R. v. Kirkham (R.G.), (1998) 169 Sask.R. 48 (QB)

• Judge: Baynton, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 19, 1998
• Jurisdiction: Saskatchewan
• Citations: (1998), 169 Sask.R. 48 (QB);1998 CanLII 13866 (SK QB);[1999] 1 WWR 605;126 CCC (3d) 397;17 CR (5th) 250;169 Sask R 48

R. v. Kirkham (R.G.) (1998), 169 Sask.R. 48 (QB)

MLB headnote and full text

Temp. Cite: [1998] Sask.R. TBEd. JL.032

Her Majesty The Queen v. Randy G. Kirkham

(1997 CNJ No. 60)

Indexed As: R. v. Kirkham (R.G.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Battleford

Baynton, J.

June 19, 1998.

Summary:

The accused was the Crown counsel in the first trial of Robert Latimer for the murder of his disabled daughter. The accused was charged with two counts of attempting to obstruct justice contrary to s. 139(2) of the Criminal Code. The first count alleged that the accused authorized the RCMP to collect personal information respecting the potential jurors in an attempt to obtain an unfair advantage in the prosecution. The second count alleged that the accused knew that potential jurors had been directly contacted by the RCMP, but failed to advise defence counsel and the court prior to the com­mencement of the trial that such contact had been made. The direct contact with the jurors resulted in a new trial being ordered for Robert Latimer.

The Saskatchewan Court of Queen's Bench acquitted the accused where the mental element of the offence charged in either count was not established beyond a reason­able doubt.

Courts - Topic 126.1

Stare decisis - Authority of judicial deci­sions - Courts of superior jurisdiction - Supreme Court of Canada - General - The accused was the Crown counsel in the first trial of Robert Latimer for the murder of his disabled daughter - The accused was charged with attempting to obstruct justice arising from his role in the direct contact of potential jurors by the RCMP - An issue arose regarding whether the court should consider comments made by the Supreme Court of Canada in Latimer's murder conviction appeal respecting the accused's conduct in the case - The Saskatchewan Court of Queen's Bench stated that the case and comments were in the public domain and were properly referred to in argument by Crown counsel - However, the court stated that the obser­vations of the Supreme Court of Canada did not deter­mine any of the issues that the court was to decide in the case before it - See para­graphs 84 to 90.

Criminal Law - Topic 522

Offences against the administration of law and justice - Obstructing or perverting course of justice - Attempting to obstruct justice - The accused was the Crown coun­sel in the first trial of Robert Latimer for the murder of his disabled daughter - The accused was charged with two counts of attempting to obstruct justice contrary to s. 139(2) of the Criminal Code - The first count alleged that the accused authorized the RCMP to collect personal information respecting the potential jurors in an attempt to obtain an unfair advantage in the pros­ecution - The second count alleged that the accused knew that poten­tial jurors had been directly contacted by the RCMP, but failed to advise defence counsel and the court prior to the com­mencement of the trial that such contact had been made - The Saskatchewan Court of Queen's Bench acquitted the accused - Even if the ac­cused's conduct constituted the actus reus of the two counts charged, the mental element, i.e., the specific intent to attempt to obstruct the course of justice, was not established - See paragraphs 39 to 44.

Criminal Law - Topic 523

Offences against the administration of law and justice - Obstructing or perverting course of justice - What constitutes - [See Criminal Law - Topic 522 ].

Criminal Law - Topic 527

Offences against the administration of law and justice - Obstructing or perverting course of justice - Elements - [See Crim­inal Law - Topic 522 ].

Criminal Law - Topic 5313

Evidence and witnesses - Inferences - Of consciousness of guilt - From falsehoods - The accused was the Crown counsel in a murder trial - The accused was charged with two counts of attempting to obstruct justice arising from his role in the direct contact of potential jurors by the RCMP - The Crown relied on the accused's alleged attempt to cover up or minimize his in­volvement in the direct contact of jurors as evidence of an inference of consciousness of guilt - The Saskatchewan Court of Queen's Bench held that such an inference could not be drawn - Even if the accused lied about his knowledge of the direct contacts, the consciousness of guilt infer­ence did not necessarily relate to the ob­struction of justice offences charged - The accused may have been trying to salvage his professional reputation or to avoid disciplinary or contempt proceedings - See paragraphs 95 to 103.

Cases Noticed:

R. v. Bain, [1992] 1 S.C.R. 91; 133 N.R. 1; 51 O.A.C. 161; 69 C.C.C.(3d) 481, refd to. [para. 16].

R. v. Williams (V.D.) (1998), 226 N.R. 162; 107 B.C.A.C. 1; 174 W.A.C. 1 (S.C.C.), refd to. [para. 18].

R. v. Wijesinha (W.K.K.) (1995), 186 N.R. 169; 85 O.A.C. 241; 42 C.R.(4th) 1 (S.C.C.), refd to. [para. 30].

R. v. May (1984), 4 O.A.C. 383; 13 C.C.C.(3d) 257 (C.A.), leave to appeal refused (1984), 56 N.R. 239; 6 O.A.C. 269 (S.C.C.), refd to. [para. 30].

R. v. Graham (1985), 10 O.A.C. 2; 20 C.C.C.(3d) 210 (C.A.), affd. (1988), 86 N.R. 375; 28 O.A.C. 396; 38 C.C.C.(3d) 574 (S.C.C.), refd to. [para. 30].

R. v. Hearn and Fahey (1989), 75 Nfld. & P.E.I.R. 13; 234 A.P.R. 13; 48 C.C.C.(3d) 376 (Nfld. C.A.), affd. (1989), 102 N.R. 130; 80 Nfld. & P.E.I.R. 199; 249 A.P.R. 199; 53 C.C.C.(3d) 352 (S.C.C.), refd to. [para. 30].

R. v. Spezzano (1977), 34 C.C.C.(2d) 87 (Ont. C.A.), refd to. [para. 30].

R. v. Kotch (1990), 114 A.R. 11; 61 C.C.C.(3d) 132 (C.A.), refd to. [para. 31].

R. v. Charbonneau (R.) (1992), 46 Q.A.C. 1; 74 C.C.C.(3d) 49 (C.A.), leave to appeal refused (1992), 145 N.R. 90; 54 Q.A.C. 318; 75 C.C.C.(3d) vi (S.C.C.), refd to. [para. 31].

R. v. Caldough et al. (1961), 36 C.R. 248 (B.C.S.C.), refd to. [para. 32].

Krieger et al. v. Law Society of Alberta (1997), 205 A.R. 243; 149 D.L.R.(4th) 92 (Q.B.), refd to. [para. 33].

R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1; 44 D.L.R.(4th) 385; 31 C.R.R. 1; 37 C.C.C.(3d) 449; 62 C.R.(3d) 1, refd to. [para. 49].

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1, refd to. [para. 84].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26; 87 C.C.C.(3d) 289, refd to. [para. 96].

R. v. Creighton (D.J.) and Crawford (C.), [1995] 1 S.C.R. 858; 179 N.R. 161; 81 O.A.C. 359, refd to. [para. 96].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 96].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397; 3 C.R.(4th) 302, refd to. [para. 104].

R. v. D.O.L., [1993] 4 S.C.R. 419; 161 N.R. 1; 88 Man.R.(2d) 241; 51 W.A.C. 241; 85 C.C.C.(3d) 289; 25 C.R.(4th) 285; 18 C.R.R.(2d) 257, refd to. [para. 104].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321; 34 C.R.(4th) 1; 93 C.C.C.(3d) 1, refd to. [para. 104].

R. v. McKenzie (P.N.) (1996), 141 Sask.R. 221; 114 W.A.C. 221; 106 C.C.C.(3d) 1, refd to. [para. 104].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 139 [para. 11].

Authors and Works Noticed:

Concise Oxford Dictionary of Current English (9th Ed. 1995) [para. 88].

Counsel:

H.F. Morton, Q.C., for the Crown;

A.A. Fox, Q.C., for the accused.

This case was heard before Baynton, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Battleford, who delivered the following judgment on June 19, 1998.