2022 NBPC 8, 2022 NBPC 8

CANADA PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT Trial Date: August 18 th , 2022 and October 5 th , 2022 Decision Date: December 20 th , 2022 Docket No.: 158105 Neutral Citation: 2022NBPC08 HIS MAJESTY, THE KING - and - KEVIN JAMES CORCORAN Decision of the Honourable Judge Scott A. Brittain Provincial Court of New Brunswick Note: Non-substantive editorial/grammatical changes were made to this decision following it being delivered orally on December 20 th , 2022. APPEARANCES: Alana Napke, on behalf of His Majesty, The King Dustin Caissie, on behalf of Mr. Corcoran DELIVERED ORALLY INTRODUCTION 1 .

Kevin James Corcoran, (“Mr.

Corcoran”) is charged with two indictable counts in an Information sworn to on March 15 th , 2021, which, as subsequently amended, read as follows: COUNT 1 - Kevin James CORCORAN on or about June 26, 2020 at Miramichi, New Brunswick did, with intent to mislead, make before a person authorized by law to permit it to be made, namely: Constable Brennan Pryor, a false statement under oath, to wit: that he spoke to Tristan Munn over the phone on 22 nd June 2020, and that in the course of that phone conversation, he was threatened by Tristan Munn, knowing the statement to be false, contrary to

Section 132 of the Criminal Code of Canada and amendments thereto. COUNT 2 - Kevin James CORCORAN on or about June 26, 2020 at Miramichi, New Brunswick did, with intent to mislead, cause a peace officer to enter upon an investigation by making a false statement that accused some other person of having committed an offence, to wit: a statement that he was threatened by Tristan Munn during a phone conversation on 22 nd June 2020, contrary to Subsection 140(2) of the Criminal Code of Canada and amendments thereto. 2 .

Central to the disposition of this proceeding given the particular nature of the charges against Mr. Corcoran is the content of a KGB Statement that Mr. Corcoran provided to Constable Brennan Pryor (“Constable Pryor”) of the Miramichi Police Force (the “MPF”) on

the afternoon of June 26th, 2020 (the “Corcoran KGB Statement”). The Corcoran KGB Statement detailed, among other things, a threat or threats from Tristan Munn (“Mr. Munn”) to Mr. Corcoran which were reported to be made by telephone on June 22nd, 2020. 3. For context, Mr. Munn is the current intimate partner of Mr. Corcoran’s former intimate partner, Ashton Corcoran (“Ms.Corcoran”). Mr. and Ms. Corcoran have a young daughter together. Suffice it to say their relationship did not end well. Mr. Corcoran iscurrently incarcerated and Mr. Munn, who was formerly employed by Mr.

Corcoran’s insulation business, now lives with Ms. Corcoranin a residence that belongs to Mr. and Ms. Corcoran. It is obvious for reasons that will be discussed more fully in this decision that anegative and acrimonious relationship exists between Mr. Corcoran and Mr. Munn. 4. It is the Crown’s position that the Corcoran KGB Statement detailed false allegations against Mr. Munn, which Mr. Corcoranintentionally advanced under warning and under oath with the knowledge that such allegations were untrue. The Crown further contendsthat Mr. Corcoran’s false allegations against Mr.

Munn caused Constable Pryor to enter upon what turned out to be a meritless andunwarranted criminal investigation involving Mr. Munn. Mr. Corcoran strenuously denies the Crown’s position and holds to his position, as explained in the Corcoran KGB Statement, that Mr. Munn made a threat or threats to him by telephone on June 22nd, 2020. THE EVIDENCE 5. The Crown called the following witnesses at trial: (

a) Sergeant Edward Goodfellow (“Sergeant Goodfellow”) of the MPF; (

b) Constable Pryor of the MPF; (

c) Mr. Marlo Denny (“Mr. Denny”), Security Operations Administrator with Bell Mobility; (

d) Ms. Corcoran, and (

e) Mr. Munn. 6. The Defence called the following witness at trial: (

a) Mr. Corcoran. THE ISSUES 7. At issue in this proceeding is whether the Crown has satisfied this Court of Mr. Corcoran’s guilt beyond a reasonable doubt as itpertains to each of the essential elements of the two charges he faces. It should also be acknowledged at this juncture that this Court mustundertake the analysis mandated in the Supreme Court of Canada’s leading decision in R. v. W.(D.), (SCC), [1991] 1S.C.R. 742 in view of the fact that Mr. Corcoran testified at trial. THE ESSENTIAL ELEMENTS OF THE OFFENCES 8. For this Court to find Mr. Corcoran guilty under

Section 132 of the Criminal Code, the Crown must prove each of the followingessential elements of this offence beyond a reasonable doubt, namely that: a. Mr. Corcoran gave evidence under oath or solemn affirmation before a person who is authorized by law to permit it to be madebefore him; b. The evidence given under oath or solemn affirmation by Mr. Corcoran was false; c. Mr. Corcoran knew it was false when he gave the evidence, and d. Mr. Corcoran gave the evidence with the intent to mislead. 9.

If an accused gave false evidence with knowledge of the facts, it has been found that it is with an intention to deceive becausepeople only lie for the purpose of misleading (see: Courval v. R. (1957), (QC CA), 25 C.R. 239 (Que. C.A.)). TheCrown must prove not only that an accused lied, but that he or she did so for the purpose of misleading. The accused need not actuallymislead. He or she only need intend to do so. Finally, the intent to mislead can be inferred from the evidence (see: R. v. Boisjoly, (SCC), [1972] S.C.R. 42). 10. For this Court to find Mr.

Corcoran guilty under Section 140(2) of the Criminal Code, the Crown must prove each of the followingessential elements of this offence beyond a reasonable doubt, namely: a. Date, time, jurisdiction and identity; b. That Mr. Corcoran made a statement that accused another person of committing an offence; c. The gist of Mr. Corcoran’s words or actions were false; d. Mr. Corcoran intended to mislead, and

e. Mr. Corcoran’s words or actions caused a police officer to commence or continue an investigation. 11 . If this Court is not satisfied beyond a reasonable doubt of all the essential elements of either or both of these offences, this Court must find Mr. Corcoran not guilty as the circumstances dictate. 12 . If this Court is satisfied beyond a reasonable doubt of all the essential elements respecting either or both of these offences, this Court must find Mr. Corcoran guilty as the circumstances dictate. 13 . The Crown must prove each essential element of each offence beyond a reasonable doubt.

Proof of probable or likely guilt is not enough. 14 . Mr. Corcoran is presumed to be innocent respecting the two charges before this Court. He has no burden of proof as it relates to any of the essential elements of either offence. THE EVIDENCE The Corcoran KGB Statement 15 . As earlier noted, the content of the Corcoran KGB Statement is the central focus of this proceeding. It is within the parameters of the Corcoran KGB Statement that the totality of the evidence before this Court, as presented at trial, must be examined.

The Corcoran KGB Statement was admitted on consent at trial as Exhibit C-1, played in full in Court and subsequently reviewed again in full in the preparation of this decision. The content and context of the Corcoran KGB Statement is as follows: a. In keeping with standard procedure, Constable Pryor read a prepared KGB Warning to Mr. Corcoran respecting the consequences of providing a false KGB Statement to the police before the Corcoran KGB Statement was given. Mr. Corcoran confirmed his understanding of the KGB Warning. Moreover, Constable Pryor explained that Mr.

Corcoran was under no obligation to provide a KGB Statement and that he could leave at any time, which Mr. Corcoran also understood. b. Sergeant Goodfellow, a commissioner of oaths, administered the oath to Mr. Corcoran prior to his giving the Corcoran KGB Statement but neglected to take Mr. Corcoran’s signature on the KGB Warning. Though the KGB Warning read by Constable Pryor to Mr. Corcoran and the corresponding oath taken by Sergeant Goodfellow does not contain the signature of Mr. Corcoran, Exhibit C-1 shows the full verbal administration of the KGB Warning and the related administration of the oath to Mr.

Corcoran. Exhibit C-2 is the KGB Warning that was completed on June 26 th , 2020. c. Sergeant Goodfellow’s testimony at trial was narrowly focused on addressing what I will call the “signature oversight”, which was not a matter of contention or dispute for Mr. Corcoran’s counsel. Accordingly, in view of Exhibit C-1 and Exhibit C-2 as well as the evidence of Sergeant Goodfellow, which was uncontested, this Court is satisfied that the KGB Warning and corresponding oath was validly administered by the Miramichi Police Force to Mr. Corcoran despite the fact that it was never signed.

The Court need not address Sergeant Goodfellow’s testimony further in this decision. d. Much of the Corcoran KGB Statement is extraneous to the specific nature of the charges before this Court, consisting of a wide range of grievances pertaining to Ms. Corcoran. Indeed, the first 23 minutes of the Corcoran KGB Statement has little to nothing to do with Mr. Munn. Mr. Corcoran explained that after he was released from prison on the morning of June 22 nd , 2020, he contacted Ms.

Corcoran by telephone to arrange to see their daughter given that a non-communication order which had been in place between them while he was incarcerated had expired. e. The germane part of the Corcoran KGB Statement is found in its final 10 minutes, at which time Mr. Corcoran advised Constable Pryor that when he called to speak to Ms. Corcoran for the purpose of arranging to see his daughter on June 22 nd , 2020, “Tristan answered and wouldn’t let her on the phone and called me a ‘woman-beating piece of shit’ or something like that”. Mr. Corcoran explained further in the Corcoran KGB Statement that Mr.

Munn went on to warn him “if you show up here, I’ve got guns here and I’m not afraid to use them”, which Mr. Corcoran “took as a threat” if he were to attend at the residence that he co-owned with Ms. Corcoran where Ms. Corcoran and Mr. Munn were living. Mr. Corcoran also noted during the Corcoran KGB Statement that he had appeared before this Court on the afternoon of June 26 th , 2022, at which time he encountered and exchanged words with Ms. Corcoran and Mr. Munn. The giving of the Corcoran KGB Statement was, according to Mr. Corcoran, fresh on the heels of this exchange. f. Mr. Corcoran said he recognized Mr.

Munn’s voice when he answered Ms. Corcoran’s telephone on June 22 nd , 2020 and that he took positive steps to confirm the person he was speaking to was indeed Mr. Munn. According to Mr. Corcoran, Mr. Munn worked for his insulation business “until he was fired in December of 2019…because he was using meth and kept screwing up jobs”. Mr. Corcoran advised Constable Pryor that he was aware Mr. Munn owned several guns at the time he was employed by Mr. Corcoran’s insulation business. Mr. Corcoran stated in the Corcoran KGB Statement that Mr. Munn was “on meth” and that he reasonably feared Mr.

Munn would use one of his guns on him “because he is unpredictable when he’s using meth”. Constable Pryor’s Investigation Arising from the Corcoran KGB Statement 16 . Constable Pryor has been a general duty police officer with the MPF since 2016 and was responsible for investigating the allegations made in the Corcoran KGB Statement. He explained during his testimony that the MPF had no intention of acting on the allegations made by Mr. Corcoran unless they were made in a KGB Statement “given past experiences” between the MPF and Mr. Corcoran.

Constable Pryor testified that after taking the Corcoran KGB Statement on the afternoon of June 26 th , 2020, he followed up with Mr. Corcoran the following day, being June 27 th , 2020, to pinpoint with greater precision the time on June 22 nd , 2020 when he was allegedly threatened by Mr. Munn. Mr. Corcoran advised Constable Pryor that he had been released from custody from the provincial jail in Shediac, New Brunswick, at approximately 8:30am on the morning of June 26 th , 2020 and that he made the telephone call in question to

Ms. Corcoran at approximately 10:00am just as he was arriving in Miramichi, New Brunswick. At this time, Constable Pryor confirmed with Mr. Corcoran that his number was 403.848.1240. 17 . Shortly after taking the Corcoran KGB Statement, Constable Pryor contacted Mr. Munn. He explained to Mr. Munn the nature of the allegations made by Mr. Corcoran and asked if he would attend at the MPF headquarters the following day in relation to an investigation regarding same. Mr. Munn attended the following day, on June 27 th , 2020, and was fully cooperative with Constable Pryor. Mr.

Munn was adamant that he made no threats to Mr. Corcoran on June 22 nd , 2020 and, without hesitation, gave a sworn statement to this effect. He also confirmed he would provide Constable Pryor with detailed calling logs for his number, being 506.424.7297, for June 22 nd , 2020. A sworn statement was also provided by Ms. Corcoran with a similar undertaking being made by her to provide detailed calling logs for her number, being 506.461.1784, for June 22 nd , 2020. 18 . Detailed calling logs for the aforementioned numbers of Ms. Corcoran and Mr. Munn were provided by Ms.

Corcoran to Constable Pryor via electronic mail on June 28 th , 2020. Both were marked for identification during the testimony of Constable Pryor and later admitted as Exhibits C-4 and C-5, respectively, during the testimony of Ms. Corcoran and Mr. Munn. Upon receipt of Exhibits C-4 and C-5 from Ms. Munn, Constable Pryor took the investigative step of confirming whether there was any call activity whatsoever on June 22 nd , 2020 between Mr. Corcoran’s number, being 403.848.1240, and the previously noted numbers belonging to Ms. Corcoran and Mr. Munn. No such activity was identified. 19 .

Constable Pryor testified that he followed up with Mr. Corcoran on July 5 th , 2020, informing him that Exhibits C-4 and C-5 did not align with what he had communicated in the Corcoran KGB Statement as it related to a call being made on the morning of June 22 nd , 2020 between Mr. Corcoran’s number and the numbers of Ms. Corcoran or Mr. Munn. Accordingly, he asked Mr. Corcoran to provide him with similar detailed calling logs for the only number he provided to Constable Pryor, 403.848.1240, for June 22 nd , 2020. Mr. Corcoran did not provide such detailed calling logs after his discussion with Mr.

Corcoran on July 5 th , 2020, as requested, so Constable Pryor followed up with him on July 21 st , 2020 regarding the status of this request. Mr. Corcoran explained to Constable Pryor on that date that he had contacted Bell Mobility but he couldn’t get detailed calling logs for his number “due to a bankruptcy”. Constable Pryor responded that he had difficulty believing that statement given the rapidity and ease with which he had received similar records from Ms. Corcoran and Mr. Munn regarding their numbers. At this time, Constable Pryor reiterated to Mr. Corcoran that the records he received from Ms.

Corcoran and Mr. Munn identified no contact activity involving Mr. Corcoran’s phone number on June 22 nd , 2020, at which time Mr. Corcoran suggested to Constable Pryor that he should “just drop the charges” against Mr. Munn. 20 . On August 17 th , 2020, still having received no detailed calling logs from Mr. Corcoran, as requested, Constable Pryor sought and obtained a Production Order to acquire detailed calling logs for Mr. Corcoran’s number directly from Bell Mobility for June 22 nd , 2020. Mr.

Denny was assigned to respond to the Production Order, which was received by Bell Mobility from the MPF on January 5 th , 2021, and the detailed calling logs for Mr. Corcoran’s number were subsequently provided to Constable Pryor. These detailed calling logs are appended to an affidavit from Mr. Denny that was marked as Exhibit C-3 at trial. Constable Pryor’s review of these records further validated the data provided in Exhibits C-4 and C-5 for the numbers of Ms. Corcoran and Mr.

Munn, confirming there was no interrelated calling activity or text messaging activity between the three numbers in question at any time on June 22 nd , 2020. 21 . On cross-examination, counsel for Mr. Corcoran asked Constable Pryor about two other numbers and suggested these numbers, being 506.622.6116 and 506.352.0910, may have been used by Mr. Corcoran to contact Ms. Corcoran on June 22 nd , 2020. Mr. Corcoran never mentioned either of these numbers to Constable Pryor during any of their many interactions during the course of the investigation. To the contrary, the only number Mr.

Corcoran ever mentioned, provided or confirmed to Constable Pryor during his extended investigation with many touchpoints and follow-ups was 403.848.1240. 22 . After completing his investigation pursuant to the steps identified above, Constable Pryor reached the conclusion that Mr. Munn never threatened Mr. Corcoran on June 22 nd , 2020 in the manner and via the means alleged in the Corcoran KGB Statement and, further, that Mr. Corcoran had knowingly and intentionally misled him in the Corcoran KGB Statement.

This, in turn, caused Constable Pryor to enter upon what he later assessed to be a meritless and unwarranted investigation regarding Mr. Munn. The Bell Mobility Data - 403.848.1240 23 . On April 6 th , 2022, the Crown provided counsel for Mr. Corcoran with a Notice of Intention pursuant to

Section 30 of the Canada Evidence Act to rely on the detailed calling logs provided by Mr. Denny of Bell Mobility to Constable Pryor pursuant to the aforementioned Production Order. As noted, these records form part of Exhibit C-3. 24 . Mr. Denny was called as a witness to assist the Court in understanding the detailed calling logs produced by Bell Mobility respecting Mr. Corcoran’s number, being 403.848.1240. Mr. Denny has been employed by Bell Canada for over 25 years and has worked in his current role with Bell Mobility for the last 15 years.

His responsibilities primarily involve interfacing with law enforcement from across Canada and providing records that are responsive to a wide range of court orders. 25 . Mr. Denny explained, with reference to the detailed calling logs in question found at Exhibit C-3, that all cellular phone activity is captured and accounted for. This includes text messages, which are identified using a “3” under the column “Call Type”. Under the same column, Internet browsing/data usage is captured by an “@”, incoming “voice calls” are captured by a “1” and outgoing “voice calls” are captured by a blank space.

Attempted calls are not captured, meaning that if a call is made but terminated prior to someone either answering on the other end or their voicemail being engaged, that call does not appear on the detailed calling log. Mr. Denny explained that the data is “100% accurate”, with all text messaging activity being recorded in Eastern Time because it is processed in Montreal, Quebec.

Time zones for calls correspond to the time zone applicable to where the cellular tower is engaged, so a New Brunswick originating call that is picked up by a New Brunswick cellular tower would be recorded in the time zone applicable to New Brunswick.

26 . An examination of Exhibit C-3 reveals that only one incoming voice call and two outgoing voice calls were made to/from 403.848.1240 on June 22 nd , 2020. Those calls were made in the afternoon of June 22 nd , 2020, at 2:23pm, 4:36pm and 4:44pm, respectively, not during the morning hours. Moreover, none of those three calls corresponded with the numbers of Ms. Corcoran or Mr. Munn. The same observation applies to all text messaging activity to/from 403.848.1240 that day. 27 . On cross-examination, counsel for Mr.

Corcoran pursued the category of Internet browsing/data usage, as captured by an “@” under the column “Call Type”. As earlier noted, this category applies to the use of any data, which Mr. Denny explained encompasses surfing the Internet as well as using data-enabled cellular phone applications. Moreover, if a cellular phone is connected to Wi-Fi while being used it also isn’t captured and recorded in the detailed calling logs.

If a call were to be made using one of a myriad of cellular phone applications that supports device to device calling, such as Facebook Messenger, Snapchat, etc., it would be recorded with an “@” if data was being used at the time and would not appear at all if the cellular phone was connected to Wi-Fi. The Testimony of Ms. Corcoran 28 . Ms. Corcoran is 29 years-old and is employed by Service Canada. She and Mr. Corcoran married in December of 2017 and separated in May of 2019. They are not yet divorced and have a young daughter together. Ms. Corcoran testified that, since their separation, she and Mr.

Corcoran have had periods of civility and periods of no contact and/or communication only though their solicitors. Since their separation, she testified that “there have been more periods of no contact than contact”. When Mr. Corcoran did contact Ms. Corcoran in the past, she explained it was from 403.848.1240. She testified that the number 506.622.6116 is a local business landline that she hadn’t been contacted from since 2019 and that her number was 506.461.1784 in June of 2020. 29 . Ms. Corcoran explained that June 22 nd , 2020 was a notable day only because Mr.

Corcoran was released from the provincial jail in Shediac, New Brunswick early that morning. By 9:00am on June 22 nd , 2020, Ms. Corcoran testified she had already received two or three emails from Mr. Corcoran. She did not respond to them. The rest of the day, she testified, was “radio silence” with no further contact being initiated by Mr. Corcoran with her and, correspondingly, she initiated no contact with him via any means whatsoever, including text messaging, voice calls or calls facilitated via cellular phone applications. Ms. Corcoran was unequivocal in testifying that at no point did she hear Mr.

Corcoran’s voice on June 22 nd , 2020. Indeed, she testified that she hadn’t heard Mr. Corcoran’s voice for months and that he was incarcerated between February of 2020 and June 22 nd , 2020, during which he was bound by a non- communication order. Asked if she was aware if Mr. Munn had any contact with Mr. Corcoran on June 22 nd , 2020, Ms. Corcoran responded “no”. 30 . As to Exhibit C-4, Ms. Corcoran testified that she obtained those records by logging into Koodo, her cellular phone provider, and printing off the records for June 22 nd , 2020.

She explained that she did nothing to change or alter those records either before or after screen capturing them on June 27 th , 2020 and sending them to Constable Pryor via electronic mail on June 28 th , 2020. The same observations apply to Exhibit C-5, which she obtained from Mr. Munn’s cellular phone provider, Lucky Mobile, respecting his number. In reviewing Exhibit C-4, Ms. Corcoran was able to account for all calling activity that day. 31 . When asked on cross-examination whether she and Mr. Corcoran communicated via cellular phone applications, namely Google Duo, Ms. Corcoran noted that Mr.

Corcoran used Google Duo to contact their daughter from time to time before he was incarcerated in February of 2020. This application was used because Mr. Corcoran had an Android cellular phone that was incompatible with Apple FaceTime. It was Ms. Corcoran’s testimony that she and Mr. Corcoran had not communicated with each other via Google Duo or any other cellular phone application “for months” as of June 22 nd , 2020 and that no such communication happened between them on June 22 nd , 2020. The Testimony of Mr. Munn 32 . Mr.

Munn is 22 years-old and has owned and operated his own general contracting business for two years which specializes in spray foam, remodeling and remediation from flooding, storms and other disasters. Prior to this, he was an employee of Mr. Corcoran’s business for six months. Mr. Munn explained that he wasn’t paid by Mr. Corcoran’s business at the tail end of his employment and, ultimately, quit that job. Mr. Munn and Ms. Corcoran have been in a relationship since early 2020. 33 . Mr. Munn unequivocally testified that he had no contact or communication whatsoever with Mr.

Corcoran on June 22 nd , 2020 nor did he have any recollection of Ms. Corcoran being contacted by Mr. Corcoran other than via electronic mail on that date. Mr. Munn also confirmed that his number was 506.424.7297 as of June 22 nd , 2020 and that it remains his number today. Mr. Munn reviewed the numbers appearing on Exhibit C-5 and provided an explanation for each one. 34 . As for the events of June 27 th , 2020, Mr.

Munn explained that Constable Pryor contacted him about the allegations in the Corcoran KGB Statement pertaining to June 22, 2020 and that he immediately attended at the MPF headquarters to give a sworn statement. Before giving this statement, Constable Pryor explained his right to counsel and Mr. Munn testified he responded by noting he “didn’t need a lawyer”. 35 . On cross-examination, Mr. Munn was asked about a 12:55pm call made from his number to the MPF on June 22 nd , 2020. He explained that he and Ms. Corcoran were having an issue with their neighbour and that this call “had nothing to do with Kevin”.

Counsel for Mr. Corcoran asked Mr. Munn about text message exchanges that he had with Mr. Corcoran on June 29 th , 2020. The Crown objected to the admission of this evidence but the Court allowed it and the screen captures of these text messages were marked as Exhibit C-6. These text messages are colourful and touch upon the matters before this Court. They are intemperate and highlight the clear animus that exists between these two men. Indeed, Mr. Munn’s demeanor on the witness stand changed and became agitated when this terrain was covered. 36 . Mr. Munn said to Mr.

Corcoran in these text messages “[n]ice job with the KGB statement lying under oath” and “[y]our going back

to jail Kevin, no ifs ands or buts” and “LMAO you’re a fucking joke, your getting nailed this time I’m making sure you go to jail”. Thesetext messages, though demonstrative of an acrimonious relationship between Mr. Munn and Mr. Corcoran which was readily apparentabsent their benefit, do essentially nothing to advance a meaningful response to the specific charges before this Court as they pertain to June 22nd, 2020. They show that Mr. Munn was aggravated and upset by the Corcoran KGB Statement because, in his view, theallegations made against him in it were untrue: an understandable sentiment.

They also show that Mr. Munn hoped there would beconsequences for Mr. Corcoran: also an understandable sentiment. The earthy and intemperate missives exchanged between these twomen a few days after Mr. Munn learned that he was the subject of a criminal investigation spurred by allegations made against him by Mr. Corcoran in the Corcoran KGB Statement respecting June 22nd, 2020, which Mr. Munn contended were completely false, wasunderstandably vexing for Mr. Munn. The Testimony of Mr. Corcoran 37. Mr. Corcoran testified at trial, explaining his version of the events of June 22nd, 2020.

That morning, at approximately 8:15am, hewas released from the provincial jail in Shediac, New Brunswick. Just as he was arriving in Miramichi, New Brunswick, atapproximately 10:00am, he testified that he contacted Ms. Corcoran using Google Duo to make arrangements to see their daughter.Referring to Exhibit C-3, Mr. Corcoran explained that his use of Google Duo to contact Ms. Corcoran corresponded with his use of data on the morning of June 22nd, 2020. It was Mr. Corcoran’s evidence that when he called Ms. Corcoran, Mr.

Munn took the phone and“went on for 15 to 20 minutes”, at which time the threats detailed in the Corcoran KGB Statement were allegedly uttered by Mr. Munnto Mr. Corcoran. 38. When asked if there was any evidence on his cellular phone that would detail or otherwise verify his call history using Google Duo, he explained that “I reset my phone to wipe it clean on June 24th, 2020” and, as a result, “lost that data”.

This was challenged on cross- examination because it was entirely at odds with his remarks in the Corcoran KGB Statement of two days later on June 26th, 2020 that hewas “documenting everything” and “had everything”. Indeed, no mention was made by Mr. Corcoran of any devices, including his cellular phone, having been “wiped clean” on June 24th, 2020 in the Corcoran KGB Statement. It should be noted as well that Mr. Corcoran referred repeatedly to his cellular phone while giving the Corcoran KGB Statement on June 26th, 2020.

Also, nowhere in theCorcoran KGB Statement is any reference made to the use of Google Duo or, for that matter, any other cellular phone applications whichpermit data or Wi-Fi enabled voice calls between users as a means of communication having been utilized by Mr. Corcoran on June 22nd, 2020. Rather, Mr. Corcoran only referred to 403.848.1240 in the Corcoran KGB Statement and in his subsequent interactions withConstable Pryor. 39. On direct-examination, much was made of the June 29th, 2020 text message exchange between Mr. Munn and Mr. Corcoran, as setout in Exhibit C-6.

For reasons already stated, little to no utility comes from Exhibit C-6 given the timing of the alleged threat or threatsof approximately one week earlier. 40. On cross-examination, Mr. Corcoran explained that his father picked him up when he was released from the provincial jail in Shediac, New Brunswick on the morning of June 22nd, 2020, and drove him to Miramichi, New Brunswick. He testified that he madecalls to Ms. Corcoran using Google Duo at about the time they were passing by the Tim Horton’s in Richibucto, New Brunswick and/orwhen entering Miramichi, New Brunswick.

When asked why the timing of data usage did not correspond with the timeframe originallyprovided to Constable Pryor, Mr. Corcoran was unable to unpack this discrepancy. THE APPLICABLE LAW The Presumption of Innocence, Credibility, Reliability and R. v. W.(D.) 41. Like every other person charged with a crime, Mr. Corcoran is presumed innocent until the Crown has proven his guilt beyond areasonable doubt. The Crown bears the burden of proof throughout the entire trial. Mr. Corcoran need not present any evidence nor proveanything (see: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320). 42.

At paragraph 39 of Lifchus, Cory, J. described the standard as follows: 39 Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances, you must give thebenefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonabledoubt. 43. In R. v. Starr, [2000] S.C.C. 40, the Court described the level of proof as "much closer to absolute certainty than to ... a balance ofprobabilities." The burden remains on the Crown throughout. Proof of probable or even likely guilt, is insufficient. 44.

This case will be decided as a matter of law according to the principles set out in R. v. W.(D.), in which Cory J. provided a helpfulanalytical framework for deciding cases involving credibility. He stated: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must [still] acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

45. In another case, R. v. H. (C.W.) (1991), (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.), the British Columbia Court ofAppeal further supplemented the analytical framework offered by Cory, J. in R. v. W.(D.) by offering the follow guidance: I would add one more instruction in such cases, which logically ought to be second in the order, namely: If, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit. 46. In Casey Hill, David M. Tanovich & Louis P.

Strezos, McWilliams’ Canadian Criminal Evidence, loose leaf (Toronto: Canada LawBook, 2011) at 2521, the text states: It is useful to think of W.D. as a teaching on the correct process of reasoning about credibility. It forbids two distinct lines of analysesbecause they are inconsistent with the accused’s right to the presumption of innocence until guilt is proven by the Crown beyond areasonable doubt. First, it is forbidden to reason that the accused’s evidence must be believed to secure an acquittal.

The accused generally bears no burdenof proof and thus need not be believed on a balance of probabilities and certainly not on the highest standard of proof beyond areasonable doubt.

The second forbidden line of reasoning is for the trier of fact to think that the task of adjudication requires the trier of fact to answer thegeneral question of “What happened?” The problem with such a focus is that it creates a tendency in the trier of fact to search through theevidence looking for the truth and deciding whose evidence to believe, rather than searching for a reasonable doubt and giving theaccused the benefit of it. (emphasis added) 47. In R. v. Jones (1992), (QC CA), 74 C.C.C. (3d) 377 (Que.

C.A.) at pp. 379-380, Proulx, J.A. explains that whilethe search for and the determination of truth remain legitimate objectives for the trial judge, his or her role is nonetheless limited by thefundamental principles which govern the burden of adducing evidence and of persuasion. Because of the presumption of innocence,when the judge is confronted with contradictory versions, he or she does not have to decide which one of these versions is true.

Rather,the task of the trial judge is more acutely focused on determining whether the evidence as a whole raises a reasonable doubt, or whetherit satisfies him or her beyond a reasonable doubt as to the guilt of the accused. 48. Commenting specifically on Proulx J.A.’s analysis in the aforementioned decision, my colleague, Cloutier, P.C.J. (as he then was) ofthis Court, observed in R. v. I.J., 2018 NBPC 4 , 2018 NBPC 04 that “I would fine tune Justice Proulx’s comments in tworespects.

First, judges are not equipped with supernatural powers or favored with special insight allowing them to assess and rankcredibility. Second, the ultimate issue is not credibility but reasonable doubt”. 49. The corollary to this is that the trial judge need not decide who was telling the truth. The question, again, returns to the fundamentalquestion of whether the Crown has proven all of the essential elements of the offence beyond a reasonable doubt. 50. In assessing the evidence of Mr. Corcoran, I am entitled to consider it in the context of all of the other evidence.

In doing so, I amnot only permitted, but also encouraged, to compare the evidence of both the Defence and the Crown (see R. v. Mends, 2007 ONCA 669at para. 18 and R. v Carriere (2001), (ON CA), 159 C.C.C. (3d) 51 at par. 48 (Ont. C.A.)). 51. Making credibility findings is more art than science and cannot be reduced to a mechanical or formulaic exercise. A trial judge neednot deal with every piece of evidence in the context of reaching his or her credibility findings.

Credibility findings can be difficult toarticulate with precision, particularly when one considers the complex intermingling of impressions that emerge after the hearing of atrial: R. v. Gagnon 2006 SCC 17 , [2006] 1 S.C.R. 621 at para. 20 and R. v. Dinardo, 2008 SCC 24 , [2008] 1 S.C.R.788 at para. 26. 52. As was noted by Richard, J.A. (as he then was) in R. v. Wilson, 2013 NBCA 38, an abundance of jurisprudence has arisen from R. v.W.(D.).

Writing for our Court of Appeal, Richard J.A. provides an extremely helpful synopsis of the salient principles regarding thestandard of proof applicable in criminal cases at para. 36: A.1 Proof beyond a reasonable doubt, the standard in criminal law matters, applies equally to the issue of credibility: W.(D.), at para. 26.In other words, the issue at the end of a trial is not credibility, but reasonable doubt: Sheppard, at para. 65, and C.L.Y., at para. 6. A.2 The ideal reasoning process to determine a matter, where the accused denies guilt and credibility is in issue, is to follow the W.(D.)formula: a.

First, if the accused is believed, there must be an acquittal; b. Second, if the accused is not believed but the trier of fact is left in a reasonable doubt by it, there must also be an acquittal; c. Third, even if the evidence of the accused does not raise a reasonable doubt, a conviction is only justified if the trier of fact is

convinced of guilt beyond a reasonable doubt on the basis of the evidence that is accepted: W.(D.), at para. 28. A.3 However, this formula is but a roadmap to remind the trier of fact the ultimate goal is proof beyond reasonable doubt and not merelya credibility contest; it is not the only route: C.L.Y., at para. 8. It is the substance of the test that must be respected, not its literal tripartiteincarnation: R. v. Szczerbaniwicz, 2010 SCC 15, [2010] 1 S.C.R. 455 (S.C.C.), at para. 14. A.4 A trier of fact need not firmly believe or disbelieve any witness or set of witnesses: W.(D.), at para. 27.

A reasonable doubt need notrest upon the same sort of foundation of factual findings that is required to support a conviction. A reasonable doubt arises where aninadequate foundation has been laid: R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245 (S.C.C.), at para. 26, quoting Sharpe J.A.,dissenting, in R. v. Kendall, (ON CA), [2005] O.J. No. 2457 (Ont. C.A.). A reasonable doubt does not need to bebased on the evidence; it can arise from an absence of evidence or from a simple failure of the evidence to persuade the trier of fact to therequisite level: R. v.

H. (J.M.), 2011 SCC 45, [2011] 3 S.C.R. 197 (S.C.C.), at para. 39. A.5 Trial judges are presumed to know the law with which they work day in and day out: R. v. B. (R.H.), (SCC),[1994] 1 S.C.R. 656, [1994] S.C.J. No. 30 (S.C.C.), at para. 18. A.6 By stating that the accused is not believed, a trial judge is implicitly addressing the first two steps in W.(D.): Boucher, at paras. 29and 59. 53. At para. 41 of his decision in R.v.

Bartibogue, 2019 (unreported), my colleague, Gunn, P.C.J. of this Court, provides an extremelyhelpful “non-exhaustive list of relevant factors in assessing credibility”, as is synthesized from the jurisprudential guidance of theSupreme Court of Canada and the Court of Appeal of New Brunswick. This list is as follows: a. the witness's opportunities for knowledge; b. the witness's powers of observation; c. the witness's judgment and memory; d. the witness's ability to clearly describe what has been seen and heard; e.

How the testimony of the witness harmonizes "with the probabilities which a practical and informed person would readilyrecognize as reasonable in that place and in those conditions."; f. the cogency of the account; g. Inconsistencies, and whether such inconsistencies: i. make the main points of the testimony more or less believable and reliable; ii. whether the inconsistency is about something important, or a minor detail; iii. whether the inconsistency seems like an honest mistake or a deliberate lie. h.

Whether the witness has an interest in the outcome of the case, or any reason to give evidence that is more favourable to one sidethan to the other, though care should be taken not to put undue weight on this factor; i. An absence of motive for the complainant to lie is relevant to the fact-finding process however, the trier of fact, must be careful toremember that this is but one factor, the accused has no obligation to prove a motive to fabricate and to not to let this factor turn into areversal of the onus of proof; and

j. The demeanour of the witness, though this is but one of the elements that enter into the credibility of the evidence of a witness and can be both an unreliable indicator of truth and fallible. 54 . It is also important to consider the reliability of a witness. A witness may be found to be credible; however, that does not answer the question of whether the evidence he or she provided at trial is reliable. It is important for the trial judge to recognize and consider this distinction. POSITIONS OF THE PARTIES 55 . Counsel for Mr.

Corcoran contends that there is reasonable doubt in the Crown’s case respecting both charges against his client, relying heavily on the position that Mr. Corcoran called Ms. Corcoran on the morning of June 22 nd , 2020 using a cellular phone application, namely Google Duo, which explains why his number does not appear as having contacted either Ms. Corcoran or Mr. Munn. Moreover, counsel for Mr. Corcoran submits that the text message exchanges of June 29 th , 2020 demonstrate that Mr.

Munn was “out to get” his client and wanted to “send him back to jail” owing to the substantial bad blood that obviously exists between these two men stemming from Mr. Munn’s past employment with Mr. Corcoran’s business and his ongoing relationship with Ms. Corcoran. 56 . The Crown submits that this is a straightforward case, noting that allegations of a threat or threats from Mr. Munn to Mr. Corcoran on June 22 nd , 2020, as detailed in the Corcoran KGB Statement, were believed by Constable Pryor and caused him to embark on an investigation of Mr. Munn.

At various touchpoints during his investigation over several months, Constable Pryor diligently sought to acquire additional information from Mr. Corcoran as doubt was increasingly shed on the veracity of his allegations against Mr. Munn. Mr. Corcoran offered various excuses for not providing additional information requested by Constable Pryor, namely the detailed calling logs for his number, which led to that evidence being independently acquired from Bell Mobility via a Production Order. Eventually, Mr. Corcoran told Constable Pryor he should “just drop the charges” against Mr.

Munn as the investigation tightened. 57 . Conversely, the Crown submits that Mr. Munn and Ms. Corcoran were very cooperative with Constable Pryor’s investigation from its outset and took quick and decisive steps to counter the allegations made in the Corcoran KGB Statement with the support of independently verifiable data that was provided almost immediately to Constable Pryor by Ms. Corcoran for both her and Mr. Munn’s numbers. Both were adamant that no threats were made by Mr. Munn to Mr. Corcoran at any point on June 22 nd , 2020. 58 . Turning to Mr.

Corcoran’s testimony, the Crown highlighted some significant disparities, which included statements made by Mr. Corcoran in the Corcoran KGB Statement on June 26 th , 2020 that he was “documenting everything” and “had everything” as compared to his actual actions of two days earlier when “I reset my phone to wipe it clean on June 24 th , 2020” and, as a result, “lost that data” as it pertains to, among other things, his Google Duo use history. The Crown also emphasizes that the first reference to Google Duo was made at trial. No mention of it was made during the course of Constable Pryor’s extended investigation.

The Crown submits that the Google Duo submissions were fabricated ex post facto by Mr. Corcoran in a desperate attempt to align with the compelling and inescapable data provided in Exhibit C-3 by Bell Mobility respecting his number. In other words, it was his exit strategy to these charges. APPLICATION OF THE LAW TO THE FACTS 59 . This Court will begin by addressing the framework in R. v. W.(D.) . In particular, this Court does not believe the evidence of Mr. Corcoran nor is this Court left in reasonable doubt by it.

Turning to the evidence before this Court that is accepted, this Court is not left in reasonable doubt regarding Mr. Corcoran’s guilt. 60 . That bad blood exists between Mr. Corcoran and Mr. Munn is beyond dispute but the questions that this Court must resolve on the basis of the totality of the evidence before it are narrow in focus and engage whether Mr. Corcoran’s very specific allegations of a threat or threats from Mr. Munn with an event date of June 22, 2020 were true or false and, if false, whether such allegations were knowingly made by Mr.

Corcoran in the Corcoran KGB Statement with an intention to mislead Constable Pryor and to prompt a meritless and unwarranted investigation involving Mr. Munn. 61 . I find that Constable Pryor carried out a complete and diligent investigation into the threat allegations contained in the Corcoran KGB Statement. His evidence was cogent, consistent, dispassionate, complete and, ultimately, highly credible and reliable. In short, it was demonstrative of good police work.

The detailed, methodical and logical steps taken by Constable Pryor during his investigation caused him to conclude that the threat allegations advanced in the Corcoran KGB Statement were ultimately untrue. 62 . At no point in time during his investigation was any mention made by Mr. Corcoran to Constable Pryor of any number other than 403.848.1240, which renders the other numbers pursued by counsel for Mr. Corcoran nothing more than a goat path rather than a basis for anchoring a reasonable doubt in this case. Even Mr.

Corcoran tacitly acknowledged that calls were placed using Google Duo from the cellular device tied to 403.848.1240 as he returned to Miramichi, New Brunswick, on June 22 nd , 2020 after his release from the provincial jail in Shediac, New Brunswick at approximately 10:00am on that date because he specifically referred to Exhibit C-3 as a reference point to show the corresponding data that he suggested was used to place that call. Mr. Corcoran wouldn’t have done this if he reasonably held to a position that another number or data tied to another cellular device was used to contact Ms.

Corcoran on the morning of June 22, 2020 via Google Duo. 63 . Constable Pryor explained that the tenor of his interactions noticeably changed with Mr. Corcoran after he received Exhibits C-4 and C-5, pursued with Mr. Corcoran the revelations they presented and requested detailed calling logs from him for 403.848.1240. In the Court’s view, this shift was attributable to Mr. Corcoran realizing that Constable Pryor was closing in on what were false allegations knowingly and intentionally made by him in the Corcoran KGB Statement. Mr. Corcoran declined providing Constable Pryor with

requested detailed calling logs for his number, offering the excuse that they were unavailable owing to “a bankruptcy”. If that was indeed the case, how is it that Mr. Corcoran contemporaneously enjoyed the continued use of this number? It should be noted that this exists in stark contrast to the efforts made by Ms. Corcoran to swiftly provide similar records to Constable Pryor regarding her number and that of Mr. Munn to demonstrate that the allegations made against Mr. Munn in the Corcoran KGB Statement were false. 64 .

This Court concludes, as submitted by the Crown, and as compellingly and believably supported by the evidence of Ms. Corcoran and Mr. Munn, which this Court found to be cogent, consistent, credible and reliable in all material respects, that Mr. Corcoran had no contact with either Ms. Corcoran or Mr. Munn via any means of communication whatsoever on June 22 nd , 2020, except for the two or three electronic mail messages Mr. Corcoran sent to Ms. Corcoran early on the morning of June 22 nd , 2020. The text message exchange between Mr. Munn and Mr.

Corcoran of June 29 th , 2020, as reproduced in Exhibit C-6, highlight a tense and acrimonious relationship between these two men but they do not cause this Court to accept the invitation extended by Mr. Corcoran’s counsel to use this bad blood as a basis to disbelieve Mr. Munn’s testimony, which is strongly supported by the independently verified records found in Exhibits C-4 and C-5. 65 . Given the totality of the evidence before it, this Court is left to conclude without any reasonable doubt that when Mr.

Corcoran felt Constable Pryor’s investigation closing in on him, and after he reviewed Exhibit C-3, which was produced by Bell Mobility further to a Production Order after Mr. Corcoran repeatedly failed to provide detailed calling logs regarding his number, that he saw a narrow window, or escape hatch, to present a reasonable doubt to this Court by suggesting that there are no records of the call because Google Duo was used to make contact with Ms. Corcoran on the morning of June 22 nd , 2020. This lacks a ring of truth and is rejected by this Court for several reasons, including:

(1) Google Duo was never mentioned to Constable Pryor by Mr. Corcoran at any point during Constable Pryor’s extended investigation into the threat allegations against Mr. Munn;

(2) Mr. Corcoran claimed on June 26 th , 2020, when giving the Corcoran KGB Statement that that he was “documenting everything” and “had everything” as compared to his actual actions of two days earlier when he said “I reset my phone to wipe it clean on June 24 th , 2020” and, as a result, “lost that data” as it pertains to, among other things, his Google Duo use history, and

(3) Mr. Corcoran told Constable Pryor he should “just drop the charges” against Mr. Munn as Constable Pryor’s investigation progressed and more pointed questions were being asked of him. CONCLUSION 66 . In conclusion, this Court finds that the Crown has proven all of the essential elements of the two offences beyond a reasonable doubt. Date, time, jurisdiction and identity have all been established by the Crown beyond a reasonable doubt. I find as well that the Crown has established beyond a reasonable doubt that Mr.

Corcoran gave false evidence under oath in the Corcoran KGB Statement before a person authorized by law to permit it to be made before him, being Sergeant Goodfellow. In particular, the false evidence was that Mr. Munn uttered a threat or threats to Mr. Corcoran on June 22 nd , 2020, as earlier particularized in this Court’s treatment of the Corcoran KGB Statement. 67 . This Court further finds that when Mr. Corcoran gave the Corcoran KGB Statement, he knew the evidence pertaining to a threat or threats from Mr.

Munn made on June 22 nd , 2020 was false and that he gave such evidence with the intention to mislead law enforcement. He also knew that the Corcoran KGB Statement accused Mr. Munn of committing a Criminal Code offence or offences against him. It is clear from the testimony of Constable Pryor that the Corcoran KGB Statement caused him to commence an investigation involving Mr. Munn which ultimately was found in the fullness of time and with the benefit of additional independently verifiable records to be both meritless and unwarranted. 68 . In view of these findings, this Court finds Mr.

Corcoran guilty on both counts set out in the two count Information before it. Brittain, PCJ