R. v. Abdullah (G.) et al., (2010) 258 Man.R.(2d) 89 (CA)

• Judge: Steel, Hamilton and Beard, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: March 02, 2010
• Jurisdiction: Manitoba
• Citations: (2010), 258 Man.R.(2d) 89 (CA);2010 MBCA 79

R. v. Abdullah (G.) (2010), 258 Man.R.(2d) 89 (CA);

      499 W.A.C. 89

MLB headnote and full text

Temp. Cite: [2010] Man.R.(2d) TBEd. SE.016

Her Majesty The Queen (appellant) v. Gharib Abdullah (accused/respondent)

(AR 09-30-07182)

Her Majesty The Queen (appellant) v. Corey Nelson Amyotte (accused/respondent)

(AR 09-30-07183)

(2010 MBCA 79)

Indexed As: R. v. Abdullah (G.) et al.

Manitoba Court of Appeal

Steel, Hamilton and Beard, JJ.A.

September 2, 2010.

Summary:

Abdullah and Amyotte (the accused) were subpoenaed by the Crown as material witnesses in a murder trial. They attended the trial, but refused to be sworn or affirmed and did not testify. As a result, each was charged with wilfully attempting to obstruct, pervert or defeat the course of justice "by refusing to testify", pursuant to s. 139(2) of the Criminal Code, and disobeying a court order, being "a subpoena that directed him to attend and give evidence", pursuant to s. 127(1) of the Code.

The Manitoba Provincial Court, in a decision reported at (2009), 241 Man.R.(2d) 118, acquitted the accused of the charges. The Crown appealed from the acquittals.

The Manitoba Court of Appeal allowed the Crown appeals, set aside the acquittals and entered guilty verdicts on all counts. The court stayed the convictions for disobeying a court order pursuant to the principles in R. v. Kienapple. The matter of sentencing on the convictions for attempting to obstruct justice was remitted to the trial court.

Criminal Law - Topic 36

Mens rea or intention - Mistake of law - [See Criminal Law - Topic 528 ].

Criminal Law - Topic 80

Res judicata (multiple convictions for same subject matter precluded) - Circumstances where defence may be raised - The two accused were subpoenaed by the Crown as material witnesses in a murder trial - They refused to be sworn or affirmed and did not testify - As a result, each was charged with wilfully attempting to obstruct, pervert or defeat the course of justice pursuant to s. 139(2) of the Criminal Code, and disobeying a court order pursuant to s. 127(1) of the Code - The accused were acquitted - The Crown appealed - The Manitoba Court of Appeal allowed the appeals, set aside the acquittals and entered guilty verdicts on all counts - Given that both offences stemmed from the same conduct, and were comprised of substantially the same elements, the court stayed the convictions for disobeying a court order pursuant to the principles in R. v. Kienapple - See paragraph 102.

Criminal Law - Topic 440

Offences against the administration of law and justice - Disobedience and obstruction - Disobedience of court order - The two accused were subpoenaed by the Crown as material witnesses in a murder trial - They refused to be sworn or affirmed and did not testify - As a result, they were charged with wilfully attempting to obstruct, pervert or defeat the course of justice, pursuant to s. 139(2) of the Criminal Code, and disobeying a court order, pursuant to s. 127(1) of the Code - Section 127(1) of the Code provided that "Every one who, without lawful excuse, disobeys a lawful order made by a court of justice ... is, unless a punishment or other mode of proceeding is expressly provided by law , guilty of ..."  - The accused argued that the charge of attempting to obstruct justice under s. 139(2) fell within the proviso in s. 127(1) as it was an "other mode of proceeding ... expressly provided by law", and a charge under s. 127(1) was therefore not available - The Manitoba Court of Appeal held that s. 139(2) did not fall within the proviso in s. 127(1) and the Crown was entitled to prosecute the accused under both ss. 139(2) and 127(1) - The court stated that "While the charge of attempting to obstruct justice can be another mode of proceeding to address the same conduct as the charge of disobeying a court order, it is not an 'other' Code offence that 'expressly provides' another punishment or proceeding for 'disobeying a court order'. Rather, it expressly provides a punishment or proceeding for attempting to obstruct justice, an offence that contemplates many different types of conduct" - See paragraphs 90 to 99.

Criminal Law - Topic 440

Offences against the administration of law and justice - Disobedience and obstruction - Disobedience of court order - The two accused were subpoenaed by the Crown as material witnesses in a murder trial - They attended the trial, but refused to be sworn or affirmed and did not testify - They were charged with disobeying a court order, being "a subpoena that directed him to attend and give evidence", pursuant to s. 127(1) of the Criminal Code - The trial judge acquitted the accused, finding that the Crown had not proven beyond a reasonable doubt that the accused refused to testify - The Crown appealed - The Manitoba Court of Appeal allowed the appeals - The court stated that "by refusing to take an oath or affirmation, [the accused] did not testify or 'give evidence' and thereby disobeyed the subpoena. The actus reus of the offence was complete. No specific 'refusal' to testify is required at law to found the essential elements of the offence of disobeying a court order, which is a general intent offence. The court order here was the subpoena that directed the accused to 'attend to give evidence'. All the Crown was required to prove with respect to each accused was that he knew that there was a court order requiring him to give evidence and that he voluntarily did not give evidence" - The offence was complete as soon as the accused declined to be sworn or affirmed to testify - See paragraphs 80 to 83.

Criminal Law - Topic 440

Offences against the administration of law and justice - Disobedience and obstruction - Disobedience of court order - [See Criminal Law - Topic 5412 ].

Criminal Law - Topic 522

Offences against the administration of law and justice - Obstructing or perverting course of justice - Attempting to obstruct justice - [See Criminal Law - Topic 528 ].

Criminal Law - Topic 523

Offences against the administration of law and justice - Obstructing or perverting course of justice - What constitutes - [See Criminal Law - Topic 528 ].

Criminal Law - Topic 528

Offences against the administration of law and justice - Obstructing or perverting course of justice - Intention or mens rea - A bystander was shot and killed in a gang-related shooting - Abdullah and Amyotte (the accused) gave videotaped statements to the police identifying Cansanay as a shooter - The accused were subpoenaed by the Crown as material witnesses in Cansanay's murder trial - They attended the trial but refused to be sworn or affirmed and did not testify - The accused were charged with wilfully attempting to obstruct, pervert or defeat the course of justice "by refusing to testify", pursuant to s. 139(2) of the Criminal Code - At their trial, the accused explained their conduct by stating, inter alia, that their earlier videotaped statements were false and they did not want to perpetuate the lies by testifying at the Cansanay trial - The accused were acquitted of the charges - The trial judge had a reasonable doubt as to whether the accused had the necessary intention to attempt to obstruct justice - The Crown appealed - The Manitoba Court of Appeal allowed the appeals - The trial judge erred in law when she found that the Crown had not proven beyond a reasonable doubt that the accused had the necessary intent to attempt to obstruct justice when they refused to be sworn or affirmed to testify - The court stated that "The failure or refusal of an accused to testify because he does not want to lie on the stand by 'standing by' an earlier false statement given to the police is simply not capable, in law, of raising a reasonable doubt about his or her specific intent to wilfully obstruct the course of justice. A witness in a trial is put on the stand to tell the truth, not to perpetuate a lie or to 'stand by' earlier lies. A person cannot refuse to be sworn or affirmed to give testimony for the purpose of not perpetuating a lie without also intending to obstruct the course of justice. In doing so, the clear inference is that the person intended or knew that his acts would tend to obstruct the course of justice, whatever the stated motive or desired outcome" - Even if the accused honestly believed that they were required to testify at the Cansanay trial in a manner consistent with their earlier videotaped statements, such a misunderstanding would be a mistake of law and would provide no defence - See paragraphs 38 to 62.

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - Question of law or error of law - The Crown appealed the accused's acquittals on charges of attempting to obstruct justice and disobeying a court order - The Crown could appeal an acquittal only on a question of law (Criminal Code, s. 676(1)(a)) - The accused argued that two issues raised by the Crown which concerned the trial judge's finding of reasonable doubt, were questions of fact, not law - The Manitoba Court of Appeal commented generally on how a question of reasonable doubt could be a question of law - See paragraphs 28 to 33.

Criminal Law - Topic 5412

Evidence and witnesses - Witnesses - Subpoena or summons - General - The two accused were subpoenaed by the Crown as material witnesses in a murder trial - They attended the trial, but refused to be sworn or affirmed and did not testify - They were charged with disobeying a court order, being "a subpoena that directed him to attend and give evidence", pursuant to s. 127(1) of the Criminal Code - The trial judge acquitted the accused of the charge - She held that a subpoena issued under the Criminal Code required the recipient to attend court, but it did not require the recipient to testify - The Manitoba Court of Appeal held that the trial judge erred in law when she determined that the subpoenas served on the accused were not court orders that compelled them both to attend and to testify - The court stated that "an ordinary, rational reading of s. 698(1) and s. 700(1) [of the Code], in the context of the other relevant provisions and given the purpose of Parliament in legislating these interrelated provisions, leads to only one conclusion - a subpoena requires the witness 'to attend' and 'to give evidence'. Requiring attendance without also requiring the giving of the evidence would defeat the clear purpose of these provisions"- See paragraphs 63 to 79.

Statutes - Topic 2614

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Legislative or statutory context - [See Criminal Law - Topic 5412 ].

Cases Noticed:

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323; 2007 SCC 5, refd to. [para. 17].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 18].

R. v. Ayres (1984), 5 O.A.C. 150; 15 C.C.C.(3d) 208 (C.A.), refd to. [para. 22].

R. v. Foote, [2001] O.J. No. 3477 (C.J.), refd to. [para. 22].

R. v. M.G.H. (1996), 84 B.C.A.C. 81; 137 W.A.C. 81 (C.A.), refd to. [para. 22].

R. v. G.B. et al. (No. 3), [1990] 2 S.C.R. 57; 111 N.R. 62; 86 Sask.R. 142, refd to. [para. 30].

R. v. Morin (K.M.), [1992] 3 S.C.R. 286; 142 N.R. 141; 131 A.R. 81; 25 W.A.C. 81, refd to. [para. 31].

R. v. Moquin (T.D.) (2010), 251 Man.R.(2d) 160; 478 W.A.C. 160; 2010 MBCA 22, refd to. [para. 33].

R. v. Spencer (1983), 2 C.C.C.(3d) 526 (C.A.), affd. [1985] 2 S.C.R. 278; 62 N.R. 81; 11 O.A.C. 207, refd to. [para. 35].

R. v. Lamer (1973), 17 C.C.C.(2d) 411 (Que. C.A.), refd to. [para. 36].

R. v. Henry (J.R.) (1989), 55 B.C.A.C. 1; 90 W.A.C. 1 (Yuk. C.A.), refd to. [para. 36].

R. v. D.B.T. (1996), 147 N.S.R.(2d) 308; 426 A.P.R. 308 (C.A.), refd to. [para. 36].

R. v. Neuburger (J.) (1995), 55 B.C.A.C. 2; 90 W.A.C. 2 (C.A.), refd to. [para. 36].

R. v. Jacob (J.D.) (2008), 225 Man.R.(2d) 111; 419 W.A.C. 111; 2008 MBCA 7, refd to. [para. 36].

R. v. May (1984), 4 O.A.C. 383; 13 C.C.C.(3d) 257 (C.A.), refd to. [para. 39].

R. v. Graham (1985), 10 O.A.C. 2; 20 C.C.C.(3d) 210 (C.A.), affd. [1988] 1 S.C.R. 214; 86 N.R. 375; 28 O.A.C. 396, refd to. [para. 39].

R. v. Hoggarth (1956), 119 C.C.C. 234 (B.C.C.A.), refd to. [para. 39].

R. v. Guess (G.) (2000), 143 B.C.A.C. 51; 235 W.A.C. 51; 148 C.C.C.(3d) 321; 2000 BCCA 547, leave to appeal refused (2001), 269 N.R. 398; 159 B.C.A.C. 177; 259 W.A.C. 177 (S.C.C.), refd to. [para. 39].

R. v. Buzzanga and Durocher (1979), 49 C.C.C.(2d) 369 (Ont. C.A.), refd to. [para. 41].

R. v. Lacroix, [1987] 1 S.C.R. 244; 74 N.R. 392, refd to. [para. 43].

R. v. Mercer (1988), 89 A.R. 24; 43 C.C.C.(3d) 347 (C.A.), refd to. [para. 43].

R. v. Poulin (1998), 127 C.C.C.(3d) 115 (Que. C.A.), refd to. [para. 43].

R. v. Breton, [1998] Q.J. No. 1661 (C.A.), refd to. [para. 43].

Gerson, Re; Nightingale, Re, [1946] S.C.R. 538, refd to. [para. 44].

R. v. Vaillancourt, [1981] 1 S.C.R. 69; 35 N.R. 597, refd to. [para. 44].

R. v. Cohn (1984), 4 O.A.C. 293; 15 C.C.C.(3d) 150 (C.A.), leave to appeal refused [1985] 1 S.C.R. vii; 58 N.R. 160; 9 O.A.C. 160, refd to. [para. 44].

United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; 135 N.R. 321; 125 A.R. 241; 14 W.A.C. 241, refd to. [para. 44].

R. v. Kirkham (R.G.) (1998), 169 Sask.R. 48; 126 C.C.C.(3d) 397 (Q.B.), refd to. [para. 51].

R. v. Charbonneau (R.) (1992), 46 Q.A.C. 1; 74 C.C.C.(3d) 49 (C.A.), refd to. [para. 52].

R. v. Savinkoff, [1963] 3 C.C.C. 163 (B.C.C.A.), refd to. [para. 53].

R. v. Kotch (1990), 114 A.R. 11; 61 C.C.C.(3d) 132 (C.A.), refd to. [para. 59].

R. v. Whelan (D.) (2002), 219 Nfld. & P.E.I.R. 52; 655 A.P.R. 52; 170 C.C.C.(3d) 151; 2002 NLCA 69, refd to. [para. 59].

R. v. Latouche (2000), 147 C.C.C.(3d) 420 (Ct. Martial App. Ct.), refd to. [para. 60].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 66].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 66].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 70].

Canada Deposit Insurance Corp. v. Code (1988), 84 A.R. 241; 49 D.L.R.(4th) 57 (C.A.), refd to. [para. 75].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 78].

R. v. Baltovich; Finkle v. Ontario, [2007] O.J. No. 3506 (Sup. Ct.), refd to. [para. 78].

R. v. Arradi (Z.), [2003] 1 S.C.R. 280; 302 N.R. 367; 2003 SCC 23, refd to. [para. 87].

R. v. B.K., [1995] 4 S.C.R. 186; 188 N.R. 338; 134 Sask.R. 279; 101 W.A.C. 279, refd to. [para. 87].

R. v. Martin (1985), 8 O.A.C. 25; 19 C.C.C.(3d) 248 (C.A.), refd to. [para. 87].

R. v. Clement, [1981] 2 S.C.R. 468; 38 N.R. 302; 10 Man.R.(2d) 92, consd. [para. 92].

R. v. Gibbons (L.) (2010), 258 O.A.C. 182; 73 C.R.(6th) 23; 2010 ONCA 77, consd. [para. 94].

R. v. Brown (B.J.) (2000), 190 N.S.R.(2d) 116; 594 A.P.R. 116; 151 C.C.C.(3d) 85; 2000 NSCA 147, refd to. [para. 95].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 44 D.L.R.(3d) 351, refd to. [para. 102].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 127(1), sect. 139(2) [para. 13]; sect. 698(1), sect. 700(1) [para. 63].

Authors and Works Noticed:

Gorman, Wayne, Criminal Code, s. 127: When Will it Apply to Breaches of Court Orders? (1998), 40 Crim. L.Q. 200, pp. 210 to 214 [para. 98].

Holdsworth, William Searle, A History of English Law (1926), vol. 9, p. 185 [para. 75].

Counsel:

E.A. Thomson, for the appellant;

D.V. Gunn, for the respondent, G. Abdullah;

S.J. Soldier, for the respondent, C.N. Amyotte.

These appeals were heard on March 2, 2010, before Steel, Hamilton and Beard, JJ.A., of the Manitoba Court of Appeal. The following judgment of the Court of Appeal was delivered by Hamilton, J.A., on September 2, 2010.