PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Jefferson, 2012 NSPC 3
Date: 2011/12/20
Docket: 2294386
Registry: Bridgewater
Between:
R.
v.
Scott Jefferson
Judge: The Honourable Judge Jean-Louis Batiot
Heard: November 21st, 2011, in Bridgewater, Nova Scotia
Decision: December 20th, 2011
January 18th, 2012
Charge: 145(3) Criminal Code
Counsel: Peter Dostal, for the Crown
Barry Whynot, for the Defence
By the Court:
1. At the conclusion of his trial, Scott Jefferson was found not guilty of impeding a witness (s. 423.1(b), but guilty of direct or indirect contact or communication with Tania Conrad (145(3)). To be disposed is the third charge, failure to keep the peace and be of good behaviour (s. 145(3)).
2. I thank counsel for their briefs and authorities.
3. The issue is whether there can be a conviction for this charge based on the evidence at trial of obstruction of justice, contrary to s. 139 of the Criminal Code of Canada when such a charge was not laid. The accused was found not guilty of impeding a witness, as there was no evidence that the accused had instilled a state of fear in the victim. The court found however that the accused had counselled the victim to recant her KGB statements, to negate evidence underlying charges he faces in another trial, and played on her emotional attachment to him to obtain her co-operation.
4. The condition to [k]eep the peace and be of good behaviour is in fact two conditions, both imposed on an accused to secure from him a promise to abide by society’s norm as he awaits trial. A breach of peace implies disturbance of public tranquillity, peace and order either by commission of the act itself or the effect of such an act (R. v. S.S., 1999 CanLII 18981 (Nfld CA), at para 16. There is no evidence in this case of such disturbance of public tranquillity.
5. Be of good behaviour is the second but different condition. It is limited to non-compliance with legal obligations in federal, provincial or municipal statutes or regulatory provisions as well as with court orders specifically applicable to the offender, and does not extend to otherwise lawful conduct even though that conduct can be said to fall below some community standard expected of all peaceful citizens (R. v. R.(D), 1999 CanLII 13903; R. v. S.S., supra, at para 22).
6. Green, J.A., who authored both decisions, further cites with approval Trainor, P.M. in Barker , at para 23, S.S. that a person who commits a breach of the peace is guilty of failing to be of good behaviour, but conduct which amounts to lack of good behaviour need not go to the extent of being a breach of the peace. Thus there can be a failure to be of good behaviour without a breach of the peace, i.e., without an overt disturbance, but merely a non-compliance with a statute or regulation, or court order.
7. In R. v. SS, supra, Green, J.A. held that the breach of the peace charge was sustained on the fact the unruly student, by disobeying repeatedly the instructions of his teachers, was guilty of behaviour disruptive to the public peace. Thus the breach of good behaviour as well. By way of obiter, he held that a breach of good behaviour could also have been found, such as disruptive behaviour in breach of the Schools Act, ie a lack of courtesy, disregarding direction to teachers, breach of regulations, or assault on a teacher, or damage to property, had there been sufficiently clear evidence in the agreed statement of facts to prove any of these.
8. Some courts have held that there should be an underlying conviction to buttress such a charge of failure to be of good behaviour. For instance, in R. v. L.T.W., [2004] N.J. No 260, Gorman, P.C.J. concluded, at para 39, on a s. 145(3) charge without an underlying offence, [t]o allow it to be so used would allow and require that a trial be conducted on the basis of an allegation never made.
9. Others declined to enter a conviction on the basis the behaviour exhibited by the accused did not amount to an offense: walking away from an officer and not being under arrest at the time (R. v. Osuitok, 2011 N.U.C.J. 19); swearing at a police officer not in the exercise of his functions (R. v. Shea, 2010 NSPC 70).
10. In the case at bar, the accused had been released on his own undertaking containing these two separate conditions: not to contact the victim, and keep the peace and be of good behaviour. He is convicted of the first one. There is not evidence of not keeping the peace, thus that aspect is dismissed. But the conviction on the first count proves a line of behaviour in breach of a court order, thus coming within the definition of not be of good behaviour, according to Green, J.A., supra. Furthermore, the facts established at trial show, beyond a reasonable doubt, that the accused was having numerous contacts with the victim to try to have her changed her testimony, all to his advantage, pretending he was free to resume a relationship with her, which she wanted, in an effort to obstruct justice.
11. Green, J.A. does not speak of transgressions or breach, implying there should be a conviction, but merely of non-compliance.
12. The information is general, without specifics – which could have been the subject of an application for particulars – but does allege a failure to be of good behaviour. Evidence of the accused’s bad behaviour was the subject matter of several hours of testimony and was amply in evidence. He choose not to testify. Facts derived from that evidence were established beyond a reasonable doubt. He was not taken by surprise.
13. Such transgressions of the accused are clearly non-compliance with a federal statute, ie s. 139 (2) of the Criminal Code of Canada which requires [e]very one who wilfully attempts in any manner ... to obstruct, pervert or defeat the course of justice.
14. These two facts, non-compliance with the no-contact order with the victim, and the criminal code obligation not to obstruct justice (all are deemed to know), support a finding of guilty to the second charge.
15. Would a conviction on the second breach offend the principle of multiple conviction (double jeopardy) pursuant to R. v. Kienapple, [1975] 1 SCR 729? Is there both a factual and a legal nexus between the charges? Obviously, should the breach of the no-contact clause be the sole basis for the failure to be of good behaviour, then this is a sufficient factual nexus between the two to go to the next question, whether there is a legal nexus. There is no need to do so in this case. The important aspect in the case at bar is the additional, distinguishing facts showing a non-compliance with the requirements of s. 139 of the Code, obstructing justice, sufficient to negate that factual nexus: the accused had direct prohibited contacts with the victim/witness, and did so for the ulterior motive of obstructing justice. This is a prohibited non-compliance with an existing Statute he was deemed to be aware of. By doing so, he was not of good behaviour.
16. A conviction will ensue.