couldn’t get the Crown to stop the criminal matter; the civil matters would still have been settled? A.

The still ma- civil matters would still be settled. We would’ve exposed – THE COURT: That’s what I’m asking.

A. We would’ve exposed the evidence we had, which would be somewhat devastating on a judge and jury trial, to the Crown. The Crown could perhaps fix that problem but they would have - but we would have enough funds, either from his property or otherwise, to complete a full defense. But going into it, our problem was he didn’t have enough money to pay for his defence. They had tied up his property. And on that basis, to give away whatever evidence you had that might benefit him wasn’t in the cards, so we had to settle the civil first and raise the money.

THE COURT: So like I say, if they would’ve agreed and paid you 200,000, and you went to the Crown, the Crown would’ve said, “No deal. We’re still going ahead.”, everything stood, that was fine. A. That’s fine. We’d have the 200,000 – THE COURT: Ok. A. We would mount an aggressive defence and do everything possible to have Mr. Branch acquitted.

And I think we would’ve – well, from what I had, I was optimistic we would succeed.” [ 56 ] I also find it difficult to understand that if, in fact, there was no linkage between settlement of the criminal and civil matters, why the criminal matter would be mentioned at all in the offer of settlement ( Exhibit C-1 ). [ 57 ] Gillis’ position as stated above strains credulity and is implausible. If it was so important to Branch , as stated earlier by Gillis, that the criminal matter be resolved, why would he resolve the civil matters while the criminal prosecution still went ahead?

Simply to get another $200,000 to help pay Branch’s legal fees? Branch had already paid Gillis $ 165,000 as a retainer and had also given $35,000 to lawyer Peter Hyslop, to work on the civil matters.

It only makes sense that a settlement with the Board would have to be all inclusive, as Gillis has said, covering the civil and criminal matter. [ 58 ] One might ask why Gillis would move from saying that the civil and criminal matter had to be resolved at the same time, and that it was most important to Branch that the criminal matter be settled, to a position of saying that the civil and criminal settlements were not linked?

The answer is obvious: by downplaying the importance of resolving the criminal matter, this Court would be less inclined to believe that he, Gillis, would commit a criminal offence, as part of an attempt to resolve both matters. [ 59 ] Another area of Gillis’ testimony which I find difficult to believe is his explanation of why he approached Landry with the offer of settlement, rather than Young, as he was obliged to do, by virtue of the Code of Conduct of the New Brunswick Law Society. Gillis’ explanation is that he approached Landry because he had previously known him.

They had met in 2006 on another legal matter. Yet Gillis admitted that Landry had no authority whatsoever to do anything about settling either the civil or criminal matter. Settlement of the civil matters would be the responsibility of the Board. The Crown prosecutor would have to decide about settling the criminal prosecution of Branch. And, I find it relevant that Gillis, despite the fact that Young attended most days of the Preliminary Inquiry (3 of 5), approached Landry on a day when Young was not there but was in Fredericton. There are numerous explanations for this.

Landry testified that there seemed to be a lot of animosity between the two men. In fact, Gillis referred to Young as his “adversary”, suggesting a negative relationship with him. And, during Young’s testimony, it was very obvious to me that Young was virtually seething with contempt for Gillis.

Most importantly, Young, as a practicing lawyer, would have recognized the impropriety of what was being suggested and would likely have rejected it immediately. [ 60 ] So, it appears obvious to me that Gillis very much wanted to avoid dealing with Young on this matter and believed his chances were better, for getting what he wanted, from Landry. [70] During his testimony, Gillis contended that he fully expected Landry to take his offer of settlement back to Young, and the Board, for analysis and a decision. Gillis gave the impression to the court that there was no rush for the Board to come to a decision.

However, here is what Landry said in that regard: (Partial transcript: August 16, 2012, page 8, commencing at 9:44 a.m.) Q. So how did you respond to that Mr. Landry? A. I said look, I said I don’t have any powers over this. I will consult and I will get back to you and he said, well you better hurry because this offer won’t be on the table for very long…” [71] Another aspect of Gillis’ testimony which is not credible is his strong denial that he said to Landry the words attributed to him, with respect to making sure that the Board employees did not testify. In one breath, Gillis denies making this statement.

Yet in another, he testified that this happened three years ago and he does not remember the exact words he used.

(Partial transcript: September 20, 2012, page 11, commencing at 10:55 a.m.) “Q. What did you say to Mr. Landry on that day? A. I had prepared if you want my speaking notes, if you call this document C-1 speaking notes, it wasn’t that. I don’t remember my exact words to Mr. Landry it was three years ago. ”( underlining mine). [72] I would also point out that if, in fact, Gillis knew nothing of the police investigation of this matter until first being interviewed by Sgt.

Lord, then he would have had no reason to attempt to recollect exactly what he had said to Landry , almost two years before. [73] As I mentioned earlier, one of the factors to be considered when assessing the credibility of a witness is that person’s integrity. It is obvious from Gillis’ own testimony that the manner in which he attempted to resolve the criminal and civil matters violated a number of rules of the Code of Conduct of the New Brunswick Law Society. It is also obvious from Gillis’ testimony that he was aware of these rules. Some examples of these violations: 1-

Chapter 15, Rule 2 (Exhibit C-27) provides that when a lawyer knows that another lawyer has been consulted in a matter, the lawyer “shall not communicate on, or attempt to negotiate or to compromise, a matter with a person represented by a lawyer except through or with the consent of that lawyer”. By presenting to, and discussing with, Landry the offer of settlement, Gillis was obviously violating this rule. 2-

Chapter 8, Rule 10(ix) (Exhibit C-26) prohibits a lawyer, representing a client in a matter, from dissuading “ a material witness from giving evidence,” or from advising “such a witness to be absent from proceedings”. This rule, too, was violated by Gillis. 3-

Chapter 4, Rule 9(b) ( Exhibit C-25 ) stipulates that a lawyer “shall not advise, seek or procure the withdrawal of a criminal prosecution to or for the benefit of the client of the lawyer in consideration of the payment of money or transfer of property “.

Gillis obviously violated this rule with his offer of settlement, which involved a payment of $200,000. [74] Despite the fact that it was occasionally somewhat unclear exactly which lawyer was representing Branch on the civil matters at any given time, on August 17, 2009, solicitor Martin Siscoe( “Siscoe” ) filed a Notice of Change of Solicitor in the civil action involving the lis pendens , designating solicitor G. Peter Hyslop(“Hyslop”) as his replacement.

However, prior to this, in late July, 2009, Branch and solicitor Hyslop had visited Gillis and Branch had asked Gillis to represent him on all civil and criminal matter, with Hyslop assisting Gillis with the lis pendens matter. Thus, in December, 2009, both Gillis (through Hyslop) and Siscoe were involved with Branch’s civil suits. However, Gillis admitted that at Branch’s Preliminary Inquiry, during which he, Gillis, cross-examined solicitor Martin Siscoe, he failed to advise either the presiding judge or the Crown Prosecutor that he and Siscoe were working on these files.

In fact, Gillis admitted that he had not even told Siscoe that he was assisting Branch on some files. However, Gillis claims that Siscoe knew this already and mentioned it while testifying. [75] In my opinion, Gillis acted in a very questionable manner, in not advising the presiding judge and the Crown Prosecutor of his exact involvement with Siscoe, prior to cross-examining him. [76] Gillis testified, and I accept, that no complaints were filed against him with the New Brunswick Law Society because of any or all of the breaches of the Code of Conduct previously alluded to.

And, certainly, these breaches do not constitute criminal conduct. However, Gillis has raised the issue of his own character and integrity, as did his counsel in her closing arguments, by describing Gillis as a highly sought after lawyer who was not likely to commit the offence charged. And, 3 of these breaches are intractably involved with the actions of Gillis which give rise to this charge. Thus, the court can certainly consider these breaches in assessing his general integrity and credibility.

These breaches are not denied by Gillis. [77] I would add that even were I not to take into consideration these ethical breaches in assessing Gillis’ credibility, I would still arrive at the same conclusion, regarding his credibility. [78] Gillis’ contention that the Crown might agree to present no evidence on all 5 charges merely because the civil litigation between Branch and the Board had been settled lacks the air of reality.

It is inconceivable to me that the Crown would back off on all 5 serious criminal charges involving a high-profile New Brunswicker , a former member of the New Brunswick legislature, simply because the parties had come to a resolution of the civil matters, a settlement which would involve a $200,000 payment to the Gillis firm, apparently to assist with Branch’s legal fees? Why would the Crown have any interest whatsoever in whether or not the civil actions between the parties had been settled?

[79] Similarly, it is inconceivable that the Board would accept Gillis’ offer to settle the civil matter, without his veiled threat that ifthe Board did not call off its witnesses and the criminal matter went ahead, the Board’s conduct would be called into question and thewhole matter would become messy. What Gillis was saying to the Board, in effect was: you give me $200,000 so that I can defend yourformer employee against charges that he committed criminal offences involving dishonesty against you.

This proposal, if accepted, mighthave precluded the Board from worrying about having to pay Branch any money for wrongful dismissal, but with Branch facing 5criminal charges, that would not likely have been a very great inducement for the Board to settle. As Gould-McDonald said, there was noway the Board would accept such a proposal. [80] Gillis testified that prior to the commencement of the Preliminary Inquiry, a police officer(

s) involved in this case had come tohim and offered to withdraw 4 of the charges against Branch, in return for a guilty plea to 1 charge. This action by the police mayconfirm Gillis’ contention that the Crown had an uphill battle in convicting his client on any of the 5 charges. This helps to explain whyhe would attempt to have Landry stop Board witnesses from testifying.

Had Landry agreed and had he been able to dissuade even somepast and present Board employees from testifying, the Crown, faced with a possibly weak case to begin with, on at least some of thecharges, and a number of reluctant witnesses, might decide to stop further prosecution of Branch, on all 5 charges, or at least agree to aplea bargain very favorable to Branch. [81] I found Gillis’ testimony too often to be vague, indefinite, qualified and non-committal. He often did not appear to be forthrightand responsive to questions. Gillis was often argumentative when being questioned by Craig.

As I said before, his testimony, at times,was neither reasonable nor consistent. He did not stand up well under cross-examination. I say with regret that when I consider thetotality of Gillis’ testimony, I do not believe that he was, at all times, attempting to be truthful. [82] It is often difficult to say that the court disbelieves the testimony of a witness. However, I have concluded with regret, but withno reservation, that Gillis is not credible on many matters about which he testified.

In so concluding, I am quite aware that he is amember of the Law Society of New Brunswick and an officer of the court. [83] In

summary, with respect to the different versions of what Gillis said to Landry in connection with the possible settlement of thecriminal matter, I disbelieve Gillis’ evidence. I find Landry very credible and I believe his evidence. Simply put, I am satisfied beyond areasonable doubt that on the basis of the evidence before me, Gillis said to Landry exactly what Landry alleges, with respect to theproposed settlement of the criminal matter. JURISPRUDENCE [84] The accused is, of course, presumed innocent until proven guilty and the onus is on the Crown to prove the guilt of the accusedbeyond a reasonable doubt.

This burden remains with the Crown throughout the trial and never shifts to the defense. If there is areasonable doubt as to the guilt of the accused, the accused must be acquitted. As stated in R. v. McIntyre, 2006 ABPC 184 ,[2006] A.J. No. 855, at page 5: “This high burden is applicable to all elements of the offence. Generally, the Crown must prove two elements in order for an Accused to be found guilty of a criminal offence: the actus reus (the guilty act or wrongful deed), and mens rea( the guilty mind or criminal intent).

The mens rea and actus reus of each offence varies with the type of offence charged and the particulars alleged”. [85] In R. v. Storey, 2010 NBQB 86 , 356 N.B.R. (2d) 140, [2010] N.B.J.No. 253, Ferguson J. dealt with reasonable doubtat paragraph 80: “ An instruction to a jury, or one by a judge to him or herself at the close of a trial, on reasonable doubt must be in substantial compliance with the principles elaborated in R. v. Lifchus, (SCC), [1997] S.C.J. No.77, 150 D.L. R. (4th) 733, 118, C.C.C. (3rd) 1; R. v. Avetysan, 2000 SCC 56 , [2000] 2 S.C.R. 745 (S.C.C.); R. v.

Beauchamp, 2000 SCC 54 , [2000] 2S.C.R. 720 (S.C.C.); R. v. Russell, 2000 SCC 55 , [2000] 2 S.C.R. 731 S.C.C.); R. v. Rhee, 2001 SCC 71 , [2001] 3S.C.R. 364 (S.C.C.).

[86] In Lifchus the following suggested instruction on reasonable doubt is found at paragraph 39: • "The term 'beyond reasonable doubt' has been used for a very long time and is part of our history and traditions of justice.It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. • A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it isbased on reason and common sense.

It is logically derived from the evidence or absence of evidence. • Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you mustgive the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyondreasonable doubt. • On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and theCrown is not required to do so.

Such a standard of proof is impossibly high. • In short if, based upon the evidence or lack of evidence you are sure that the accused committed the offence you shouldconvict since this demonstrates that you are satisfied of his guilt beyond reasonable doubt." [87] The instruction described in Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144, adds the following instruction at paragraph 242: • “In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer toabsolute certainty than to proof on a balance of probabilities.

As stated in Lifchus, a trial judge is required to explain that something lessthan absolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict. Both ofthese alternative standards are fairly and easily comprehensible. It will be of great assistance for a jury if the trial judge situates thereasonable doubt standard appropriately between these two standards.

The additional instructions to the jury set out in Lifchus as to themeaning and appropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certaintyand proof beyond a reasonable doubt." [88] In reviewing the jurisprudence applicable to this charge of attempting to obstruct justice, I have had the benefit of reviewing twohelpful papers. The first is titled CRIMES AGAINST THE ADMINISTRATION OF JUSTICE / OBSTRUCTION , prepared byElizabeth A.

Hughes, Crown Prosecutors’ Office, Calgary , Alberta ( now Madame Justice Hughes of the Alberta Court of Queen’sBench ) and presented to the National Criminal Law Program at the University of Prince Edward Island in July, 2001 ; the second istitled OBSTRUCTION , was drafted by Michael D. Edelson , Edelson and Associates, Ottawa , Ontario and delivered at the NationalCriminal Law Program at Dalhousie University in July, 2004. These papers provide some historical context to the relevant

section of theCriminal Code and review the appropriate jurisprudence. [89] Madame Justice Hughes points out that the present day offence “has its roots in the 1892 Criminal Code and before” , while thecurrent offence was enacted in 1972 as

section 127 of the Criminal Code and re-enacted as

section 138 in 1985. Issue # 2: Did the words said by Gillis to Landry and the written offer of settlement constitute an attempt to obstruct justice? [90] In R. v. Wijesinha (1995) (SCC), 100 CCC (3d) 410, the Supreme Court of Canada dealt with

section 139 andobserved that the

section as a whole “describes acts which will constitute obstructions or perversions of justice” (p.422). The Court wenton to note that “subsection 2 is framed very broadly and covers all conduct falling within the

section except for prohibited conduct setout in subsection (1)”. Ibid p. 422-423. It also pointed out that this

section “describes an offence which is much wider in its scope andwhich encompasses many more acts than those described in subsections (1) and (3)”. Ibid p. 423. [91] This offence is a substantive one, despite the fact that it is framed as an attempt, “the gist of which is the doing of

an act whichhas a tendency to pervert or obstruct the course of justice and which is done for this purpose”. See R. v. May (1984) (ON CA), 13 C.C.C. (3d) 257 at page 260; leave to appeal refused [1984] 2 S.C.R.vii. [92] In R. v. Yarlasky, (ON CA), 2005 CarswellOnt 599, 195 O.A.C. 188 (Ont.

C.A. ), the Court identified theessential elements for a conviction on the charge in question: (1) that the accused must have done enough for there to be a risk, withoutany further action by him or her, that injustice will result, and (2) the attempt by the accused to obstruct justice must have been willful. [93] Did Gillis’ words to Landry, along with Exhibit C-1, have a “tendency” (as that term is used in some of the relevantjurisprudence) to pervert or obstruct the course of justice and were they done for that purpose? Of this I have no doubt. Gillis wanted

Landry to, in effect, call off the witnesses who worked for the Board, and believed that would sabotage the Crown’s case against Branch.It was a willful attempt by Gillis to influence the outcome of a trial improperly. Mens Rea [94] A number of cases have described the mental element of section 139(2) “as a specific intent to obstruct, pervert or defeat thecourse of justice”. See R. v. Graham(1985) (ON CA), 20 CCC (3d) 210( Ont. CA); affd(1988) (SCC), 38 CCC (3d) 574 (SCC). [95] In her paper, Ibid, at page 6, Hughes refers to R. Kirkham(1998) (SK KB), 126 CCC (3d) 397 (Sask.QB)where the judge described , at pp 408-410, the mental element in this

section as involving two levels of intention; the conduct must beintentional as opposed to accidental or involuntary and must also be done with a specific intent to obstruct the course of justice. At pages410-411 in Kirkham, supra, the judge goes on to say that: “ The case law also illustrates that the mental component of the offence is interpreted narrowly.

The gravamen of the section 139(2)offence is the corrupt specific intention to attempt to obstruct justice………Accordingly unless the accused had the specific intent toobstruct justice, he or she is not guilty of the section 139(2) criminal offence…..”. [96] Did Gillis, by what he said and did, have the specific intention to obstruct, defeat or pervert the course of justice? I have no doubtthat he did. The evidence clearly establishes that. [97] An important decision dealing with obstruction of justice comes from the Newfoundland Court of Appeal, a decision which wasaffirmed by the Supreme Court of Canada. In R. v.

Hearn and Fahey(1989) (NL CA), 48 CCC (3d) 376 (Nfld. CA );affd (1989) (SCC), 53 CCC (3d) 352 (SCC), Chief Justice Goodridge, as he then was, at page 38, described thegravamen of the offence under

section 139: “……..the wilful attempt to obstruct justice. It does not matter that the attempt is unsuccessful or, even, that it does not have the potentialfor success. When there is a willful attempt, however misguided, to influence the outcome of a trial improperly, the offence is complete”. An accused may be convicted even if the attempt was doomed to failure from the outset. See R. v.

May, supra. [98] From a reading of the case law then, it is obvious that the word “willfully” denotes the mens rea of the offence and the Crownmust prove beyond a reasonable doubt that the Accused intended to obstruct the course of justice. [99] Was Gillis’ conduct intentional, rather than accidental or involuntary? This, too, is clear from the evidence: it was obviouslyintentional and was an attempt to influence the outcome of a trial improperly. Actus Reus [100] With respect to the Actus Reus of the offence, the nature of this type offence was described in R. v.May, supra, p.260, as “the doing of

an act which has the tendency to pervert or obstruct the course of justice and is done for that purpose”. [101] In R.v. Graham, supra, p 213, a test was enunciated to ascertain whether or not

an act has the tendency to pervert or obstruct. Thetest “…..there must be evidence that [ an accused ] 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”. [102] In this case, once Gillis proposed to Landry that he stop Board witnesses from testifying, and proposed the $200,000 payment toBranch by the Board in settlement of all outstanding civil actions, enough had been done by the Accused for there to be a risk, withoutfurther action by him, of an injustice resulting. The seeds had been sown and all that remained to be done was for Landry to call off hiswitnesses and accept the settlement offer.

OTHER CORRUPT MEANS [103] The Information alleges that Gillis attempted to obstruct justice by dissuading a person by “threats, bribes or other corrupt means”from giving evidence. What is the meaning of “other corrupt means”? [104] In R. v. McIntyre,2006 ABPC 184 , [2006] A.J. No. 855, 403 A.R. 1, Allen Prov. Ct.

J. beginning at paragraph 58,reviews the jurisprudence related to this phrase: “Corrupt should be given its ordinary grammatical meaning as determined by the context of the section, and the legislation itself.Assistance to discern the meaning of the phrase can be obtained by the application of the ejusdem generis rule or limited class rule. Thatis, the meaning of the word to be given to that general phrase is narrowed by the specific words that precede it “bribes, threats”. Therule is only useful when the specific words create a class.

It is difficult to set out with certainty the exact nature of the class exceptperhaps that the class created is one of improper influences used to persuade another from giving evidence………………Something akinto a bribe or threat would suffice, such as a beating or a veiled threat………it is important to recall that the Crown has the burden ofproving beyond a reasonable doubt that the person was being dissuaded by threats, bribes or “other corrupt means”. If the Crown failsto prove beyond a reasonable doubt that the means used were corrupt as has been explained herein, the accused must be acquitted”. [105] In R. v.

Reynolds ,2010 ONCA 576 , [2010]O.J.

No. 3908, 332 D.L.R.(4th)217, 260 C.C.C. (3d) 35, at paragraph 69,Blair J.A.defines the term “to corrupt” as follows: “ To corrupt is “ to induce to act dishonestly “ :The Shorter Oxford Dictionary on Historical Principles, Third Edition, Clarendon Press, Oxford”. [106] This is precisely the means Gillis was employing in attempting to have Landry dissuade Board employees from testifying. [107] I am satisfied that Gillis did attempt to willfully obstruct, pervert or defeat the course of justice by having Landry dissuade Boardwitnesses from testifying in a judicial proceeding by threats, bribes or other corrupt means.

Landry testified, and it is alluded to in theoffer of settlement (Exhibit C-1), that Gillis threatened that if the Branch charges went to trial, the Board’s conduct would be ” put intoquestion”, that certain cabinet members would be called to testify and the matter would become messy. This was, undoubtedly a veiledthreat, at the very least. Certainly, this would be categorized as “improper influences” as referred to above. [108] I would just add that what transpired here, or what was to take place between Gillis and the Crown had the civil matter beensettled, was not a plea bargain at all.

Of course, plea bargaining is very acceptable today. As McLung, J.A. said in R. v. Kotch, 1990ABCA 348 , [1990] A.J. No. 1029 : “Plea bargaining negotiations to reduce or withdraw criminal charges because ofinadequacies of proof or in return for the Crown’s recommendation of an agreed range of sentence to the sentencing judge are nowcommonplace. Indeed they are an essential reality in a criminal justice system that operates with finite resources”. [109] In the present case, the first step did not involve the Crown.

Rather, it involved an attempt to pull the legs from out under theCrown by attempting to stop certain Crown witnesses from testifying, thereby imperiling the Crown’s case, so that it would have nochoice but to not proceed ahead against Branch, or, agree to a plea bargain more favorable to Branch. From the Crown’s perspective, theproposed “deal” would have been all give and no take. From Gillis’ perspective, it would have been all take and no give. That’s not aplea bargain.

CONCLUSION [110] It is clear to me, and I say so without hesitation, that Gillis, when speaking to Landry, did have the specific intention of subverting justice, when he asked Landry to make certain that Board employees did not testify against Branch. [111] Going back to the approach mandated in R.v.W.(D.), supra, I do not believe the evidence of Gillis as to precisely what he said to Landry about the latter stopping Board witnesses from testifying, I am not left in reasonable doubt by Gillis’ testimony and on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt, by that evidence, of Gillis’ guilt. [112] I am satisfied that all of the essential elements of this offence have been proven and that the facts taken as a whole prove the guilt of the Accused beyond a reasonable doubt.

Therefore, Gillis is found guilty of an attempted obstruction of justice, as charged. Dated at Moncton, New Brunswick, January 31, 2013. ______________________________________ Irwin E. Lampert, P.C.J.N.B.