R. v. Normore, 2018 NLCA 10

Alex Normore (appellant) v. Her Majesty the Queen (respondent) (16/65) Indexed As: R. v. Normore 2018 NLCA 10 2 C.A.N.L.R. 524 Court of Appeal of Newfoundland and Labrador White, Harrington and Hoegg JJ.A. February 15, 2018

Summary: Alex Normore was convicted of attempted murder, uttering a threat to cause death, and break and enter while committing attempted murder after attacking Ronald Thomas in his home. Police seized a number of documents from Mr. Normore’s apartment, including two notes, which could be taken as expressing animus towards Mr. Thomas. Mr. Normore acknowledged writing one of the notes, but denied writing a second note. Mr. Thomas had brought two photographs depicting the two handwritten notes in question to the RCMP prior to the execution of the search warrant. At trial, the defence called Mr.

Thomas and asked him who gave him the photographs. He refused to answer. The judge took no further steps to elicit an answer. Mr. Normore appealed his convictions on the grounds that the judge’s failure to address Mr. Thomas’ failure to answer a question precluded a legitimate line of inquiry, and the curative proviso could not apply. Held: Appeal allowed, new trial ordered (Hoegg J.A. dissenting). White J.A. (Harrington J.A. concurring): The duty of a witness to testify plays a central role in the administration of justice.

It is a positive rule that there is a general duty to give what testimony one is capable of giving and any exemptions are exceptional. A witness’s refusal to answer a question in such circumstances is an interference with the administration of justice and the accused’s right to a fair trial. The power of contempt is available to a judge in cases where a witness refuses to testify because such a refusal is a serious affront to the administration of justice and it is the judge’s duty to preserve the authority of the Court in such situations. The power of contempt is preserved under

section 9 of the Criminal Code . The penalties a person may face if convicted of contempt are serious. One of the purposes of the ordinary contempt procedure is to encourage witnesses to comply with their duty to testify by giving the witness the opportunity to be ______________________________ Reversed, 2018 SCC 42 , [2018] 3 S.C.R. 5 . informed as to the importance of the duty and the serious consequences which may follow upon refusal of such duty. The trial judge’s refusal to take any further steps to elicit an answer from the witness was an error of law. The error committed by the trial judge in this case should be classified as an error of law. However, a conviction may nonetheless be

upheld if section 686(1) (b)(iii) (the curative proviso ) applies because the error has not resulted in a substantial wrong or a miscarriage of justice. The defence asked the question of Mr. Thomas intending to pursue a line of inquiry relative to defence’s position that the note Mr. Normore denied writing was forged or planted. By abandoning the contempt proceeding the trial judge failed to use all of the tools at his disposal to compel Mr. Thomas to answer the question thereby foreclosing the inquiry into the continuity of the notes which may have impacted the weight to be given to the second note.

Both notes were material in the trial judge’s decision and one without the other was less persuasive in establishing intent to kill. The trial judge also specifically cited the lack of evidence or foundation that the documents seized from Mr. Normore’s apartment had been forged or planted. Although the trial judge’s error justifies a new trial or an acquittal, this Court must still consider whether evidence against the accused was so overwhelming that any other verdict would have been impossible to obtain.

It cannot be said that the evidence was so overwhelming that the trial judge would have convicted had he not considered the second note, the weight of which may have been affected had the trial judge taken further steps to compel Mr. Thomas to answer the question. The curative proviso does not apply and the appeal must be allowed and a new trial ordered. Hoegg J.A., dissenting: Contempt of court is a remedial power vested in superior courts whose purpose is to vindicate public interest in the administration of justice.

The law exists to protect the dignity and process of the court, which in turn protects the rule of law. A court’s decision to cite for and find contempt is a discretionary one. As is the case with all discretionary powers, a judge must exercise his discretion to cite for and find contempt judicially. The discretion to cite for and find contempt must also be exercised cautiously, for such a citation is regarded as a power of last resort. The refusal to answer a question in court is regarded as criminal contempt in the face of the court and punishable as such.

However, not all refusals to answer a question in court amount to contempt of court. The governing rule for the reception of evidence is that it must be relevant and admissible. Judges are not obligated to order witnesses to answer irrelevant questions. Moreover, witnesses may not be required to answer questions which are relevant just because they may be asked; they are only required to give answers that constitute relevant evidence when the court requires them to answer. The stock and trade of a trial judge is determining whether and when witnesses must answer the questions they are asked.

The Judge’s handling of the matter was an entirely proper exercise of his discretion. He did not embark on a contempt procedure at the time the question was asked because he was clearly not convinced that the answer to the question was relevant to matters before the Court so as to properly invoke a contempt procedure. Although not precisely expressed, the Judge could also have determined that the probative value of the answer to the question was outweighed by its prejudicial effect and therefore unnecessary to receive.

The dignity and process of the court were not undermined in any way by the Judge’s handling of the matter nor were contempt proceedings necessary to safeguard the administration of justice. Moreover, there was more that defence counsel could have done to further her objective such as requesting the judge to cite Mr. Thomas for contempt. There was nothing to prevent her from subpoenaing Mr. Hayes, the person the defence believed had given the photographs to Mr. Thomas, to give evidence respecting his knowledge of the documents had she chosen to do so. Even if the Judge had found Mr.

Thomas in contempt, this would have worked an injustice in the circumstances of the case. The Judge did not err by failing to invoke contempt proceedings against Mr. Thomas for his failure to identify the person who sent him the photographs of the documents. Mr. Normore’s ability to fully and fairly defend himself was not compromised, nor was his trial rendered unfair. The appeal should be dismissed. Cases cited: White J.A.: R. v. Abdullah , 2010 MBCA 79 , 323 D.L.R. (4th) 275 R v. Arradi , 2003 SCC 23 , [2003] 1 S.C.R. 280

R. v. T. (D.B.), 1996 NSCA 54, 147 N.S.R. (2d) 308 R. v. K. (B.), (SCC), [1995] 4 S.C.R. 186 Morris v. Crown Office, [1970] 1 All E.R. 1079 (C.A.) Puddester v. Newfoundland (Attorney General), 2001 NLCA 25 , 2001 NFCA 25, 226 Nfld. & P.E.I.R. 1 R. v. Jacob, 2008 MBCA 7, 225 Man. R. (2d) 111 R. v. Fields (1986), (ON CA), 56 O.R. (2d) 213 (C.A.) R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716 R. v. Pavlov, 2009 NLCA 44, 289 Nfld. & P.E.I.R. 19 R. v. S. (P.L.), (SCC), [1991] 1 S.C.R. 909 R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239 Hoegg J.A. (dissenting): Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79 Morasse v.

Nadeau-Dubois, 2016 SCC 44, [2016] 2 S.C.R. 232 St. Elizabeth Home Society v. Hamilton (City), 2008 ONCA 182, 89 O.R. (3d) 81 R. v. Cohn (1984), (ON CA), 48 O.R. (2d) 65 (C.A.), leave to appeal to SCC refused, [1985] 1 S.C.R. vii Clements v. Erlanger (1877), 46 L.J. Ch. 375 (Eng. C.A.) R. v. Vaillancourt, (SCC), [1981] 1 S.C.R. 69 R. v. K. (B.), (SCC), [1995] 4 S.C.R. 186 Balogh v. Crown Court at St. Albans, [1974] 3 All E.R. 283 (C.A.) R. v. Gray, [1900] 2 Q.B. 36 R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475 R. v. Corbett, (SCC), [1988] 1 S.C.R. 670 R. v.

Hart, 1999 NSCA 45, 174 N.S.R. (2d) 165 leave to appeal to SCC refused, 27784 (August 31, 2000) R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 Counsel: Derek Hogan, for the appellant; Sheldon Steeves, for the respondent. This appeal was heard on June 13, 2017 before White, Harrington and Hoegg JJ.A.

The following judgment was delivered on February 15, 2018 by White J.A., concurred in by Harrington J.A., with separate dissentingreasons by Hoegg J.A. ______________________________________________________________ White J.A.: [1] Alex Normore, appeals his convictions for attempted murder, uttering a threat to cause death, and break and enter whilecommitting attempted murder. Central to the appeal is how the trial judge handled an outright refusal of a witness to answer a relevantquestion. BACKGROUND

[ 2 ] On March 1, 2014 Ronald Thomas was alone and asleep in his residence when he woke to find Mr. Normore in his bedroom holding a three foot long heavy flashlight. A struggle ensued between the two men. After Mr. Thomas eventually fled his home, Mr. Normore stole his truck. Mr. Normore was arrested at his home later the same morning. [ 3 ] RCMP executed a search warrant at Mr. Normore’s residence approximately four months after his arrest and seized a number of documents which had been stored in an entertainment center in the living room. Some of the papers were clearly Mr.

Normore’s, such as a cheque stub, rental agreement, and papers signed by Mr. Normore. There were also a number of handwritten notes seized. Mr. Normore acknowledged writing one of the notes which stated that Mr. Thomas was one of “four people to be shot for killing and drugging and raping young girls in Deer Lake”. He denied writing a second note, that the “only good RCMP is a dead one and their rat’s” with the name Ron Thomas and two others printed near “rat’s”. Mr.

Thomas had brought two photographs depicting the two handwritten notes in question to the RCMP prior to the execution of the search warrant. [ 4 ] At trial, defence counsel argued that the documents taken from the apartment be given no weight as the continuity of the documents was in issue; from the date of Mr. Normore’s arrest and incarceration until the police seized the notes, approximately four months later, the apartment had not been secured and a number of people had access to the apartment.

Defence counsel took the position that some of the notes could have been forged or planted. [ 5 ] Defence counsel called Mr. Thomas as a witness to “answer a few questions that were not explored” when he testified previously in the proceedings. Defence counsel questioned Mr. Thomas about photographs of the notes police seized from Mr. Normore’s apartment and asked who gave Mr. Thomas the photographs. When Mr. Thomas initially refused to answer the question, the trial judge inquired as to the relevance of the question.

Defence counsel explained that the question was relevant to the defence position that some of the notes may have been forged and planted; the continuity of the evidence could go to weight the trial judge would assign to it. The following exchange then occurred: The Court: “Mr. Thomas, when you come to court you’re supposed to answer all questions.” Mr. Thomas: “I understand that, your Honour.” … The Court: “And failure to do so the Court can find you in contempt, do you realize that? Mr. Thomas: “Yes, I do” The Court: “Are you going to reconsider an answer?” Mr.

Thomas: “I just can’t do it your honour, I mean I feel I’d be putting this person’s life in danger. I just can’t do that. I give them my word when they gave me those notes that I would never say where it, where it came from. Mr. Normore is very unpredictable. I mean he suffers from schizophrenia, and he’s very unpredictable, and for him to have information like that, I don’t think it’s in anybody’s best interest. The Court: “We’re going to have to move on but I may, … you may have to come to Court later on, to deal with this matter after the trial is over.

So you are putting yourself in jeopardy”. [ 6 ] The trial judge did not take any further steps to elicit an answer from Mr. Thomas. After the trial, when the trial judge gave an abridged version of his decision on conviction, defence counsel asked the trial judge whether Mr. Thomas would face any consequences for refusing to answer the question. The trial judge replied that he did not think the answer to the question “would have had much bearing on the trial” and thus had decided not to proceed with any further sanction. ISSUES [ 7 ] The issues to be decided on this appeal are:

(1) Did the trial judge err in law when he addressed the refusal of Mr. Thomas to answer a question?

(2) If the trial judge erred in law, should the Court invoke the curative proviso in section 686(1)(b)(iii) of the Criminal Code ? [ 8 ] The appellant argues that the trial judge’s failure to take further steps to compel Mr. Thomas to answer the question was a reversible legal error and precluded a legitimate line of inquiry.

The appellant also contends that the curative proviso in section 686(1)(b) (iii) is not applicable and that a new trial should be ordered in relation to the offences of attempted murder, uttering a threat to cause death, and break and enter while committing attempted murder. [ 9 ] While the respondent agrees that the trial judge had the authority to take further steps to elicit an answer from Mr. Thomas, the respondent contends that the trial judge did as much as he reasonably could.

The respondent further argues that the curative proviso should be invoked as any error that may have been made by the trial judge was harmless and that, given the evidence relied upon by the trial judge, the verdict would not have been any different. ANALYSIS Duty to testify

[10] The duty of a witness to testify plays a central role in the administration of justice. The importance of the duty of a witness totestify was addressed in R. v. Abdullah, 2010 MBCA 79, 323 D.L.R. (4th) 275, where Hamilton J.A. stated: 34 A person has a general duty to testify when called upon to do so, except in clearly defined cases (as for example, spousal non-compellability), … . This duty is owed not just to the courts, but to society as a whole, and is essential to the proper administration ofjustice. 35 This duty was explained in R. v. Spencer (1983), (ON CA), 2 C.C.C. (3d) 526 (Ont.

C.A.), aff'd (SCC), [1985] 2 S.C.R. 278 (S.C.C.), in which MacKinnon A.C.J.O., for the court, wrote (at p. 533): As Wigmore points out (8 Wigmore, Evidence 2192, p. 70 McNaughton rev. 1961), it is recognized as a fundamental maxim that thepublic has the right to every man's evidence. It is a positive rule that there is a general duty to give what testimony one is capable ofgiving and any exemptions are exceptional. ....

It is clearly part of the law of this country that the state and the litigant are entitled to the relevant evidence of witnesses and the witnesscannot escape that obligation except in clearly defined cases. As Wigmore notes, from the point of view of society's right to everyone'stestimony, it is to be remembered that the demand comes not from any person or set of persons, but from the community as a whole —"from justice as an institution and from law and order as indispensable elements of civilized life" (Wigmore, op. cit., vol. 8, p. 73).

Theenforcement of the laws of this country are an essential part of the necessary civilized conduct of public affairs and the duty to givetestimony, not only in such cases but in all cases, is to the community at large. [11] Mr. Thomas did provide testimony but refused to provide an answer to a specific question after being directed to do so by thetrial judge. A witness’s refusal to answer a question in such circumstances is an interference with the administration of justice and theaccused’s right to a fair trial.

The role of the Court in situations where a witness refuses to testify or answer questions was addressed bythe Supreme Court of Canada, in R v.

Arradi, 2003 SCC 23, [2003] 1 S.C.R. 280, where Arbour J. stated: 34 ...The refusal by a witness — even if he or she is the accused — to answer the questions put to him or her is an affront to theauthority of the court, and it must be remedied in the court in such a way that the jury itself understands that compliance with the relevantlaw is not optional and understand the consequences for anyone who violates his or her oath. 35 When the appellant decided to testify, he swore to tell the whole truth. Despite the judge's numerous warnings, he refused to answerthe questions put to him.

The judge had to preserve the authority of the court, and citing the appellant for contempt was an appropriatemethod of achieving that end. [12] The Nova Scotia Court of Appeal addressed a similar situation in R. v. T. (D.B.), 1996 NSCA 54, 147 N.S.R. (2d) 308, stating: 10 … It is essential to the operation of that court that witnesses must testify; justice cannot be done if persons called as witnesses canrefuse with impunity to give evidence, or even to be sworn.

A reluctant witness is obviously a problem, but it is a problem the judge mustsolve; his discretion for doing so is broad, including contempt proceedings with the possibility of custody or other sanctions as a lastresort if cautionary or persuasive efforts fail. (Emphasis added.) [13] The power of contempt is available to a judge in cases where a witness refuses to testify because such a refusal is a seriousaffront to the administration of justice and it is the judge’s duty to preserve the authority of the Court in such situations, as stated byArbour J. in Arradi: 29 The courts are given the power to punish contempt of court "so as to maintain the dignity and authority of the judge and to ensurea fair trial" (B.C.G.E.U. v.

British Columbia (Attorney General), (SCC), [1988] 2 S.C.R. 214, at p. 238 (per DicksonC.J.), citing Balogh v. Crown Court at St. Albans, [1974] 3 All E.R. 283 (C.A.), at p. 288 (per Lord Denning)). … [14] It must be remembered that this appeal is not an appeal from a contempt conviction; it is an appeal from three convictions forserious crimes on the basis that the trial judge’s failure to follow the correct contempt procedure was an error which affected the fairnessof the accused’s trial by precluding a legitimate line of inquiry relevant to the defence.

Analysis of the issue nonetheless requires a briefreview of the law of contempt. Power of contempt [15] The power of contempt is preserved under

section 9 of the Criminal Code which provides: Notwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under

section 730 (

a) of an offence at common law, (

b) of an offence under

an Act of the Parliament of England, or of Great Britain, or of the United Kingdom of Great Britain and Ireland,or (

c) of an offence under

an Act or ordinance in force in any province, territory or place before that province, territory or place became aprovince of Canada, but nothing in this

section affects the power, jurisdiction or authority that a court, judge, justice or provincial court judge had,immediately before April 1, 1955, to impose punishment for contempt of court. [16] As explained by Arbour J. in Arradi, contempt may be dealt with by one of two procedures:

29 … the ordinary procedure, which provides the accused with the usual procedural guarantees of a criminal trial, or the

summaryprocedure, which allows the judge to avoid the formalities of a criminal trial to convict a person of contempt of court, even instanter insome cases (B.C.G.E.U., supra, at p. 238; R. v. K.(B.), (SCC), [1995] 4 S.C.R. 186, at paras. 8-9; [17] The ordinary procedure was outlined by Lamer C.J. in R. v.

K. (B.), (SCC), [1995] 4 S.C.R. 186 in which hestated: 15 … the usual steps, required by natural justice, of putting the witness on notice that he or she must show cause why they would not befound in contempt of court, followed by an adjournment which need be no longer than that required to offer the witness an opportunity tobe advised by counsel and, if he or she chooses, to be represented by counsel.

In addition, upon a finding of contempt there should be anopportunity to have representations made as to what would be an appropriate sentence. … [18] The penalties a person may face if convicted of contempt are serious. Lord Denning M.R. summarized the sanctions available atcommon law in the case of Morris v. Crown Office, [1970] 1 All E.R. 1079 (C.A.) at p. 1083: … The powers at common law remain intact.

It is a power to fine or imprison, to give immediate sentence or to postpone it, to commit toprison pending his consideration of the sentence, to bind over to be of good behaviour and keep the peace, and to bind over to come upfor judgment if called on. These powers enable the judge to give what is, in effect, a suspended sentence. … [19] The availability of the sentencing provisions of the Criminal Code in imposing a sentence for contempt was confirmed inPuddester v. Newfoundland (Attorney General), 2001 NLCA 25 , 2001 NFCA 25, 226 Nfld. & P.E.I.R. 1 where Roberts J.A. stated: 32 In

summary, while I acknowledge that contempt of court has not as a result of its preservation as a common law offence in s. 9 ofthe Criminal Code become a Criminal Code offence, I do not accept that a sentencing judge can only sentence for contempt withsanctions recognized at common law. While a sentencing judge is not restricted to the sentencing provisions of the Criminal Code, I amof the opinion that he or she can, and should, have recourse to them, either by express adoption or by analogy. [20] The purpose of the power of contempt was addressed by Scott C.J.M. in R. v. Jacob, 2008 MBCA 7, 225 Man.

R. (2d) 111: 25 The purpose of criminal contempt is explained by Mr. Justice E. G. Ewaschuk, Criminal Pleadings & Practice in Canada, 2nded., looseleaf (Aurora: Canada Law Book, 2007) as follows (at para. 29:0040): Criminal contempt is aimed at punishing public acts which tend to bring the administration of justice into disrepute and interfere with thedue administration of justice. It is directed at the protection of the integrity of the administration of justice. Its general purpose is toprotect the fairness of the trial process. (Emphasis in original.) [21] As can be seen from the above

summary of the law of contempt, the serious consequences that may follow the exercise of thecontempt power reflect the serious nature of the duty of a witness to testify. Application [22] In this case, the trial judge, upon Mr. Thomas's refusal to answer the question, immediately inquired as to the relevance of thequestion. Upon satisfying himself that the question was relevant to the defence the trial judge stated “Mr. Thomas, when you come tocourt you’re supposed to answer all questions”. When Mr. Thomas persisted in his refusal the trial judge warned Mr.

Thomas that hecould be cited for contempt if he continued to refuse to answer the question. Mr. Thomas again declined to answer the question. Thetrial judge took no further steps to elicit an answer stating “We’re going to have to move on but I may, … you may have to come to Courtlater on, to deal with this matter after the trial is over. So you are putting yourself in jeopardy”. [23] The Crown has made much of the propositions that the question to which defence counsel sought an answer was not relevant andthat defence counsel had other tools at their disposal to elicit an answer from Mr. Thomas.

The issue of the relevance of the question(though perhaps a consideration where a person has been cited in contempt and must show cause why they should not be convicted or onan appeal from a contempt conviction) is not an issue here. [24] The trial judge, as noted, satisfied himself that the question was relevant to the defence and made it clear to Mr. Thomas that itwas his duty to answer all questions. As stated by Dubin J.A. in R. v. Fields, (ON CA), 56 O.R. (2d) 213 (C.A.) atpara. 11, it is the trial judge not the witness who determines the relevancy of a question. [25] Further, when Mr.

Thomas again refused to answer the question the trial judge warned Mr. Thomas that he may be cited forcontempt. A citation for contempt and the possible consequences are the most powerful tools available to deal with reluctant witnesses.What other steps could defence counsel have reasonably taken once the trial judge embarked on this path?

Certainly nothing that couldequate to the threat of contempt. [26] One of the purposes of the ordinary contempt procedure as outlined in K.(B.) is to encourage witnesses to comply with their dutyto testify by giving the witness the opportunity to be informed as to the importance of the duty and the serious consequences which mayfollow upon refusal of such duty. [27] The issue here is what was the appropriate action of the trial judge, after making it clear to Mr. Thomas that he was obligated toanswer the question, when he was met with the persistent refusal of Mr.

Thomas despite being warned that he may be cited forcontempt. It was then incumbent upon the judge to take all reasonable steps (as noted in K.(B.), Morris, and Puddester significant formsof encouragement are available) to compel Mr. Thomas to answer the question put to him. By not doing so, the trial judge jeopardizedthe fairness of the trial process.

[ 28 ] The reasoning of the Nova Scotia Court of Appeal in T. (D. B.) applies in this case: 11 In our opinion the trial judge erred in fettering his discretion by appearing to adopt a policy of refusing to compel evidence from alleged victims of offences. … the trial judge's conclusion was not a valid exercise of discretion but rather a refusal to exercise jurisdiction. [ 29 ] Here, the trial judge’s refusal to take any further steps to elicit an answer from the witness was an error of law. Curative Proviso [ 30 ] Having determined that the trial judge erred by not taking further steps to address Mr.

Thomas’s refusal to answer a question during his testimony at trial, should the Court invoke the curative proviso in section 686(1)(b)(iii) of the Criminal Code ? [ 31 ]

Section 686 permits the Court of Appeal to allow an appeal against conviction only where there has been an unreasonable verdict, an error of law, or a miscarriage of justice. Both the appellant and respondent acknowledge, and I agree, that the error committed by the trial judge in this case should be classified as an error of law. However, a conviction may nonetheless be upheld if section 686(1)(b)(iii) applies. The test for invoking the curative proviso under this

section was outlined by LeBel J. in R. v. Van , 2009 SCC 22 , [2009] 1 S.C.R. 716 , at paragraph 34 : ... However, it still falls to this Court to determine whether the convictions can be upheld despite the existence of an error, with resort to s. 686(1)(b)(iii) of the Code . Under this provision, a conviction can be upheld providing that the error has not resulted in a substantial wrong or a miscarriage of justice. The Crown bears the burden of showing the appellate court that the provision is applicable, and satisfying the court that the conviction should stand notwithstanding the error.

To do so, it must establish that the error of law falls into one of two categories. First, that it is an error so harmless or minor that it could not have had any impact on the verdict. In the second category are serious errors that would otherwise justify a new trial or an acquittal, but for the fact that the evidence against the accused was so overwhelming that any other verdict would have been impossible to obtain: Khan ; R. v.

Trochym , 2007 SCC 6 , [2007] 1 S.C.R. 239 . [ 32 ] The appellant argues that the evidence was “scarcely overwhelming in the offence of attempted murder, uttering a threat to cause death and break and enter while committing attempted murder” thus the issue is “whether the trial judge’s error was harmless or minor given the nature of the contested evidence at trial and Mr.

Normore’s prospects for undermining it”. [ 33 ] The respondent argues that the curative proviso should apply as any error the trial judge may have committed was a harmless error and that given the evidence accepted by the trial judge, the verdict would not be any different. Was the error harmless or minor? [ 34 ] Mr. Normore acknowledged writing one of the notes that Mr. Thomas was one of “four people to be shot for killing and drugging and raping young girls in Deer Lake”.

He denied writing a second note, that the “only good RCMP is a dead one and their rat’s” with the name Ron Thomas and two others printed near “rat’s”. The question Mr. Thomas refused to answer was who gave Mr. Thomas the photographs of the notes. The defence asked the question intending to pursue a line of inquiry relative to defence’s position that the note Mr. Normore denied writing was forged or planted. [ 35 ] By abandoning the contempt proceeding the trial judge failed to use all of the tools at his disposal to compel Mr.

Thomas to answer the question thereby foreclosing the inquiry into the continuity of the notes which may have impacted the weight to be given to the second note. The trial judge relied upon both notes in convicting Mr. Normore: [39] The written material taken from Mr. Normore’s apartment contains two references to Mr. Thomas. On one written sheet (L.S. #1) “Ron Thomas” is included as one of “FOUR PEOPLE TO BE SHOT FOR KILLING AND DRUGGING AND RAPING YOUNG GIRLS IN DEER LAKE”. Close to their names were printed the words “R.C.M.P. Dirty COPS RAT PACK”. Mr.

Normore admitted writing this statement but says that he does not recognize the insertion of the words relating to “rat pack”. [40] Another written page (L.S. #2) contains a note stating “The only GOOD R.C.M.P. is A ‘DEAD ONE’ & Their RAT’S”. The name “Ron Thomas” and two others are printed near the words “RAT’S”. Mr. Normore denies printing this note. However, I do not accept his evidence as this piece of paper was found with other material clearly belonging to Mr.

Normore and expressed the same views as L.S. #1 which he admitted to writing. [41] These writings substantiate the idea that doing serious harm to Mr. Thomas had become an obsession of Mr. Normore. [42] Based on the evidence, I am of the opinion that Mr. Normore had the requisite intention to murder Ronald Thomas. … [50] As well, the two notes referred to in the evidence relating to the charge of attempted murder contain threats and views similar to the comments recounted by Mr. Thomas as to what was said by Mr.

Normore during the encounter of March 1, 2014. (Emphasis added.) [ 36 ] It is clear that the trial judge relied on the second note; the one Mr. Normore denied writing. The two notes were the only documents from the bundle of documents relied upon by the trial judge. The judge specifically states “these writings substantiate the idea that doing serious harm to Mr. Thomas had become an obsession ” (emphasis added).

Thus both notes were material in the trial judge’s decision and one without the other was less persuasive in establishing intent to kill. [ 37 ] Significantly, the trial judge also specifically cited the lack of evidence or foundation that the documents seized from Mr.

Normore’s apartment had been forged or planted. [19] Counsel for Mr. Normore argues that the documents taken from the apartment be given no weight as from March 1, 2014 (the dayof the arrest and incarceration of her client) up to the time when the documents were taken by the police there were times when theapartment was not secure and that a number of individuals had access to the building. Some of the incriminating papers referred to by theCrown, according to Mr. Normore’s counsel, could have been planted. … [21] While I accept that from March 1, 2014 to July 8, 2014 a number of individuals had access to Mr.

Normore’s apartment, there is noevidence or foundation that any of these documents were planted. … (Emphasis added.) [38] Had the trial judge followed the proper procedure and taken all reasonable steps to elicit an answer from Mr. Thomas, Mr.Thomas may have answered the questions. [39] As counsel for the appellant argued, it is just as speculative to say the inquiry would be fruitless as to say it would have beenfruitful because the trial judge, by abandoning the contempt proceeding until after the trial, permitted Mr. Thomas’s contempt to stymiethe inquiry.

Thus the error cannot be classified as harmless or minor as a legitimate line of inquiry into the continuity of the documentswas foreclosed; a line of inquiry which may have affected the weight given to the second note and thus may have affected the trialjudge’s findings of guilt. Was the evidence overwhelming? [40] Although the trial judge’s error falls into the second category of errors that justify a new trial or an acquittal, this Court must stillconsider whether “evidence against the accused was so overwhelming that any other verdict would have been impossible to obtain” (Vanat paragraph 34).

As the convictions under appeal are attempted murder, uttering a threat to cause death, and break and enter whilecommitting attempted murder and the trial judge relied upon the notes in finding the requisite intention for these offences, the centralquestion is whether there was overwhelming evidence that Mr. Normore intended to kill Mr. Thomas during the break and entry and thathe intended to utter a threat to kill Mr. Thomas. [41] In R. v. Pavlov, 2009 NLCA 44, 289 Nfld. & P.E.I.R., at para. 14, Barry J.A. considered this aspect of the curative provisoquoting Sopinka J. in R. v.

S. (P.L.), (SCC), [1991] 1 S.C.R. 909, at p. 916: On the other hand, if the Court of Appeal finds an error of law with the result that the accused has not had a trial in which the legal ruleshave been observed, then the accused is entitled to an acquittal or a new trial in accordance with the law. The latter result will obtain ifthere is legally admissible evidence on which a conviction could reasonably be based.

The court cannot substitute its opinion for that ofthe trial court that the evidence proves guilt beyond a reasonable doubt because the accused is entitled to that decision from a trial judgeor jury who have all the advantages that have been so often conceded to belong to the trier of fact. If the Court of Appeal were to makethat decision the accused would be deprived of a trial to which he or she is entitled, first, by reason of the abortive initial trial and secondby the Court of Appeal.

There is, however, an exception to this rule in a case in which the evidence is so overwhelming that a trier of factwould inevitably convict. In such circumstances, depriving the accused of a proper trial is justified on the ground that the deprivation isminimal when the invariable result would be another conviction. These limitations on the powers of the Court of Appeal are the result ofthe combined effect of s. 686(1)(a)(ii), (b)(ii) and (iii) and s. 686(2).

By virtue of s. 686(1)(b)(ii) the Court of Appeal cannot dismiss theappeal if it has found an error of law unless the curative provision embodied in s. 686(1)(b)(iii) applies. If the appeal is not dismissed itmust be allowed, and pursuant to the provisions of s. 686(2) either an acquittal or a new trial must be ordered. [42] Barry J.A. further noted, at para. 16, the statement of Deschamps J. in R. v.

Trochym, 2007 SCC 6 , [2007] 1 S.C.R. 239,at para. 82: The instant case is one that falls squarely within the second category of serious errors that will justify a new trial unless the properlyadduced evidence is so overwhelming that a conviction is inevitable, or would invariably result. This standard should not be equated withthe ordinary standard in a criminal trial of proof beyond a reasonable doubt. The application of the proviso to serious errors reflects ahigher standard appropriate to appellate review.

The standard applied by an appellate court, namely that the evidence against an accusedis so overwhelming that conviction is inevitable or would invariably result, is a substantially higher one than the requirement that theCrown prove its case "beyond a reasonable doubt" at trial. This higher standard reflects the fact that it is difficult for an appellate court,in particular when considering a jury trial, since no detailed findings of fact will have been made, to consider retroactively the effect that,for example, excluding certain evidence could reasonably have had on the outcome. [43] In convicting Mr.

Normore of attempted murder, uttering a threat to cause death, and break and enter while committingattempted murder the trial judge relied upon the testimony of Mr. Thomas and Mr. Normore. There was no one else present when theincident occurred and Mr. Thomas’s injuries were relatively minor. [44] As I have discussed above, the trial judge clearly relied upon the two notes in convicting Mr.

Normore of the three crimes atissue. [45] It cannot be said that the evidence was so overwhelming that the trial judge would have found the requisite intention forattempted murder or the intent to utter a threat to cause death had he not considered the second note, the weight of which may have beenaffected had the trial judge taken further steps to compel Mr. Thomas to answer the question. Further, it cannot be determined whether aconviction would have followed if the defence had been able to pursue the line of inquiry regarding the position that some of the notesmay have been forged or planted.

Given the trial judge’s error, it is unknown what evidence may have come to light; evidence that mayhave affected the outcome of the trial.

[ 46 ] I would find that the curative proviso is not applicable in this case. CONCLUSION [ 47 ] In

summary, I would allow the appeal, quash the convictions for attempted murder, uttering a threat, and break and enter while committing attempted murder, and order a new trial on those charges as per section 686 (2) (

b) of the Criminal Code . Dissenting Reasons by Hoegg J.A.: INTRODUCTION [ 48 ] This appeal concerns a trial judge’s obligation when a witness refuses to answer a question put to him by counsel. In this case the principal witness, Ronald Thomas, was asked who had sent him photographs of two handwritten documents – L.S. #1 and L.S. #2 - that had been seized in a search of Mr. Normore’s apartment and tendered in evidence against him. Mr.

Thomas refused to answer, explaining that he had promised the person who sent him the photographs that he would not disclose his or her name due to fear that such disclosure would put the person in danger. BACKGROUND [ 49 ] Mr. Thomas testified in chief for the Crown and was cross-examined by defence counsel respecting the charges against Mr. Normore. After Mr. Thomas completed his testimony, he was recalled by the defence to testify in a voir dire on a late-requested

section 8 Charter application relating to the admissibility of evidence police seized in a search of Mr. Normore’s apartment. L.S. #1 and L.S. #2 were among the seized evidence the defence was seeking to exclude. It was during his direct examination by defence counsel in the voir dire when Mr. Thomas was first asked who had sent photographs of the documents to him. [ 50 ] The transcript reveals the following: Q. You’re not sure where they [the photographs] were taken? A. I wouldn’t have no way of knowing that, no. Q. And how did they come to be in your possession? A. Somebody just gave them to me. Q.

And who was that? A. Well, I feel if I say who did that, it could be putting their life in danger. Q. Well - - THE COURT: You’re gonna have to answer the question, Mr. Thomas. A. What was that? Q. You’re gonna have to answer the question. A. I can’t answer that, sir. MS. MacKINNON (Defence Counsel): So you’re refusing to answer the question of who gave you the photos? A. Yes, I - - MS. ST. CROIX (Crown Counsel): I’m - - Your Honour, I’m - - Mr. Justice, I’m not sure what the Court said, if the Court asked the witness to answer the question - - THE COURT: Yes. MS. ST. CROIX: - - or indicated he didn’t have to.

I didn’t hear what the Court said. THE COURT: I asked him - - I told him to answer the question. Unless it’s not important to anyone - - to both sides but - - MS. ST. CROIX: Well - - MS. MacKINNON: It is important to the defence that he answer the question. MS. ST. CROIX: The Crown doesn’t think it’s relevant in any way to this Charter application. THE COURT: Well, anyway. Why don’t you - - you got to - - once you’re called as a witness, you got to answer all the questions that you - - that’s put to you. A. Even if it means it’s gonna endanger somebody’s life? Q. And how is that?

How would it endanger someone’s life? A. Because due to Mr. Normore’s conditions. You know, I mean, he endangered my life for a lot less reason. Q. Ms. MacKinnon, why is it important that you know the - - who gave him the photographs, is it? MS. MacKINNON: Because we’ve been advised by the previous witness here that the apartment was secure. We’ve been advised of how many times the witness prior to Mr. Thomas went to the apartment. Mr. Thomas went to the police in June.

He doesn’t know the exact date, but he says it’s - - he thinks it was early June; and in early June the apartment, I - - the defence contends that Mr. Normore had an expectation of privacy of his apartment in June. So if somebody obtained those photos from the apartment and gave them to Mr. Thomas, I would like to know the identity of that person. A. Well, I can tell you one thing, that the person told me that the notes were taken. MS. ST. CROIX: Mr. Justice, I can’t actually - - I’m gonna have to object to this. This is gonna be hearsay evidence about what this unknown person said. The - -

MS. MacKINNON: I want to know who gave him the photos. I don’t know what he - - what is said; I wanna know who gave him the photos. THE COURT: Mr. - - MS. ST. CROIX: Mr. - - THE COURT: - - Mr. Thomas, did you tell the police who gave you the photographs? A. No, I did not, but I did say this person said that the photos were taken at the apartment while Alex [Normore] was at the apartment when he left the room. MS. ST. CROIX: Well, Mr. Justice, I - - again, that’s hearsay information. We can’t - THE COURT: Yeah, it’s hearsay. Yes. MS. ST. CROIX: - - accept that for the truth of its contents.

The question that this Court is being asked to answer is about state intrusion on - - [an] expectation of privacy. The question should only be limited to whether or not Mr. Thomas knows if the police gave him that - - or a state actor [g]ave him that - - those photos because that’s the ultimate question. It’s not about the random people in the community who are doing things. It’s about the state intrusion into the privacy interest of an accused. THE COURT: Yeah. Ms. MacKINNON: That’s correct, and, certainly, it’s important to know that Mr. Thomas, in fact, turned those photographs over to the police.

THE COURT: Mr. Thomas, the person who gave you those photographs, that wasn’t a policeman, was it? A. No. Q. Anyone - - was it a person who worked for the police? A. No. Q. Anyone - - did he have involvement with the police? A. No. Q. That satisfy you, Ms. MacKinnon? MS. MacKINNON: Hey? THE COURT: Does that satisfy you the - - I mean, obviously, ( unintelligible ) - - Ms. MacKINNON: As I said, I - - the thing here is about the - - what expectation Mr. Normore had in regards to his privacy and whether or not someone went into that apartment when he had an expectation of privacy.

And I will have other evidence given by the police today in regards to the securing of the apartment and also in terms of Mr. [Thomas’s] evidence here as well. It isn’t satisfactory, but, certainly, I would like to know the identification of that person, but I can’t force Mr. Thomas to tell me. THE COURT: Well, I guess we can, but is it - - you know, is it worth the effort and the problem with it, but I guess it’s - - I think Ms. St. Croix is right . If - - unless it was a police officer that really, sort of - - you know, it’s not really all that material , is it? MS.

MacKINNON: I’d be satisfied with the information that’s been provided to me at this point. THE COURT: Okay. Thank you. . . . MS. MacKINNON: Mr. Thomas has argued that someone went to the apartment. He does not want to disclose who. I’m trying to rule out whether or not it was Mr. Thomas himself who went to the apartment. THE COURT: Well, is it important? MS. MacKINNON: It is - - THE COURT: I mean, he said he was given the photographs or the - - so I assume that he wouldn’t - - MS.

MacKINNON: He may have been given the - - or the photographs, but it may be very well that he was in the apartment, as well, at the time when the photographs were taken. So I’m just - - wanna know if he went to the apartment at all between the time that the - - Mr. - - of the alleged incident on March the 1st and the time that he went and delivered these police - - these photos to the police. THE COURT: And is that important? Why is it important, Ms. - - MS. MacKINNON: It’s important in regards to whether or not Mr. Normore’s privacy rights were breached, and I know my friend’s going to say that Mr.

Thomas is not an agent of the state. However, there is other information in regards to the obligation of the officers of the state in terms of securing Mr. Normore’s apartment when they were in there that I will be asking questions of them about later on today. . . . (WITNESS EXCUSED) [ 51 ] Counsel had argued that her question on the voir dire was related to her client’s privacy interest. After the Judge clarified that an

accused’s privacy interest on a

section 8 Charter application concerns state conduct, and it was established that there was no state involvement in the matter thus making the question irrelevant to the voir dire , counsel indicated she was satisfied. [ 52 ] The Court subsequently ruled that there was no breach of Mr. Normore’s

section 8 Charter right and that the evidence seized in the search of Mr. Normore’s apartment, including documents L.S. #1 and L.S. #2, was admissible. The documents were admitted into evidence through Constable Leon Sheppard. [ 53 ] Constable Sheppard testified that L.S. #1 and L.S. #2 were seized in a search of Mr. Normore’s apartment approximately four months after he was arrested. They were found in a pile of papers on an entertainment centre in Mr. Normore’s apartment.

On L.S. #1 the name “Ron Thomas” is listed as one of four names of people to be shot for “killing and drugging and raping young girls in Deer Lake”. On L.S. #2, the words “the only good RCMP is a dead one and their rat’s” and the name “Ron Thomas” is written, along with two other names, near the word “rat’s” with an arrow pointing from the names to the word “rat’s”. [ 54 ] At trial, Mr. Normore was asked to identify several documents found in the pile of papers in his apartment and introduced into evidence by Constable Sheppard. Mr.

Normore identified several of the documents and specifically admitted writing L.S. #1. However, he said he did not recognize L.S. #2. [ 55 ] During the case for the defence, Mr. Normore’s counsel advised the Court that she was calling Mr. Thomas to testify again. The transcript shows the exchange that followed defence counsel’s announcement in this regard: THE COURT: So who’s the next witness? MS. MacKINNON: Yes, Mr. Justice, it’s Ron Thomas. THE COURT: Okay, just one second now. Why are you calling Mr. Thomas? MS. MacKINNON: There’s a line of questioning that I did not follow with Mr.

Thomas in regard to the fourth interview that he gave – I’m sorry, the third interview that he gave in June 2014. I began questioning him about it, I decided to not pursue it, and in particular what I want to have Mr. Thomas respond to today is – I want him to tell the court where he got the photographs that he took to the police in June of 2014. THE COURT: I think that was already dealt with wasn’t it? MS. MacKINNON: No.

I decided not to push the issue at the time because we were still in a [C]harter, [C]harter argument about whether or not those documents were going to come – he was questioned about it as part of the Charter [a]pplication. … When Mr. Thomas refused to answer the question in regards to where he got it, I did not ask for that information to be tendered to the court as evidence, and I didn’t pursue it any further because I thought it might compromise my Charter [a]pplication.

Given now that the evidence is before the court in terms of the documents that were obtained by the police in the search of – in July of 2014, I believe now that Mr. Thomas’s testimony is very relevant to the credibility that the court can put on the documents that have now been admitted into evidence. THE COURT: Why is that? MS. MacKINNON: Well, I don’t want to lay out my whole case here. But basically, two of the documents that Mr. Thomas has are identical documents to what is in the package there. THE COURT: That wouldn’t surprise you, would it? MS. MacKINNON: Well, how did he get them?

THE COURT: Why is that relevant? MS. MacKINNON: He’s told us he wasn’t in the apartment. Did he place them there? Did somebody else place them there? THE COURT: He, he said he got them from a third party, is that correct? . . . [ 56 ] Counsel gave different reasons for wanting to know who gave Mr. Thomas the photographs, saying at page 72 of volume VIII of the transcript that the credibility the Court could put on the documents concerned her, and at page 76 that she wanted to explore the relationship between Mr.

Thomas and Aaron Hayes, who had been identified by police as the person who had advised them about the documents being in Mr. Normore’s apartment. Counsel suggested that perhaps someone had planted the documents in Mr. Normore’s apartment in the time between when he was arrested and held for trial and when the search warrant was executed. [ 57 ] The Court recessed over lunch with no decision on whether counsel would be permitted to recall Mr. Thomas.

When Court resumed the Judge said that he had had chance to check the law regarding the recalling of witnesses, and determined that he could exercise his discretion to permit the defence to recall Mr. Thomas, and he so ruled. [ 58 ] Defence counsel questioned Mr. Thomas respecting his relationship with Mr. Hayes and then asked Mr. Thomas who had sent him photographs of the documents: Q. So, Mr. Thomas, where did you get those photographs? A. Somebody gave me the photographs. Q. And where, and when, and how did this happen? A.

I’m not sure when it was – probably two or three weeks before I went and took it to the police station, probably.

Q. Probably a couple of weeks before you went to the police? A. Yeah, yeah. Q. Okay. So – and you say somebody gave them to you? A. Yes. Q. Okay. So who gave them to you? A. I really can’t say that. Q. Well I’m, I’m putting it to you and I’m asking you to tell the court who gave you those images? A. But, but – THE COURT: Is that really relevant Ms. MacKinnon? MS. MacKINNON: Well, it is, Your Honor, in the sense that again, the evidence – what credibility can we put on this evidence, given that before the police found it, Mr. Thomas was in at the police station giving them photographs of the same evidence.

THE COURT: Are you saying that the documents that we took into evidence [were] doctored in some way or – MS. MacKINNON: Or planted. THE COURT: What do you mean planted? MS. MacKINNON: Somebody else put them there. THE COURT: It doesn’t make any difference if they’re, if they’re – I mean this is a matter of argument, I guess, really, isn’t it? MS. ST. CROIX: Yes, Mr. Justice. THE COURT: We’re getting like far afield now aren’t we from what’s going on. MS. ST. CROIX: Mr. Justice, if it helps, the Crown acknowledges there is – there are weight arguments to made with the documents that were tendered.

The pieces of paper that were tendered in evidence through Constable Sheppard this morning. There are weight arguments to be made on both sides. That’s all I can acknowledge. THE COURT: What is your reason for knowing who gave – I mean the fact that there may be copies, other copies of the document floating around that – MS. MacKINNON: There could be but I still – it’s curious to my, my – for me to know how it is that Mr. Thomas got copies of it, and if he got them three weeks before he went to the police, why did he take so long to go to the police.

So, you know, the comments that he made the last time he was in court when he was asked about this was he was afraid for his life, that’s not what he’s saying today. But I asked him where did they come from – I do believe that my client has a right to know if somebody was in his apartment, somebody took things out of his apartment, somebody planted something in his apartment, I think my client has a right to know that. THE COURT: When you say – before he went to the police, was that before the complaint was made concerning an assault or was that subsequent. A. (Mr. Thomas) That was after, I think so, yes.

But I never seen those original documents before, I mean I never ever seen that. That’s the first time. … THE COURT: Ms. MacKinnon, now curiosity is one thing, relevance is another you know. MS. MacKINNON: I do think it’s highly relevant. I mean yes it is a question of weight, but I, I just – one of the things that – I fought to keep them out of court. THE COURT: What’s that? MS. MacKINNON: I fought to try and keep them out of court period– THE COURT: Right. MS. MacKINNON: – because I felt that they were prejudicial and I also felt that they were not credible.

The court has decided that they will be – that they are admissible, there is an issue of credibility but I also feel that the court needs to hear from the witnesses, how come it is that Mr. Thomas had access to this before the police even had access to it. THE COURT: And where does that get you? MS. MacKINNON: It, it raises doubt in the sense that Mr. Thomas, even though he says he wasn’t at the apartment, he’s got photographs of documents and he’s not gonna tell the court where he was, then we’ll leave it to the court to determine then perhaps then maybe he was at the apartment, and he did take photographs.

If he’s not willing to tell the court where he got these documents from. THE COURT: But he gave evidence that he, that he didn’t go to the apartment. MS. MacKINNON: He did, but he won’t tell us where the documents come from, came from. And when I tried to canvass this with him before I decided to let it go at that point, Mr. Justice; you asked me if I wanted to push the issue any further at that point, at that point because we were in the middle of a Charter [a]pplication, I was not prepared to do it at that particular point in time, not without a real ruling on the Charter. THE COURT: Mr.

Thomas, when you come to court you’re supposed to answer all questions. A. I understand that, Your Honor.

THE COURT: What’s that? A. I understand that. THE COURT: And failure to do so the court can find you in contempt, do you realize that? A. Yes, I do. THE COURT: Are you going to reconsider an answer? A. I, I just can’t do it Your Honor, I mean that I feel that I’d be putting this person’s life in danger, I just can’t do that. I gave them my word when they gave me those notes that I would never say where it, where it came from. Mr.

Normore is very unpredictable, I mean he suffers from schizophrenia, and he’s very unpredictable, and for him to have information like that, I don’t think it’s in anybody’s best interest. THE COURT: We’re going to have to move on but I may, you may have, you may have to come to court later on to, to deal with this matter after, after the trial is over. So you are putting yourself in jeopardy. A. Your Honor, when I showed the police these notes I didn’t really expect these notes to really become a part of this trial as such.

I just – it was just before there was a bail hearing and I just kind of felt obligated that if, if he got out on bail and went to the police station and shot police officers or something, and I had those notes before the fact, I just kind of felt it was – just kind of obligated to let the police see this right; I didn’t really expect this to end up in this – as a part of this trial. THE COURT: So anyway, I’m gonna ask you again and if not – if you don’t answer we’re going to have to move on but this, this will not be the end of it. So that – are you going to answer the question that Ms. MacKinnon put to you? A.

No, I can’t do it. THE COURT: So anyway, we’ll have to deal with this at a later time. … [ 59 ] The Judge recognized that Mr. Thomas was unwavering in his position, and took no further steps to elicit an answer from him. He did not order Mr. Thomas to answer the question nor did he cite Mr. Thomas for contempt. [ 60 ] The trial concluded and the Judge convicted Mr. Normore of five of the seven charges against him, including the attempted murder charge. It should be noted that Mr. Normore admitted in his testimony to entering Mr. Thomas’s home in the early morning and assaulting him (while Mr.

Thomas lay in his bed) with a three-foot long metal flashlight in an attempt to intimidate him. In convicting Mr. Normore, the Judge reviewed the evidence respecting the attack on Mr. Thomas, accepting Mr. Thomas’s evidence as to what had occurred and rejecting that of Mr. Normore. [ 61 ] The Judge also relied on L.S. #1 and L.S. #2 in convicting Mr. Normore of the attempted murder charge. At paragraphs 19 and 21 of his decision, he reasoned: [19] Counsel for Mr.

Normore argues that the documents taken from the apartment be given no weight as from March 1, 2014 (the day of the arrest and incarceration of her client) up to the time when the documents were taken by the police there were times when the apartment was not secure and that a number of individuals had access to the building. Some of the incriminating papers referred to by the Crown, according to Mr. Normore’s counsel, could have been planted. . . . [21] While I accept that from March 1, 2014 to July 8, 2014 a number of individuals had access to Mr.

Normore’s apartment, there is no evidence or foundation that any of these documents were planted. The papers set out in paragraph 18 are, for the most part, government and business documents containing Mr. Normore’s name and in some cases his signature, strongly suggesting that the complete bundle belonged to Mr. Normore. [ 62 ] The Judge also noted that Mr. Thomas’s evidence that the threats Mr. Normore uttered to him during the assault were similar in nature to the threats and comments contained in L.S. #1 and L.S. #2.

At paragraphs 39 to 41 and paragraph 50, the Judge explained: [39] The written material taken from Mr. Normore’s apartment contains two references to Mr. Thomas. On one written sheet (L.S. #1) “Ron Thomas” is included as one of “FOUR PEOPLE TO BE SHOT FOR KILLING AND DRUGGING AND RAPING YOUNG GIRLS IN DEER LAKE”. Close to their names were printed the words “R.C.M.P. Dirty COPS RAT PACK”. Mr.

Normore admitted writing this statement but says that he does not recognize the insertion of the words relating to “rat pack”. [40] Another written page (L.S. #2) contains a note stating “The only GOOD R.C.M.P. is A ‘DEAD ONE’ & Their RAT’S”. The name “Ron Thomas” and two others are printed near the words “RAT’S”. Mr. Normore denies printing this note. However, I do not accept his evidence as this piece of paper was found with other material clearly belonging to Mr.

Normore and expressed the same views as L.S. #1 which he admitted to writing. [41] These writings substantiate the idea that doing serious harm to Mr. Thomas had become an obsession of Mr. Normore. . . . [50] As well, the two notes referred to in the evidence relating to the charge of attempted murder contain threats and views similar to the comments recounted by Mr. Thomas as to what was said by Mr. Normore during the encounter of March 1, 2014. [ 63 ] I would note that the Judge’s acceptance that Mr.

Normore had authored L.S. #2 is hardly surprising given that both handwritten documents were found in the same pile of papers in Mr. Normore’s apartment and both contained pejorative comments about Mr. Thomas. Moreover, L.S. #2 was written on the back of a typewritten letter addressed to Mr. Normore from a social worker. [ 64 ] After convictions were entered, defence counsel asked the Judge what he was going to do about Mr. Thomas’s refusal to answer her question as to who had sent him the documents. The Judge responded to counsel’s inquiry saying “Yes, I intended to deal with that. … Mr. Thomas is here now.”

[65] The Judge then said: “[When] that matter arose, it was a question whether that issue was really relevant. Mr. Thomas eventually was asked to state or respondto a question and he was reluctant to do so because of intense fear. And since I have read the Victim Impact Statement as well as thePre-sentence Report, I do have some sympathy for Mr. Thomas. Obviously he has been through a lot and in retrospect I don’t think theanswer to the question would have had much bearing, have any bearing on the trial. And for that reason the Court has decided not toproceed further with any sanction against Mr.

Thomas.”… APPEAL [66] Mr. Normore argues on appeal that the Judge erred by not taking further steps to compel Mr. Thomas to say who had sent himthe photographs of documents L.S. #1 and L.S. #2. Mr. Normore maintains that the Judge’s inaction in his regard prevented him fromexploring whether L.S. #2 had been planted in his apartment. He argues that when Mr. Thomas refused to answer counsel’s question,the Judge ought to have adjourned the trial and given Mr. Thomas opportunity to get legal advice respecting the repercussions of acontempt finding and reconvened so that Mr.

Thomas could show cause why he should not be found in contempt. Mr. Normore arguesthat the Judge began a contempt proceeding which he abandoned, and that this was an improper exercise of his discretion which ought toresult in this Court vacating Mr. Normore’s convictions and ordering a new trial. The law [67] Contempt of court is a remedial power vested in superior courts whose purpose is to vindicate public interest in theadministration of justice. The law of contempt does not exist to protect individuals, be they individual judges, accused persons, litigants,or witnesses.

Rather, the law exists to protect the dignity and process of the court, which in turn protects the rule of law (Nigel Lowe,Barrie and Lowe’s Law of Contempt, 2d ed. (London, U.K.: Butterworths, 1983),

Chapter 1). [68] A court’s decision to cite for and find contempt is a discretionary one (Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79 at para.36). A finding of contempt is “first and foremost a declaration that the contemnor has acted in defiance of a court order” (Carey atparagraph 30). [69] As is the case with all discretionary powers, a judge must exercise his discretion to cite for and find contempt judicially. The lawdoes not require a judge to cite a person for contempt unless it can be said that the judge’s exercise of discretion not to do so is fetteredby a legal principle.

The discretion to cite for and find contempt must also be exercised cautiously, for such a citation is regarded as apower of last resort (Carey at paragraph 36 and Morasse v. Nadeau-Dubois, 2016 SCC 44, [2016] 2 S.C.R. 232 at para. 21). In Morasse,the Court put it this way: [21] In all cases of contempt, it is crucial that courts stay alert to the exceptional nature of their contempt powers, using it only as ameasure of last resort.

A conviction for contempt should only be entered where it is genuinely necessary to safeguard the administrationof justice: Centre commercial Les Rivières, at paras. 7 and 65-66; Constructions Louisbourg ltée v. Société Radio-Canada, 2014 QCCA155, at para. 26. [70] See also St. Elizabeth Home Society v. Hamilton (City), 2008 ONCA 182, 89 O.R. (3d) 81, where the appellate court held that afinding of contempt in the face of the court should be a last resort (paragraph 42), and R. v.

Cohn (1984), (ON CA), 48O.R. (2d) 65 (C.A.) at p. 76, leave to appeal to SCC refused, [1985] 1 S.C.R. vii, where the same appellate court stated that the contemptpower is to be exercised “with the greatest of caution”, citing with approval Jessel M.R.’s words in Clements v. Erlanger (1877), 46 L.J.Ch. 375 (Eng. C.A.) at p. 383 that the use of contempt “should be most jealously and carefully watched and exercised”. [71] In Carey, Cromwell J. explained that the common law has developed to recognize two forms of contempt – criminal and civil.

The distinction between the two rests on the element of public defiance which accompanies criminal contempt.

Justice Cromwell alsostated that “the judge entertaining a contempt motion generally retains some discretion to decline to make a finding of contempt” andadded that he wished “to leave open the possibility that a judge may properly exercise his or her discretion to decline to impose acontempt finding where it would work an injustice in circumstances of the case” (paragraph 37). [72] The refusal to answer a question in court is regarded as criminal contempt in the face of the court and punishable as such (R. v.Vaillancourt, (SCC), [1981] 1 S.C.R. 69 at p. 76). [73] In R. v.

K. (B.), (SCC), [1995] 4 S.C.R. 186, Lamer C.J.C. described the contempt power as great but necessary,quoting, at paragraph 9, the following comments of Lord Denning in Balogh v. Crown Court at St. Albans, [1974] 3 All E.R. 283 (C.A.): … It is to be exercised by the judge of his motion only when it is urgent and imperative to act immediately – so as to maintain theauthority of the court – to prevent disorder – to enable witnesses to be free from fear – and jurors from being improperly influenced – andthe like.

It is, of course, to be exercised with scrupulous care, and only when the case is clear and beyond reasonable doubt[.]… At paragraphs 11 to 15, Chief Justice Lamer went on to set out the procedure for criminal contempt proceedings.

He explained that“citing” for contempt is the first step, and that citation is “a method of providing the accused with notice that he or she has beencontemptuous and will be required to show cause why they should not be held in contempt” and that once the accused is put on notice,an adjournment “no longer than that required to offer the witness an opportunity to be advised by counsel and, if he or she chooses, to berepresented by counsel” is indicated. Upon resumption of court, a hearing ensues during which the alleged contemnor must show causewhy he or she ought not to be found in contempt.

If contempt is found, there should be an opportunity to make representations on anappropriate sentence. [74] The Canadian Judicial Council in its publication Some Guidelines on the Use of Contempt Powers (2001) at pp. 34-36 alsocautions judges to be scrupulous in their use of contempt power, stating that “it is highly desirable to avoid contempt proceedings,because… they embroil the court in distracting collateral issues” and repeating Lord Russell’s admonition in R. v. Gray, [1900] 2 Q.B.36 at 40 that it is “to be exercised with scrupulous care … only when the case is clear and beyond reasonable doubt”.

[75] The Guidelines specifically address the issue of a witness who refuses to answer a proper question at page 36: Probably the most difficult question of contempt that is likely to arise in the course of a trial is the witness who refuses to be sworn or totestify. Often they are persons who subjectively may have a very good reason not to give evidence. There is no doubt, in view of [R. v.Vaillancourt, (SCC), [1981]1 S.C.R. 69], that the refusal of a witness to give evidence is a criminal contempt.

A judgedealing with such a problem must be firm, particularly if the evidence is important to one party or another and the reluctant witness mustbe made to understand that he or she must answer all proper questions. If the witness refuses or pretends not to know the answer, he orshe may be taken into custody or otherwise be given an opportunity to consider his or her position. This can be done one or more timeswithout making a finding of contempt, but eventually it may be necessary to allege contempt and to conduct a hearing if the partyseeking the evidence will not withdraw.

Sentencing should be put off, if possible, to the end of the trial (if it is not too long a trial), andthe contemnor may be released or kept in custody as circumstances may require. [76] In

summary, I take the above to mean that a judge, in considering whether to cite a person for contempt, must be confident thatthe person’s behavior could result in a finding of contempt, and if so, must give the alleged contemnor opportunity to seek legal adviceand reflect on whether he or she wishes to maintain the potentially contemptuous conduct and/or purge it. Upon resumption of theprocess, if the alleged contemnor persists in the allegedly contemptuous conduct, a show cause hearing ensues and the allegedcontemptor is given the opportunity to show cause why he or she should not be found in contempt.

The Judge then makes a finding, ornot, of contempt. If contempt is found, a sentencing hearing follows at which the contemnor has the opportunity to make submissions. [77] Not all refusals to answer a question in court amount to contempt of court. The governing rule for the reception of evidence isthat it must be relevant and admissible (R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475 at paras. 18 and 19). Evidence is logically relevantwhere it has any tendency to prove or disprove a fact in issue (R. v. Corbett, (SCC), [1988] 1 S.C.R. 670 at p. 715 andGrant at para. 18).

Judges are therefore not obligated to order witnesses to answer irrelevant questions. Moreover, witnesses may not berequired to answer questions which are relevant just because they may be asked; they are only required to give answers that constituterelevant evidence when the court requires them to answer.

Witnesses may not be required to answer improper questions, self-incriminating questions, questions whose answers contain privileged information or information which is subject to professionalconfidence, or information that has been determined to be immaterial or of insufficient importance to the main issues in the case (as inthe case of collateral evidence). Neither are witnesses required to give evidence whose probative value has been determined to beoutweighed by its prejudicial effect (Grant, at para. 19).

The stock and trade of a trial judge is determining whether and when witnessesmust answer the questions they are asked. Application of the law to this case [78] I begin by observing that the Judge did not rule that defence counsel’s question to Mr. Thomas concerning who had sent him thephotographs of documents L.S. #1 and L.S. #2 was relevant, as my colleague says. Nor did the Judge rule that the answer to the questionwas important to the defence case. And, he did not order Mr. Thomas to answer counsel’s question.

Rather, the record shows that theJudge specifically queried the relevance of the question to the matters in issue no less than three times (transcript, volume VIII, page 73,line 6; page 84, line 14; and page 86, lines 15-16;) in addition to questioning counsel’s purpose for asking the question and where theanswer would take her. When counsel suggested that the documents could have been “planted”, the Judge correctly queried whatdifference that would make and pointed out that whether they were planted was a matter of argument. The record also shows thatdefence counsel did not ask the Judge to order Mr.

Thomas to answer the question or to cite him for contempt. What the record shows isthat the Judge was not convinced that the answer was relevant or important to the defence case and that he did not order Mr. Thomas toanswer the question. It also shows that the Judge assured himself that Mr. Thomas was not going to answer the question and that heunderstood the possibility of a contempt finding. When the Judge asked Mr. Thomas if he were going to re-consider, Mr. Thomas said hejust could not do it because of Mr. Normore’s medical condition and unpredictable behavior.

The Judge then ruled that the trial would“have to move on” and that Mr. Thomas may have to come to court to deal with the matter later. Mr. Thomas then explained why hetook the photographs to the police, saying that it was just before Mr. Normore’s bail hearing and he felt obligated to do so in case Mr.Normore was released and “shot police or officers or something”. The Judge then asked Mr. Thomas again if he were going to disclosethe name of the person who gave him the photographs and Mr. Thomas said “No, I can’t do it”.

The Judge then said “we’ll have to dealwith this at a later time”. [79] I am of the view that the Judge’s handling of the matter was an entirely proper exercise of his discretion. He did not embark on acontempt procedure at the time the question was asked because he was clearly not convinced that the answer to the question was relevantto matters before the Court so as to properly invoke a contempt procedure (K. (B.) at paragraphs 11-12).

Although not preciselyexpressed, the Judge could also have determined that the probative value of the answer to the question was outweighed by its prejudicialeffect and therefore unnecessary to receive. In any event, he kept his options open in the event that once he had a full picture of the case,he could take further measures. However, he confirmed, at the conclusion of the trial, that relevance had been the issue when the matterarose, and stated that the answer to the question would not have had any bearing on the trial. [80] The Judge did all that he could do in the circumstances.

However, the same cannot be said of defence counsel. There was morethat she could have done to further her objective. She could have applied under the provisions of the Canada Evidence Act for leave tocross-examine Mr. Thomas, which may have elicited information helpful to her. She could also have asked the Judge to order Mr.Thomas to answer the question, and if Mr. Thomas did not obey the Judge’s order, she could have asked him to cite Mr. Thomas forcontempt. Such requests could have forced the issue – one way or another – at the time, and are relevant, as Cromwell J.A. explained atpara. 101 of R. v.

Hart, 1999 NSCA 45 174 N.S.R. (2d) 165 leave to appeal to SCC refused, 27784 (August 31, 2000): Similarly, there may be steps available to cross-examining counsel to help elicit answers. These include requesting the trial judge todirect the witness to answer or requesting an inquiry as to why the witness is not responding. The trial judge may be justly reluctant totake such steps of his or her own motion because counsel’s approach may result from a tactical decision.

Where no request for thejudge’s intervention is made by counsel, this is a factor tending toward a finding that the trial has not become unfair as a result of theunresponsiveness. In this case, no such steps were requested by defence counsel and, in my opinion, the trial judge should not be faultedfor failing to intervene more forcefully absent such a request.

[ 81 ] Mr. Thomas was not a witness who refused to be sworn or to give any evidence, or who attempted to mislead the court with half- truths or evasive answers. Moreover his fear was based on concern for others, not himself. If the Judge had found Mr. Thomas in contempt, this would have “worked an injustice in the circumstances of the case” ( Carey at paragraph 37 ). [ 82 ] The answer to defence counsel’s question was neither relevant nor important to Mr. Normore’s case. Who sent Mr. Thomas the photographs was irrelevant to the content of the documents.

To be relevant, the evidence has to go to a point in issue, and whether the documents were planted was not a point in issue. A point is not put in issue by counsel stating a baseless theory. There was not a shred of evidence in support of the “planting” notion. And, even if the documents were shown to have been planted, that would not be relevant without more. Defence counsel would need some larger theory about how the planting related to the elements of the offences Mr. Normore was facing. Not only was there no evidence supporting any such theory, but defence counsel did not articulate one.

Moreover, the prejudicial effect of the evidence, by contrast, was substantial when balanced against its probative value. [ 83 ] The focus of the trial was on whether Mr. Normore committed the alleged offences. Attempting to force Mr. Thomas to answer an irrelevant question of next to no probative value and which did not go to a point in issue could easily have become a lengthy and distracting sideshow. This would have consumed undue courtroom time and created significant reasoning prejudice ( R. v.

Handy , 2002 SCC 56 , [2002] 2 S.C.R. 908 at para. 83 ). [ 84 ] Even if it could be said that the Judge had embarked on a contempt procedure, it was open to him to terminate it, for a finding of contempt remained to be decided. As it turned out, upon having a full picture, the Judge determined that nothing further was indicated for the reasons he gave:

(1) Mr. Thomas’s intense fear of the possible consequences of divulging the name and the Judge’s appreciation of the ordeal he had been through, and (2) the answer to the question would not have had any bearing on the trial. [ 85 ] In the result, the dignity and process of the court were not undermined in any way by the Judge’s handling of the matter ( Carey at paragraph 30 ) nor were contempt proceedings necessary to safeguard the administration of justice ( Morasse at paragraph 21 ). [ 86 ] Something more must be said about defence counsel’s suggestion that Mr. Hayes had sent the photographs to Mr.

Thomas, as she expressed in her closing address. There was nothing to prevent her from subpoenaing Mr. Hayes to give evidence respecting his knowledge of the documents had she chosen to do so. I must also point out that counsel’s statement at the conclusion of the trial that “the court advised there would be consequences [for] Mr. Thomas for refusing to answer the question she had asked” is a mischaracterization of the Judge’s remarks. He at no time said that there would be consequences for Mr. Thomas. The Judge said that Mr.

Thomas may have to come back to court to deal with the matter when the trial was over. [ 87 ] In the result, the Judge did not err by failing to invoke contempt proceedings against Mr. Thomas for his failure to identify the person who sent him the photographs of the documents. Mr. Normore’s ability to fully and fairly defend himself was not compromised nor was his trial rendered unfair. Indeed, Mr. Normore did not argue that his trial was unfair, although that is the undercurrent of his request for a new trial. A new trial to afford Mr. Normore the opportunity to pursue who had sent Mr.

Thomas the photographs would serve no useful purpose. In this regard, I emphasize that contempt proceedings do not exist to vindicate an individual’s perceived rights. [ 88 ] I would dismiss Mr. Normore’s appeal. Appeal allowed, new trial o

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