Her Majesty the Queen - v. -, 2015 SKPC 095

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 095 Date: June 18, 2015 Information: 37001435 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Steven L. Nelson Appearing: Mr. William Burge For the Crown Mr. Bradley Mitchell For the Accused DECISION H. M. HARRADENCE, J INTRODUCTION: [ 1 ] Steven Nelson, a Constable with the Saskatoon Police Service, is charged that between August 13, 2012 and October 8, 2013 he did: Wilfully attempt to obstruct, pervert or defeat the course of justice in a judicial proceeding against Curtis Campeau in one or more of the following ways: (

i) by telling Cst. Tyler Melnychuk to rip up a statement written by Melony Johnson on August 13, 2012; (ii) by not sending the statement written by Melony Johnson on August 13, 2012 to central records for scanning into the Saskatoon Police Service computer system; (iii) by not recording in his notebook that he received a statement written by Melony Johnson on August 13, 2012; (iv)

by not disclosing the existence of a witness statement written by Melony Johnson on August 13, 2012 contrary to section 139(2) of theCriminal Code. [2] The trial proceeded before me on April 29 and 30, 2015. The Crown called four witnesses:

(1) Sgt. Reena Arnst; (2)Melony Johnson;

(3) Cst. Tyler Melnychuk; and

(4) Sheryl Fillo. Defence chose to call evidence. The accused was the only Defencewitness. THE LAW: [3] Mr. Mitchell, on behalf of the accused, interprets the actus reus and the mens rea of this offence by reference to two cases, R v Kirkham[1] and R v Beaudry[2]. In Kirkham, Justice Baynton applied a broad

interpretation to the actus reus of the offence: [30] The case law that interprets s. 139(2) gives considerable guidance on what constitutes an obstruction of justice offence. Ingeneral it illustrates that the actus reus element of the offence (i.e. the words and phrases "attempts", "obstruct, pervert or defeat" and"course of justice") should be interpreted broadly. R. v. Wijesinha (1995), (SCC), 42 C.R. (4th) 1 (S.C.C.). The conductthat is envisaged by the offence is conduct which has a tendency to obstruct the course of justice. R. v. May (1984), (ON CA), 13 C.C.C. (3d) 257 (Ont.

C.A.), leave to appeal refused (1984), 56 N.R. 239n (S.C.C.); R. v. Graham (1985), (ON CA), 20 C.C.C. (3d) 210 (Ont. C.A.), affirmed (1988), (SCC), 38 C.C.C. (3d) 574 (S.C.C.). It matters notthat the attempt is unsuccessful or that it could not be successful in obstructing the course of justice. What is required is the guiltyintention to obstruct justice and wilful conduct designed to fulfil the intention of the guilty mind. R. v. Hearn (1989), (NL CA), 48 C.C.C. (3d) 376 (Nfld. C.A.), at p. 381, affirmed (1989), (SCC), 53 C.C.C. (3d) 352 (S.C.C.); R. v.Spezzano (1977), (ON CA), 34 C.C.C. (2d) 87 (Ont.

C.A.). [4] Justice Baynton recognized that s. 139(2) requires the mental element to be interpreted narrowly: [31] The case law also illustrates that the mental component of the offence is interpreted narrowly. The gravamen of the s. 139(2)offence is the corrupt specific intention to attempt to obstruct justice. R. v. Kotch (1990), 1990 ABCA 348 , 61 C.C.C. (3d) 132(Alta. C.A.).

Accordingly unless the accused had the specific intent to obstruct justice, he or she is not guilty of the s. 139(2) criminaloffence even though the course of justice may have in fact been defeated as a result of his or her deliberate acts or omissions which mayof themselves have had the tendency to defeat the course of justice. In R. v. Charbonneau (1992), (QC CA), 74C.C.C. (3d) 49 (Que.

C.A.), leave to appeal refused (1992), 75 C.C.C. (3d) vi note (S.C.C.), Rothman J.A. speaking for the court statesat p. 59: Appellant rightly submits that the offence of obstructing justice, with which he was charged, required that the Crown prove, as anessential element of the offence, the specific intention of obstructing justice: R. v. Graham (1985), (ON CA), 20C.C.C. (3d) 210 (Ont. C.A.); affirmed (SCC), 38 C.C.C. (3d) 574, [1988] 1 S.C.R. 214, (SCC), 86 N.R.375; R. v. Savinkoff, (BC CA), [1963] 3 C.C.C. 163, 39 C.R. 306, 41 W.W.R. 174 (B.C.C.A.); R. v.

Hoggarth (1956), (BC CA), 119 C.C.C. 234, 25 C.R. 174 (B.C.C.A.). (emphasis mine) [5] This mens rea

interpretation is approved by the Supreme Court of Canada in Beaudry, where at paragraph 52, MadamJustice Charron states: Second, it must be determined whether the offence of obstructing justice, the parameters of which are well established, has beencommitted. To sum up, the actus reus of the offence will be established only if the act tended to defeat or obstruct the course of justice(R. v. May (1984), (ON CA), 13 C.C.C. (3d) 257 (Ont. C.A.), per Martin J.A.; see also R. v. Hearn (1989), (NL CA), 48 C.C.C. (3d) 376 (Nfld. C.A.), per Goodridge C.J.N., aff’d (SCC), [1989] 2 S.C.R. 1180).

With respect to mens rea, it is not in dispute that this is a specific intent offence (R. v. Charbonneau (1992), (QC CA),13 C.R. (4th) 191 (Que. C.A.)). The prosecution must prove beyond a reasonable doubt that the accused did in fact intend to act in a waytending to obstruct, pervert or defeat the course of justice. A simple error of judgment will not be enough. An accused who acted ingood faith, but whose conduct cannot be characterized as a legitimate exercise of the discretion, has not committed the criminal offenceof obstructing justice. [6] Mr.

Burge, representing the Crown, agrees with the legal framework referred to by Mr. Mitchell found in both Beaudry andKirkham. Both counsel have indicated their belief that credibility is a critical factor. As the accused testified, I must apply the rationale in R v W.D.[3] The law is clear. The accused is presumed to be innocent unless the Crown proves beyond a reasonable doubt eachessential element of the charge. The accused is not required to prove or disprove anything.

In describing the test in W.D., MadamJustice Abella, in R v C.L.Y., indicates: …Its purpose was to ensure that triers of fact — judges or juries — understand that the verdict should not be based on a choice between

the accused’s and Crown’s evidence, but on whether, based on the whole of the evidence, they are left with a reasonable doubt as to the accused’s guilt… [4] THE EVIDENCE: [ 7 ] On August 12, 2012, at 11:58 a.m., the accused, as part of his duties with the Saskatoon Police Service, responded to a call of a domestic assault at the residence of Melony Johnson. He observed her to be injured and bleeding. After obtaining a verbal account from her, he obtained a written statement in which she says she was struck by Curtis Campeau. She says he punched her in the face and head knocking her to the ground (Exhibit P5).

The accused requested that Ms. Johnson attend the Police Service the next day to have pictures taken of her injuries. [ 8 ] On August 13, 2012, Ms. Johnson spoke with the accused by telephone. Her recollection of this conversation was provided by her in her evidence: Q: Okay. And how did you have contact with Constable Nelson? A: I had phoned the police station and they said that his shift didn't start I believe until seven. And then so I had phoned him after that time. They had given me a contact with him.

I can't remember if it was his cell or -- because it kept going like a -- beep, like a beep, I'd talk, beep, he talks type of thing -- talk after the beep or something like that. And then I -- Q: Okay. Did you put in a -- did you put in a phone call to Constable Nelson? A: Yeah. Q: And were you, in some fashion, able to speak to him over the phone? A: Yeah. Q: And what was the purpose of you phoning him? A: To let him know that I didn't want to proceed with the charges on Curtis Campeau, and that the statement that I had provided to him was false. Q: Okay. Do you recall any response from Constable Nelson? A: Yes.

Q: Tell us about that. A: He said -- I had told him that I was going to be going down to recant my statement, and he said, well, you don't need to do that anymore, because we're the ones -- we're the police -- we are the police, we're charging him now, and it's not up to you. And I just said, well, I'm still going to go down there, and rewrite my statement, I said, because that statement I gave you is false. And he replied that -- he was saying like, there's no -- it's not necessary to do that. And then I just -- we just kind of like hung up and I just proceeded to go down -- downtown and I wrote the statement.

Q: Okay. So when you say you proceeded to go downtown, where did you go? A: Saskatoon City Police. Q: Okay. And is this on the same day, the day after that you gave that written statement to Constable Nelson? A: Yes.

[ 9 ] The accused has no memory of this conversation with Melony Johnson. [5] She says that she does not recall him telling her she could be charged with providing a false statement. [6] [ 10 ] Shortly after 10:00 p.m. on August 13, 2012, Ms. Johnson attended at the front desk of the Saskatoon Police Service. (Her attendance was captured on video which is part of P1.) She described her attendance at the Saskatoon Police Service in her examination in-chief: Q: So if you can tell us please, what happened when you went to the police station? A: I attended the police station.

I said, hi, I said, I'm -- I'm here to recant my statement, I said. And the officer's like, yeah, okay. And then he kind of gave me the paper and I -- well, he did give me the paper, and I just went to the side. I wrote this -- another statement stating that the -- it was false; that the other statement was false, and that I didn't want to proceed with the charges and I went back up to the -- the desk at the city police there -- Q: Okay. A: -- the front desk there. I gave my statement and then he's like, the officer there said, we're not accepting this and he pushed it back to me and I pushed it back to him.

I said, well, you already touched it. I said, you have to accept it. And then he's like, well, sit down. I said, well, am I under arrest and he said, no. I said, well, can I leave, and he said, no. Sit down. He goes, I'm contacting Constable Nelson and I was like, the arresting officer. I said, oh, okay. And then I just sat down and then he kind of just left me there and he was on the phone. I did not overhear the conversation that he had with him. I just knew he was on contact with him. And then I went back up to the police, to the front there, and I said, hi. I said, I need to leave.

I said, my bus transfer's running out. I said, I only have 60 minutes obviously. That's what the transfer allows you. So then he's -- I just said, I've gotta go. I'm leaving. And then I just left the statement there and he had folded it, I believe. I'm not a hundred percent sure, but he just -- I left and the statement was in his possession. Q: Okay. Now I'm going to ask you if you can tell us in as much detail as you can remember, what did you write in that statement?

A: I just said that I didn't want to provide -- I didn't want to continue with the charges, the false charges, the statement that I had wrote earlier was false and that we don't need to proceed with the charges, basically. [ 11 ] The officer who attended on Ms. Johnson on August 13, 2012, was Tyler Melynchuk. His recollection of the encounter is as follows: On August 13 th , 2012, around 10: 00 p.m., Melony Johnson came in to the front desk. She informed me that she needed to complete a statement in regards to an assault. I gave her a witness statement. She sat down and filled it out.

When she was done, I read the statement and I was surprised to find out that she actually was reporting an assault did not take place and that she had previously lied to police. So I ran her name on our computer and saw that she was the complainant and victim in regards to a domestic assault which happened a day prior on August 12 th . Also reading the file, I saw that Constable Nelson attended and was the lead investigator, as well as Melony's boyfriend at the time, Curtis Campeau, was currently arrestable for domestic assault. [ 12 ] As a result of receiving this second statement from Melony Johnson, Cst.

Melynchuk agrees that he telephoned the accused. Both officers testified that they believed that this conversation was recorded. It was in fact audio-recorded and played at this trial. (A transcript was also filed which both counsel agreed accurately represented the contents of the call, P2.) The transcript indicates that the call is at 10:25 on August 13, 2012, and reads as follows: Cst. Melynchuk: Service Centre. Cst. Nelson: Hey, what’s up??? Cst. Melynchuk: Hey, so sorry to bug ya. You know the domestic you went to yesterday with Melanie? Cst. Nelson: Yep. Cst.

Melynchuk: And she was claiming she was assaulted by her boyfriend?

Cst. Nelson: Yep. Cst. Melynchuk: She just came in here now stating she wants to fill out a statement for something ahhh…she just did, ummm…in regards to yesterday’s file number… Cst. Nelson: Yep. Cst. Melynchuk: …and she’s saying that now she wasn’t assaulted at all… Cst. Nelson: Yeah. Cst. Melynchuk: …and she fell…and she fell numerous times… Cst. Nelson: Yeah that can get ripped up I already talked to her on the phone tonight. I told her I was not dropping the charges, she was going to get charged with it and if she wanted to try and drop the charges she would have to talk to the Crown after ummm… Cst.

Melynchuk: OK. Cst. Nelson: …after he was arrested… Cst. Melynchuk: Yeah I just warned her too, I’m like well…if you’re bullshitting yesterday for the…details…and you could be charged but I didn’t know if you had reasonable grounds like…that it looked like a domestic happened and stuff… Cst. Nelson: Yeah. Cst. Melynchuk: …so that’s why I wanted to talk to ya, so…OK I’ll tear this thing up then. Cst. Nelson: Yeah, she had a bloody nose, her face was… Cst. Melynchuk: OK. Cst. Nelson: …swollen and scratched all over. Cst. Melynchuk: Oh, OK. Yeah good stuff buddy. Cst. Nelson: No worries. Cst.

Melynchuk: OK, I’ll talk to you later. OK bye. Cst. Nelson: Yeah, bye.

[ 13 ] Cst. Melynchuk’s evidence is that he had no intention of destroying this statement. He says that he agreed with Cst. Nelson to rip up the statement only to end the telephone conversation. He says he kept the statement until Cst. Nelson returned to the Police Service later that evening and then personally handed it to him. No one has seen this statement since that night. Neither Cst. Melynchuk nor the accused made any note concerning the receipt of this second statement or their contact with Melony Johnson on August 13, 2012, nor were there any reports filed by either officer.

The accused agreed in cross-examination that he updated the file on August 20, 2012, after Curtis Campeau was arrested and released, but he did not mention Melony Johnson’s recanting statement at that time. [ 14 ] The assault charge against Curtis Campeau proceeded. Ms. Sheryl Fillo was assigned to the prosecution of the Campeau file in October 2013. Ms. Fillo called Ms. Johnson as the second Crown witness at the trial on January 16, 2014. (Cst. Nelson was the first Crown witness.) The first time Ms. Fillo heard of the recanting statement was during Ms. Johnson’s testimony. As a result, Ms.

Fillo initiated a KGB application and was ultimately successful on that application. The reference to a second statement by Ms. Johnson led to a number of adjournments and additional disclosure requests. Cst. Nelson diligently and promptly complied with the disclosure requests. [ 15 ] Through the persistence of Mr. Healy, Defence counsel for Curtis Campeau, the video of Ms. Johnson’s attendance at the Saskatoon Police Service was obtained. The Crown, in the fall of 2013, entered a stay of proceedings in relation to the assault charge against Curtis Campeau. [ 16 ] Shortly after the video of Ms.

Johnson at the Saskatoon Police Service on August 13, 2012 was discovered, Cst. Melynchuk and Cst. Nelson had a discussion in September 2013. Cst. Melynchuk’s recollection of that discussion is provided in his testimony at this trial: A: Constable Nelson had brought it to my attention that he had a request from the prosecutor to locate the second statement that Melony completed. I reviewed the file and remembered the incident clearly and I left an investigation report at that time. Q: So when you say you reviewed the file, what file did you review?

A: The initial assault complaint that Melony complained of and Constable Nelson investigated. Q: Okay. Apart from looking at the file, did -- did you say that in itself refreshed your – A: Constable Nelson had the Service Centre video up on a computer. I reviewed that. I saw that I was working that day, as well as it was documented in my notebook that I was working the front desk that evening. Q: Did you -- did you need the video to remember the incident? A: No. Q: Why would this incident be memorable to you?

A: It's not frequent that a victim comes in and actually completes a statement admitting they lied to police. Generally, they come in just saying that they want the charges dropped. This was significant because I had initially thought that she was reporting an assault took place, the way she had worded it. That's why I gave her a statement and I -- I don't -- I don't forget it. It was -- when it was brought to my attention, it was 13 months after the incident, and I remembered it clearly then, as I do now. [ 17 ] The accused’s recollection of that conversation which he provided in his testimony is: Q: Okay.

And what did you discuss with Constable Melnychuk? A: I asked him if he had the statement or if he knew what had happened to the statement. Q: And what did he say to you? A: He indicated that he had a vague memory of the incident itself. That she'd come into the Service Centre, provided a statement. He believed that it was recanting in nature. Remembered that we spoke about it briefly and that the statement was left for myself to retrieve.

Q: And did you at that point in time, upon viewing the video, upon speaking to Constable Melnychuk did your -- was your memory refreshed at all? A: I had a vague memory of the conversation between myself and Constable Melnychuk, that a statement had come in. [ 18 ] The accused in his testimony agreed that the failure to take notes or provide a report in relation to the recanting statement of Ms. Johnson was bad police work but he maintained that he did not attempt to intentionally or wilfully influence the Campeau trial or destroy the statement. In responding to the telephone conversation between he and Cst.

Melynchuk on August 13, 2012, and the disappearance of the statement, the accused said the following in examination in-chief: Q: Okay. And what did you mean -- what did you mean when you told Constable Melnychuk to rip it up, the statement? A: That it was my belief it was a false statement. She should be informed of that, and that she needed to know her jeopardy of providing a false statement to police. Q: Okay. Do you recall if you told that to Ms. Johnson when you spoke to her on the phone? A: I don't remember the conversation with Ms. Johnson. Q: Okay.

Did you actually intend for Constable Nelson -- or pardon me, Constable Melnychuk to rip the statement up? A: No. Q: Did you intend your words? A: No. Q: Did you ever rip the statement up? A: No. Q: Do you recall what you did with the statement? A: I do not recall what happened to the statement. Q: Are there any possibilities with respect to what you did -- may or may have not done to the statement? A: Yes. It may have been submitted for scanning and has been attached to the wrong file. I may have placed it in my bedpan to speak to Ms.

Johnson at a later date and lost it at that point, and I may have thrown it in the garbage. [ 19 ] In relation to the possibility that he threw the statement in the garbage, the accused responded in cross-examination as follows: Q: Then -- then why are you telling us it's a reasonable possibility that you threw the statement in the garbage out of frustration? What -- A: I said it was a possibility that that happened. I don't know whether that happened.

Any time a person wishes to recant or withdraw charges that have been laid, it is a frustrating situation for any officer. [ 20 ] The accused says that he did not disclose the statement to the Crown because he had no recollection of it. He says he was surprised when Ms. Fillo told him at the January 2014 trial that Ms. Johnson said she had written a second statement; as according to the accused “at that point, I could not remember it”. [7] He says that he did not remember the second statement until after he found the video of Ms. Johnson at the Saskatoon Police Service and had a conversation with Cst.

Melynchuk and then he only had a vague recollection. The accused agreed with Mr. Burge in cross-examination that it is possible that he forgot about the recanting statement within a week as he updated the file on August 20, 2012, and did not mention at that time, the second statement of Ms. Johnson.

POSITION OF THE PARTIES: A. Crown [ 21 ] Mr. Burge indicates that arguably the offence is proven after the phone call between the accused and Cst. Melynchuk on August 13, 2012. Relying on R v Graham [8] , Mr. Burge says that the offence is established by the creation of the risk of injustice and it is not necessary to prove the risk materialized. In the Crown’s view, the risk was established when the accused told Cst. Melynchuk to rip up the statement. The Crown agrees that credibility is an issue that requires careful assessment. B.

Defence [ 22 ] The Defence acknowledged that on the face of it the Crown evidence is troubling. Mr. Mitchell emphasized that the charge requires the Crown to prove a specific intention which requires proof of a wilful act. Mr. Mitchell indicates that proof of human error or mistake is insufficient. He also referred to the W.D. test in assessing credibility particularly given the accused’s evidence. Mr. Mitchell indicated the fact that the accused acknowledges a lack of memory as to the events should enhance, not detract, from his credibility. [ 23 ] In oral argument, Mr.

Mitchell indicated that the Crown has alleged four specific instances of obstruction in the charge: (

i) by telling Cst. Melynchuk to rip up the statement on August 13, 2012. In relation to this allegation, Mr. Mitchell concedes the Crown has proven the actus reus but has failed to prove the specific intent beyond a reasonable doubt; (ii) wilfully obstruct by not sending the statement for scanning. Mr. Mitchell argues that because we do not know what happened to the statement, the Crown has failed to prove both the actus reus and the mens rea ; (iii) failure to record in his notebook that a second statement had been received. Mr. Mitchell indicates that Cst.

Nelson candidly admitted that he failed to make a note and that this was bad police work. While the actus reus is proven, Mr. Mitchell says that human error or bad police work do not amount to proof beyond a reasonable doubt of a wilful attempt to obstruct justice; and (iv) fail to disclose the statement. Mr. Mitchell concedes the actus reus is established but says the evidence is that he did not disclose it because he had forgotten it existed. ANALYSIS: [ 24 ] The evidence unequivocally establishes the following facts which I find: 1.

Melony Johnson provided a written statement to the accused on August 12, 2012, alleging an assault with injuries at the hands of Curtis Campeau. 2. Melony Johnson phoned the accused on August 13, 2012 to indicate the statement was false and she was left with the impression by the accused that the police would not accept a further recanting statement from her. 3. Shortly after 10:00 p.m., Ms. Johnson attended the Saskatoon Police Service. She met with Cst. Melynchuk at the front desk. She was at the Police Service for approximately half an hour and during that time, wrote out a second statement.

Also during that time, Cst. Melynchuk and the accused had a telephone conversation in which they discussed ripping up the statement. Cst. Melynchuk eventually accepted the statement from Ms. Johnson. 4. This statement was never seen again. Neither Cst. Melynchuk nor the accused made any note of the statement or the fact that Ms. Johnson delivered the statement to Cst. Melynchuk or any of the discussions that either of them had with Ms. Johnson. Neither officer filed a report of any kind regarding these discussions or the existence of the second statement. 5.

The existence of these discussions and the filing of the second statement by Ms. Johnson was not able to be confirmed until September of 2013, after she had testified in Court and Mr. Campeau’s counsel had made persistent efforts to uncover these facts. [ 25 ] The Defence concedes that the facts demonstrate bad police work and human error but fall short of proving beyond a

reasonable doubt the specific intention to obstruct justice. [ 26 ] The accused’s testimony is that he forgot about the second statement until he found the video and was able to have a conversation with Cst. Melynchuk. Only after this conversation did he have a vague memory of the events surrounding Ms. Johnson’s second statement. He says that he may have even forgotten about it when he updated his file on August 20, 2012, after Mr. Campeau’s arrest and release. [ 27 ] In relation to the telephone call between the accused and Cst.

Melynchuk on August 13, 2012, the accused was cross- examined by reference to a warned statement he had given to the Saskatoon Police Service on March 27, 2014. During this warned statement the accused was first asked to provide his recollection of the telephone conversation prior to having the audio of the conversation played for him. As shown in cross-examination, the accused provides his recollection which he says is truthful: Q: MR.

BURGE: Constable Nelson, I'm going to show you what's been marked as Exhibit P-4 for identification and it's -- it is -- as you've heard, it's the transcript of -- of your warned statement. A: Certainly. Q: And I'll put before you -- and it's at page 6 where Sergeant Arnst is speaking. It's -- it's -- and -- and she -- she says (as read): I guess, Steve, start at the beginning where you think it's important. I would like to think it's the day that Melony Johnson came in to provide that second statement.

Anywhere you want to start, or anywhere you think it's important for you to start -- And then -- and then you start speaking. That's -- I'm going to ask you some questions about that, sir, if you just want to take a look at that. A: Thank you. Okay. Q: Sir, you answered, you said (as read): I was on street duty that day. I was contacted by Constable Melnychuk over the radio that Melony had attended the front desk to provide a second statement recanting her original statement provided, indicating what she had informed us previously was false.

I requested Constable Melnychuk inform her as of the possible consequences to providing the false statement to police, either being second statement and/or first statement that she provided. I was tied up on the street. When I got back to the station, Constable Melnychuk indicated that he'd left it for myself on the board at the front desk. Q: Now do you remember -- do you remember being asked that question, sir, and providing that answer? A: Yes. Q: And were you honestly answering the question during your warned statement?

A: I have answered every question honestly that I've been asked both by investigators, as well as the courts. Q: Okay. So on -- as of the 27 th of March, 2014, which seems -- that's when the statement was taken, you had an actual memory of your phone conversation with Constable Melnychuk? A: Sorry? Q: It -- it appears that you -- you're -- as of the 27 th of March, 2014, you still remembered your phone conversation with Constable Melnychuk?

A: The specific wording within it, no, I didn't. In this, I am indicating what Constable Melnychuk and I spoke about. Q: Yes. A: I may have confused what the phone conversation was and the conversation was that I had later with him. The specific information or wording of the phone conversation, no, I didn't have a recollection of what it was. Q: So are you saying right now that when you answered this question on the 27 th of March that you didn't have a recollection of your phone conversation with -- of the details of your phone conversation? A: Of the exact wording, no, I didn't. [ 28 ] Mr.

Burge says in argument that the accused’s testimony is inconsistent regarding his recollection of the telephone call. Mr. Burge points out that in the warned statement, subsequent to the accused providing his recollection, he is played the audio recording of the telephone call and his recollection becomes less specific: Q: MR. BURGE: Were there any certain specifics you -- when you were giving -- when you were speaking to the investigators and providing your warned statement, initially you told them about your conversation with Melnychuk? A: Yes. Q: And you told them what you talked about?

A: Yes, the information that we talked about. Q: And then after they played a recording of that conversation you said, like I said, I don't remember the conversation. A: I didn't remember the specifics. At no point did I say I exactly said these words to Constable Melnychuk. It was the information relayed between Constable Melnychuk and I during the conversation.

I also thought this happened on channel 3, and it was apparently on a phone. [ 29 ] It is critical, at this stage, that I consider all of the evidence in the context of the presumption of innocence and the onus on the Crown to prove its case beyond a reasonable doubt. In R v Dinardo [9] , Madam Justice Charron stated, at paragraph 23, the following: The majority rightly stated that there is noth​ing sacrosanct about the formula set out in W.(D.) .

Indeed, as Chamberland J.A. himself acknowl​edged in his dissenting reasons, the assessment of credibility will not always lend itself to the adop​tion of the three distinct steps suggested in W.(D.) ; it will depend on the context (para. 112). What mat​ters is that the substance of the W.(D.) instruction be respected. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt.

Put differently, the trial judge must consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt. In my view, the substantive concerns with the trial judge’s decision in this case can better be dealt with under the rubric of the sufficiency of his reasons for judgment. [ 30 ] The telephone conversation between the accused and Cst. Melynchuk on August 13, 2012 (contained in P1) is a critical piece of evidence. Both officers say they knew this conversation was recorded.

Despite this knowledge, which they both profess, they discuss ripping the statement up, an action that they both now acknowledge, in their testimony at this trial, would be highly inappropriate. Having listened to this conversation and considered the evidence, I do not believe either Cst. Melynchuk or the accused when they say they knew this telephone conversation was recorded. It makes no sense that these experienced officers would discuss the destruction of evidence on a telephone conversation which they knew was recorded. [ 31 ] This conversation is troubling.

I am unable to conclude whether it is evidence of a systemic problem which exists within the Saskatoon Police Service or an isolated instance. The audio demonstrates the discussion about ripping up the statement was not made or taken flippantly and suggests it was a routine practice. The fact that neither the accused nor Cst.

Melynchuk made any note or report of the circumstances suggests to me that they both knew it was improper and were intent on burying the statement and any reference to it. [ 32 ] The accused’s testimony is an acknowledgement of the impropriety of the conversation but a lack of recollection of the

reasons behind it. The accused volunteers in his testimony, a fact that the Crown argues is tantamount to a confession, that it is possible that he threw the statement in the garbage out of frustration. [ 33 ] I find the accused’s evidence as a whole to be both unreliable and incredible. I am of the view that he remembers more of the circumstances than he testified to and his testimony is dishonest and untruthful. I think that he recognized the overwhelming nature of the Crown evidence and knew that the only truthful answer was that he was obstructing justice.

He therefore chose to obfuscate the truth by saying he could not remember. The evidence of the accused is disbelieved. It does not raise a reasonable doubt. [ 34 ] Viewed as a whole, the evidence presented at this trial leads inextricably to the conclusion that the accused wilfully attempted to obstruct or defeat justice. Not only did he discuss with Cst. Melynchuk the destruction of evidence, the accused, in my view, took deliberate steps to conceal the existence of this evidence.

I am satisfied that the Crown has proven beyond a reasonable doubt that Steven Nelson did wilfully obstruct justice between August 13, 2012 and October 8, 2013. I find the accused guilty. [ 35 ] Dated this 18 th day of June, A.D. 2015, at the City of Saskatoon, in the Province of Saskatchewan. _________________________ H. M. Harradence, J