Her Majesty the Queen - v. -, 2012 SKPC 67

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 067 Date: April 13, 2012 Information : 41803980 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Francis D. Sparvier Appearing: Mr. J. Fitz-Gerald For the Crown Mr. C. McCannell For the Accused JUDGMENT M. HINDS , J BACKGROUND [ 1 ] Francis Sparvier is charged that between December 17 and 22, 2011 at or near Regina, Saskatchewan he did: (1) by suggesting to Christina Hurley not to answer the door when being served a subpoena, attempt to obstruct, pervert or defeat the course of justice, contrary to section 139(2) of the Criminal Code .

(2) being at large on his recognizance entered before a justice or judge and being bound to comply with a condition thereof, to wit: not to contact or communicate directly or indirectly with Harold Galbiati, Annie Fayant and Christina Hurley except through a member of the Law Society of Saskatchewan, fail without lawful excuse to comply with that condition contrary to section 145(3) of the Criminal Code . [ 2 ] The matter proceeded to trial on March 14, 2012. Christina Hurley and her mother, Carolyn Lemaire testified on behalf of the Crown.

Francis Sparvier, Marvin Zehner, Wesley Crow and Irwin Crowe testified for the defence. [ 3 ] This case involves an encounter which occurred between the accused, Francis Sparvier and Christina Hurley at the Parliament Methadone Clinic in Regina, Saskatchewan on December 21, 2011. Prior to this date Mr. Sparvier and Ms. Hurley knew each other. They had dated three or four years ago. On December 21, 2011 Mr. Sparvier was awaiting to be tried at the Court of Queen’s Bench on January 4, 2012. Mr.

Sparvier was at large in the community on a recognizance and was bound by a condition not to contact or communicate with certain individuals including Christina Hurley and Annie Fayant, who were to called as witnesses for the Crown at the robbery trial. [ 4 ] The factual issue before the court concerns the exact nature and details of the encounter which occurred between Mr. Sparvier and Ms. Hurley on December 21, 2011. This requires a finding on the credibility and reliability of the witnesses. In this case I have determined that Mr.

Sparvier breached the condition of his recognizance not to contact or communicate with Ms. Hurley. I do, however, have a reasonable doubt as to whether Mr. Sparvier suggested to Christina Hurley that she not answer her the door when being served a subpoena and hence I acquit him of the charge of attempting to obstruct, pervert or defeat the course of justice. Evidence Christina Hurley [ 5 ] Christina Hurley is twenty five years of age. She lives with her mother, Carolyn Lemaire and her three year old niece, Shyla McKay. Ms. Hurley and her mother Ms. Lemaire are addicted to opiates.

They both attend the Parliament Methadone Clinic located on 2635 Dewdney Avenue in Regina to deal with their addiction. This building is divided into two parts. One part of the building is a pharmacy where methadone is dispensed. The other part of the building is a clinic where a reception desk and seating area are located. The two parts of the building are connected by an internal walkway. [ 6 ] On December 21, 2011 the two woman and the three year old child attended the methadone clinic. The staff and volunteers had set out food at the clinic that day.

Those in attendance could help themselves to a “Christmas dinner”. Three year old. Shyla McKay did not like the food at the clinic. As a result Ms. Lemaire took the child across the street to a McDonald’s restaurant for some food, while Ms. Hurley obtained her methadone from the pharmacy portion of the building. [ 7 ] Ms. Hurley testified that after consuming her methadone in the pharmacy she went into the clinic portion of the building as she wanted to speak to Marlo Zehner who was working at the reception desk. She then saw that Mr. Sparvier was also in the clinic portion of the building. Ms.

Hurley testified that Mr. Sparvier waved at her. She then waved back to Mr. Sparvier. Ms. Hurley and Mr. Sparvier had a conversation lasting less than 10 minutes, part of which occurred inside the clinic and part of which occurred outside the clinic. [ 8 ] Ms. Hurley testified that while they were inside the clinic, Mr. Sparvier said that he had court in a few weeks. Ms. Hurley further testified that she knew he was going to trial in a few weeks on robbery charges and thought the prosecution wanted her to testify at this trial. Ms. Hurley testified that he then asked her if she had been subpoenaed. Ms.

Hurley said she had not been subpoened. The two then went outside the clinic for a cigarette and continued talking. Mr. Sparvier next asked Ms. Hurley “Did they find Annie yet?” Ms. Hurley understood Mr. Sparvier was referring to her friend, Annie Fayant. Ms. Hurley responded “No, I don’t know, I don’t talk to her anymore.” Ms. Hurley testified that Mr. Sparvier then said “Maybe don’t answer your door if they show up.” Ms. Hurley testified she understood that “they” Mr. Sparvier was referring to, could have concerned “whoever the people are who come and give you a subpoena.” [ 9 ] Ms.

Hurley testified that the subject was then dropped. She told Mr. Sparvier to “take care” and she went across the street to join her mother and niece at the McDonald’s restaurant. Ms. Hurley testified that Mr. Sparvier did not make any threats to her and she did not go to the police to complain about Mr. Sparvier.

[ 10 ] Ms. Hurley was subsequently served with a subpoena to attend Mr. Sparvier’s trial as a witness. She testified in chief that she was served the subpoena on or about December 20 th or 21 st , 2011 and that her encounter with Mr. Sparvier at the methadone clinic occurred four days to one week earlier, around December 17, 2011. She was certain that her encounter with Mr. Sparvier at the methadone clinic did not occur on the day of the Christmas party at the methadone clinic. [ 11 ] When Ms. Hurley subsequently met with a prosecutor on Mr.

Sparvier’s court date, she told the prosecutor of her earlier encounter with Mr. Sparvier. Carolyn Lemaire [ 12 ] Carolyn Lemaire went to the methadone clinic for her dosage after her daughter, Christina, came to McDonald’s restaurant and took over looking after three year old Shyla McKay. She testified that her daughter, Christina, told her that Francis Sparvier was at the methadone clinic and that she might be able to get a few cigarettes from him. Carolyn Lemaire specifically recalled that Christmas dinner was available at the methadone clinic the day she saw Mr. Sparvier.

She also testified that day was December 20 th or 21 st , 2011. Ms. Lemaire testified that she observed perhaps a dozen people at the methadone clinic that day. She recalled that a heavy set counsellor by the name of Marv Zehner was there that day and she thought Mr. Sparvier was seated by himself, with his back to a window. She testified that she had a brief conversation with Mr. Sparvier and got a few cigarettes from him. Francis Sparvier [ 13 ] Francis Sparvier is 54 years of age. For a time, Mr. Sparvier attended the Parliament Methadone Clinic as a patient.

He stopped going to the Parliament Methadone Clinic as a patient in the month of October 2011. [ 14 ] Mr. Sparvier is presently remanded in custody, awaiting a trial on robbery charges in June 2012 at the Court of Queen’s Bench. He has been previously convicted of an armed robbery offence in 1999 for which he was sentenced to five years in custody. He testified on cross examination that he has a significant criminal history and he is aware that his name is on a national flagging system respecting violent offenders.

On cross-examination he admitted that the best outcome at his forth coming trial for armed robbery would be an acquittal. He also admitted that he was on a recognizance respecting the armed robbery charges, a condition of which was not to have any contact or communication with Christina Hurley, who he understood to be a witness at his forth coming trial. [ 15 ] Mr. Sparvier testified that on December 21, 2011 he was driving his friend, Wesley Crowe around in his van to several places in the city of Regina. The two men had been at a cleaning supply shop on Dewdney Avenue. Wesley Crowe then directed Mr.

Sparvier to drive him to the Parliament Methadone Clinic as Wesley Crowe wanted to talk to his friend, Merv Zehner. The two men drove to and then went inside the Parliament Methadone Clinic. Mr. Sparvier testified that he went into the Parliament Methadone Clinic as he saw Wesley’s brother, Irwin Crowe inside the clinic and he decided he would talk to him. [ 16 ] Mr. Sparvier testified that as soon as he entered the clinic portion of the building he saw Christina Hurley entering the clinic portion of the building from the pharmacy.

He then sat down on a chair beside Irwin Crowe, (Wesley’s brother) and the two men began talking. Mr. Sparvier admitted that he made a conscious decision to stay at the clinic after he saw Ms. Hurley. He testified that Ms. Hurley waved at him and began walking toward him. Inexplicably, he testified on cross examination that he didn’t expect Ms. Hurley to talk to him. [ 17 ] Mr. Sparvier denied waving back to Ms. Hurley. She came up to where he was sitting with Irwin Crowe and she did all the talking. Mr. Sparvier testified that Ms. Hurley initially said to him “Hi, how are you?” Ms. Hurley then asked if Mr.

Sparvier had heard that her mother had nearly died recently as a result of being given the wrong prescription medication. Ms. Hurley next asked Mr. Sparvier if he could give her a cigarette. He said “Yeah” and gave her a cigarette. Mr. Sparvier was adamant that he did not say anything else to Ms. Hurley. He denied speaking to her about his up coming trial or trying to dissuade her from being served with a subpoena or testifying. He also specifically denied leaving the Parliament Methadone building with Ms. Hurley. [ 18 ] Mr.

Sparvier testified that this encounter occurred about mid afternoon on December 21, 2011 and that he stayed inside the

Methadone Clinic for a total of 15 to 20 minutes. He recalled that there were about 8 people in the clinic at the time. [ 19 ] Mr. Sparvier further testified that about 15 minutes later, Christina’s mother, Carolyn Lemaire came into the clinic portion of the building and got a few cigarettes from him. Marvin Zehner [ 20 ] Mervin Zehner has been employed for twelve years as the director and an addiction counsellor at the Parliament Methadone Clinic located at 2635 Dewdney Avenue in Regina. Mr. Zehner was at work on December 21, 2011.

He is familiar with Christina Hurley and her mother, Carolyn Lemaire who are currently clients at the Methadone Clinic. He also knows Francis Sparvier who was a past client at the Methadone Clinic. [ 21 ] Mervin Zehner testified that on December 21, 2011 the staff and some volunteers at the Parliament Methadone Clinic were handing out Christmas dinner to people attending the clinic. Mr. Zehner was situated behind a reception desk in the clinic portion of the building which faces onto Dewdney Avenue. He saw Francis Sparvier and Wesley Crowe pull up in front of the building in a van.

Wesley Crowe came into the clinic and approached him at the reception desk. He observed Mr. Sparvier come into the clinic and sit down in a chair beside his brother, Barry Zehner and Irwin Crowe (Wesley Crowe’s brother). [ 22 ] Mr. Zehner further testified that at this same time he observed Christina Hurley come into the clinic from the pharmacy side of the building where she took a seat. He then saw Ms. Hurley walk over to Mr. Sparvier. Mr. Zehner observed that Ms. Hurley seemed to be excited to see Mr. Sparvier. Mr. Zehner testified that he heard Ms. Hurley ask Mr. Sparvier for a cigarette. He observed that Mr.

Sparvier was “very stand offish” towards Ms. Hurley and acted “like he didn’t want to talk to her”. Mr. Zhener testified that he observed that Mr. Sparvier’s posture changed when Ms. Hurley approached him. Mr. Zehner observed that Mr. Sparvier looked uncomfortable and sat up more erect in his chair. He next observed Mr. Sparvier give Ms. Hurley a cigarette. [ 23 ] Mr. Zehner thought this situation looked “weird”. Mr. Zehner testified that after making these observerations, he lead Mr. Crowe to his office located in the back of the building for the purpose of continuing their discussion in private. While Mr.

Zehner and Mr. Crowe were walking to Mr. Zehner’s office he asked Wesley Crowe if Ms. Hurley and Mr. Sparvier were seeing each other. He then continued his conversation with Wesley Crowe in his back office for about ten minutes. Mr. Zehner estimates there were a total of between twelve and sixteen people in the clinic portion of the building. Wesley Crowe [ 24 ] Wesley Crowe knows Francis Sparvier and Marvin Zehner. On or about December 21, 2011 Mr. Crowe and Francis Sparvier met at his convenience store located on Piapot First Nation.

Francis Sparvier agreed to be his driver that day, as he was suspended from driving, he needed supplies for his store and wanted to get some money which was owed to him from Mervin Zehner. Wesley Crowe testified that he and Mr. Sparvier went to the Parliament Methadone Clinic where Mr. Zehner works. Wesley Crowe asked Mr. Sparvier to come into the methadone clinic. Upon entering the clinic, Wesley Crowe observed that the staff were handing out Christmas dinner to people. He walked up to the reception desk and began talking with Marvin Zehner. The two men ended up going to an office that Mr.

Zehner had at the back of the building. Wesley Crowe testified that Francis Sparvier also entered the clinic and sat down beside his brother Irwin Crowe. [ 25 ] While Wesley Crowe and Marvin Zehner were talking at the reception desk in the clinic, Wesley Crowe testified that he glanced back towards where Francis Sparvier was seated and observed Mr. Sparvier pass something to a young lady. Irwin Crowe [ 26 ] Irwin Crowe knows Francis Sparvier, Marvin Zehner and Wesley Crowe who is his brother. Irwin Crowe testified that he was at the Parliament Methadone Clinic in Regina when a Christmas dinner was being served .

He estimated that there were 30 or more people in the clinic that day. Irwin Crowe testified that he was seated next to his friend, Barry Zehner, when he saw his brother Wesley Crowe and Francis Sparvier come into the clinic portion of the building that day. He also observed that when Wesley began speaking

with Marvin Zehner, Francis Sparvier sat down in a chair beside him. [27] Irwin Crowe testified that he next observed a girl come up to Francis Sparvier. The girl seemed excited to see Mr. Sparvier. Mr. Sparvier did not seem excited to see the girl. He indicated that Francis Sparvier did not seem to want to look at or talk with the girl. After a short time, Mr. Sparvier gave the girl a cigarette. The girl then left and Mr. Sparvier remained seated beside him. Irwin Crowealso testified that Mr. Sparvier sat beside him until his brother Wesley was done speaking with Marvin Zehner.

DEFENCE POSITION [28] With respect to the obstruction charge, counsel for the accused takes the position that I should prefer the evidence of theaccused, Mr. Sparvier and the corroborating witnesses called by the defence regarding the nature and details of a conversation that tookplace between Ms. Hurley and Mr. Sparvier at the Methadone Clinic on December 21, 2011. The defence takes the position that Mr.Sparvier did not plan his encounter with Ms. Hurley on December 21, 2011 and it was Ms. Hurley who approached a reluctant Mr.Sparvier in the Methadone Clinic and began talking at him.

Moreover, it is the defence position that any words spoken to Ms. Hurleywere minimal responses. Mr. Sparvier gave Ms. Hurley a cigarette and at no time referred to his forthcoming robbery trial or make anysuggestion to Ms. Hurley regarding being served with a subpoena or attending the trial as a witness. As for the breach of the no contactcondition of the recognizance charge, the defence takes the position that any contact with Ms. Hurley was accidental and not intended byMr. Sparvier.

CROWN POSITION [29] The Crown takes the position that it has adduced credible and reliable evidence respecting the two charges, which should bepreferred over the defence evidence. [30] The Crown also takes issue with Counsel for the defence failing to confront Ms. Hurley with the contradictory defenceevidence that it was she that initiated and largely carried the conversation between herself and Mr. Sparvier, which did not involve Mr.Sparvier’s upcoming criminal charges or her role as a witness in those proceedings. The Crown is referring to the well-known rule inBrowne v.

Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.) which stands for the proposition that if counsel is going to challengethe credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidencein cross-examination while he or she is in the witness box. However, I note that in R. v. Johnson 2010 ONCA 646 , [2010] O.J.No. 4153 [2010] O.J. No. 4153 P.S. Rouleau, JA of the Ontario Court of Appeal stated as follows at paragraph 79: 79 To the extent that the Browne v.

Dunn issue might arise during a new trial, I would simply note the following: The rule is one offairness, and is not absolute. Its application should be determined according to the circumstances of each case. Counsel should notnecessarily be obliged to plod through a witness' evidence in-chief, putting him or her on notice of every detail that they do not accept:see R. v. Henderson (1999), (ON CA), 44 O.R. (3d) 628 (C.A.), at pp. 636-37: R. v. Giroux (2006), (ON CA), 207 C.C.C. (3d) 512 (Ont. C.A.), at para. 42. A pragmatic approach to the rule is most appropriate. [31] In the present case, Ms.

Hurley was subjected to cross examination on the words and location where words were spokenbetween herself and Mr. Sparvier. In my view, defence counsel was not obliged to plod through Ms. Hurley’s evidence in chief, puttingher on notice of every detail the defence did not accept. I am of the view that the rule in Browne v. Dunn, supra has not been offended inthis case. Moreover, if the crown felt that rule in Browne v. Dunn, supra, had been offended, the Crown could of sought the remedy ofrecalling Ms. Hurley to the witness stand prior to argument. It did not.

ANALYSIS [32] In this case I have applied the test set out by Mr. Justice Tallis of the Sask. Court of Appeal in R. v. McKenzie (1996) (SK CA), 141 Sask. R. 221(C.A.) respecting the doctrine of reasonable doubt as it applies to the issue of credibility andreliability of witnesses, which is as follows: First, if you believe the accused, obviously you must acquit;

Secondly, if, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused [ 33 ] Applying step one of the test I do not believe all t he evidence of the accused, hence I am not obligated to acquit him. [ 34 ] While Ms.

Hurley testified in a straight forward manner I found there were some problems with her testimony which effected its reliability. For instance, Ms. Hurley was adamant that her encounter with Mr. Sparvier at the Parliament Methadone Clinic did not take place when the clinic was hosting it’s Christmas dinner. Yet every other witness at trial, including her own mother, testified that the encounter between Ms. Hurley and Mr. Sparvier took place on the day the Parliament Methadone Clinic was hosting it’s Christmas dinner which I find was December 21, 2011. [ 35 ] Ms. Hurley also describes her encounter with Mr.

Sparvier quite differently from the four other individuals who were also present in the clinic. For her part, Ms. Hurley testified that initially Mr. Sparvier waved at her. She then waved back to Mr. Sparvier. The two individuals then had a conversation lasting less than 10 minutes, part of which occurred inside the clinic and part of which occurred outside the clinic. Mr. Sparvier has a different version of this encounter. He denied that he waved at Ms. Hurley. Rather, he recalled that she came up to where he was sitting with Irwin Crowe and she did the majority of the talking. Mr.

Sparvier testified that he gave Ms. Hurley a cigarette. He denied leaving the Parliament Methadone Clinic with Ms. Hurley or speaking to her about his up coming trial. [ 36 ] Mr. Sparvier’s testimony is supported by other witnesses. I am of the view that Mr. Zehner provided the most credible and reliable testimony. He is familiar with both Ms. Hurley and Mr. Sparvier. Although Merv Zehner did not observe the entire encounter between Mr. Sparvier and Ms. Hurley, it is clear that what he did observe largely corroborates Mr. Sparvier’s version of event. Mr. Zehner testified that he first observed Mr.

Sparvier enter the clinic and take a seat beside his brother and Irwin Crowe. He also observed Christina Hurley come into the clinic from the pharmacy side of the building where she took a seat. Mr. Zehner saw Ms. Hurley walk over to Mr. Sparvier. Mr. Zehner observed that Ms. Hurley seemed to be excited to see Mr. Sparvier. Mr. Zehner testified that he heard Ms. Hurley ask Mr. Sparvier for a cigarette. He observed that Mr. Sparvier was “very stand offish” towards Ms. Hurley and acted “like he didn’t want to talk to her”. He next observed Mr. Sparvier give Ms.

Hurley a cigarette. [ 37 ] Wesley Crowe largely had his back turned to Mr. Sparvier and Ms. Hurley. As a result he had very little to add to the narrative other than corroborating the fact that Mr. Sparvier came into the clinic and sat next to his brother Irwin and that when he glanced towards from the reception desk where he was speaking to Mr. Zehner, he observed that Mr. Sparvier was seated and he passed something to a young lady. [ 38 ] Irwin Crowe also appeared to testify in a straight forward manner.

His estimate of the time of the encounter (after 11 a.m. going towards 12, rather than afternoon) and the number of people present in the clinic (being about 30 people, rather than 10 to 16) is at odds with the observations of other witnesses. Despite these discrepancies, I accept his testimony that Mr. Sparvier sat next to him at the clinic and that he observed a young woman who appeared to be excited to see Mr. Sparvier come up to Mr. Sparvier. I also accept his testimony that Francis Sparvier did not seem to want to look at or talk with the young woman and that after a short time, Mr.

Sparvier gave her a cigarette. [ 39 ] This is a case where after careful consideration of all the evidence I am unable to decide whom to believe regarding the full encounter between Ms. Hurley and Mr. Sparvier and in particular the precise words spoken by Mr. Sparvier to Ms. Hurley. As a result I acquit Mr. Sparvier on the charge of obstruction of justice.

[ 40 ] As for the charge pertaining to the breach of recognizance, I find the evidence is uncontradicted. On December 21, 2011 Mr. Sparvier was at large on a recognizance which had a condition that he was to have no contact or communication with Ms. Hurley. While Mr. Sparvier did not plan on having contact or communication with Ms. Hurley on December 21, 2011, the evidence reveals that shortly after entering the Parliament Methadone Clinic and taking a seat Mr. Sparvier saw Ms. Hurley approach him and begin talking to him. Mr.

Sparvier had a clear choice, remain seated where he was or avoid any contact or communication with Ms. Hurley by leaving. On cross examination Mr. Sparvier testified that “I made a conscious decision to stay”. He also gave her a cigarette. I find the Crown has established this offence beyond a reasonable doubt and hence I find him guilty of the same. CONCLUSION [ 41 ] I find Francis Sparvier is guilty of the breach of recognizance charge (count #2). I hereby acquit Mr. Sparvier on the charge of obstruction of justice (count #1). ________________________________ M.J. Hinds, J