2014 NBCA 58, 2014 NBCA 58

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 70-13-CA RODNEY J. GILLIS, Q.C. APPELLANT RODNEY J. GILLIS, c.r. APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Gillis v. R., 2014 NBCA 58 Gillis c.

R., 2014 NBCA 58 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Larlee The Honourable Justice Deschênes CORAM : l’honorable juge en chef Drapeau l’honorable juge Larlee l’honorable juge Deschênes Appeal from a decision of the Provincial Court: January 31, 2013 Appel d’une décision de la Cour provinciale : le 31 janvier 2013 History of Case: Historique de la cause : Decision under appeal: 2013 NBPC 3 Décision frappée d’appel : 2013 NBCP 3 Preliminary or incidental proceedings: Court of Appeal: [2013] N.B.J.

No. 181 Procédures préliminaires ou accessoires : Cour d’appel : [2013] A.N.-B. n o 181 Appeal heard: February 27, June 19 and 20, 2014 Appel entendu : le 27 février et les 19 et 20 juin 2014

Judgment rendered and reasons pronounced: September 9, 2014 Jugement rendu et motifs prononcés : le 9 septembre 2014 Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : l’honorable juge en chef Drapeau Concurred in by: The Honourable Justice Larlee The Honourable Justice Deschênes Souscrivent aux motifs : l’honorable juge Larlee l’honorable juge Deschênes Counsel at hearing: For the appellant: Mark J. Sandler For the respondent: Peter Craig and Jennifer A. MacLellan Avocats à l’audience : Pour l’appelant : Mark J. Sandler Pour l’intim é e : Peter Craig et Jennifer A.

MacLellan THE COURT Leave to appeal, to the extent required, is granted and the appeal from the appellant lawyer’s conviction for attempting to obstruct justice is allowed. In the result, the conviction is set aside, a new trial is ordered and the application for leave to appeal sentence (22 months in jail) is moot. LA COUR L’autorisation d’appel, dans la mesure requise, est accordée et l’appel de la déclaration de culpabilité de l’avocat appelant pour tentative d’entrave à la justice est accueilli.

La déclaration de culpabilité est donc annulée, un nouveau procès est ordonné et la demande d’autorisation d’interjeter appel de la peine (un emprisonnement de 22 mois) perd toute portée pratique. The judgment of the Court was delivered by DRAPEAU, C.J.N.B. I. Introduction [ 1 ] The appellant, one of the Province’s leading litigation lawyers, stands convicted of the indictable offence of attempting to obstruct, pervert or defeat the course of justice in a judicial proceeding by “attempting to dissuade a person by threats, bribes or other corrupt means from giving evidence”.

The sustainability of that outcome hinges, at least from a factual

standpoint, on the following closely related findings: (1) the testimony of the Crown’s key witness attributing to the appellant anincriminating statement was both credible and reliable; and (2) the appellant’s denial under oath that he ever made the statement inquestion was not credible. [2] While readily acknowledging those findings stand to be reviewed for factual error by theapplication of a highly deferential standard, and must be left undisturbed in the absence of palpable and overriding error, the appellantcontends the record reveals several errors of that magnitude.

In that vein, the appellant spotlights features of the detailed reasons fordecision in first instance that, he argues, evince a misapprehension of the evidence, particularly his own testimony, pertaining to criticalelements of the trial judge’s stated rationale for disbelieving him. Not being “true” (see R. v. Morrissey, (ON CA),[1995] O.J. No. 639 (C.A.) (QL), at para. 93), the verdict could not be allowed to stand.

The appellant relies upon the trial judge’s ownwords to make the case for appellate intervention on that basis. [3] In addition, the appellant submits the trial judge’s findings regarding credibility and reliabilityare the product of material errors of law. These errors would include legally impermissible imputations of ethical misconduct that wererelied upon to conclude the appellant lacked integrity, a factor of significant influence in the trial judge’s negative assessment of hiscredibility.

The trial judge would also have fallen into error in factoring into that assessment a perceived contradiction between theappellant’s testimony and his pre-trial statement to the police. It would be so because the “contradiction” was not put to the appellantduring cross-examination. That complaint brings into the mix the celebrated case of Browne v. Dunn (1893), 1893 CanLII 65 (FOREP),6 R. 67 (H.L.). [4] I respectfully conclude the trial judge committed errors of fact and law that command reversal.Indeed, I incline to the view that several of those errors suffice on their own to warrant appellate intervention.

I prefer, however, todispose of the appeal on the basis that the cumulative effect of those errors operated to deprive the appellant of a fair trial and produced amiscarriage of justice. In the result, I would grant leave, where required, allow the appeal and quash the conviction, without pronouncinga verdict of acquittal. I would order a new trial, and leave the decision to re-try or not where it belongs, namely with the Crown. At anyrate, the disposition I propose makes it unnecessary to deal with the merits of the application for leave to appeal sentence. II. Context A.

The saga’s main players [5] The appellant, Rodney Gillis, has been a member of the Law Society of New Brunswick since1971 and a Queen’s Counsel for more than two decades. At all material times, he was a partner in the law firm of Gilbert McGloanGillis. Although the appellant’s book of business was diversified and included criminal defence work, he specialized in civil litigation(mostly personal injury and medical malpractice lawsuits). David Nathan Rogers was also a partner in Gilbert McGloan Gillis.

He hadmore experience in the practice of criminal law. [6] The North Shore Forest Products Marketing Board, like its six counterparts elsewhere inthe Province, represents private woodlot owners. The Board’s primary objective is to provide its members greater bargaining power witha view to securing the best price for their product. The Board staff includes a General Manager. [7] The New Brunswick Forest Products Commission is a distinct entity. It is charged withoversight of the seven forest products marketing boards in the Province. Under the Natural Products Act, S.N.B. 1999, c.

N-1.2, theCommission is authorized to carry out the powers of a board, for the purpose of independently investigating its affairs, in the event ofallegations of serious misconduct on the part of board officials. [8] Frank Branch is a former Member and Speaker of the Legislative Assembly of NewBrunswick. He was appointed General Manager of the Board in late October 1995. Mr. Branch claimed to have subsequently negotiateda ten-year employment contract commencing April 1, 2001. On October 13, 2005, the Commission suspended Mr. Branch, with pay, andon March 8, 2006, the Board terminated his employment for cause. Mr.

Branch was subsequently charged with five cause-relatedoffences under the Criminal Code. It was Mr. Branch’s contention that: he had done nothing wrong, whether civilly or criminally; theconduct relied upon for cause and for the criminal charges was authorized and unobjectionable; his employment had been wrongfullyterminated and his reputation unfairly and unjustifiably tarnished by the Commission and the Board; and he was entitled to significantdamages for breach of his employment contract and defamation. [9] Alain Jean-Paul Landry took up employment with the Board after Mr. Branch’s dismissal.

He became its General Manager on February 28, 2007. More importantly, he was so employed on December 10, 2009, and the case for conviction rests upon the credibility and reliability of his testimonial account of a brief conversation he had with the appellant, on that date, in the public hallway outside the courtroom where the preliminary inquiry into the charges against Mr. Branch was taking place. Mr. Landry is neither a lawyer nor an accountant. [ 10 ] Linda Gould-McDonald was the Commission’s Executive Director during the relevant period.

In October 2005, the Commission received a complaint of work-related misconduct on the part of Mr. Branch. The Commission responded by taking control of the Board’s operations. It placed Ms. Gould-McDonald in charge, with instructions to get to the bottom of the complaint. In early 2006, the results of the investigation she co-directed were turned over to the Bathurst City Police. The matter was, in turn, referred to the Fredericton City Police for consideration and action. Sergeant Mark Lord of the FCP took a statement from the appellant in September of 2011.

While exculpatory on its face, the statement became a Crown exhibit at trial and played a significant role in the judge’s rationale for disbelieving the appellant’s testimony on the key issue at trial. B. The prelude to the December 10, 2009 event giving rise to the charge of “obstruction of justice” [ 11 ] In July 2009, Mr. Branch attended, in the company of solicitor Peter Hyslop, at the appellant’s law office in Saint John and retained his services for all litigation in which he was then involved: two civil lawsuits involving the Board and the five criminal charges mentioned above.

Once those charges were laid, all parties agreed to place the civil lawsuits on hold. That was the prevailing state of affairs at the time of the preliminary inquiry into the five charges against Mr. Branch in December 2009.

(1) Mr. Branch’s wrongful dismissal and defamation action against the Commission and the Board [ 12 ] The first of the civil suits was a wrongful dismissal and defamation action brought by Mr. Branch against the Board and the Commission in July 2006. Martin Siscoe, a Bathurst lawyer, was Mr. Branch’s first solicitor of record in this suit. [ 13 ] In an Amended Statement of Claim, filed on October 5, 2006, Mr. Branch claimed damages for breach of the ten-year employment contract mentioned above or, alternatively, damages for wrongful dismissal without adequate notice, and, in any event, damages for defamation. Mr.

Branch alleged he was not provided reasons for his suspension and termination, and that both occurred without cause. He further alleged post-termination media communications emanating from the Commission and the Board caused serious detriment to his reputation, and prevented him from offering as a candidate for Member of the Legislative Assembly in the September 2006 Provincial election in the riding of Nepisiguit, an office he had held for nearly thirty years. [ 14 ] The defendants filed separate Statements of Defence in late 2006.

The solicitor of record for the Commission was a Department of Justice lawyer, Clyde Spinney, Q.C. The Board’s solicitor of record was Basile Chiasson, Q.C., a private practitioner in Bathurst. Both defendants denied the alleged ten-year employment contract was valid, contending it was void or voidable at the discretion of the Board. In any event, the defendants denied any wrongful breach and entitlement to damages, Mr. Branch having been terminated for cause, namely a loss of confidence in his ability to act as General Manager due to several breaches of duty owed to the Board during his tenure.

The defendants also stated their post-termination public comments were substantiated, true, and made in good faith, and that there was no legal impediment to Mr. Branch running for office in the 2006 election. They denied any and all liability. [ 15 ] The Board also filed a Counterclaim for damages. It alleged Mr.

Branch had: (1) breached implied terms of his employment agreement with the Board; (2) breached the duty of confidence he owed to the Board, as well as legal, equitable, and statutory duties; (3) converted assets and monies of the Board to his own personal use; (4) received a benefit to the detriment of the Board; and (5) induced a breach of duties owed to the Board by its former Chair, while conspiring with him to cause it detriment, prejudice, and harm. I pause to underscore the criminal charges against Mr. Branch were based, to a significant extent, on the same allegations of wrongdoing.

In his Defence to Counterclaim, Mr. Branch described the Counterclaim as frivolous and vexatious, and denied all of the allegations of wrongdoing made therein. [ 16 ] By Notice of Change of solicitors filed on February 5, 2008, David Duncan Young formally replaced Mr. Chiasson as solicitor of record for the Board. On the date of the offence specified in the charge against the appellant, December 10, 2009, Mr. Young was, to the knowledge of the appellant, the Board’s solicitor. [ 17 ] Though Mr. Siscoe remained solicitor of record for Mr.

Branch in the wrongful dismissal and defamation action until March 30, 2011 (at which time he was temporarily replaced by another Bathurst lawyer), and the appellant did

not become solicitor of record until October 30, 2011, it is undisputed that his retainer in July of 2009 covered this action and all other litigation involving Mr. Branch. [ 18 ] On December 10, 2009, the appellant printed on a scrap piece of paper and handed to Mr. Landry, the Board General Manager, a broadly worded proposal for settlement (Exhibit C-1) in which he forecast Mr. Branch would recover damages in the order of $300,000 if the wrongful dismissal and defamation action succeeded. The proposal also included the appellant’s estimate of the Board’s total legal fees for the defence of the action: approximately $200,000.

(2) The Board’s action to set aside property conveyances by Mr. Branch, the so-called “ lis pendens ” action [ 19 ] The second civil suit was brought by the Board against Mr. Branch, his wife and three children. In the Statement of Claim, which was filed on July 2, 2009 by Mr. Young on behalf of the Board, it is alleged specified conveyances of real property by Mr. Branch and his wife to their children between May 19, 2006 and October 24, 2008 were not bona fide , having been made without sufficient consideration and with the intent to defeat, hinder, defraud or delay Mr. Branch’s creditors.

It is further averred in the Statement of Claim the conveyances were made while Mr. Branch was insolvent or on the eve of insolvency, or in anticipation of claims that might become judgment debts. It is also asserted that, as a result, the conveyances were void. The prayer for relief includes a request for: (1) an order setting aside the conveyances; and (2) the issuance of a certificate of pending litigation in respect of the lands and premises in question. A Certificate of Pending Litigation (Form 42A) was subsequently issued and registered. [ 20 ] Mr. Hyslop replaced Mr.

Siscoe as solicitor of record in the lis pendens action on August 17, 2009. In the Amended Statement of Defence filed on Mr. Branch’s behalf on October 23, 2009, it is asserted the conveyances were all inter vivos gifts and, as such, did not require consideration. Correlatively, it is suggested the conveyances were made to the children for the purposes of estate planning in a manner consistent with the transfer of Branch family properties in earlier generations. The Amended Statement of Defence also featured: (1) a denial that Mr.

Branch was insolvent or on the eve of insolvency; and (2) a claim that he possessed, at all material times, sufficient liquid funds to meet any and all obligations as they became due. The pleading concluded with the claim that the action was frivolous and vexatious, and was designed for the sole purpose of embarrassing Mr. Branch in connection with his action for wrongful dismissal and defamation. [ 21 ] The appellant testified that, although he was not solicitor of record in this action, he was nonetheless Mr. Branch’s lawyer and had been retained, inter alia, to assist Mr.

Hyslop in securing the removal of the Certificate of Pending Litigation.

(3) The criminal proceedings against Mr. Branch [ 22 ] On January 27, 2009, Mr. Branch was charged with five indictable offences under the Criminal Code , each having some connection with his employment as General Manager of the Board: breach of trust and fraud exceeding $5,000 against the Province of New Brunswick (ss. 122 and 380(1)(a), respectively); fraud exceeding $5,000 against the Board (s. 380(1)(a)); and two counts of extortion against employees of the Board (s. 346(1.1)(b)).

The a ppellant’s un-contradicted testimony provides the following insights into the allegation underlying each charge: Two charges related to a period of time, May of 2003 until June of 2005, I believe, whereby it was alleged that he defrauded the North Shore Forest Product Marketing Board in relation to gas receipts for travel expense because he billed at the same time the Legislative Assembly because he was an MLA.

The second charge was the reverse of the first whereby he had breached a trust or defrauded the Province by submitting gas receipts for which he had been paid by the North Shore Forest Product Marketing Board, so the first two related to gas for that period of time. The third charge was for a different period of time. It was between 1999 and 2003 or 2005 that he obtained building materials or goods on the credit of the Forest Product, North Shore Forest Product Marketing Board for which he had not paid.

Those were the first three and the last two were uttering a threat charges or extortion that, between October 2005 and March of 2006 he forced two people to write a letter. That was it. [ 23 ] In sum, the charges of breach of trust and fraud against the Province of New Brunswick were based on the allegation that Mr. Branch had billed both the Province of New Brunswick and the Board for the same travel expenses. As might be expected, proof of these charges would require the testimony of staff at the Legislative Assembly. The charge of fraud against the Board rested on the contention that Mr.

Branch had obtained building materials or other goods on the Board’s credit and had not reimbursed it. Finally, each charge of “extortion” was founded on the allegation that Mr. Branch forced someone to write a letter on his

behalf. Ultimately, four charges were withdrawn and Mr. Branch pled guilty to the charge of defrauding the Board (though this occurred well after the preliminary inquiry). [ 24 ] The Crown was represented throughout by a senior member of the Bar for the province of Quebec. Presumably, it was thought best to hire outside counsel given Mr. Branch’s political background. [ 25 ] Mr. Branch was initially represented by Mr. Siscoe, who appeared as his counsel in all proceedings in Provincial Court prior to July of 2009. Those proceedings included Mr.

Branch’s election to be tried by a judge and jury. [ 26 ] The appellant became Mr. Branch’s lawyer in respect of the abovementioned criminal charges as of their meeting at his office in July 2009. Soon thereafter, Mr. Siscoe turned over to the appellant the documentation previously provided by the Crown pursuant to its disclosure obligations. [ 27 ] The preliminary inquiry into the five charges began on Monday, December 7, 2009, and concluded on Friday of that week.

The Crown offered the evidence of more than a dozen witnesses, including some Board officials and employees, in support of committal to trial on all charges. [ 28 ] The Crown called Mr. Siscoe as a witness for the sole purpose of shedding light on the employment relationship between Mr. Branch and the Board. Apparently, the appellant cross-examined Mr. Siscoe. However, the transcript of the preliminary inquiry is not part of the record. We do not know what matters were raised during the cross-examination, nor do we know how long it lasted. While Mr. Siscoe was still Mr.

Branch’s solicitor of record at the time, the action for wrongful dismissal and defamation was dormant, the parties having agreed to put it on hold until the criminal charges were dealt with. Nevertheless, a significant part of Crown counsel’s cross-examination of the appellant, in the court below, focused on the suggestion he engaged in unethical behavior in failing to advise the Branch preliminary inquiry judge and the prosecutor, before he began Mr. Siscoe’s cross-examination, that he had been retained to represent Mr. Branch in the action for damages.

The trial judge adopted that hypothesis and found it demonstrated a lack of integrity that militated against the appellant’s credibility. He did so over the appellant’s unchallenged sworn recollection that Mr. Siscoe adverted, in his testimony at the Branch preliminary inquiry, to the appellant’s professional involvement in the civil action. I re-visit this topic in the discussion pertaining to the trial judge’s errors of law. [ 29 ] At any rate, Mr. Branch was committed to stand trial on all charges.

Nevertheless, the defence discerned indications that the ultimate outcome at trial might not be favorable to the Crown.

Reasons for optimism included: (1) while its witnesses were testifying, the Crown offered to withdraw four of the charges in exchange for a guilty plea on one; (2) the cooperation of potential Crown witnesses was not always evident (e.g.: one of the Board representatives attended the hearing while seemingly under the influence of alcohol); (3) it was not a foregone conclusion that the testimony of staff at the Legislative Assembly would provide the requisite support for the charges of breach of trust and fraud against the Province; and (4) the defence was in possession of cancelled cheques that might, at the very least, raise a reasonable doubt in respect of the charge of fraud against the Board. [ 30 ] Mr.

Landry (the Board’s General Manager), Mr. Young (the Board’s lawyer) and Ms. Gould- McDonald (the Commission’s Executive Director) attended most of the preliminary inquiry proceedings as observers. Neither Mr. Landry nor Ms. Gould-McDonald testified. Mr. Young, who was absent on December 10, was expected to return on the following day. C. The event underlying the charge of “obstruction” against the appellant: the December 10, 2009 offer of settlement delivered to Mr. Landry [ 31 ] The appellant and his law partner, David Nathan Rogers, acted as Mr.

Branch’s counsel at the preliminary inquiry throughout the week of December 7. On Thursday, December 10, 2009, shortly before the afternoon session was to begin, the appellant approached Mr. Landry, with whom he had a passing acquaintance, having collaborated with him briefly, a few years before, in connection with unrelated matters. The appellant asked Mr. Landry if he could have a word. He then reviewed with him C-1 (Item I-1 for identification) in which were adumbrated the core elements of a settlement with the Board that was acceptable to Mr. Branch.

I pause to record it is common ground the appellant should have waited for Mr. Young’s return and delivered C-1 to him. Rule 2 of

Chapter 15 of the Code of Professional Conduct of the New Brunswick Law Society is on point. It provides a lawyer “shall not communicate on, or attempt to negotiate or to compromise, a matter with a person represented by a lawyer except through or with the consent of that lawyer”. It may be, as the appellant wondered aloud in his testimony, that he would have avoided all criminal jeopardy had he dealt with Mr. Young. It is indeed the case that some rules of professional conduct are designed to serve the best interests of both the client and the lawyer.

[ 32 ] C-1 reads as follows: [ 33 ] To facilitate the reader’s understanding, I offer the following typewritten version of C-1:

STATUS 1. CRIMINAL R v. BRANCH 2. CIVIL BRANCH v. BOARD 3. CIVIL LIS PENDENS BRANCH COST LEGAL 200K (–300K) BOARD COST 300 K DAMAGE 200 K LEGAL 100 K LEGAL (100K) 600 K __________________________________________ CRIMINAL DEFENCE – 2000 – BOARD – CONDUCT 2 CABINET MINISTERS INVOLVEMENT ______________________________________ OFFER 1. CRIMINAL – OFFER NO EVIDENCE 2. CIVIL – DISCONTINUANCE – CONFID. AGREEMENT 3. PAYMENT OF BRANCH LEGAL FEE 200K [ 34 ] As can be seen, C-1 begins with an assessment of Mr.

Branch’s legal fees for the defence of the criminal charges ($200,000) and a projection of the cost to the Board in the event it was unsuccessful in the civil lawsuits ($300,000 for damages and another $300,000 for legal fees). C-1 then references part of the criminal defence strategy: it involved calling into question the Board’s own conduct and bringing into play the roles played by two provincial cabinet ministers.

The document concludes with an offer of settlement, which contemplated a possible termination of the criminal proceedings for want of prosecution (“Offer no evidence”), discontinuances of the civil actions, the execution of a confidentiality agreement and payment by the Board of Mr. Branch’s legal fees in the amount of $200,000. The debates in the court below focused primarily on the explanations provided by the appellant

immediately before the delivery of C-1 to Mr. Landry, most notably what, if anything, he said by way of clarification for the phrase “Criminal – Offer no evidence”. [ 35 ] The Crown’s theory at trial was that C-1, understood in the light of the explanations provided by the appellant to Mr. Landry, constituted an attempt to obstruct justice. This was so, it was argued, because the proposal for settlement, as explained by the appellant, involved Mr. Landry taking steps to ensure Board officials and employees that might be subpoenaed by the Crown for trial purposes would fail to attend.

The Crown’s theory was based entirely on Mr. Landry’s testimony, specifically his sworn allegation that the appellant clarified the meaning of the phrase “Criminal – Offer No Evidence” by stating “ They’re your witnesses, make sure they don’t testify and the Crown won’t have a case ”. [ 36 ] The appellant testified that, although unable to recall the exact words he used, years before, to explain C-1, he never made any such statement: Q. “They’re your witnesses, make sure they don’t testify and the Crown won’t have a case.” What do you say to that Mr. – or, Mr. Gillis? A. I never said that. Mr.

Landry is mistaken. […] Q. How do you know you did not say it, Mr. Gillis? A. I’m absolutely sure I did not say that. I’ve practised law for 40 years. I’ve spent 1,000, 1,500 days in court examining and cross- examining witnesses, I’ve never said that, ever.

And I would remember if I did. [ 37 ] It was the defence’s contention throughout the trial that the statement attributed to the appellant, “ They’re your witnesses, make sure they don’t testify and the Crown won’t have a case ”, betrayed such a fundamental misunderstanding of the way the criminal law process operates that no lawyer, let alone a seasoned litigation specialist, would ever make it.

In that regard, the defence underscored the following truism: any decision regarding the offer of evidence was not the Board’s to make; rather, it fell within the exclusive authority of the Crown, represented, in this case, by an independent prosecutor. Moreover, and according to the defence, a constellation of circumstances demonstrated the unreliability of Mr. Landry’s verbatim recollection of the incriminating statement quoted above and the implausibility of the appellant engaging in the crime charged.

I will explore these topics in short order. [ 38 ] In his testimony, the appellant described C-1 as “ a cost/benefit analysis that [he] had prepared and printed to show the wisdom or not in settling the civil matter ” (emphasis added). He testified the phrase “Criminal - Offer No Evidence” was included under the rubric of “Offer” to allay concerns the Board might have in settling the civil actions by paying $200,000, and then facing criticism for that payout if Mr. Branch were ultimately found guilty: Q. Why was there a need to include it, sir? A.

Consider you’re the Board and I’m saying to you the Board, “This is the financial ramifications of a settlement. This is what it can cost you. This is what it can cost Mr. Branch.” And, I go through all of that and you, the Board, look at me and say, “Now, if I pay you the $200,000 Mr. Gillis and the Crown goes ahead with the prosecution and he’s convicted our members would question why we’ve done it. Why we paid $200,000 we didn’t have to pay.” And, that’s why we – or I wrote here what Mr.

Rogers and I discussed that we would go – David Rogers and I or David Rogers would go to the Crown to see if we can get the Crown to drop the prosecution by offering no evidence. If they did, great, if they didn’t, we had the $200,000 to fully fund the criminal defence of Mr. Branch. [ 39 ] The discussion with Mr. Landry took place in the public hallway outside the courtroom, minutes before the resumption of the preliminary inquiry. No stranger to the discussion testified to hearing the appellant say “ They’re your witnesses, make sure they don’t testify and the Crown won’t have a case ”, though Ms.

Gould-McDonald was close by, heard Mr. Landry ask for C-1 and witnessed the appellant hand it over.

[ 40 ] Immediately thereafter, the appellant returned to the courtroom for the continuation of proceedings. He did so following Mr. Landry’s assurance that the Board would get back to him regarding the settlement proposal. It never did. D. The pertinent events following the December 10, 2009 discussion between the appellant and Mr. Landry [ 41 ] Within days of C-1’s delivery, Mr. Landry discussed its contents and the appellant’s explanations with Ms. Gould-McDonald and then the Board’s lawyer, Mr. Young. As a result of those discussions, and unbeknownst to the appellant, Mr.

Landry made a formal complaint to the Bathurst City Police on December 16, 2009. As will be seen, it was the defence’s contention that those discussions might well have shaped what it described as Mr. Landry’s mistaken recollection of the appellant’s explanations. [ 42 ] Unaware that C-1 and his December 10, 2009 explanatory statements were being investigated by the police, the appellant attended the Saint John Police Station on September 9, 2011, at Sergeant Lord’s request. The appellant was arrested on arrival. Soon after, he provided a statement of his recollection of the events of December 10, 2009.

Significantly, in his reasons for decision, the trial judge draws support for the view that the appellant was not credible from an inconsistency he detected between his testimony and the statement he gave on September 9, 2011. [ 43 ] On November 25, 2011, the appellant was charged with attempting to obstruct, pervert or defeat the course of justice in a judicial proceeding by attempting to dissuade a person by threats, bribes or other corrupt means from giving evidence, an indictable offence by virtue of s. 139(2). The key parts of s. 139 read as follows: 139

(2) Every one who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

(3) Without restricting the generality of subsection (2), every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed, (

a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence; […] 139

(2) Est coupable d’un acte criminel et passible d’un emprisonnement maximal de dix ans quiconque volontairement tente de quelque manière, autre qu’une manière visée au paragraphe (1), d’entraver, de détourner ou de contrecarrer le cours de la justice.

(3) Sans que soit limitée la portée générale du paragraphe (2), est censé tenter volontairement d’entraver, de détourner ou de contrecarrer le cours de la justice quiconque, dans une procédure judiciaire existante ou projetée, selon le cas :

a) dissuade ou tente de dissuader une personne, par des menaces, des pots-de-vin ou d’autres moyens de corruption, de témoigner; […] E. The salient features of the trial [ 44 ] The trial, which began on August 15, 2012, and was adjourned on a few occasions, culminated with the appellant’s conviction on January 31, 2013. On June 20, 2013, the appellant was sentenced to jail for 22 months. [ 45 ] The Crown’s case consisted of the hand-printed note (C-1), Mr. Landry’s testimonial

recollection of the appellant’s December 10, 2009 clarifications of that document, in the English language, and the appellant’s September 9, 2011 statement to Sergeant Lord. [ 46 ] Mr. Landry, a francophone, gave evidence on August 16, 2012, more than 2.5 years after his conversation with the appellant regarding C-1. It may be timely to observe that, on more than one occasion, Mr. Landry revised his testimony, explaining earlier misstatements of the facts as a “poor choice of words”. The defence suggested the fact that English was not Mr.

Landry’s first language might, in conjunction with other factors, such as his lack of legal training, provide an innocent explanation for his mistaken account of the appellant’s explanation for the phrase “Criminal - Offer No Evidence”. [ 47 ] Be that as it may, Mr. Landry testified he quickly viewed with suspicion the proposal for settlement outlined in C-1. This negative perception arose from his “interpretation” of the proposal as requiring the Board to engage in dishonest bookkeeping, more precisely a “[misrepresentation of] the books”: Q. Fair enough. A.

They were standing there, and as we went – we were coming up to them, Rod Gillis said to me – he said can I speak to you? So, he took me aside, David Rogers walked away and Linda Gould continued her walk. He showed me the piece of paper. […] A. He was standing there. He had a pen in his hand and he showed me a piece of paper or a sheet which was in a notebook and he said I have an offer for you. […] A. Now, this – we went through this offer that he had written down. The first part was a summation of numbers – […] Q. Okay. If you would please continue, Mr. Landry? A.

What it shows – what’s – what this document shows is the top part – are – are numbers in different events and this is what Mr. Gillis went through. Number one was the criminal which is the legal cost that it would cost Mr. Branch for his criminal trial which was $200,000. The civil Branch versus the Board – I’m gonna go over to the Board cost first. It’s gonna cost the Board […] $200,000 in legal and they’re gonna gain $300,000 in damages. So, he was telling me that they were going to win the civil and he was going to be awarded $300,000. […] A.

So, you take – he was taking the $300,000 from over to the Board and he was putting it in as a negative $300,000 for the civil because it was gonna be […] funds that Mr. Branch was going to be able to recuperate. Number three is the civil – is the lis pendens that the Board put on Mr. Branch’s properties, he said it was gonna cost the Board another $100,000 legal for the lis pendens . So, the total amount of the Board cost was $600,000. And, Branch was going to be recuperating $100,000. Once he paid his $200,000, received the $300,000 he was gonna be $100,000 to the good. It was gonna cost the Board $600,000. […]

A. Then, we went down to the criminal defence – Q. So, what did Mr. Gillis, if anything tell you about that portion of the document? A. The criminal defence? Q. Yes. A. Okay. The criminal defence he said it was gonna be messy. There was two Cabinet Ministers that were involved, but they were gonna be – […] A. But the two Cabinet Ministers were gonna be called to testify for their involvement and that the conduct of the Board was gonna be put into question. So, then he says I have an offer for you. […] A. Offer Criminal – Offer No Evidence.

Number two civil discontinuance of all civil actions plus there would be a confidentiality agreement signed on both parties. Number three that that payment of Branch legal fees in the amount of $200,000. Q. Okay. So, Mr. Landry, when Mr. Gillis said what you’ve just described and presented this offer to you, how did you respond? A. My first response was the payment of the $200,000 – I said to Mr. Gillis – I said – our organization has audited financial statements. I can’t cut you a cheque for $200,000. I don’t have that power.

And, I said – what – what – why, you know – why – why do you propose – he said well, he said what we can do is we can run it through as professional fees – we could run it through our firm as professional fees and you can get away with it that way. You can – but that – that bothered me extremely because here we were dealing in a case of fraud and he was basically asking me to – to – my

interpretation is that he was asking me to not really doctor the books but misrepresent the books. […] A. Because I have auditors, I have to explain the $200,000 and he would have – he would have – I would have an – an invoice from – from Mr. Gillis’s firm for $200,000 in legal where the Board has not approved them as – they have not been hired as lawyers or anything of that nature. [ 48 ] According to the defence, Mr. Landry’s suspicion was wholly unjustified. The proposal for settlement did not contemplate the delivery to the Board of an invoice for legal fees from Gilbert McGloan Gillis.

That law firm had rendered legal services to Mr. Branch only, and the invoice would be addressed to him, and no one else. It was the appellant’s understanding, which was supported by David Harris, Wrongful Dismissal , vol. 3 (Toronto: Carswell, 1990) at 8-29, that the legal fees incurred by an employee in the prosecution of a claim for wrongful dismissal, and paid by the employer as part of a settlement, were properly deductible as a business expense. [ 49 ] At any rate, and as mentioned, Mr.

Landry swore he could recall word-for-word what the appellant said some 2.5 years before by way of explanation for the phrase “Criminal – Offer No Evidence” found in C-1:

And, the second

part I asked him – I said – the Criminal – Offer No Evidence, what do you mean? I don’t have any control over the – the criminal part. And, he said to me, he said […] They’re your witnesses, you make sure that they don’t testify and the Crown will not have a case. Q. So, how did you respond to that, Mr. Landry? A. I said look, I said, I don’t have any powers over this. I will consult and I will get back to you. And, he said well, you better hurry because this offer won’t be on the table for very long. [ 50 ] The appellant’s direct examination took place on September 20, 2012.

He testified that, although he did not recall the exact words he used on December 10, 2009 to flesh out C-1 for Mr. Landry’s and the Board’s benefit, he had definitely not told Mr. Landry: “ They’re your witnesses, make sure they don’t testify and the Crown won’t have a case ”. The appellant’s testimony on point bears repeating: Q. “They’re your witnesses, make sure they don’t testify and the Crown won’t have a case.” What do you say to that Mr. – or, Mr. Gillis? A. I never said that. Mr. Landry is mistaken . […] Q. How do you know you did not say it, Mr. Gillis? A. I’m absolutely sure I did not say that .

I’ve practised law for 40 years. I’ve spent 1,000, 1,500 days in court examining and cross- examining witnesses, I’ve never said that, ever. And I would remember if I did . [Emphasis added.] [ 51 ] The appellant’s understanding of C-1 is detailed in the following excerpt from his examination- in-chief: Q. I’d like you if you would, Mr. Gillis, to take some time and explain to His Honour step by step what this sheet documents or purports to document. A. I was trying to demonstrate graphically to people that I did not know the dollar consequences of all of this litigation.

So I have two columns; the left column, what it’s gonna cost Mr. Branch; the right column, what it’s gonna cost the Board. And thereafter I set out my comment of these dollar figures that we’re looking at. The first litigation is the criminal litigation, R. v. Branch. I estimated the legal costs, if we conclude it, would probably be upwards of $200,000, so I have legal, two hundred. Q. Okay. A. It’s gonna cost Mr. Branch. And the Board cost is zero because they’re not involved on that, it’s up to the Crown, the legal cost, paying for the lawyer. Q. Okay.

A. The next item is civil, Branch v. the Board, that’s the action, the wrongful dismissal action of 2006 in which the witnesses set the claim’s about five hundred thousand. I estimated if we go to trial, whether we get five hundred, we get three hundred thousand, Mr. Branch’d be three hundred thousand to the good and on the right-hand column I said the Board’s gonna have to pay not only the three hundred thousand in damages by way of settlement, but upwards of two hundred thousand in legal fees if they went through a full trial.

Then the third piece of litigation, civil litigation, the lis pendens litigation, that’s the July 2009 action tying up his property. There’s no money that’s gonna flow to Mr. Branch when you get rid of that litigation, he just gets his properties where he wanted for estate purposes, but the Board’s gonna have legal cost in pursuing that action of upwards of a hundred thousand dollars. So at the end of the day, I said if we, we continue on Mr. Branch’ll be ahead of the game by upwards of a hundred thousand and the Board’ll be out of pocket about six hundred thousand.

So that’s to, to set the tone, what their exposure is, and it’s not, we’re not saying we’re gonna get one hundred percent of the five hundred thousand but we’re gonna get a large portion of it, so – The middle part of the page, I had to relate to the Board that Mr. Branch wants to question what the Board did and Mr. Branch intended at a trial to summons two cabinet ministers in their involvement in this matter. […] A. … The bottom part, I actually get to the offer and I go through the three items again, one, two, three.

First item’s the criminal, as at the top of the page, criminal, it’s a statement, the Crown will offer no evidence, that we’ll go to the Crown and try and get them to offer, or David Rogers would, to offer no evidence. Item two, the civil actions, discontinuance, confidentiality agreement. To resolve a civil action you have a consent order for dismissal or discontinuance barring any further action. That’s what that’s about. A lawyer has to draft it and it has to be consented to by the other lawyer.

The confidentiality agreement, in these type of actions there’s an agreement where everything remains confidential, again drafted by the lawyers. Q. How common is that, sir? A. I would say it’s used or I’ve signed confidentiality agreements involving these type of actions 99 percent of the time. I mean, it’s just like a standard release. Q. Okay. A. You have a confidentiality agreement. And the last item, payment of Branch’s legal fees, two hundred thousand. [ 52 ] The appellant and Mr.

Rogers both testified that the phrase “Criminal – Offer No Evidence” in C-1 reflected no more than their intention to approach Crown counsel with a view to securing his agreement to offer no evidence at the opening of the trial against Mr. Branch. Recall that the Crown had been willing to withdraw four of the charges in exchange for one guilty plea. Given that showing of weakness, it was thought Crown counsel might well be willing to fold once confronted with, not only the defence-friendly settlement of the civil actions, but, as well, cancelled cheques signed by Mr.

Branch that the defence contended showed, contrary to the allegation underlying the more serious charges, that he had reimbursed the Board for all expenses charged to its account. [ 53 ] The appellant’s examination-in-chief offered the following account of the exchange between himself and Mr. Landry: Q. So Mr. Gillis, let’s turn to the day of December 10, 2009. What time did you arrive at court that day? A. Probably shortly before one o’clock. Q. And who were you with? A. David Rogers.

Q. And would you please tell us what happened when you got to court that day. A. Court was going to start at 1:30. We did not wish to be late. We would’ve gone to the courtroom or I went to the courtroom and put my gown on and then would’ve sat down and printed out Exhibit 1 or C-1, whatever – Q. Exhibit C-1, yeah. A. Exhibit C-1. Mr. Rogers was in or out or to the, to my left, I wasn’t paying much attention to him, and then I went out in the hallway. At that point I saw coming down the hall, I think Linda Gould-McDonald and Mr. Landry, those were the two that I remember. Q. Yes. A.

I asked if I could speak with Mr. Landry for a moment and I turned towards the window and he stood beside me and I went through this piece of paper. Q. So where are you and Mr. Landry standing? A. Out in the public hallway. Q. Were there any private rooms in the area? A. Oh yes, about eight feet away across the hall there were a number of private meeting rooms if you wanted to meet in private. Q. And so you asked to speak to Mr. Landry? A. Yes. Q. Where was Ms. Gould-McDonald when you asked to speak to him? A. Well, she was standing beside him when I asked to speak with him.

I don’t know where she went after that, I wasn’t focused on her. Q. Was she part of the conversation with Mr. Landry? A. No. Q. And yourself? A. No, she wasn’t part of the conversation. What I had was some figures with respect to the North Shore Forest Product Marketing Board and somebody had to communicate it to the Board and the Board’s lawyer and it wasn’t Mrs. Gould-McDonald – or, Ms. Gould- McDonald.

Q. Mr. Landry testified at one point that you sort of pushed Ms. Gould-McDonald away and then he changed that and said you excluded her. Could you comment on that, Mr. Gillis? A. I – I’ve never pushed a woman. It’s not only the wrong thing to do but you get in trouble. I – I – And I don’t even suggest that. So I didn’t exclude her intentionally, she had no role to play. This dollar figure had to get back to the Board of Directors and the Board’s lawyer. Q. And so how did Mr. Landry respond to your request to speak to him? A. He was in, how should I put it, normal good spirit or said sure and we started talking.

Q. Okay. What did you say to Mr. Landry on that day? A. I had prepared, if you want, my speaking notes, if you call this document C-1 speaking notes, it wasn’t that. I don’t remember my exact words to Mr. Landry, it was three years ago. I would have gone through the dollar figures here explaining it to try and come up to the conclusion that if you fellows would pay $200,000 we could resolve the civil matter and I would’ve gone through – […] Q. Using these notes to refresh your memory, sir, can you tell us what you did and what you said to Mr. Landry to the best of your ability? A.

To the best of my ability, what I did is I went through the first two-thirds of this page explaining the dollar figures and the cost benefit analysis and concluded by saying we were willing to settle the matter for $200,000 if you made the payment to Gilbert McGloan Gillis or whatever. Q. What explanation did you give of those dollar amounts, sir? A. The explanation is what I’ve given to you previously, that it could cost the Board upwards of $600,000 with all this litigation and Mr.

Branch would come out ahead about a hundred thousand and that we’re willing to settle for $200,000 at this time with a discontinuance and confidentiality agreement. Q. Did you go through each of the items individually? A. I went through each of the dollar figures on the first two-thirds of this page or first half of this page explaining it because to my way of thinking the Board of Directors have to understand the dollar figures and the rationale to settle a civil action and I wanted to make sure that Mr. Landry, as the messenger to take this back to Mr.

Young or the - and the Board, understood the dollar figures. It was just an explanation. […] Q. And how long would it have taken you, sir, to go through this with Mr. Landry that day? A. It took two to three minutes. I didn’t have a lot of time, court was going to recommence at 1:30, it’s about 1:15 and I still had to

sort a few papers, but I wanted to get the thing, the civil settlement in play as soon as possible. Q. And how much of the time would’ve been spent, of the two or three minutes, would’ve been spent on the top part of the document explaining the numbers? A. Ninety percent of the time because you have to let them fully appreciate the cost. […] Q. Okay. And so what did you do with this document following your discussion with Mr. Landry? A. I left it with him.

I printed it with the intention that it would be a document that would receive circulation within the North Shore Forest Product Marketing Board of Directors and Mr. Young and perhaps others. Q. What if any restrictions did you impose on Mr. Landry with respect to your discussions or this piece of paper? A. Absolutely none and if he had questions I expected he would come back and ask me, Mr. Young had questions he would ask me, somebody would ask questions and we’d have to work out the terms of the minutes of settlement that we talk about here. Or I write about here. […] Q. Mr.

Gillis, the last thing I want to ask you, sir, is what were your intentions when you spoke to Mr. Landry that day? […] A. The intentions were to simply resolve or start the process to resolve the civil matter. There was absolutely no intention to resolve the criminal matter with Mr. Landry. He had no involvement. There was no conspiracy. There was nothing to do with the criminal matter concerning Mr. Landry and our intention or my intention solely with this piece of paper and my discussion with Mr.

Landry was to settle or put in process the settlement of a civil matter. [ 54 ] On cross-examination, Crown counsel focused on what he would later argue were instances of ethical misconduct by the appellant. In that regard, he pointed to the appellant’s omission to personally inform the Branch preliminary inquiry judge and the prosecutor in that case, that he was representing Mr. Branch in the wrongful dismissal and defamation action: Q. You didn’t notify the Court and you didn’t notify the prosecutor. Isn’t that right? A. Notify them about what? Q. About the fact that you were representing Mr.

Branch on that civil matter at the time. A. The prosecutor wasn’t concerned about the civil matter because the prosecutor wasn’t involved with the civil matter. The Court was concerned with the criminal matter and I was representing Mr. Branch on the criminal matter. Mr. Siscoe, when he testified for the Crown, identified his relationship with Mr. Branch that he was representing Mr. Branch – in they’re trying to prove, I believe, the

employment contract. So, the people that were in this courtroom knew where the representation was. I have difficulty following what your question is. [ 55 ] The appellant added that, in any event, Mr. Siscoe had testified he (the appellant) represented Mr. Branch in the wrongful dismissal and defamation action: Q. Okay. And you didn’t tell the Judge? A. Well, he told the Judge. He said something to the effect, “Mr. Gillis, I believe represents,” or whatever the words were, “Mr. Branch and I just realized today I’m still on the – as solicitor of record,” or something like that.

I forget how it went but as something like that. But if you’ve got the transcript I could – can tell you exactly. The appellant’s suggestion that the preliminary inquiry transcript be produced to verify Mr. Siscoe’s testimony on point went unheeded. [ 56 ] Crown counsel also put into evidence, through the appellant’s cross-examination, the text of various provisions of the Code of Professional Conduct .

Curiously, he instructed the appellant to abstain from commenting on their applicability and possible violation. [ 57 ] As will be seen, in his reasons for decision, the trial judge found the appellant behaved unethically by the “very questionable manner” in which he conducted himself during Mr. Siscoe’s cross-examination. He also found the appellant violated three of the several Rules of the Code of Professional Conduct referenced by Crown counsel during his cross- examination. In the trial judge’s view, those ethical breaches demonstrated a lack of integrity, an important factor in assessing credibility. F.

The reasons for the trial judge’s findings of credibility and reliability, and for conviction [ 58 ] The trial judge summarized his findings as follows: […] With respect to the different versions of what Gillis said to Landry in connection with the possible settlement of the criminal matter, I disbelieve Gillis’ evidence. I find Landry very credible and I believe his evidence.

Simply put, I am satisfied beyond a reasonable doubt that on the basis of the evidence before me, Gillis said to Landry exactly what Landry alleges, with respect to the proposed settlement of the criminal matter. [para. 83] [ 59 ] Those observations are expanded upon in the trial judge’s reasons under “Conclusion”: It is clear to me, and I say so without hesitation, that Gillis, when speaking to Landry, did have the specific intention of subverting justice, when he asked Landry to make certain that Board employees did not testify against Branch.

Going back to the approach mandated in R.v.W.(D.), supra, I do not believe the evidence of Gillis as to precisely what he said to Landry about the latter stopping Board witnesses from testifying, I am not left in reasonable doubt by Gillis’ testimony and on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence, of Gillis’ guilt. I am satisfied that all of the essential elements of this offence have been proven and that the facts taken as a whole prove the guilt of the Accused beyond a reasonable doubt.

Therefore, Gillis is found guilty of an attempted obstruction of justice, as charged. [paras. 110-112] [ 60 ] The trial judge’s reasons for disbelieving the appellant are set out in his decision under the rubric “Credibility of Rodney J.

Gillis”: (1) the appellant’s testimony differed from “that of Rogers in some important aspects”; (2) the appellant’s own testimony was “contradictory on some major issues” and was at odds with the appellant’s prior statement to the police; (3) the appellant’s “strong denial that he said to Landry the words attributed to him” was not “credible” because his denial that he made the statement could not be squared with his inability to “remember the exact words he used”; (4) the appellant’s “own testimony”

demonstrated his attempt “to resolve the criminal and civil matters violated” Rule 2 of

Chapter 15, Rule 10(ix) of

Chapter 8 and Rule9(

b) of

Chapter 4 of the Code of Professional Conduct of the New Brunswick Law Society; (5) the appellant “acted in a veryquestionable manner, in not advising the presiding judge [at the Branch preliminary inquiry] and the Crown prosecutor of his exactinvolvement with [Mr.] Siscoe, prior to cross-examining him”; (6) the appellant’s contention that the Crown “might agree to present noevidence on all five charges merely because the civil litigation between Branch and the Board had been settled lacks the air of reality”[Emphasis added]; and (7) the appellant’s testimony was “too often […] vague, indefinite, qualified and non-committal”.

The appellant“did not appear to be forthright and responsive to questions” and was “often argumentative when being questioned by [Crown counsel]”.His testimony “at times, was neither reasonable nor consistent” and “[h]e did not stand up well under cross-examination”. [61] The trial judge concluded Mr. Rogers, the appellant’s law partner and co-counsel for thedefence at the Branch preliminary inquiry, could not be believed “on many matters about which he testified”.

The trial judge added hedid not believe “that Rogers gave his testimony in a straightforward, honest and believable manner”, adding that “[m]uch of histestimony simply did not have the ring of truth to it” and that he “was evasive at times, and, simply, not credible”. The trial judge closedhis assessment of Mr. Rogers’ testimony and credibility by stating: “He did not stand up well under cross-examination and wasargumentative not only during cross-examination but in direct, as well”. [62] As for Mr.

Landry, the trial judge made the following observations regarding his testimony: “Ifound him to be a very credible and honest witness. He appeared to be making every effort to relate what happened as precisely aspossible, and realized how important accuracy was in all of his testimony. His testimony was direct, never vague, and he held up well toa quite vigorous and thorough cross-examination. He was a credible witness and I am satisfied that his testimony was reliable”. The trialjudge added that none of the testimonial errors committed by Mr. Landry were “significant or troubling”.

In the trial judge’s view, noneof those errors affected Mr. Landry’s credibility or “cast any doubt on the reliability of his account of the critical part of his conversationwith Gillis”. III. The Case for and Against Reversal [63] The appellant contends in the Notice of Appeal, as amended at the hearing, that the trial judgecommitted reversible error of fact in relying upon negative characterizations of his testimony that are unsubstantiated by the record and inmisapprehending the evidence, particularly his own testimony.

The trial judge would have misapprehended the appellant’s testimonyregarding: (1) the alleged breaches of the Rules of the Code of Professional Conduct of the New Brunswick Law Society; (2) theinevitability of involvement by the Board’s lawyer, Mr. Young, in the settlement process initiated by C-1;

(3) Mr. Rogers’ role in thepreparation of C-1; (4) the reason for his (the appellant’

s) approach to Mr. Landry, rather than Mr. Young; (5) the connection betweenthe civil and criminal matters; (6) the period during which the offer of settlement would remain open for acceptance by the Board; (7) hisreasons for believing the Crown might be willing to consider offering no evidence against Mr. Branch; and (8) the reason for mentioningthe proposed criminal disposition of the criminal charges in C-1. In addition, the trial judge would have misapprehended other elementsof the evidential record: (1) in concluding the appellant’s “strong” denial - that he said the words attributed to him by Mr.

Landry - wasnot credible because he admitted to not remembering the exact words he used to explain C-1; and (2) as they pertain to the issues said toimpact on Mr. Rogers’ credibility. [64] As well, the Notice of Appeal, as amended, alleges the trial judge committed the followingerrors, most of which are easily characterized as legal in nature: (1) he misdirected himself as to the relevance of a civil settlement toprosecutorial discretion; (2) he relied upon the appellant’s conduct in cross-examining Mr.

Siscoe at the Branch preliminary inquiry asevidence of lack of integrity and credibility; (3) he considered perceived inconsistencies between the appellant’s statement to the policeand his testimony on direct examination despite Crown counsel’s failure to raise the issue during cross-examination; (4) he made legallyimpermissible use of the evidence of weaknesses in the case against Mr. Branch; (5) he failed to appreciate the key basis upon whichMr. Landry’s reliability was impugned; (6) he relied on neutral evidence (the wording of C-1) to support the reliability of Mr.

Landry’sevidence; (7) he erred in his application of R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J.

No. 26 (QL); and (8)the verdict is unreasonable having regard to the evidence, properly understood. [65] Finally, in the Appellant’s Submission and a mid-hearing brief filed at the Court’s request, aswell as during the debate on appeal, the appellant argued many of the factors which prompted the trial judge to disbelieve his testimonywere never put to him on cross-examination and that, as a result, he was deprived of a fair opportunity to make full answer and defence.This argument draws its lifeblood from Lord Herschell’s speech in Browne v.

Dunn. [66] It is acknowledged in the Respondent’s Submission that the trial judge misapprehended some ofthe evidence. However, the respondent contends no reversible error was committed. I agree with that contention insofar as theacknowledged misapprehensions are concerned, and will say nothing more on point.

[ 67 ] The respondent also submits the trial judge did not commit any error of law and vigorously argues the appellant is seeking to have this Court engage in a trial de novo of the underlying charge. In that regard, the respondent points to the observations I made, writing for the Court, in E.K.M. v. R., 2012 NBCA 64 , 391 N.B.R. (2d) 130 , and argues those observations apply with equal force to the case at hand: In my respectful judgment, there is simply no merit to the appellant’s objections to the findings of credibility made in the court below.

Stripped to their core, those objections are not sourced in errors of law or principle, but driven solely by a disagreement with the trial judge’s adverse findings, which, in my view and contrary to the appellant’s submission, flowed from the application of a legally correct framework and are solidly moored to the evidential record. That being so, those findings must stand (see R. v. R.P. , 2012 SCC 22 , at paras. 10-12 ). [para. 25] Our Court has indeed repeatedly recognized its mandate does not include the re-trial of cases, and acted accordingly.

That said, the Court is duty bound to intervene where the contested verdict is rooted in significant errors of fact or law. IV. Analysis and Decision [ 68 ] The constituent elements of the offence, as particularized in the Information, are: (1) a willful attempt to obstruct, pervert or defeat the course of justice; (2) in a judicial proceeding (s. 139(3) provides the proceeding in question may be existing or “proposed”); (3) by attempting to dissuade a person from giving evidence; (4) by threats, bribes or other corrupt means.

Two lines of legal inquiry, both interpretative in nature, arise from the charge as it appears in the Information. [ 69 ] The first concerns item (2). Must the attempt be in relation to a judicial proceeding and, if so, what is the meaning of the expression “proposed”, or “projetée” in the French version, of s. 139(3)? At the time the appellant provided explanations for C-1 to Mr. Landry, the only existing proceeding was the preliminary inquiry into the charges against Mr.

Branch, and it is common ground that the phrase “Criminal - Offer No Evidence” had nothing to do with the preliminary inquiry: it related to a proceeding (the trial of Mr. Branch) that might, or might not, take place. Hence, this question: does the pursuit of an order committing the accused to trial make it a “proposed” proceeding for s. 139 purposes? Perhaps. Absent binding judicial precedents, the answer to the foregoing questions stands to be ascertained by the application of settled principles of statutory

interpretation. [ 70 ] The second line of inquiry focuses on the meaning of the phrase “threats, bribes or other corrupt means”. The trial judge found that essential component of the offence as charged was established by the appellant saying to Mr. Landry “if the Branch charges went to trial, the Board’s conduct would be put into question and certain cabinet ministers would be called to testify and the matter would become messy”. What is the meaning of the term “corrupt” and does it encompass the quoted statement? [ 71 ] None of those issues has been debated in this Court.

To be clear, the appellant has not argued the facts as found by the trial judge cannot, as a matter of law, support his conviction for the offence charged. The reasons that follow deal with the appeal as framed and argued. [ 72 ] As the trial judge noted, credibility was “critically important in this case”, a state of affairs that brings into play the much-discussed case of R. v.

W.(D.) , where the Supreme Court of Canada laid out, in step-by-step fashion, the correct approach to adjudication of criminal liability where the accused has testified: 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 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 which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [para. 28] [ 73 ] Focusing exclusively on the features of that approach that are key for our present purposes, the appellant’s acquittal was required unless the trial judge: (1) disbelieved his denial under oath that he told Mr. Landry “ They’re your

witnesses, make sure they don’t testify and the Crown won’t have a case”; and (2) after considering all of the evidence, was not left witha reasonable doubt. The trial judge disbelieved the appellant’s denial and, as a result, found his guilt had been established beyond areasonable doubt. As mentioned, the appellant challenges the trial judge’s adverse finding of credibility on the grounds that it is theproduct of errors of fact and errors of law. [74] The standard of review for errors of fact is palpable and overriding error.

Thus, an appellatecourt is not at liberty to overturn findings of credibility simply because it would have come to a different conclusion. As was stated in theoft-cited case of R v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621: There is general agreement on the test applicable to a review of a finding of credibility by a trial judge: the appeal court must defer to theconclusions of the trial judge unless a palpable or overriding error can be shown. It is not enough that there is a difference of opinionwith the trial judge (Schwartz v. Canada, (SCC), [1996] 1 S.C.R. 254, at paras. 32-33; H.L. v.

Canada (AttorneyGeneral), [2005] 1 S.C.R. 401, 2005 SCC 25, at para. 74). [para. 10] See, as well, F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at paras. 70-73. [75] The question of appellate review of credibility findings on the basis of allegations of factualerror was recently considered in J.N.C. v. R, 2013 NBCA 59, 409 N.B.R. (2d) 310, where the Court observed: In light of the above, we owe deference to the trial judge’s credibility findings unless J.N.C. can show that these are the product of apalpable and overriding error: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 10. In R. v.

Arsenault, 2005 NBCA 110, 295 N.B.R. (2d) 123, at para. 26, and in other cases, including R. v. Mollins, 2011 NBCA 62, [2011]N.B.J. No. 237 (QL), at para. 14, this Court has adopted the definition of “palpable and overriding” articulated in Waxman v. Waxman, (ON CA), [2004] O.J. No. 1765 (C.A.) (QL): The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. A “palpable” error isone that is obvious, plain to see or clear: Housen at 246.

Examples of “palpable” factual errors include findings made in the completeabsence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings offact drawn from primary facts that are the result of speculation rather than inference. An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact.

Where the challenged finding offact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does notautomatically mean that the error is also “overriding”. The appellant must demonstrate that the error goes to the root of the challengedfinding of fact such that the fact cannot safely stand in the face of that error: Schwartz v.

Canada, (SCC), [1996] 1S.C.R. 254 at 281. [paras. 296-97] […] With respect, there is simply no correlation between the complainant’s description of the boat and her credibility regarding the event shedescribes as a sexual assault. The complainant’s knowledge of the boat was not a matter that led to the inescapable conclusion she wasbeing truthful with respect to the acts that form the basis of the charges against the accused.

In our view, it was illogical for the judge tohave concluded that, because the complainant was able to describe a boat and how she embarked, she must then be telling the truth abouteverything else, especially when there was evidence that neutralized the value of her descriptions. Of course, our finding that the trial judge made a palpable error in his assessment of credibility is of no moment unless that error is alsoan overriding one. In our view, the error falls into that category.

The trial judge went to great lengths to explain how he was convinced ofthe “boat” incident, and thereafter simply stated he concluded the complainant was truthful regarding the other alleged incidents, withoutany detailed analysis of any testimony regarding these. In the circumstances, it is abundantly clear that the judge’s misguided credibilityanalysis regarding the boat incident affected the balance of his findings. In other words, the judge anchored his entire credibility findingson the complainant’s description of the accused’s boat.

That being a palpable error, it is also, in these circumstances, an overriding one.In the final analysis, the trial judge convicted J.N.C. because he believed the complainant, and he believed her because she coulddescribe the boat. This is a palpable and overriding error in the assessment of credibility.

Of course, as an appellate court, we do not have the advantage of seeing the witnesses. As a result, despite our unease or lurking doubtabout the verdict, we have no way of knowing how a credibility analysis, devoid of any palpable and overriding error, might be resolvedin this case.

This is why, in the final analysis, we allowed both the application for leave to appeal and the appeal, quashed the convictionand ordered a new trial should the Attorney General choose to proceed with one. [paras. 14-19] [Emphasis in original.] [76] The standard for appellate intervention on the basis of evidential misapprehension is“stringent”: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2 and R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, Abella J., forthe majority, at para. 19.

In Lohrer, the Supreme Court of Canada cautioned against intervention unless the following conditions weremet: Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance ratherthan to the detail. It must be material rather than peripheral to the reasoning of the trial judge.

Once those hurdles are surmounted, thereis the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential partnot just in the narrative of the judgment but “in the reasoning process resulting in a conviction”. [para. 2] [77] In C.L.Y., the majority concluded the trial judge’s basis for disbelieving the accused “rested onmisapprehensions of his evidence and played a critical role in the convictions, rendering them insupportable” (see para. 21).

I come tothe same conclusion regarding the trial judge’s multi-faceted basis for disbelieving the appellant.

While alive to the “singular perch”occupied by the judge in assessing credibility, I conclude that basis is rooted in misapprehensions of the evidence that played a criticalrole in shaping the outcome in first instance. [78] The “stringent” standard referenced in Lohrer and C.L.Y is drawn from Justice Doherty’s oft-quoted reasons for judgment in Morrissey: In my opinion, on appeals from convictions in indictable proceedings where misapprehension of the evidence is alleged, this court shouldfirst consider the reasonableness of the verdict (s. 686(1)(a)(i)).

If the appellant succeeds on this ground an acquittal will be entered. Ifthe verdict is not unreasonable, then the court should determine whether the misapprehension of evidence occasioned a miscarriage ofjustice (s. 686(1)(a)(iii)). If the appellant is able to show that the error resulted in a miscarriage of justice, then the conviction must bequashed and, in most cases, a new trial ordered.

Finally, if the appellant cannot show that the verdict was unreasonable or that the errorproduced a miscarriage of justice, the court must consider the vexing question of whether the misapprehension of evidence amounted toan error in law (s. 686(1)(a)(ii)). If the error is one of law, the onus will shift to the Crown to demonstrate that it did not result in amiscarriage of justice (s. 686(1)(b)(iii)). […] Fanjoy, like most cases where s. 686(1)(a)(iii) has been invoked, involved prosecutorial or judicial misconduct in the course of the trial:e.g., see R. v.

Stewart (1991), 62 C.C.C. (3d) 289, 43 O.A.C. 109 (C.A.); R. v. R. (A.J.) (1994), (ON CA), 20 O.R.(3d) 405, 94 C.C.C. (3d) 168 (C.A.). Such conduct obviously jeopardizes the fairness of a trial and fits comfortably within the concept ofa miscarriage of justice. Nothing in the language of the section, however, suggests that it is limited to any particular type of error. In myview, any error, including one involving a misapprehension of the evidence by the trial judge, must be assessed by reference to its impacton the fairness of the trial.

If the error renders the trial unfair, then s. 686(1)(a)(iii) requires that the conviction be quashed. When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice? The nature and extent of themisapprehension and its significance to the trial judge’s verdict must be considered in light of the fundamental requirement that a verdictmust be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material parts of theevidence and those errors play an essential

part in the reasoning process resulting in a conviction then, in my view, the accused’sconviction is not based exclusively on the evidence and is not a “true” verdict. Convictions resting on a misapprehension of the substanceof the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial.If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow thatthe appellant has not received a fair trial, and was the victim of a miscarriage of justice.

This is so even if the evidence, as actuallyadduced at trial, was capable of supporting a conviction. [paras. 88, 92-93] [Emphasis added.]

[ 79 ] Applying the analytical framework in the sequence recommended in Morrissey , I turn first to the question of whether the verdict is unreasonable. The test to be applied in determining that question is whether the verdict is one that a properly instructed jury could reasonably have rendered: R. v. Biniaris, 2000 SCC 15 , [2000] 1 S.C.R. 381 , at para. 36 . Acquittal is required where a verdict is unreasonable. [ 80 ] The defence position at trial, which was reiterated on appeal, was that Mr.

Landry’s account of the single relevant conversation between him and the appellant was unreliable, and that he misunderstood what was being proposed. In that regard, the defence made the following points in its comprehensive post-trial brief: There are many facts, which it is submitted indicate Mr. Landry is most likely mistaken in what he claims Mr. Gillis said to him. These include the following.

a) It was a very short conversation and Mr. Landry testified he was most interested in the financial aspect of the proposal.

b) Mr. Landry made no notes during the conversation with Mr. Gillis or at any time afterwards.

c) Mr. Landry testified he was “extremely bothered” by how Mr. Gillis indicated the Board could pay Mr. Branch’s legal fees. Mr. Landry “interpreted” (not Mr. Gillis said, but Mr. Landry “interpreted”), that he was being asked to misrepresent the books. Mr. Landry was not aware this form of settlement [payment by the employer of the wrongfully dismissed employee’s legal fees] is completely acceptable in resolving wrongful dismissal cases. In Harris, Wrongful Dismissal , Vol. 3 at page 8- 29 [as it then read], the author states: (

d) Payment Directly to Employee’s Lawyer The CRA’s administrative practice is generally to permit payments of legal fees by the employer directly to the former employee’s lawyer with no source withholding and no tax consequences (except to the lawyer). The effect on the employee will generally be the same as if the amount were taxable under para. 56(1)(1.1) and then an offsetting deduction for legal expenses were claimed under paragraph 60(o.

l) as discussed above. Harris [ Wrongful Dismissal ] is cited as recognized authority in numerous decisions at all court levels in wrongful dismissal cases. Additionally exhibit C-1, the written offer itself, clearly spells out for all to see that Mr. Branch’s legal fees were to be paid by the Marketing Board. There was no hiding or misrepresenting anything.

d) Mr. Landry also acknowledged he was not aware of a legal practice in criminal law where charges are disposed of by the Crown offering no evidence. Such a practice is well known to the Court.

e) Mr. Landry acted normally during and after the discussion with Mr. Gillis. There was no challenge or inquiry of, “What are you asking me to do?”, or any words to that effect. When Mr. Gillis was asked by Mr. Rogers after the discussion with Mr. Landry, “How did it go?”, Mr. Gillis told Mr. Rogers, “They will get back to us”. Crown counsel was critical of Mr. Gillis for not discussing the matter with Mr. Young on the Friday but the evidence, undisputed, is that “they would get back” to Mr. Gillis.

f) Mr. Landry did not immediately decide to make a criminal complaint. Why would one wait if the words allegedly spoken by Mr. Gillis are as clear as Mr. Landry claims? In cross-examination, Sgt. Lord confirmed his notes document that Mr. Young “works primarily in civil law and wanted someone more experienced in criminal to review the offer” and that “the offer appeared inappropriate”, not “was criminal” but appeared “inappropriate”. Would there really be any need for Mr. Young to inquire of other lawyers if the words allegedly stated by Mr. Gillis are as clear as Mr. Landry states?

g) The accuracy of a witness’ recollection may be influenced by many factors. Mr. Landry discussed the conversation he had with Mr. Gillis with several other people

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