Docket: CACR2052 Her Majesty the Queen Appellant - v. -, 2012 SKCA 91

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 91 Date: 2012-10-09 Between: Docket: CACR2052 Her Majesty the Queen Appellant - and - Christopher Gene Yazelle Respondent Coram: Richards, Ottenbreit and Caldwell JJ.A. Counsel: Anthony B. Gerein, for the appellant Christopher G. Yazelle, on his own behalf Appeal: From: Provincial Court

Heard: June 20, 2012 Disposition: Dismissed Written Reasons: October 9, 2012 By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Mr. Justice Richards The Honourable Mr. Justice Ottenbreit Caldwell J.A. [1] The offence of attempting to obstruct justice pursuant to s. 139(2) of the Criminal Code is a substantive offence (see: R. v. May(1984), (ON CA), 13 C.C.C. (3d) 257 (Ont. C.A.)) and one of specific intent (see: R. v. Beaudry, 2007 SCC 5, [2007]1 S.C.R. 190, at para. 52, and R. v. Charbonneau (1992), (QC CA), 74 C.C.C. (3d) 49 (Que. C.A.)).

The sole issuearising in the appeal is whether, in acquitting Christopher Gene Yazelle of obstruction, the trial judge misapprehended the mens rearequirement of the offence. [2] Given the nature of the findings which underlie the trial judge’s decision, it is important to keep in mind that s. 676(1)(

a) of theCriminal Code limits the Crown’s right of appeal from an acquittal to any ground that involves a question of law alone. In this respect, inR. v. Lampard, (SCC), [1969] S.C.R. 373, the Supreme Court of Canada held that a trial judge’s findings as to whetheran accused has acted with a guilty mind and findings as to an accused’s intent are questions of fact (see also: R. v. Schuldt, (SCC), [1985] 2 S.C.R. 592).

In Lampard, Cartwright C.J.C. wrote (at p. 380): Unless the doer of the act has expressed his intention, the finding as to what that intention was will necessarily be founded on aninference drawn from all the relevant circumstances proved in evidence. It has often been pointed out that where a trial judge makesfindings of primary facts and draws an inference therefrom an appellate tribunal is in as good a position as was the trial judge to decidewhat inference should be drawn, but in drawing the inference the Court is making a finding of fact.

In the case of an appeal at large theCourt of Appeal has, of course, power to substitute its view, as to what inference should be drawn, for that of the trial judge, but where,as in the case at bar, the jurisdiction of the Court of Appeal is limited to questions of law in the strict sense it has no such power. [3] The distinction drawn in Lampard is important here because the trial judge found the Crown had not made out beyond areasonable doubt the specific intent to obstruct, pervert or defeat the course of justice.

This finding of fact is unassailable in this Courtunless, in making it, the trial judge misapprehended the mens rea requirement of the offence. Accordingly, I turn now to address theCrown’s submissions on the mens rea requirement. [4] The Crown does not dispute that obstruction is a specific intent offence. While it had initially submitted that, in this case, themens rea of the offence of obstruction is manifest upon proof of the actus reus of the offence, the Crown agreed in oral argument thatthe requisite mens rea requires proof of an intention to obstruct justice, not just an intention to do

an act which has the effect ofobstructing justice (see: R. v. Beaudry; R. v. Abdullah, 2010 MBCA 79, 259 C.C.C. (3d) 193, at paras. 38-39; and R. v. Esau, 2009SKCA 31, 324 Sask. R. 95). Nevertheless, due to the natural consequence of the actus reus in this case (i.e., a refusal to testify), theCrown says the only inference available is that Mr. Yazelle intended to obstruct justice.

As to the question of law alone which isnecessary to found the Crown’s appeal, the Crown submits the trial judge erred by conflating motive and intent to improperly concludethat a specific intent to obstruct had not been made out on the evidence before the court. [5] The events which lead to this appeal begin when Mr. Yazelle and his companion reported what they believed to be an impaireddriver. Acting on their call, the police arrested the driver for impaired driving and driving while having in excess of 80 mg of alcohol per100 ml of blood.

The circumstances of arrest were such that the trial court excluded the Certificate of Analyses which had established thedriver’s blood-alcohol content. As the arresting officers had not witnessed any aberrant driving, this left the Crown to prove its case onthe impairment charge by way of the eyewitness testimony of Mr. Yazelle and his companion. [6] The transcript of the driver’s trial discloses that Mr. Yazelle refused to be sworn or to testify. When so refusing, Mr.

Yazellespoke about his understanding that individuals who report impaired drivers are to remain anonymous, he observed the Crown had awritten statement from his companion (a statement which he had previously endorsed and adopted as his own), and he pointed out thathis companion was scheduled to testify in the proceedings and, it seems, she briefly appeared in the courtroom while Mr. Yazelle was inthe witness box. Mr. Yazelle also said that he, as a then-incarcerated offender, feared for his personal safety if he were to testify againstthe accused. [7] There can be no doubt that Mr.

Yazelle committed the actus reus of the offence under s. 139(2) of the Criminal Code; but, theCrown says given (

i) that Mr. Yazelle undoubtedly intended not to testify and (ii) that the obstruction, perversion or defeat of the courseof justice inevitably results from a refusal to testify because the actus reus necessarily frustrates the pursuit of the whole truth, then aposteriori Mr. Yazelle also intended to obstruct, pervert or defeat the course of justice when he so acted. In simple terms then, theCrown submits the mens rea of obstruction is made out on the facts of this case because there can be no reasonable conclusion other than

that Mr. Yazelle refused to testify so as to defeat, pervert or obstruct justice. The trial judge erred, it says, because Mr. Yazelle’s desire topreserve his safety, while perhaps motivating his refusal to testify, does not negative his intent to obstruct justice. [8] The Crown points supportively to R. v. Abdullah, where Hamilton J.A. wrote: 40 Intention is not to be confused with motive. Motive is the reason why someone does something. It is possible to have a specificintention for doing

an act that is different from the motive for that same act. If a person robs a bank to pay for medical treatment, theintention would be to commit the offence of robbery, while the payment of the medical expenses would be the motive. Motive is not anelement that the Crown must prove, so it is important to differentiate between the required intention, which forms a part of the offencethat the Crown must prove, and motive, which does not.

In this case, the accused stated that they did not want to testify because of safetyconcerns for their families and because they did not want to be branded as rats within their gang. These are both clearly motives. … [9] I fully agree that, in the context of the criminal trial of a third party accused, Mr. Yazelle’s acts of refusing to give evidence forthe Crown had the tendency to obstruct, pervert or defeat the course of justice, as the trial judge found. That Mr. Yazelle acted wilfullyin refusing to testify is also evident from the transcript.

However, as the Crown acknowledged before us, the Crown must also prove thatMr. Yazelle subjectively intended to obstruct, pervert or defeat the course of justice. In this respect, Cory J.’s reasons in R. v. Hundal, (SCC), [1993] 1 S.C.R. 867, at pp. 882-83, are instructive: A truly subjective test seeks to determine what was actually in the mind of the particular accused at the moment the offence isalleged to have been committed.

In his very useful text, Professor Stuart puts it in this way in Canadian Criminal Law (2nd ed.), at pp.123-24 and at p. 125: What is vital is that this accused given his personality, situation and circumstances, actually intended, knew or foresaw the consequenceand/or circumstance as the case may be. Whether he “could”, “ought” or “should” have foreseen or whether a reasonable person wouldhave foreseen is not the relevant criterion of liability. ...

In trying to ascertain what was going on in the accused’s mind, as the subjective approach demands, the trier of fact may drawreasonable inferences from the accused’s actions or words at the time of his act or in the witness box. The accused may or may not bebelieved. To conclude that, considering all the evidence, the Crown has proved beyond a reasonable doubt that the accused “must” havethought in the penalized way is no departure from the subjective substantive standard.

Resort to an objective substantive standard wouldonly occur if the reasoning became that the accused “must have realized it if he had thought about it”. [Emphasis in original.] [10] With this framework in place, I turn to the decision at hand. To begin, it is apparent from the trial judge’s oral reasons, and theexchanges with counsel, that he well-understood the subjective nature of the mens rea requirement of s. 139(2), as well as the burden ofproof imposed on the Crown in that respect. However, it is also apparent that the trial judge had an irreconcilable doubt as to whetherMr.

Yazelle had refused to testify for the purpose of derailing the criminal proceedings against the accused. Here, I do not accept theCrown’s submission that the trial judge conflated the concepts of motive and intent. The trial judge expressly acknowledged that thereare situations where the requisite intent may be inferred from a refusal to testify. However, while the trial judge made specific referenceto Mr.

Yazelle’s fear for his own safety (i.e., his likely motive for refusing to testify), it is plain from a reading of the entirety of the trialjudge’s oral reasons that he was simply unwilling to draw the inference that Mr. Yazelle had had the specific intent to obstruct, pervert ordefeat the course of justice based on the evidence proffered by the Crown. In this respect, the trial judge was undoubtedly alert toMr. Yazelle’s observations as to the availability of the written statement and the presence of the other witness in the courtroom, as wellas Mr.

Yazelle’s obvious outrage at being subpoenaed when he understood tipsters were to remain anonymous. On the whole of it, thetrial judge found that the Crown had not made out the specific intent to obstruct the course of justice beyond a reasonable doubt. [11] As such, the trial judge’s findings in relation to the issue of intent are not ones of law alone, they are findings of fact. In as much asthe Crown submits before us that the trial judge erred because the only inference available to him was that Mr.

Yazelle intended toobstruct, pervert or defeat the course of justice, where, as here, the jurisdiction of this Court is limited to questions of law alone, thisCourt has no power to interfere with the inferences of fact drawn by the trial judge (R. v. Lampard). In other words, even if the trialjudge’s inference was unreasonable, it would afford the Crown no right of appeal. There is, after all, no such thing as an “unreasonableacquittal” (R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 32). [12] The Criminal Code affords the Crown a limited right of appeal from an acquittal.

As the trial judge’s findings of fact in this caseare not tainted by an error of law alone as to the mens rea requirement of the offence of attempting to obstruct justice, they areunassailable in this Court. I would dismiss the Crown’s appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 9th day of October, A.D. 2012. “Caldwell J.A.”_____________________ Caldwell J.A. I concur. “Richards J.A.”

Richards J.A. I concur. “Ottenbreit J.A.” Ottenbreit J.A.