R. v. Wijesinha (W.K.K.), 127 DLR (4th) 242

• Judge: Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 31, 1995
• Jurisdiction: Canada (Federal)
• Citations: 127 DLR (4th) 242;42 CR (4th) 1;[1995] SCJ No 49 (QL);[1995] 3 SCR 422;1995 CanLII 67 (SCC);24 OR (3d) 802;(1995), 186 N.R. 169 (SCC);[1995] ACS no 49;32 CRR (2d) 57;100 CCC (3d) 410

R. v. Wijesinha (W.K.K.) (1995), 186 N.R. 169 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Walter Kingsley Kirti Wijesinha (appellant) v. Her Majesty The Queen (respondent)

(24015)

Indexed As: R. v. Wijesinha (W.K.K.)

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé,

Sopinka, Gonthier, Cory, McLachlin,

Iacobucci and Major, JJ.

May 31, 1995.

Summary:

A lawyer was convicted of four counts of attempting to obstruct, pervert or defeat the course of justice, contrary to s. 139(2) of the Criminal Code. He was sentenced to 15 months' imprisonment. He appealed his convictions and sentence.

The Ontario Court of Appeal, in a decision reported at 68 O.A.C. 356, dismissed the appeals. The lawyer appealed.

The Supreme Court of Canada dismissed the appeal.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - A police officer surrep­titiously recorded his dealings with a law­yer who had suggested a fee-for-referral scheme - The Law Society investigated the allegations of the lawyer's misconduct - In response he supplied the Society with four false statutory declarations - He was charged with obstructing justice - He sought to exclude the wiretap evidence under s. 24(2) of the Charter on the ground of breach of his s. 8 Charter rights - The Supreme Court of Canada affirmed that the wiretap evidence was admissible - Its admission did not affect the fairness of the trial, the Charter breach was not serious, and it would have reflected adversely upon the administration of justice if the evidence were excluded - See paragraphs 53 to 57.

Criminal Law - Topic 521

Obstructing or perverting the course of justice - General - The Law Society investigated complaints that a lawyer suggested a fee-for-referral scheme to a police officer - In answer to the com­plaints, the lawyer provided the Law Society with four statutory declarations that he knew were false - He was con­victed on four counts of obstructing the course of justice (Criminal Code, s. 139(2)) - The Supreme Court of Canada affirmed that "course of justice" in s. 139(2) extended to the investigatory stages of the Law Society's potential disciplinary proceedings - See paragraphs 25 to 34.

Criminal Law - Topic 527

Obstructing or perverting the course of justice - Elements - The Law Society investigated complaints that a lawyer suggested a fee-for-referral scheme to a police officer - In answer to the com­plaints, the lawyer provided the Law Society with four statutory declarations that he knew were false - He was con­victed of four counts of obstructing the course of justice under the Criminal Code, s. 139(2) - He appealed, submitting that the actus reus of the offences had not been committed, where the documents he pro­vided to the Law Society were not statu­tory declarations - The Supreme Court of Canada rejected this ground of appeal - The essence of the offence was that the lawyer tendered false documents purported to be statutory declarations - See para­graphs 58 to 62.

Evidence - Topic 4251

Witnesses - Privilege - Lawyer-client communications - Loss of privilege - Communications respecting crime - The Law Society investigated complaints that a lawyer suggested a fee-for-referral scheme to a police officer - In response, the lawyer provided the Law Society with four statements that he knew were false - The Society turned over the documents to police - The lawyer was charged with four counts of obstructing justice under the Criminal Code, s. 139(2) - He claimed that the documents were covered by so­licitor-client privilege - The Supreme Court of Canada rejected the argument - Any privilege that might have attached to the documents was removed, where they were prepared to further the criminal pur­pose of obstructing justice - See para­graphs 63 to 66.

Words and Phrases

The course of justice - The Supreme Court of Canada discussed the meaning and scope of the words "the course of justice" as found in s. 139(2) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 25 to 52.

Cases Noticed:

R. v. Fosty and Gruenke, [1991] 3 S.C.R. 263; 130 N.R. 161; 75 Man.R.(2d) 112; 6 W.A.C. 112; 67 C.C.C.(3d) 289, refd to. [para. 17].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [para. 18].

R. v. Kalick (1920), 61 S.C.R. 175, refd to. [para. 28].

R. v. Morin (1968), 5 C.R.N.S. 297 (Que. Q.B.), refd to. [para. 30].

R. v. Spezzano (1977), 34 C.C.C.(2d) 87 (Ont. C.A.), refd to. [para. 31].

R. v. Rogerson (1992), 174 C.L.R. 268 (Aust. H.C.), refd to. [para. 32].

R. v. Zeck (1980), 53 C.C.C.(2d) 551 (Ont. C.A.), refd to. [para. 40].

R. v. May (1984), 4 O.A.C. 383; 13 C.C.C.(3d) 257 (C.A.), refd to. [para. 40].

R. v. Vreones, [1891] 1 Q.B. 360, refd to. [para. 42].

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322; 53 C.C.C.(3d) 1; 65 D.L.R.(4th) 240; 74 C.R.(3d) 281; 45 C.R.R. 278, refd to. [para. 56].

R. v. Duarte - see R. v. Sanelli, Duarte and Fasciano.

R. v. Fasciano - see R. v. Sanelli, Duarte and Fasciano.

Descôteaux et Centre Communautaire Juridique de Montréal v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462; 141 D.L.R.(3d) 590, refd to. [para. 64].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 118, sect. 139(1), sect. 139(2), sect. 139(3)(a) [para. 26].

Counsel:

Morris Manning, Q.C., and Theresa R. Simone, for the appellant;

Paul Lindsay and Robert Kelly, for the respondent.

Solicitors of Record:

Manning & Simone, Toronto, Ontario, for the appellant;

Ministry of the Attorney General, Toronto, Ontario, for the respondent.

This appeal was heard on May 31, 1995, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada. The decision of the court was delivered on May 31, 1995, by Cory, J., in both official languages, with written reasons released on September 21, 1995.