R. v. Barrett, 2020 NLCA 12

Her Majesty the Queen (appellant) v. Robin Barrett (respondent) (18/74) Indexed As: R. v. Barrett 2020 NLCA 12 5 C.A.N.L.R. 392 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L., Goodridge and Butler JJ.A. March 20, 2020

Summary: Robin Barrett was charged with accessing, possessing and distributing child pornography contrary to the Criminal Code. Following aCharter application, the judge ordered the Crown’s evidence to be excluded under section 24(2) of the Charter and entered acquittals.The Crown appealed, arguing that the judge erred in excluding the evidence under section 24(2) of the Charter. Held: Appeal allowed. Goodridge J.A. (Fry C.J.N.L. and Butler J.A. concurring): Mr.

Barrett applied for a declaration that his rights under sections 8 and 10(b)of the Charter had been infringed when the police entered his residence, seized his computer and questioned him before he couldexercise his right to counsel (paragraphs 1-4). The application was heard in two phases, the first phase was to address the breach issue,and the second to address the remedy. The trial judge decided the question of remedy without first hearing submissions of counsel(paragraphs 5-7). This amounted to error (paragraphs 8-12). A new trial was ordered (paragraph 13). Cases cited: R. v. Jahn, 1982 ABCA 97 Felker v.

Felker, [1946] O.W.N. 368 (Ont. C.A.) Aucoin v. R., (SCC), [1979] 1 S.C.R. 554 R. v. Prior, 2010 NLCA 61 R. v. Abdalla, 2013 ONCA 233 R. v. Braye, 2017 NLTD(G) 215 Statutes considered: Criminal Code, sections 163.1(4.1)(a), 163.1(4)(a), 161.1(3)(a), 651(2) Canadian Charter of Rights and Freedoms, sections 8, 10(

b) and 24(2) Counsel: Dana E. Sullivan, for the appellant; Mark Gruchy, for the respondent. The appeal was heard on March 17, 2020 before Fry C.J.N.L., Goodridge and Butler JJ.A.

The following judgment was filed on March 20, 2020 by Goodridge J.A. for the Court. ______________________________________________________________ Goodridge J.A.: [ 1 ] Robin Barrett was charged with accessing, possessing and distributing child pornography contrary to sections 163.1(4.1) (a), 163.1(4) (a), and 163.1(3) (

a) of the Criminal Code . Following a Charter application, the judge ordered exclusion of the Crown’s evidence and entered acquittals. [ 2 ] The Crown appealed the acquittals on several grounds, but the appeal can be decided, and allowed, on the first ground: THAT the trial judge erred in law excluding evidence under section 24(2) of the Charter before giving the parties an opportunity to make submission on the admissibility of the evidence. [ 3 ] The Respondent concedes this first ground of appeal and adds that the only appropriate remedy is to send the matter back for a new trial.

I agree. [ 4 ] The Charter application was heard at the outset of trial. Mr. Barrett asked for a declaration that police conduct in entering and searching his home, seizing his computer equipment, and questioning him prior to the exercise of his right to counsel, amounted to a violation of his Charter protected rights under sections 8 and 10(b) . [ 5 ] Crown and Defence counsel had agreed that the Charter application would proceed in two phases, with the first phase limited to a determination of the alleged Charter violations.

The second phase, dealing with the appropriate remedy under section 24(2) of the Charter , would be addressed at a later date if the court determined at the first phase that there had been a Charter violation. Counsel proposed this two-phase process to the judge and he responded by acknowledging that the section 24(2) remedy argument would be left for a later date. [ 6 ] At the conclusion of the first phase both counsel limited their oral submissions to the Charter breach issue.

There were no submissions made on the section 24(2) remedy issue, and in particular, no submissions made on the admission or exclusion of evidence. [ 7 ] In written reasons filed on May 4, 2018, the trial judge decided both issues even though the second phase hearing on the section 24(2) remedy issue had not occurred. This was an error. The trial judge was not at liberty to decide the remedy issue without affording counsel the opportunity to make submissions. It was a crucial issue and in effect, was the main issue for trial.

The verdicts would not necessarily have been the same had the error not occurred, and accordingly, this is not an error that can be overcome by the " curative proviso " . The failure to afford counsel the opportunity to make submissions on this issue is fatal and the appropriate remedy is to send the matter back for a new trial. [ 8 ] In R. v. Jahn , 1982 ABCA 97 , the Alberta Court of Appeal set aside an acquittal and ordered a new trial under circumstances where the trial judge rendered a decision without hearing submissions from Crown counsel.

Haddad J.A., writing for the unanimous panel, at paragraph 23, stated the general rule that a court is not at liberty to pronounce the judgment until counsel have been afforded the opportunity to present argument: The general rule I derive from the authorities I have read is that a court is not at liberty to pronounce the judgment until counsel have been afforded the opportunity to present argument. This stems from the fundamental principle that a litigant ought not to be deprived of his right to have his case fully heard. [ 9 ] I agree with that statement of the general rule.

[10] Similar statements, and similar results, are found in Felker v. Felker [1946] O.W.N. 368 (Ont. C.A.), Aucoin v. R., (SCC), [1979] 1 S.C.R. 554, R. v. Prior, 2010 NLCA 61, R. v. Abdalla, 2013 ONCA 233, and R. v. Braye, 2017 NLTD(G) 215. [11] In Felker the trial judge rendered his judgment without hearing submissions from the parties.

The appeal was allowed, and a newtrial ordered on the sole ground that the trial judge’s pronouncement of judgment before according to counsel the right to presentargument deprived the accused of the substantive right to have her case fully presented. [12] In Prior the issue was whether the trial judge abrogated the appellant's right to make full answer and defence when he rendered averdict without affording counsel the opportunity to make submissions. This Court was unanimous in allowing the appeal and remittingthe matter for a new trial.

White J.A. (writing reasons for the majority opinion) referred to the statutory and substantive right to makesubmissions as provided by section 651(2) of the Criminal Code, and found that, without allowing counsel the opportunity to exercisethe right, there is, essentially, no complete trial. He concluded at paragraph 24: “… An opportunity to make submissions is so fundamental that a miscarriage of justice would result if a decision is rendered beforesubmissions are made.” [13] In the current matter, I would allow the appeal, and order a new trial. Appeal allowed.