



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Petrolo, 2021 ONCA 498

DATE: 20210708

DOCKET: C67966

Watt, Pardu and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Caterina Petrolo

Appellant

Alan D. Gold and Laura Metcalf, for the
    appellant

Matthew Asma, for the respondent

Heard: June 28, 2021 by
    videoconference

On appeal from the conviction entered by
    Justice David Harris of the Ontario Court of Justice on January 17, 2020, and
    from the sentence imposed on March 4, 2020, with reasons reported at 2020 ONCJ
    36 and 2020 ONCJ 122.

REASONS FOR DECISION

[1]

The appellant was convicted of one count of
    breach of trust of a public official and one count of attempt to obstruct
    justice for using her position as a paralegal prosecutor to improperly
    influence the outcome of provincial offences matters.

[2]

The police discovered the appellants conduct
    after intercepting communications between the appellant and Police Constable
    Richard Senior, who was the primary target in a large investigation into police
    corruption. P.C. Senior and the appellant were having an affair. The
    intercepted communications detailed steps the appellant took to obtain
    favourable outcomes for friends of P.C. Seniors who were charged with
    provincial offences.

[3]

The intercepted communications were summarized
    in a Substantive Event Summary (SES), which was then disclosed to York
    Region, the appellants employer. Armed with the SES, the appellants
    supervisor gathered court and internal records to provide to the police to use
    in their investigation.

[4]

The appellant sought to have the intercepted
    communications and York Region records excluded from trial on
Charter
grounds. Her application was dismissed. She was found guilty of both offences
    for two separate matters and sentenced to a three-month conditional sentence.
    She appeals her conviction and sentence.

[5]

The appellant challenges the convictions on three grounds:

1.

The verdict was unreasonable. The
    trial judge could not have ruled out the possibility that the appellant was
    lying to impress her intimate friend, and the trial judge was therefore
    required to acquit her.

2.

The trial judge erred in
    concluding that police disclosure of some aspects of the intercepted
    communications to the appellants employer were covered by the exemption in s.
    193(2)(b) of the
Criminal Code
as disclosure made in the course of a criminal
    investigation. As a result, the disclosure was illegal, in contravention of s.
    193(1) of the
Code
, and tainted the interception evidence on
Charter
grounds. Pursuant
    to
Wakeling v. United States of America
, 2014 SCC 72, [2014] 3 S.C.R. 549
, this
evidence should have been excluded.

3.

The appellant was convicted of two
    offences for essentially the same conduct and one of the matters should have
    been stayed by operation of the principles in
R. v.
    Kienapple
, [1975] 1 S.C.R. 729.

[6]

The appellant challenges the sentence, arguing that a conditional
    discharge was the appropriate sentence in the circumstances.

Analysis

[7]

We do not accept these arguments.

(1)

Unreasonable verdict

[8]

In brief, the appellant was accused of
    improperly intervening in the prosecution of five traffic offences between May
    and October 2018. The trial judge acquitted the appellant with respect to three
    of these incidents. The appellants convictions rest on her involvement in the
    remaining two prosecutions.

[9]

The first concerned Mr. Carlton Wills, who
    received a traffic ticket for disobeying a sign. This charge was ultimately
    withdrawn. The second concerned Mr. Nicholas Guarino, who was charged with
    careless driving. This charge was later reduced to disobeying a lane light.

[10]

There was nothing improper on the face of these
    dispositions. The assessment of the appellants role in these events depends on
    the interpretation of her intercepted communications.

The Wills matter

[11]

P.C. Senior had grown up with Mr. Wills son,
    Fabian. They had been friends for 30 years. After he received the ticket, Mr.
    Wills contacted P.C. Senior and asked what he could do about it. On P.C.
    Seniors instructions, Mr. Wills set a court date for June 1, 2018. Roughly a
    week before the court date, Mr. Wills received a call telling him not to
    attend.

[12]

A transcript of proceedings at the Richmond Hill
    Provincial Offences Court, dated June 1, 2018, states that a prosecutor  not
    the appellant  withdrew the charge. Mr. Wills was listed as appearing in
    person.

[13]

The appellant is only connected to Mr. Wills
    matter through the intercepted communications. The appellant, P.C. Senior, and
    Fabian communicated via WhatsApp on June 1, 2018 at around midnight. The key
    portions of their conversation read:
[1]

CP: Hello!!!

FW: Lmao

CP: Fabian your fathers disobey sign tickets
    gone bye [emoji]

FW: Well hello

CP: Im still sweating [emoji]

FW: Omg. You are too good to me and my pops

FW: He wants to meet you

CP: Lol he owes me a drink



RS: I am officially shutting down the CP lets
    make a deal office after this

CP: Rich ur tab is getting big

RS: Lol

FW: I am sure CP will assist where she can
    with Myles. But this chat group is solely Wills and their traffic stupidity

CP: Yes I agree Fabian

RS: Then the name should reflect that

CP: Lmao

RS: Wills ticket specialist

FW: What you and
    her do in your spare time is not my business [emoji]

[14]

There later followed a discussion of a Toronto
    traffic ticket. The appellant was not a prosecutor in Toronto:

CP: Drum roll pls ....

CP: Fabian .. pls tell ur dad his seatbelt
    ticket was withdrawn

CP: Total saving of 4 points and $350

CP: Lucky man

FW: Fml

FW: I am feeling jealous

CP: Lol

CP: Now he needs to keep that record squeaky
    clean

CP: And pls make
    sure that he doesnt attend that June court date

The Guarino matter

[15]

Mr. Guarino was initially charged with careless
    driving. He spoke with a friend, Roman, who advised Mr. Guarino he would try
    and speak to someone about helping him with the charge.

[16]

Mr. Guarino ultimately attended court and
    pleaded guilty to disobeying a lane light. The fine was substantially lower
    than that for careless driving, and there are no demerit points for disobeying
    a lane light compared to six points for careless driving.

[17]

The appellant was not the prosecutor at court on
    the day Mr. Guarino appeared, and she never spoke with him. Again, the only
    evidence linking the appellant to the matter is in the following intercepted
    telephone conversation between the appellant and P.C. Senior:

PETROLO
:  And I called you because I worked some magic with uh Romans
    ticket

SENIOR
:     Oh Romans buddys ticket yeah

(voices overlap)

PETROLO
:  His buddys ticket

SENIOR
:     Yeah

PETROLO
:  Okay so I offered him zero (0) points like a lane light it
    doesnt even apply does not sit I squeezed it out

SENIOR
:     Yeah

PETROLO
:  Uhm it shouldve been like a fail to tum out left to
    (unintelligible)

(voices overlap)

SENIOR
:     Yeah yeah

PETROLO
:  (mouth noise) Tell him he better not know me he better not
    fucking squawk cause if he squawks theyll look at the deal right

SENIOR
:     Yeah yeah yeah a hundred (100) percent

PETROLO
:  So tell him tell him to take fuckin deal and shut up and not
    question it

(voices overlap)



PETROLO
:  Well you gimme a headache too sometimes so were even

SENIOR
:     Okay sup

PETROLO
:  Uhm that's it. I was telling you about the ticket

SENIOR
:     Oh okay

PETROLO
:  Make sure he doesn't squawk (ph) hey

SENIOR
:     Yeah yeah Ill forward you what I wrote him sent him

PETROLO
:  Because as soon as he says is there anything better theyre gonna
    be like this doesn't even apply

SENIOR
:     Yeah

PETROLO
: So (unintelligible) take it 'n be quiet.

The verdict was not
    unreasonable

[18]

The appellant argued that this evidence did not
    exclude the possibility that the appellant was lying in an effort to impress
    Senior and that, therefore, the trial judge had to acquit her. The trial judge
    rejected this argument, noting that there was no direct evidence to support the
    suggestion that the statements by the appellant were an attempt to ingratiate
    herself with Senior.

[19]

The trial judge recognized that the burden lay
    upon the Crown to prove the offences beyond a reasonable doubt, citing
R.
    v. W.(D)
, [1991] 1 S.C.R. 742, and also that the appellant was not obliged
    to testify.

[20]

He was not required to acquit based on
    supposition or conjecture, that flows from a purely hypothetical narrative:
R.
    v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 50.

[21]

While trial judges must consider exculpatory
    theories inconsistent with guilt when convicting an accused based on
    circumstantial evidence, such theories must be based on logic and experience
    applied to the evidence or absence of evidence, not on speculation:
R. v.
    S.B.1
, 2018 ONCA 807, 143 O.R. (3d) 81, at para. 124. As explained in
R.
    v. S.B.1
, at para. 138:

Decisions of this court since
Villaroman
demonstrate that merely because a trial judge rejects an alternative theory
    inconsistent with guilt does not mean that he or she committed a so-called
Villaroman
error. It may simply mean that there was no available inference, other than guilt,
    that was reasonable, given the evidence and the absence of evidence, and in
    light of human experience and common sense. Nor does the use of expressions
    such as no evidence to the contrary or no competing narrative signal a 
Villaroman
error or a misplacement of the burden of proof. [Citations omitted.]

[22]

Deference is owed to a trial judges conclusion
    that there are no reasonable alternative inferences other than guilt:
R. v.
    S.B.1
, at para. 139.

[23]

Here, the trial judge could reasonably take the
    appellant at her word and conclude in light of human experience and common
    sense that the appellant had in fact fixed the tickets as a favor to Senior
    and his associates. There was nothing manifestly untrue about any of the
    appellants intercepted communications. The appellant did not testify, so there
    was no evidence that she was lying in these communications. There is no common
    sense inference that a party to an affair will lie so as to ingratiate him or
    herself with the other party: see
R. v. Perkins
, 2007 ONCA 585, 228
    O.A.C. 120, at para. 35;
R. v. JC
, 2021 ONCA 131, 70 C.R. (7th) 38, at
    paras. 58-62.

[24]

There is no basis to conclude that the trial
    judge reversed the burden of proof or failed to consider the absence of
    evidence from the prosecutors who actually dealt with the matters in the
    courtroom.

(2)

Disclosure of the intercepted communications

[25]

The appellant acknowledges that the above
    communications were lawfully intercepted. She argues that her rights under s. 8
    of the
Charter
were violated by the subsequent illegal disclosure of
    these intercepted communications and that the evidence should properly have
    been excluded.

[26]

On the afternoon that the appellant was
    arrested, York Regional Police Inspector deRuiter emailed a copy of a document
     the SES  to York Regional Solicitor Joy Hulton. Inspector deRuiter testified
    that he approached Ms. Hulton to seek help in obtaining documents necessary for
    the investigation and that he thought sending the SES was the easiest way to
    communicate the substance of the allegations.

[27]

The SES was seven pages long. It referred to
    nine separate instances of purported fixing of provincial offence notices.
    While the document did not contain a transcript or recording of the intercepted
    communications, it included very short summaries. The extracts specifically
    referred to in the SES relate to the appellant taking steps to deal with
    tickets.

[28]

The SES was passed along to York Region Senior
    Counsel for Prosecutions Chris Bendick. Mr. Bendick, who was also the
    appellants supervisor, used the SES to pull court records and internal
    prosecution records to ascertain whether what was said in the SES and
    intercepted communications was connected to the appellant. He provided the
    documents gathered to the police.

[29]

Sections 193(1) and 193.1(1) of the
Criminal
    Code
make the use or disclosure of an intercepted communication or
    disclosure of any part, substance, or meaning thereof or its existence, an
    indictable offence, subject to the exemptions in ss. 193(2) and (3): see
Wakeling
    v. United States of America
.

[30]

One of the exemptions is for disclosure in the
    course of a criminal investigation. For ease of reference, the relevant
    exemption read as follows:

(2) Subsection (1) does not apply to
    a person who discloses a private communication or any part thereof or the
    substance, meaning or purport thereof or of any part thereof or who discloses
    the existence of a private communication

(b)
    in the course of or for the purpose of any criminal investigation if the
    private communication was lawfully intercepted;

[31]

The trial judge found that the police disclosed
    the information in the course of or for the purpose of a criminal
    investigation. The information was disclosed for the subjective, specific
    purpose of enabling counsel for York Region to locate documents which the
    police hoped to use as evidence against the appellant.

[32]

The appellant submits that it was entirely
    unnecessary for the police to disclose the intercepted communications. They
    could have requested the sought-after ticket information by giving the ticket
    numbers, the names of the persons involved, or the dates of the provincial
    court appearances. Further, the police failed to warn the recipients of their
    request that disclosure was prohibited by the
Criminal Code
. Counsel
    argues that the temporal connection between the disclosure and the arrest or
    investigation of the appellant is not enough to establish that the disclosure
    of the intercept was of or for the purpose of [a] criminal investigation.

[33]

We agree that it was not logically necessary for
    police to disclose the intercepted communications to obtain the documents they
    sought; however, we are not persuaded that necessity is an element of the
    exemption. The language in the course of or for the purpose of any criminal
    investigation is broad and not so limited. Where Parliament meant to require
    necessity as an element in this context it has done so expressly: see, e.g.,
    ss. 184(2)(c) and (e), 184.4(b), 193(2)(d).

[34]

In
Wakeling
, s. 193(2)(e) was in issue.
    This section permits domestic and international sharing of intercepted private
    communications to investigative and prosecutorial authorities. This disclosure
    is potentially quite intrusive, as once the evidence is in a foreign state
    Canadian laws may have no application to its use.

[35]

Moldaver J. held that, under s. 193(2)(e), the
    subjective belief of the person making the disclosure is the relevant factor
    for determining whether the exemption is engaged. It is difficult to see how an
    objective test of necessity for the disclosure is compatible with the
    subjective assessment required. Further, in her concurring opinion, McLachlin
    C.J.C. indicated, at para. 92-93, that:

[A] valid warrant
    sanitizes the state intrusion on privacy, as long as the execution of the
    warrant is reasonable and the information is used for the purposes of law
    enforcement. Provided information is shared for purposes of law enforcement,
    the individual cannot complain that the sharing violates his s. 8 right to
    privacy.

There was no suggestion that necessity was
    an element of the exemption.

[36]

Here, there is much more than simply a temporal
    connection between the impugned disclosure and the investigation and arrest.
    The police were subjectively looking for relevant documents in aid of their
    investigation. In our view, the disclosure was made in the course of and for
    the purpose of a criminal investigation and, accordingly, the exemption
    applies.

[37]

Further, we agree with the trial judges
    conclusion that, taking into account the content of the SES, the police acted
    reasonably, particularly given the limited reference to the intercepted
    communications confined to some of the appellants statements about her actions
    in relation to tickets.

[38]

The disclosure was therefore lawful, and there
    is no
Charter
breach associated with the intercepted communications.
    We need not consider whether the exemption in s. 193(2)(a) applies.

(3)

Was the appellant properly convicted of both
    offences?

[39]

The appellant was convicted of breach of trust
    by a public official, under s. 122 of the
Criminal Code
, and
    obstruction of justice, under s. 139(1).

[40]

The trial judge accurately stated the elements
    of each offence. For breach of trust by a public official he noted, at para. 23
    of his reasons, that the Crown must prove each of the following:

1)

The accused is an official;

2)

The accused was acting in connection with the
    duties of her office;

3)

The accused breached the standard of
    responsibility and conducted demanded of her by the nature of the office;

4)

The conduct of the accused represented a serious
    and marked departure from the standards expected of an individual in the
    accuseds position of public trust; and,

5)

The accused acted with the intention to use her
    public office for a purpose other than the public good, for example, for a
    dishonest partial, corrupt of oppressive purpose: see
R. v. Boulanger
,
    2006 SCC 32, [2006] 2 S.C.R. 49, at para. 58.

[41]

In relation to the elements of obstruct justice,
    citing
R. v. Yarlasky
(2005), 195 O.A.C. 188 (C.A.), the trial judge
    listed the essential elements as follows:

1)

The accused must have done enough for there to
    be a risk, without any further action by her, that injustice will result; and,

2)

The attempt by the accused to obstruct justice
    must have been wilful.

[42]

As is apparent from their elements, these are
    two different offences that serve different societal interests. One applies
    only to officials. Obstruction of justice requires an intent to obstruct,
    pervert or defeat the course of justice. There are additional and
    distinguishing elements which differentiate the two offences: see
R. v.
    Prince
, [1986] 2 S.C.R. 480, at pp. 493-495;
R. v. Kinnear
(2005),
    199 O.A.C. 323 (C.A.), at paras. 32-39. The
Kienapple
principle does
    not foreclose conviction for both offences.

(4)

The sentence appeal

[43]

The appellant also submits that the trial judge
    erred in not granting a conditional discharge. She submits that the trial judge
    unreasonably distinguished cases in which a discharge had been granted by
    observing that those involved guilty pleas. Counsel argues that a conditional
    discharge would not have been contrary to the public interest given that the
    appellant was a 37-year-old first offender with no previous record. She has
    suffered serious collateral consequences: the loss of her job and profession.

[44]

In our view, the three-month conditional
    sentence imposed was not demonstrably unfit, nor was there an error in
    principle. The weight to be given to the mitigation factor of remorse
    demonstrated by a guilty plea in the other cases was a matter for each of the
    sentencing judges in those cases. That mitigating factor was absent here.
    Whether a conditional discharge would have been contrary to the public interest
    was a discretionary decision available to the trial judge: see
R. v. Lu
,
    2013 ONCA 324, 307 O.A.C. 40, at paras. 48-50, leave to appeal refused, [2013]
    S.C.C.A. No. 313. Given the serious violations of trust placed in the appellant
    as an official, and the potential to erode public confidence in the
    administration of justice, some denunciation was required. There is no basis to
    interfere with the trial judges decision that a conditional discharge would
    not be appropriate.

Disposition

[45]

Accordingly, the appeal from convictions is
    dismissed. Leave to appeal sentence is granted but the appeal from sentence is
    also dismissed.

David Watt J.A.

G. Pardu J.A.

Gary Trotter J.A.





[1]
CP is the appellant; RS is P.C. Senior; and FW is Fabian
    Wills.


