2010 NBCA 84, 2010 NBCA 84

COURT OF APPEAL OF NEW BRUNSWICK 112-09-CA TIMOTHY CLAYTON PRICE APPELLANT TIMOTHY CLAYTON PRICE APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Price v. R., 2010 NBCA 84 Price c.

R., 2010 NBCA 84 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Richard The Honourable Justice Bell CORAM : L’honorable juge en chef Drapeau L’honorable juge Richard L’honorable juge Bell Appeal from a decision of the Provincial Court: June 24, 2009 (conviction) Appel d’une décision de la Cour provinciale : Le 24 juin 2009 (déclaration de culpabilité) History of case: Decision under appeal: 2009 NBPC 24 Preliminary or incidental proceedings: N/A Historique de la cause : Décision frappée d’appel : 2009 NBCP 24 Procédures préliminaires ou accessoires : S.O.

Appeal heard: May 18, 2010 and June 29, 2010 Appel entendu : Le 18 mai 2010 et 29 juin 2010 Judgment rendered: December 2, 2010 Jugement rendu : Le 2 décembre 2010 Reasons for judgment: The Honourable Justice Richard Motifs de jugement : L’honorable juge Richard

Concurred in by: The Honourable Chief Justice Drapeau The Honourable Justice Bell Souscrivent aux motifs : L’honorable juge en chef Drapeau L’honorable juge Bell Counsel at hearing: For the appellant: Randy G. Maillet For the respondent: David Schermbrucker Avocats à l’audience : Pour l’appelant : Randy G. Maillet Pour l’intimée : David Schermbrucker THE COURT The appeal is allowed, the convictions are set aside and a new trial is ordered. LA COUR Accueille l’appel, annule les déclarations de culpabilité et ordonne la tenue d’un nouveau procès. The judgment of the Court was delivered by RICHARD J.A. I.

Introduction [1] This is an appeal against conviction for violations of the Controlled Drugs and Substances Act , S.C. 1996, c. 19, and of the Criminal Code , R.S.C. 1985, c. C-46. The sole issue to be resolved is whether a judge of the Provincial Court erred in not allowing Timothy Clayton Price to challenge certain wiretap authorizations, a search warrant and warrantless searches and seizures because Mr. Price’s lawyer failed to meet a deadline the judge had imposed for filing a pre-motion brief.

In my respectful view, the trial judge erred and, consequently, the appeal must be allowed, the convictions set aside and a new trial ordered. II. Background

[2] The facts leading to this appeal are detailed in the trial judge’s decision reported at 2009 NBPC 24 , 348 N.B.R. (2d) 373 . When stripped to its bare essentials, the factual background is rather simple. Mr. Price and others were charged with a number of offences and appeared several times before the Provincial Court. At some point, counsel sought leave to cross-examine the deponent of certain affidavits, and wished to challenge the validity of certain authorizations. These motions were eventually scheduled to be heard starting on June 1, 2009.

In February, 2009, the trial judge’s office notified counsel of the judge’s “wish to have pre-trial briefs identifying the issues, the respective positions on these issues and legal argument in support, and [to have these filed within] certain deadlines” (para. 13). In a letter to counsel dated March 6, 2009, the trial judge modified the deadlines and required counsel for Mr. Price to file a brief “on or before May 1 st , 2009” (para. 14). Counsel for Mr. Price did not comply with this deadline. Rather, on May 29, 2009, he faxed a letter to the Provincial Court advising that Mr.

Price would no longer be making an application to cross-examine but that, at the voir dire , he would be challenging (1) the validity of the basket clause contained in the first wiretap authorization; (2) the admissibility of evidence seized following a warrantless search and seizure; and, (3) the validity of a search warrant. The letter, which sets out the issues and outlines the arguments to be made, discloses that counsel understood June 1 and 2 had been set aside to deal solely with the requested leave to cross-examine and that the voir dire on the other matters would begin on June 8. Because Mr.

Price’s counsel did not file his brief as directed, counsel for the prosecution did not have sufficient time to reply in writing to the issues Mr. Price raised. [3] The transcript of the June 1, 2009 hearing discloses much confusion regarding the date for the voir dire hearings. It is clear Mr. Price’s counsel believed that June 1 was scheduled solely for arguments on the request to cross- examine, which he had, by then, abandoned, and that other voir dire hearings would begin on June 8.

At one point, prosecuting counsel (not counsel on appeal) appears to support this understanding, stating that the trial was scheduled to begin only on June 22, 2009. Nevertheless, Mr. Price’s counsel failed to provide the judge with a satisfactory answer as to why he had not complied with the judge’s deadline. For his part, prosecuting counsel did not identify any disadvantage in proceeding with the voir dire hearings on June 8. To the contrary, he specifically advised the judge that he would be prepared to proceed on that date. [4] After a short recess, the trial judge ruled he would not allow Mr.

Price to raise the issues his counsel had identified in his letter dated May 29, 2009. He gave reasons for this decision the following day. Relying on a number of cases, the judge concluded that “the notice provided by Mr. Price in his brief by letter of May 29, 2009 was not, in all the circumstances, reasonable” and, as a result, the judge exercised his “discretion […] to control the court’s processes, the management of these trials and to enhance respect for the proper administration of justice, by

refusing to embark on voir dires for the purposes of addressing the issues that counsel for Mr. Price would now raise” (para. 35). [5] In the aftermath of that ruling, Mr. Price was convicted based on uncontested facts, a process designed to preserve his right to appeal the judge’s June 1, 2009 ruling. He was eventually sentenced to terms of imprisonment totalling 10 years and 9 months and subjected to other corollary orders. III. Issues on Appeal [6] As stated earlier, the sole issue on appeal is whether the trial judge erred in refusing to allow Mr.

Price to challenge the authorizations, warrants and warrantless searches and seizures. Stated differently, was Mr. Price denied his right to make full answer and defence to the charges against him? IV. Analysis [7] The trial judge introduced his reasons for his June 1, 2009 decision by pointing out that “[i]n New Brunswick the Provincial Court has no written Rules of Court in terms of the manner, form and timing of applications and motions in criminal cases, unlike some other jurisdictions” (para. 1).

This said, he determined that the void created by an absence of written rule does not leave the judge “entirely at the mercy of counsel” (para. 1), and ruled that a Provincial Court judge has a discretion “to control the court’s processes” (para. 35). [8] I take no issue with those general statements. The Supreme Court has recently confirmed that “implied in the grant of power to function as a court of law” is the authority of a statutory court to “control the court’s process”: R. v. Cunningham , 2010 SCC 10 , [2010] 1 R.C.S. 331 , at para. 19 .

In Charter cases, this has led to the recognition of a common law “obligation on the defence to give timely notice of a Charter violation” where the violation is going to be the basis for a motion excluding evidence, although timeliness is not considered an inflexible rule: R. v. Saulnier , 2006 NBCA 4 , 296 N.B.R. (2d) 175 , at para. 18 . While a provincial court judge has discretionary authority to control the court’s process, the discretion must be exercised where practically necessary for the judge’s discharge of his or her adjudicative responsibilities: Cunningham , at para. 19.

Whether the authority to control the court’s process includes a judge unilaterally and arbitrarily requiring counsel to file pre-hearing briefs and to set deadlines without receiving any input from counsel is a question that Mr. Price did not raise as a ground of appeal. I therefore leave it for another day. This said, I would expect that nearly three decades

after the adoption of the Charter , both judges and counsel who practice in the Provincial Court are fully acquainted with the principles that inform the process of adjudication of Charter issues and, therefore, if there is any power to order the filing of pre-trial briefs, it would be one that would be reserved for exceptional and complex cases. [9] It the present case, the judge said he was exercising his discretion to control the court’s process by not allowing the defence to raise issues for which the judge determined there had been inadequate notice.

Evidently, the judge equated the failure to file a brief with the adequacy of the notice. As stated above, Mr. Price does not challenge the judge’s authority to exercise discretion to control the process or the manner by which he controlled it. What Mr. Price challenges is the result of the exercise of that discretion. Proceeding on that basis, the question is whether the judge erred in the exercise of his discretion. In my view, he did. [10] Discretionary rulings made in the course of a criminal matter are beyond reach of appellate review unless the discretion “has not been judicially exercised”: R. v.

Garofoli , 1990 CanLII 52 (SCC) , [1990] 2 S.C.R. 1421 , [1990] S.C.J. No. 115 (QL) , para. 89 , R. v. Pires; R. v. Lising , 2005 SCC 66 , [2005] 3 S.C.R. 343 , para. 46 . Discretion will not be judicially exercised if it is “based on reasons which are not well founded in law” or if “the judge did not apply the right principles”: R. v. Manhas , 1980 CanLII 172 (SCC) , [1980] 1 S.C.R. 591 , [1980] S.C.J. No. 16 (QL) , at para. 1 , R. v. Thibault , 2006 NBCA 9 , [2006] N.B.J. No. 49 (QL) , para. 2 .

To this, I would add that discretion will not be judicially exercised if the decision is based on “a palpable and overriding error in the assessment of the evidence […] or if it is unreasonable, in the sense that nothing in the record can justify it”: Beaverbrook Canadian Foundation v. Beaverbrook Art Gallery , 2006 NBCA 75 , 302 N.B.R. (2d) 161 , para. 4 . [11] In Doiron v.

Haché , 2005 NBCA 75 , 290 N.B.R. (2d) 79 , our Court expounded upon the meaning of exercising one’s discretion judicially, in a statement that, although made in the context of a civil case, should have equal application in a criminal matter: The degree of freedom afforded a court in procedural matters under the "discretion" umbrella is significant but not unfettered.

The discretion must be exercised judicially, that is "according to the rules of reason and justice, not according to private opinion", "according to law" and it must not be "arbitrary, vague and fanciful, but legal and regular": as stated by Lord Halsbury in Sharp v. Wakefield , [1891] A.C. 173 at 179 and quoted by Kellock J. in Wrights Canadian Ropes Ltd. v. Canada (Minister of National Revenue) , 1946 CanLII 41 (SCC) , [1946] S.C.R. 139 at p. 166, varied at 1946 CanLII 345 (UK JCPC) , [1947] A.C. 109 (P.C.). To exercise discretion means to choose between two or more reasonable options.

The choice must be made considering the applicable law and guiding principles and on a proper understanding of the facts. Where the facts are misapprehended and the error is an overriding factor in the exercise of the discretion such that the foundation for the option chosen no longer exists, then an injustice has been done. [para. 57]

[12] In my respectful view, the trial judge did not exercise his discretion judicially for the following reasons: (1) he made a palpable and overriding error in his assessment of the facts; and (2) he did not apply all the proper guiding principles for the exercise of his discretion. [13] Dealing first with the misapprehension of the facts, the trial judge concluded that the “notice provided by Mr. Price in his brief by letter of May 29, 2009 was not, in all the circumstances, reasonable” (para. 35). In arriving at that conclusion, the judge referred to R. v. Mousseau , 2002 ABQB 150 , [2002] A.J.

No. 301 (QL) , where Moen J., referring to an earlier decision of the Alberta Court of Appeal, lists seven reasons why notice to exclude evidence pursuant to the Charter is required: 1. It enables Crown counsel and the court to plan and decide how and when best to call witnesses; 2. It allows Crown counsel to determine whether witnesses should be called whose evidence would be relevant to the issue raised and who otherwise would not be called; 3. It informs Crown counsel's decision regarding the order in which witnesses should be called; 4. It helps Crown counsel to know what questions should be asked; 5.

It allows Crown counsel to know whether and when witnesses, once they have testified, may be released; 6. It enables Crown counsel to prepare legal submissions in advance rather than hastily and on the spur of the moment; 7. It enables the judge, with the help of both counsel, to begin to read relevant cases and to put his or her thoughts in order, rather than becoming aware of the existence and nature of a Charter issue only after he or she has heard the evidence. [para. 8] [14] It is obvious from the judge’s approach to the issue that he considered this case to be one of lack of timely notice.

However, the record does support this as being the case. The submission the Attorney General filed on appeal confirms this. The Attorney General admits that on December 3, 2008, Mr. Price was “intent on bringing a Charter challenge to the admissibility of the intercepted communications by means of a facial and sub-facial attack on the authorizations, including seeking leave to cross-examine the affiant to the affidavits in support” (para. 12). On January 6, 2009, Mr.

Price’s counsel added that the challenge would extend to the determination of reasonable and probable grounds, ostensibly for the issuing of search warrants based on information received from the intercepted communications.

[15] Admittedly, the notice Mr. Price’s lawyer gave the Court and the prosecutor was not detailed. Moreover, he did not follow the Court’s direction for a formal application in writing and certainly did not file the requested brief within the time prescribed in the judge’s letter. Nevertheless, this was not a case of total failure to provide notice. It is certainly a case of failure to follow the Court’s directions, but both the Court and prosecuting counsel knew long before June 1, 2009, what Mr. Price’s counsel intended.

While they also believed he would seek leave to cross-examine the affiant to the affidavits in support of the authorizations, they certainly knew he would be challenging the authorizations and, correlatively, seeking the exclusion of evidence obtained in execution of search warrants. [16] This conclusion is borne out of the transcript, where the trial judge acknowledges that notice of the challenges had been given in December. Moreover, prosecuting counsel at trial acknowledged he was ready to deal with the matters Mr.

Price’s counsel had raised. [17] In the circumstances, I respectfully disagree that this was a case of failure to give notice. Although the notice might not have been detailed and although it might not have been given in the form requested by the Court or particularized in a brief filed within the timeframe prescribed, there is no dispute here that Crown counsel was able to plan and decide how and when best to call witnesses, to determine which witnesses to be called and the order of these witnesses and to know what questions should be asked.

Furthermore, the notice, as general as it was, would have enabled Crown counsel to make preliminary preparations of legal submission and would have enabled the judge to begin to read relevant cases. As stated earlier, nearly three decades after the adoption of the Charter , Crown counsel, like provincial court judges, have more than passing acquaintance with the principles that inform the process of adjudication of issues such as those raised in the present case. In my view, the representations of Crown counsel that he had his “witnesses all lined up” and that he and Mr.

Price’s counsel were “prepared to […] proceed [on June 8]” confirm that this case is not one involving absence of notice. [18] To be blunt, this was a case of counsel failing to follow the directions of a Court with respect to filing a written motion and submitting a pre- hearing brief within the time prescribed. Evidently, these failures may have professional or other ramifications for the lawyer. Whether they have any ramifications for the accused must be determined following a principled approach to the question. Thus, I turn to the principles that guide the exercise of discretion in matters like this.

[19] Borrowing on the words of Doherty J.A. in R. v. Loveman , 1992 CanLII 2830 (ON CA) , [1992] O.J. No. 346 (C.A.) (QL) , the trial judge identified some of the principles that ought to guide the exercise of his discretion. Loveman was a case where counsel for an accused had only indicated at the outset of trial he intended to challenge the admissibility of certain evidence based on a Charter violation. In that case, Crown counsel objected to the challenge on the grounds he had not received prior notice of the accused’s intention, and the trial judge refused to hear the defence’s arguments.

On appeal, Doherty J.A. noted that there was “no statutory requirement that an accused give notice of his or her intention to raise a Charter challenge to the admissibility of evidence at trial” (para. 5), and there was also at the time “no rules […] governing the bringing of such applications” (para. 5). Recognizing that in such circumstances a trial judge has the power to control the proceedings, Doherty J.A. explains: A trial judge must control the trial proceedings so as to ensure fairness to all concerned and preserve the integrity of the trial process.

The specific situations in which the trial judge must exercise that power are infinitely variable and his or her order must be tailored to the particular circumstances. In the exercise of this inherent power, a trial judge may decline to entertain a motion where no notice, or inadequate notice, of the motion has been given to the other side. This must be so even when the motion involves an application to exclude evidence pursuant to s. 24(2) of the Charter . Clearly, where a Charter right is at stake, a trial judge will be reluctant to foreclose an inquiry into an alleged violation.

There will, however, be circumstances where no less severe order will prevent unfairness and maintain the integrity of the process. [para. 7] [20] I agree with these statements and I also agree with the principles Doherty J.A. sets out to govern the trial judge’s exercise of discretion in such circumstances: In deciding how to proceed when faced with the Crown's objection, the trial judge had to balance various interests.

He had to bear in mind an accused's right to raise constitutional objections to the admissibility of evidence and the Crown's right to have an adequate opportunity to meet Charter arguments made on behalf of an accused. In addition, the trial judge had to be concerned with the effective use of court resources and the expeditious determination of criminal matters. This latter factor was of particular concern in this case because there had already been some considerable delay (attributable to the appellant) in bringing the matter to trial.

In balancing those interests in this case, the trial judge should have considered the absence of any statutory rule or practice direction requiring notice, the notice that was given to the Crown, the point during the trial proceedings when the appellant's counsel first indicated he intended to seek exclusion under s. 24(2) of the Charter and the extent to which the Crown was prejudiced by the absence of any specific reference to a Charter -based argument in the notice given to the Crown.

The trial judge also should have considered the specific nature of the Charter argument which counsel proposed to advance and the impact the application could have on the course of the trial. [paras. 16-17] [21] These principles, although elaborated in a situation where no notice was given, are equally apposite to a case where the sufficiency of the notice might be in issue. Assuming that to be the case here, because, as indicated above, the record discloses that notice had been given in December, the trial judge was required to balance the various interests.

His analysis should have included reference to the following principles: 1) Did the Crown object to the Court entertaining Mr. Price’s challenge to the authorizations and the warrants and, hence, to the admissibility of certain evidence?

2) Would the Crown be prejudiced if Mr. Price were allowed to proceed with his challenge? 3) What is the specific nature of Mr. Price’s challenge to the admissibility of the evidence; is there a prospect of success; and, what impact could his challenge have on the course of the trial? [22] In the present case, the trial judge considered the principles dealing with the effective use of court resources and the expeditious determination of criminal matters to which Doherty J.A. alludes, but he did not consider the three principles set out above. Specifically, Crown counsel was not objecting to Mr.

Price’s challenge; he was not indicating being prejudiced by the insufficient and untimely notice; and, he was prepared to proceed with the voir dire hearing the following week. In addition, the trial judge did not weigh the impact the application could have on the course of the trial. When Mr. Price’s counsel sought to explain the possible merits of his application, the judge replied “that isn’t the question. I’m not interested at this particular point on the merits of any application…”. [23] In my respectful view, the judge erred in principle in approaching the matter as he did.

He focused almost solely on the failure of Mr. Price’s counsel to respect the directives the Court had issued and did not consider whether this omission would prejudice the prosecution, unduly delay the matter or deprive Mr. Price of a potentially meritorious challenge to the admissibility of evidence. [24] In my view, denying an accused the opportunity to challenge the constitutionality of search and seizure actions by state agents in a case where, like here, that issue lies at the heart of the answer and defence asserted by the accused must, of necessity, be reserved for exceptional cases.

In truth, it is difficult to imagine a case where defence counsel’s failure to meet a deadline for filing a pre-hearing brief could justify emasculating the contemplated answer and defence, especially where notice of a Charter issue had previously been given and the prosecution suffered no prejudice. [25] Having failed to apply all the governing principles, it cannot be said the judge properly exercised his discretion. It follows that his decision refusing to entertain Mr. Price’s application challenging the admissibility of certain evidence must be set aside.

[26] In the present case, Crown counsel never argued Mr. Price’s challenge to admissibility of the impugned evidence was frivolous. Moreover, in the absence of any objection by Crown counsel, and in light of Crown counsel’s stated willingness to proceed with the voir dire hearing, it cannot be said the challenge to the admissibility of the evidence would cause the prosecution any prejudice.

When one considers these factors, as well as those the trial judge considered regarding the effective use of court resources and the need for expeditious resolution of criminal law matters, it cannot be said that the balance weighs in favour of depriving Mr. Price from his right to challenge the impugned evidence. While it is true that delaying by one week the requested voir dire would have resulted in lost court time, there was no indication it would have unduly delayed the trial.

In any event, these factors, in the absence of any objection to the challenge and of any prejudice to the prosecution, would not, of themselves, tip the balance against Mr. Price. [27] I make two additional observations. The first is this. This is a case where directives were issued to counsel by telephone from the court’s office and then by letter from the trial judge. It is Mr. Price’s counsel who failed to follow the court’s directives. This is not a case of directives given in open court in the presence of the accused, and no inquiry was ever made to determine whether Mr.

Price was at any time advised of the deadlines his lawyer had to meet. Thus, visiting upon Mr. Price the consequences of his counsel’s failure to follow the court’s directions possibly opens to him an avenue of appeal based on the ineffective assistance of counsel. Of course, an appeal on such a ground would require Mr. Price to show not only that his lawyer’s acts or omissions constituted incompetence but also that a miscarriage of justice resulted: R. v.

G.D.B. , 2000 SCC 22 , [2000] 1 S.C.R. 520 . [28] My second observation deals with the behaviour of an officer of the court bound by a strict code of professional conduct who fails to follow clear directives a judge has issued. Evidently, in the absence of a valid explanation, this is not acceptable.

I agree with the trial judge that the court must control its process and avoid a situation “tantamount to having ‘the tail wag the dog’.” Nevertheless, there are avenues of redress that can certainly make the point to the offending lawyer without necessarily depriving an accused of his right to make full answer and defence. This said, there may be cases where, upon a principled approach to the matter, more severe measures affecting an accused may well be necessary. However, this is not such a case. V. Disposition

[29] For these reasons, I would allow the appeal, set aside the convictions and order a new trial. _____________________________ J.C. MARC RICHARD, J.A. WE CONCUR: ___________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK ____________________________________ B. RICHARD BELL, J.A.