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Criminal Code offences - Offences against the administration of law and justice - Misleading justice - Perjury

Thursday, September 15, 2016 @ 8:00 PM  

Appeal by the accused from conviction for perjury. The appellant, an RCMP officer, was involved in an encounter during which he tasered a suspect that died as a result. At an inquiry into the circumstances of the victim’s death, the appellant testified about the incident as reflected in his notes and statements immediately following the incident. The appellant’s account of the incident was incontrovertibly inaccurate in material respects when compared to a video of the incident taken by a bystander. When asked about these discrepancies, the appellant stated that the incident was fast-moving and he had merely misperceived events. He maintained that he did not discuss the details of the incident with the other officers involved. The judge found that the appellant had lied about what he had perceived during the incident and about whether he discussed details of the incident with his fellow officers. The appellant sought a new trial on the basis of errors made by the judge.

HELD: Appeal dismissed. The trial judge did not err in the approach he took to the analysis of the video. The question of whether the appellant lied about what he perceived in his encounter with the victim was a question of fact. The judge was not limited to the so-called “doppelganger” approach in assessing the evidence. The trial judge undertook a detailed analysis of the evidence in light of the defence case. He did not engage in a detached, hindsight-driven analysis, but properly appreciated, considered and ultimately rejected the defence case that owing to the stress and fast-moving events, the appellant was telling the truth about what he perceived at the time. The judge did not apply the wrong legal principle in assessing whether the appellant perjured himself when he testified that the officers had not colluded in preparing their statements. The judge analyzed the evidence concerning whether the officers had an opportunity to collude; whether they had a motive or incentive to harmonize their stories to justify their conduct; whether in certain material respects their statements were sufficiently similar to raise an issue about whether they had colluded over them; and whether there was an innocent explanation for the similarities that raised a reasonable doubt about whether the similarities arose from collusion. The judge did not err in refusing to admit expert evidence that police officers may misperceive fast-moving and stressful events. The trial judge applied the threshold criteria for the admissibility of expert evidence. The proposed witness did not have the necessary expertise to offer opinion evidence and there was no basis to doubt the judge’s conclusion on that point. The trial judge was entitled to conclude that a trier of fact was capable of assessing the relevance of the phenomenon in the particular circumstances of this case. The judge did not err in not preventing the Crown from advancing its case that the appellant had colluded with the other officers, even though an earlier trial involving another officer had acquitted that officer of collusion. The trial judge applied the law correctly. It was not an abuse of process for the Crown to pursue the issue of collusion in the appellant’s trial. This was not one of the clearest of cases where the application of the doctrine of abuse of process would be appropriate.