R. v. Callender, 2012 NSSC 176

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Callender , 2012 NSSC 176 Date : 20120410 Docket : CRH No. 311461 Registry : Halifax Between : HER MAJESTY THE QUEEN Plaintiff v. MARK ANTHONY AUSTIN CALLENDER Defendant DECISION Judge : The Honourable Justice Suzanne M. Hood Heard : April 10, 2012 in Halifax, Nova Scotia Written Decision : May 9, 2012 (written release of oral decision of April I0, 2012) Counsel : Leonard MacKay for the Federal Crown Joshua Arnold for Mark Callender By the Court: [ 1 ] After hearing submissions of counsel on April 10, I gave an oral decision with written reasons to follow.

These are the reasons. [ 2 ] Mark Callender was convicted of possession of cocaine for the purpose of trafficking. When the matter was set for sentencing, his new counsel advised he was making an application to reopen the trial. ISSUES 1. Reopening of trial after adjudication 2. Remedy [ 3 ] At trial, the issues were Mark Callender's knowledge of the contents of a parcel sent to him by Derek O'Neill or his willful blindness about the contents. Mark Callender testified at trial. He said he was expecting a piece of DJ equipment called a "serato" to be sent to him by Derek O'Neill.

He was cross- examined at some length by the Crown about his statement to the police which was not in evidence.

FACTS [4] In finding Mark Callender guilty, I said in my decision (p. 183-184 of the transcript): I must decide if I accept his explanation for the inconsistency between his statement and his testimony at trial. He said he was scared andnervous and did not know what was going on. Being scared and nervous on arrest is understandable, but if he believed then that thepackage contained computerized DJ equipment, it's surprising, to say the least, that he first mentioned this at trial. For this reason I donot accept his explanation of the inconsistency between his statement and his testimony in court.

I do not accept his testimony at trialabout his knowledge of the contents of the parcel, nor does his testimony raise a reasonable doubt about his guilt. Therefore, I must consider all of the evidence to determine if it raises a reasonable doubt. [5] As it turns out, Mark Callender did say in his statement to the police that he was expecting the serato.

That information,however, was not before the court, since the statement was not in evidence and there was no re-examination of Mark Callender on theissue. [6] Mark Callender seeks to reopen the trial to admit evidence that he did in fact tell the police the statement that he was expectinga serato. He also seeks to introduce evidence from Ms. Staples, a friend and former girlfriend of his. In his brief, counsel for MarkCallender says her evidence will confirm that Mark Callender worked as a DJ for Derek O'Neill and that it was not unusual for him topick up equipment from Mr.

O'Neill and that she saw him do that on many occasions. ANALYSIS [7] The court has jurisdiction to reopen a trial after a finding of guilt has been made. The Crown and defence agree I have thisjurisdiction. The Nova Scotia Court of Appeal in R. v. MacDonald [1991] N.S.J. No. 416 (N.S.C.A.) said at pp. 3 and 4: We refer to the judgment of Chief Justice Bayda in Bertucci [Re Regina and Bertucci (1984,) (SK CA), 11 C.C.C.(3d) 83 at p. 88: I reject the contention that a trial judge lacks jurisdiction to declare a mistrial after an adjudication of guilt before the imposition ofsentence.

It has been authoritatively decided that the power of a judge to disqualify himself for good and sufficient reason and declare amistrial is one which exists apart from the express provisions of s. 499 of the Criminal Code. [The equivalent

section now is 669.2] seeR. v. Buchholz (1976), (ON CA), 32 C.C.C. (2d) 331. In my opinion, an adjudication of guilt does not foreclose theapplication of that principle. This approach is consistent with the principle that a trial judge sitting without a jury is not functus officiofollowing the finding of guilt until he has imposed sentence or otherwise finally disposed of the case. Chief Justice Bayda then refers to the decision of the Ontario Court of Appeal in Regina v. Lessard.

In Lessard, Martin, J.A., stated at p.73: A Judge exercising the functions of both judge and jury is not fructus officio following a finding of guilt until he has imposed sentence orotherwise finally disposed of the case [8] The Court of Appeal considered the issue again in R. v. Sarson (NS CA), [1992] N.S.J. No. 394 (N.S.C.A.)citing R. v. MacDonald. [9] The power to reopen is a discretionary power that should only be exercised in exceptional circumstances. In MacDonald,supra, the Nova Scotia Court of Appeal at p. 4 quoted again from Bertucci where Bayda, C.J. referred to the decision in R. v. Lessard: Mr.

Justice Martin continues at page 73:

I see no reason why a trial Judge who has made a finding of guilt on disputed facts is not also empowered to vacate the adjudication ofguilt at any time before the imposition of the sentence although it is a power which, I cannot stress too strongly, should only be exercisedin exceptional circumstances and where its exercise is clearly called for. [10] In R. v. MacGregor 1997 NSCA 88 , [1997] N.S.J.

No. 128 (N.S.C.A.), the court said in para.10, citing Lessard andSarson: 10 On the second issue, the appellant submits that the trial judge did not act judicially in refusing to reopen the trial so that the appellantand two others could testify in order to establish an alibi. Although he did have the jurisdiction to do so, it is to be exercised only inexceptional cases. (See R. v. Lessard (1976), (ON CA), 30 C.C.C. (2d) 70 (Ont. C.A.) and R. v. Sarson (1992), (NS CA), 115 N.S.R. (2d) 445). The Test for Reopening [11] Both Crown and defence have cited the test for reopening.

It has been referred to by the courts on many occasions and was firstset out in R. v. Palmer (1979), (SCC), 50 C.C.C. 2d 193 (S.C.C.). In R. v. Kowall (ON CA), [1996] OJ.No. 2715 (Ont. C.A.), the court said in para. 31: 31 The test for re-opening the defence case when the application is made prior to conviction has been laid down by this court in R. v.Hayward (1993), (ON CA), 86 C.C.C. (3d) 193. However, once the trial judge has convicted the accused a morerigorous test is required to protect the integrity of the process, including the enhanced interest in finality.

It seems to have been commonground in this case that the most appropriate test for determining whether or not to permit the fresh evidence to be admitted is the test fori:he admissibility of fresh evidence on appeal laid down in Palmer and Palmer v. The Queen (1979), (SCC), 50 C.C.C.(2d) 193,Page: 7 at page 205 (S.C.C.) (see: R. v. Mysko (1980), (SK CA), 2 Sask. R. 342 (C.A.)).

That test is asfollows: (1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases ...; (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (3) the evidence must be credible in the sense that it is reasonably capable of belief; (4) it must be such that if believed it could reasonably, when take with the other evidence adduced at trial, be expected to have affectedthe result. [12] The court in Kowall, supra, also set out an additional consideration for a trial judge deciding an application to reopen.

It said inpara. 32: 32 These criteria provide helpful guidance to a trial judge faced with an application to reopen after conviction. In addition to the Palmercriteria, a trial judge must consider whether the application to reopen is in reality an attempt to reverse a tactical decision made at trial. ... [13] These passages were quoted by Roscoe, J.A. in para. 10 of MacGregor, supra. [14] Most recently, the Nova Scotia Court of Appeal has repeated the Palmer test in R. v. Fraser, 2011 NSCA 70 at para. 34.

[15] Both counsel agree the critical factor in this case is the fourth but I will deal briefly with the first, second and third. 1) Due Diligence [16] In Fraser, Saunders, J.A. said in para. 36: 36 The first factor, the so-called due diligence criterion, invites a more detailed examination. After careful review, I am not prepared tosay that a strict enforcement of this requirement ought to bar the admission of fresh evidence in this case. First, we know that this generalprinciple will not be applied as strictly in a criminal case as in a civil case.

Second, we know that the failure to exercise due diligence isnot determinative. Third, we know that the due diligence criterion should not be applied inflexibly and will yield where its applicationmight lead to a miscarriage of justice [17] Due diligence is not the focus of counsel's arguments in this case. Ineffective assistance of counsel is not alleged before me.Because this was a criminal case, I need not apply the standard strictly. Nor am I to consider it as determinative, nor apply it inflexibly.

Imust consider whether applying it might result in a miscarriage of justice and, if so, it should not stand in the way. [18] In R. v. Drysdale, 2011 ONSC 5451, Trotter, J. said at para. 19: 19 As I have said, the situation was regrettable, made all the more so by the fact that there was no real explanation for what happened (ordid not happen). Still, even in a case like this, the application of the diligence criterion in Palmer can be quite tricky.

In the relatedcontext of applications to adduce fresh evidence on appeal, numerous appellate courts have been prepared to look beyond a lack ofdiligence in order to do justice. In R. v. Warsing (1998), (SCC), 130 C.C.C. (3d) 259 (S.C.C.), Major J. wrote at p. 284: It is desirable that due diligence remain only one factor and its absence, particularly in criminal cases, should be assessed in light of othercircumstances. If the evidence is compelling and the interests of justice require that it be admitted then the failure to meet the test shouldyield to permit its admission. Similarly, Carthy J.A. said in R. v.

C. (R) (1989), (ON CA), 47 C.C.C. (3d) 84 (Ont.C.A.) at p. 87 that a failure tomeet the diligence requirement should not 'override accomplishing a just result.' In other words, if I were to conclude that theevidence might have changed my mind in terms of assessing credibility (a crucial issue in this case), then a lack of diligence should notstop me from admitting the evidence and preventing what might tum out to be a miscarriage of justice. [19] In my view, if the trial is not reopened, it could result in a miscarriage of justice, due diligence aside. It could override arrivingat a just result.

The basis on which I concluded Mark Callender' s evidence was not credible was flawed because I did not know he hadnot first mentioned the serato at trial. Knowing that could have caused me to have a different view of his credibility which was a criticalissue. Relevance [20] The Crown, in his oral submissions, said that it is not clear from the police statement that Mark Callender told the police hewas expecting a serato. However, the defence has excerpted portions of Mark Callender' s statement in his written submissions. At pages19 and 20 of those submissions, he quotes: CST.

MANNING: (Interrupts) How, how would he convince you that he's sendin' a package to you for him? CALLENDER: Well, really I, it's almost like, like, like DJ equipment; like, 'Cause I'm lookin' to get this thing called serato, I have alaptop, he know:; that, like you know what I mean, I'm strugglin' as, 'cause I'm on, like you know I can't afford to buy records. There,actually, there's, you can't buy records no more.

CALLENDER: I was, like, I was expectin', like ... CALLENDER: I was expectin' like, like, it's, it's called Serato it's like, it's in a box. [ 21 ] Then at p. 21 of his submissions, he refers to Cst. Manning saying: CST. MANNING : ... so, you're expectin' this equipment, you call Derek . Derek runs over ... [ 22 ] Based upon that exchange, I conclude it is in fact clear that Mark Callender told the police he was expecting a serato. Therefore, I conclude that the evidence from the police statements sought to be introduced is relevant.

It counters the conclusion I reached in my decision that there was an inconsistency between his statement to the police and his evidence at trial. 3) Credible Evidence [ 23 ] The evidence about the serato was contained in Mark Callender' s statement to the police. It is reasonably capable of belief, at least for the purpose of establishing that Mark Callender had previously told the police he was waiting for a serato to be delivered to him. It is reliable in the sense that it was video and audio recorded. Effect on Result [ 24 ] This is the critical factor in this case.

My decision turned on a finding of credibility. That finding was affected by my conclusion that Mark Callender had not satisfactorily explained an inconsistency between his evidence at trial and his statement to the police. [ 25 ] The Crown says that Mark Callender' s trial evidence was impeached by the Crown's cross-examination on his statement to the police, regardless of whether or not he mentioned the serato to the police.

The Crown says he is not credible. [ 26 ] The Crown also says that Mark Callender should not be permitted to bolster his evidence at trial by referring to his previous statement. [ 27 ] In R. v. Campbell, [1990] A.J. No. 506 (Alta. C.A.) , the trial judge allowed a witness' Crime Stoppers statement to be entered into evidence. His reason for doing so was so the jury could decide for itself if it was consistent with the witness' testimony at trial. He cautioned the jury that it was not evidence in itself but could be used only to test the credibility of the witness.

The accused therefore could use it only as a prior inconsistent statement. The trial judge's treatment of the statement was upheld on appeal. The Crown says that is the only purpose for which the statement Mark Callender gave the police can be entered into evidence. [ 28 ] However, there is an exception to the rule about prior consistent statements where there is an issue of recent fabrication. In Fox v. General Medical Council [1960] 3 All E.R. 225 (P.C.) , the Privy Council said at p. 230: ..

If, in cross-examination, a witness's account of some incident or set of facts is challenged as being a recent invention, thus presenting a clear issue whether, at some previous time, he said or thought what he has been saying at trial, he may support himself by evidence of earlier statements by him to the same effect. Plainly the rule that sets up the exception cannot be formulated with any great precision, since its application will depend on the nature of the challenge offered by the course of cross-examination and the relative cogency of the evidence tendered to repel it.

Its application must be, within limits, a matter of discretion, and its range can only be measured by the reported instances, not in themselves many, in which it has been successfully invoked....

[29] The Privy Council continued: He was allowed to call confirmatory evidence to show that, before the cause of this enmity had arisen, he had told a 1:hird party the storyhe was now telling. In that situation, the issue raised by the ;;ross-examination was clearly defined; a recent invention due to a specifiedcause, and, if the witness could show that his account had been the same before the cause existed, he was certainly adding a relevant factin support of his credibility. [30] Subsequently, in R. v. Evans (SCC), [1993] S.C.J.

No. 30, Cory, J. said at para. 34: 34 Ordinarily, other persons may not be called to testify as to a witness's out of court statement. Nor may a witness repeat, in court, herown earlier statements. Generally, the narration by a witness of her previous declarations made to others outside of the court should beexcluded because of its general lack of probative value and because such a repetition is, as a rule, self-serving.

However, they may beadmitted in support of the credibility of a witness in situations where that witness's evidence is challenged as being a recent fabrication orcontrivance. [31] The Crown says it did not allege that Mark Callender had recently fabricated the story about his belief that the packagecontained a serato.

Nor, the Crown says, can it be inferred from the Crown's cross-examination of Mark Callender or from the Crownclosing. [32] However, there are two points to consider with respect to this: first, the questions the Crown asked on cross-examination andthe words the Crown used in his closing; second, the law with respect to recent fabrication. [33] The defendant quotes from the transcript in his written submissions. In cross-examination, Mark Callender was asked questionsabout the contents of the package. An example is at page 99 of the transcript where the Crown says: Q.

Now, what I want to focus on was, you know, whether you are aware what's in the package or even were - - even concerned aboutwhat's the package. [34] A further example is on p. 101: Q. ... that you don't know what's in the package and you don't want to know what's in the package (p. 108) [35] A further example is on p. 107: Q. But you have to agree with me that this answer would support my suggestion to you that you really don't know what's in the packageand you don't know why he would have sent it to himself - or sent it to you here ... [36] Other examples are on pages 108 and 111: Q.

So, once again, I'm suggesting to you that supports my suggestion to you that you don't know what's in the package, and you don'twant to know what's in the package. (p. 108) Q. This would suggest to me that you didn't know what was in the package ... A. Yes.

Q. ... and didn't want to know what's in the package and just relied on your friends to not do anything bad? (p. 111) [ 37 ] After this cross-examination, defence counsel said he had no questions arising from the cross-examination. [ 38 ] In his closing, defence counsel made no reference to the fact that Mark Callender was expecting a serato. [ 39 ] In his closing, the Crown referred to Mark Callender saying he had no reason to be suspicious with respect to the contents of the package (p. 145 of the transcript).

The Crown then said at pp. 146 and 147: Now, the Crown myself cross-examined him on each and every one of these responses that he gave in the interview and asked him to explain that when he had already just told us his story about the DJ equipment. And when he was confronted with these portions of the interview, he was unable to explain why he responded in this way. He merely stated that he was still nervous from the events that day.

But it's throughout the entire interview that he's responding in that fashion, and the Crown is suggesting the court needs to be taking particular notice of that when deliberating on the issue of wilful blindness. [ 40 ] At the end of his submissions, the Crown said at p. 159: It's also based, in large part, on Mr. Callender's utterances - or, sorry, his response to cross-examination on his utterances, and it's almost - it's almost right out of the paper of the - if we had a transcript, sorry.

It's right on the record, his suspicions, and how he cannot explain his utterances about suspicious activity back at the time. And, in fact, when you look at his response in cross-examination, so there's numerous occasions in his statement about suspicion, it would be easy for the court to conclude here that he was - that he deliberately chose to be ignorant of the contents of the package. [ 41 ] I conclude that the Crown did not deliberately try to mislead the court.

However, the questions on cross-examination and the Crown closing left the court with the mistaken impression that Mark Callender had never mentioned a serato until trial. The portions of the statement referred to on cross-examination only refer to Mark Callender saying he did not know what was in the package. [ 42 ] The second point to be made is that it is not necessary that the Crown specifically allege recent fabrication.

In Evans, supra, Cory, J. said in para. 35: 35 Further, it has been held that there need not be, in cross-examination, any express allegation of recent fabrication for the prior statements to be admissible. It is sufficient if, in light of the circumstances of the case and the conduct of the trial , the apparent position of the opposing party is that there has been a prior contrivance. In those situations, fairness and ordinary common sense require that the jury receive a balanced picture of the whole of the witness's conduct throughout the police investigation .

To demonstrate that the evidence of the witness is not a recent fabrication it may be essential to introduce on re​ examination a prior statement which shows the consistency of the witness' testimony . [ 43 ] Based upon what was before me, I concluded it was apparent that the Crown was alleging recent fabrication as well as willful blindness. I however did not have a balanced picture of all of Mark Callender' s utterances during the police questioning. [ 44 ] My finding on credibility may have changed had I not concluded there was an inconsistency between Mark Callender' s testimony and the police statement.

Thereafter, applying the test in R. v. W D. could have resulted in a different outcome. 5) Tactical Decision [ 45 ] In Kowall , supra, the court said the trial judge must be satisfied that the application to reopen is not merely an attempt to undo a tactical trial decision. However, in this case, there is no such indication nor has the Crown argued that that is the case.

6) Conclusion on Reopening [46] Having reviewed the Palmer test and the additional criterion from Kowall, I conclude this is the exceptional case where thetrial should be reopened to admit the evidence of at least a portion of the statement Mark Callender gave to the police, that is, that he wasexpecting the parcel he received to contain a serato. The need to prevent a possible miscarriage of justice outweighs the interest inprotecting the integrity of the trial process including the need for finality. In my view, the integrity of the trial process would beundermined if the trial were not reopened.

A final result that may be unjust is not a final result that reflects well on the administration ofjustice. REMEDY [47] Having concluded the trial should be reopened, I must decide if I should hear the new evidence or grant a mis-trial. [48] In R. v. Arabia, 2008 ONCA 565, Watt, J.A. said in para. 49: 49 The authorities, like Kowall, which involve the proffer of further evidence after a finding of guilt has been recorded, contemplate tworemedies: i. re-opening of the defence case; and ii. declaration of a mistrial. As a general rule, permission to re-open would be followed by setting aside the prior finding(

s) of guilt, reception of the furtherevidence, together with any evidence offered by the prosecutor in reply, the submissions of counsel, and a decision on the adequacy ofthe prosecution's proof in light of the new evidence.

In some instances, of course, a decision to receive the further evidence might requirethe declaration of a mistrial, or a similar conclusion may be warranted absent a decision on admissibility, for example where theproposed evidence was not disclosed in a timely way by the prosecutor. [49] He continued in para. 50: 50 Kowall and cases following its lead furnish trial judges with workable criteria the application of which will inform the decision on re-opening.

But where re-opening is permitted and a decision made to allow the introduction of further evidence, the trial judge will then berequired to determine whether to continue proceedings to verdict, or to terminate them prior to final decision.

Kowall and subsequentcases do not explore the preferential ordering of available remedies, or articulate the factors according to which the trial judge is todecide which is the more appropriate remedy. [50] He concluded in para. 52: 52 While there may be some uncertainty about the precise standard a judge is to apply in determining whether to declare a mistrialbefore verdict or judgment, it is well-settled that the authority to declare a mistrial should only be exercised in the clearest of cases. R. v.R. (A.J. ). (1994), 94 (C.C.C. (3d) 168 (Ont. C.A.) at 174; R. v.

Paterson (1998), (BC CA), 122 C.C.C. (3d) 254(B.C.C.A.) at paras. 93-98. There seems no reason in principle to apply any less rigorous standard to applications for the same remedymade after verdict or judgment. [51] I therefore should favour continuing on with the trial with the fresh evidence unless I am satisfied that this is one of those"clearest of cases" or a mistrial must be declared. In Drysdale, supra, the court gave guidance in this regard. In that case, the trial judgemade an adverse finding with respect to the accused's credibility. He quoted that conclusion in paragraph 7:

7 .. . I reached the following conclusion: In all of the circumstances, I do not accept this aspect of Mr. Drysdale's evidence. I reject it. This causes me to treat the rest of his evidence with caution, which, in all of the circumstances, I also reject. [ 52 ] Trotter, J. quoted Kowall and Arabia for the test to reopen.

He opened the trial on the basis that there was a concern “that a miscarriage of justice may have occurred.” (para. 24) [ 53 ] The Crown submitted that the trial judge should continue on with the trial and the defence “did not really quibble with the Crown's wish to adduce further evidence and carry on with the trial” (para. 26). [ 54 ] However, Trotter, J. concluded in paras. 27 to 29: 27 Despite the submissions of counsel, I decided that a mistrial was the only reasonable course of action in the circumstances.

The problem with continuing the trial was that I had already made a very strong adverse finding of credibility against Mr. Drysdale, one that caused me to reject his evidence as a whole. While it might have been the intention of the Crown to adduce evidence on whether the police would have been able to see the distinctive markings on Mr. Drysdale's hoody in the heat of the moment (and in view of the lighting conditions early that evening), this would not have impacted directly on the specific adverse credibility finding I made. 28 The Crown also urged me to come to the same conclusion about Mr.

Drysdale's evidence and the case as a whole by finding other reasons to disbelieve his evidence. But this would be an artificial and highly unsatisfactory exercise because I was very clear about what it was that caused me to disbelieve Mr. Drysdale's evidence. Any attempt to re-build my credibility findings on a different footing would be disingenuous. The reasoning process would have to look something like this: 'I said that the hoody issue caused me to reject all of Mr.

Drysdale's evidence, but what I really meant was that it was just one of the many things that caused me to reject his evidence.' This chain of reasoning could not be relied upon as authentic. 29 Let me put it another way. If I were to continue the trial and permit further evidence to be called, short of finding Mr. Drysdale not guilty on all counts (a result I am not sure is warranted either) he, along with reasonably informed members of the public, would always wonder whether my 'new' conclusions and reasons were infected by my prior adverse finding of credibility.

Whatever result I reached would always be open to question. The only way to address this issue in a manner that is fair to both sides is to start all over again. [ 55 ] I find myself in the same position. I made an adverse finding of credibility against Mark Callender which caused me not to believe his evidence or caused me to have a reasonable doubt with respect to his guilt. If I continued with the trial with new evidence and if I again found Mark Callender not to be credible, there would always be a question of whether that conclusion was affected by my previous credibility finding.

In my view, the only way to eliminate that risk is to declare a mistrial. [ 56 ] For this reason, I do not need to consider whether, if the trial were to continue, the evidence of Ms. Staples would be permitted. CONCLUSION [ 57 ] I therefore conclude the trial is to be reopened but I declare a mistrial. Mark Callender is to return to Crownside on April 26, 2012 at 9:00 a.m. in Halifax to have a date set for a new trial with another trial judge. He is to remain on the same release conditions. on April 26, 2012 at 9:00 a.m. in Halifax to have a date set for a new trial with another trial judge.

He is to remain on the same release conditions. Hood, J.