2015 NBCA 40, 2015 NBCA 40

COURT OF APPEAL OF COUR D'APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK GEORGE W. MARTIN APPELLANT 64-13-CA GEORGE W. MARTIN APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Martin v. R., 2015 NBCA 40 Martin c.

R., 2015 NBCA 40 CORAM: The Honourable Justice Richard The Honourable Justice Bell * The Honourable Justice Green CORAM : l’honorable juge Richard l’honorable juge Bell* l’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: May 9, 2013 (conviction) July 9, 2013 (motion) September 25, 2013 (sentencing) Appel d’une décision de la Cour du Banc de la Reine : le 9 mai 2013 (déclaration de culpabilité) le 9 juillet 2013 (motion) le 25 septembre 2013 (détermination de la peine) History of case: Decision under appeal: 2013 NBQB 321 Preliminary or incidental proceedings: N/A Historique de la cause : Décision frappée d’appel : 2013 NBBR 321 Procédures préliminaires ou accessoires : s.o.

Appeal heard: September 9, 2014 and February 12, 2015 Judgment rendered: July 2, 2015 Reasons for judgment : The Honourable Justice Richard Concurred in by: The Honourable Justice Green * The Honourable Justice Bell did not participate in the second part of the hearing of the appeal or in the decision of the Court. Appel entendu : le 9 septembre 2014 et le 12 février 2015 Jugement rendu : le 2 juillet 2015 Motifs de jugement : l’honorable juge Richard Souscrit aux motifs : l’honorable juge Green * Le juge Bell n’a pas participé à la deuxième

partie de l’audition de l’appel ni à la décision de la Cour. Counsel at hearing: For the appellant: Daniel R. Jardine For the respondent: Kathryn Gregory Avocats à l’audience : Pour l’appelant : Daniel R. Jardine Pour l’intimée : Kathryn Gregory THE COURT The appeal is allowed, the conviction set aside and a new trial ordered. LA COUR L’appel est accueilli, la déclaration de culpabilité est annulée et la tenue d’un nouveau procès est ordonnée. The following is the judgment delivered by RICHARD, J.A. I. Introduction

[ 1 ] On May 9, 2013, George W. Martin was convicted before a judge and jury of “willfully attempting to obstruct, pervert or defeat the course of justice”, the offence set out in s. 139(2) of the Criminal Code of Canada . He was sentenced to a custodial term of 16 months. Mr. Martin seeks to appeal that conviction on questions of mixed law and fact, and, in the alternative, asks for leave to appeal his sentence. Given the evidence on the record before me, I am satisfied there was a miscarriage of justice in this case that warrants a new trial.

This matter is of too great importance to the appellant and community at large to sustain a verdict that may be tainted with unfairness or the appearance thereof. For the reasons that follow I would allow the appeal, set aside the conviction and order a new trial. II. Background A. Procedural History [ 2 ] The facts leading to the charge under s. 139(2) of the Criminal Code are straightforward. Mr. Martin is a lawyer who practiced law in Miramichi, New Brunswick for 38 years prior to these events.

Shortly after midnight on May 30, 2005, he received a phone call from one of his clients, Roger Wedge, who had just been arrested for possession of illegal tobacco. Following his conversation with his client, Mr. Martin called the client’s wife, Yolande Wedge, and is alleged to have counseled her to dispose of evidence that might be in the client’s home. The call was intercepted pursuant to a previously obtained authorization to intercept incoming and outgoing calls at the Wedge residence, and the recording of the conversation was used as evidence at Mr. Martin’s trial. [ 3 ] At trial, Mr.

Martin did not challenge the validity of the wiretap authorization. However, he argued the RCMP had not complied with its terms. He was acquitted on November 24, 2008, after a judge of the Court of Queen’s Bench excluded the recording of the conversation, because he found the interception to have been a violation of Mr. Martin’s right under s. 8 of the Canadian Charter of Rights and Freedoms to be secure against unreasonable search and seizure (see R. v. Martin , [2008] N.B.J. No. 406 (Q.B.) (QL) ).

That decision was overturned by this Court, which, having found the judge had erred in excluding the intercepted communication, set aside the acquittal and ordered a new trial ( see R. v. Martin , 2010 NBCA 41 , 361 N.B.R. (2d) 251 , leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 302 (QL)). [ 4 ] Mr. Martin elected to be tried by a judge and jury at the second trial, which was held from May 7, 2013, to May 9, 2013. Closing arguments finished around 2:31 p.m. on May 9, following which the judge gave his final instructions to the jury at about 2:41 p.m.

Approximately an hour later, the jury was sequestered in the jury room. Court resumed at 5:05 p.m., as the jury wanted to hear the recorded conversation between Mr. Martin and Mrs. Wedge twice more. At 8:35 p.m., the jury returned with a verdict of guilty, and sentencing was subsequently scheduled. [ 5 ] A few days after the verdict was rendered and the jury discharged, Mr. Martin and his counsel were advised of certain procedural irregularities that allegedly occurred during the jury deliberations. This led Mr.

Martin to bring a motion before the trial judge requesting an inquiry into the alleged irregularities to determine whether there had been a miscarriage of justice; and, if there had been, seeking a mistrial on the grounds he was denied a fair and impartial trial. The judge allowed the motion in part. Although he held he had no jurisdiction to declare a mistrial, the trial judge nonetheless granted the request for an inquiry, stating: “it is in the best interests of justice that an evidentiary record to inform the Court of Appeal’s deliberations be compiled”.

The resulting evidence forms part of the record for consideration on this appeal. B. Inquiry into Jury Deliberations [ 6 ] The inquiry held by the trial judge on July 25, 2013, created an extensive record. Only the judge examined members of the jury, though Crown and defence counsel were able to submit potential questions to the judge for his consideration. The defence brought forward a civilian witness, John W. Walsh, who was a spectator during the trial and had brought the potential irregularities to Mr. Martin’s attention.

The prosecutor conducted direct examinations of the sheriff’s officers in whose charge the jury was placed on the day of deliberations. Defence counsel was given an opportunity to cross-examine those officers, and the prosecutor an opportunity to cross-examine Mr. Walsh. [ 7 ] The defence sought to inquire into two aspects of impugned jury conduct: (1) whether a juror or jurors received and considered extrinsic information; and, (2) whether members of the jury carried on deliberations in the absence of the entire jury ( R. v. Martin , 2013 NBQB 321 , 409 N.B.R. (2d) 45 , at para. 20 ).

The judge addressed the scope of the inquiry to be conducted in his reasons on the motion, finding it to be within his discretion to determine. He described the exercise of that discretion as depending on “whether the conduct in question is intrinsic to the jury deliberations or involves extrinsic information or influences”, a distinction that “rests on a determination of whether the rules regarding jury secrecy will be compromised” (para. 18). He concluded “that an inquiry

into both aspects of the alleged juror conduct […] would not offend the jury secrecy rule”, and the inquiry proceeded on that basis (para. 26). [ 8 ] The impugned jury conduct specifically related to two observations made by Mr. Walsh that allegedly occurred after the jury was sequestered: that one juror had been party to a telephone call while separated from the other jurors, and that the jury was in three different groups and engaged in conversation.

With respect to this second observation, the trial judge identified the pertinent concern to be whether the jury had, at any time, conducted deliberations when all the jurors were not present. Mr. Walsh’s observations are set out in an affidavit, the relevant portions of which state: 5. THAT, while the jury was sequestered, I was waiting for the verdict with a number of friends and supporters of George Martin, when I noticed a number of the jurors being escorted to a stairwell on the East side of the third floor of the courthouse.

I believed that this stairwell led to an area just outside the ground floor of the courthouse, where court staff could eat their lunch and smoke cigarettes. 6. THAT, I also took the opportunity to have a cigarette at this time, as I knew that the jury would not return with their verdict while a number of them were outside the courthouse. I took the elevator to the main entrance of the courthouse, where I observed the foreman of the jury, [R.M.], walking from the parking lot of the West side of the building, talking on a cellular phone. 7.

THAT [R.M.] was talking on the cellular phone from the time I lit my cigarette, until I finished it, which I estimate to be approximately 7 to 10 minutes. He appeared visibly upset while speaking on the phone, however I could not overhear what he was saying. 8. THAT, while [R.M.] was talking on his cellular phone, I could see the several of the other jury members speaking to one another and nodding their heads while I was standing outside, however I could not hear what was being said. 9.

THAT when [R.M.] finished his telephone call he was walking up the steps to the main entrance to the courthouse when the sheriff stopped him and told him that he could not take the phone into the courthouse with him. [R.M.] and the sheriff walked back to the parking lot on the West side of the courthouse, however I could not see where they went, and I decided to return to the third floor of the court house at this time. […] 11. THAT I returned to the third floor of the courthouse and the jurors who had left to smoke had returned to the jury room, but [R.M.] was still outside.

Several minutes later I observed [R.M.], accompanied by a sheriff, exit the main elevator and very hastily walk to the jury room. [R.M.] was “stone faced”, visibly upset, and was walking in an unusually fast pace when I observed him exiting the elevator and returning to the jury room. 12. THAT I am certain that the jurors were in three separate groups at one point after they were sequestered. Initially, some members remained in the jury room while a portion of the jurors exited the building to smoke.

When [R.M.] was talking on his cellular phone, on the opposite side of the court house, a group of jurors were in the jury room, a separate group of jurors were on the exterior seating area on the East side of the court house grounds, and [R.M.] was talking on the cellular phone with a sheriff standing near him. [ 9 ] Mr. Walsh repeated his observations in his testimony during direct examination: Q. Great. And could you maybe just take us through that now and let us know what you observed on May the 9th, your own observations and just what you saw that particular day? A. Sure, yeah.

We – I was in the waiting area and when, I guess, six or seven, I think seven jurors were led down the stairway for a smoke break, and I observed them out the window in that area to the east of the building, the little smoking area.

So I decided to go for a cigarette myself and at the front exit there’s a little smoking area, so as I lit my cigarette I noticed two people walking from the parking area, one gentleman was a sheriff, the other gentleman was a juror and the juror was either texting or dialing his cell phone and he proceeded to – I, I lost view of him a bit behind the tree and I looked to my left again to look at those jurors and I couldn’t believe what I was seeing, but anyway, he, the juror, was then talking on the phone and kind of walked and stopped and walked and stopped until he got to the front of the building.

He was there for a few moments. I finished my cigarette, went –

[…] A. As I got to the door myself the juror and the sheriff were coming to the top of the stairway. I was going to hold the door for him and the sheriff indicated to the juror that stop, you can’t go in there with that cell phone or something to that affect, or you’re not allowed, I think. So I, I proceeded at the building, stopped at the desk at the front and made a comment to the sheriff there about, like what’s that guy doing on the phone. Is he not a juror, a sequestered juror, that type of thing, and he kind of was as surprised as I was.

And I noticed the juror and the sheriff kind of turned around, I thought they were going back to the parking lot, but I later found out that they didn’t, and I proceeded upstairs. Q. And when you, when you got upstairs that’s basically – did you come up before juror number three, the one you’re referring to him? A. Yes, I did. Q. Okay. A. Yeah, I was at the top of the stairs for a moment looking down the hall and I, as I walked towards the elevator area, the juror and the sheriff got off the elevator and walked to the jury room. Q.

Okay, so, so were you in – you were inside the building and inside the hall, which is basically right out here? A. Yes. Yes. Q. When, when juror number three and the sheriff came back inside? A. Exited the elevator, yes. Q. Exited the elevator, and did you ma... did you observe where they both went after they exited the elevator? A. To the jury room, I believe, yes. Q. Okay. And while, while you had noticed juror number three outside on his phone while you were out smoking, did you have a view of the other jurors who were out there smoking? A. I did. Q.

Okay and you were able to observe them from where you were standing? A. Several of them. A couple were sitting down below the tree line, I couldn’t really – the bushes, couldn’t really – but two or three were kind of mingling around. Q. Right. Okay. Alright now, do you have any idea, Mr. Walsh, around what time it was that you observed juror number three

speaking on his cell phone? A. After seven. Q. Okay. A. Between seven and seven-thirty, maybe. Q. Alright. And do you recall, in your opinion I guess you’d have, you’d have to give it. A. Yeah. Q. How long this conversation or how long you observed juror number three speaking on the cell phone? A. He seemed to speak longer than, than either dialing or texting for sure, but for the full length of my cigarette, so seven to ten minutes, I estimate it. Q. Right. Okay and that’s basically what you said? A. Yes. […] Q.

Alright, just, maybe just one more question, and you said that it was some time a couple of days later or a week later that you went down to Mr. Martin’s office? A. I believe it was the fo... the following Tuesday or Wednesday. Q. Right. A. After thinking about it and talking to my son about it. Q. That’s right. You mentioned something about your son asking you a question about that. A. Yeah, he said you should – yeah, he said is that allowed, that type of thing. I mean. I said I really don’t know, so he said you should go tell somebody, so. Q. Right. A. Yeah. He’s 14 years old.

[ 10 ] Mr. Walsh also provided commentary on a security video taken at the courthouse during the time of his observations. He identified seven members of the jury leaving the jury room and going downstairs to smoke at 7:36 p.m., himself going out for a cigarette at 7:40 p.m., and the seven jury members returning at 7:44 p.m. He further identified himself walking back inside the courthouse at 7:47 p.m., at which time he also noted juror number 3 stepping out of the elevator with a sheriff and returning to the jury room. On cross-examination, Crown counsel raised some questions concerning the 7-10 minutes Mr.

Walsh had stated in his affidavit with respect to how long juror number 3 had been talking on his cell phone; however, it was undisputed that juror number 3 appears on the video with a cell phone in hand, and at one point appears to be talking on it while in the view of Mr. Walsh. [ 11 ] The judge formed his questions for the jury members, with the assistance of counsel, primarily based on the two observations respecting impugned jury conduct in Mr. Walsh’s affidavit.

All of the jurors were asked the same series of questions, except for juror number 3, who was questioned more extensively about the phone call to which he was a party. [ 12 ] Juror 3 testified he received a text message from his wife on May 9, 2013, before the jury deliberations started, which said he “needed to get a hold of her as soon as possible” because she “needed upstairs in my room which [he] had locked”. He had not immediately called her and had left the cell phone in his truck.

After the judge had given his instructions to the jury, and deliberations had started, juror 3, when “everyone went for a break”, asked permission from one of the sheriff’s officers supervising the jury “to place a call to [his] wife as soon as possible because it’s urgent that I get to that phone call”. He was informed he would have to be escorted by a sheriff, at which point a sheriff officer did escort him to his truck so he could retrieve his phone and make the call. Juror 3 provided details respecting the phone call in response to the judge’s questions: THE COURT: Okay. So you went with the sheriff? A. Yes.

THE COURT: To the truck? A. Yes. THE COURT: You retrieved your phone? A. Yes. THE COURT: The sheriff stood within five feet of you, is that correct? A. Five feet away from me. THE COURT: And you called whom? A. My wife. THE COURT: And what did you say to her? A. I said what is it so important that you need for me to call you. She turned around and said Brandon needs his steel-toed boots because he started a job in Fredericton, which is my son Brandon.

He can start a job first thing in the morning but if he doesn’t get the boots, the steel-toed boots, which was up in my room, that he wouldn’t be able to start that job, and, Your Honour, he was on the verge

of losing his car so he needed to get this job. THE COURT: Okay. So - A. So I made arrangements and all, but the arrangements were is to retrieve my keys that I had on me for that room. That’s all it was about. Because my steel-toed boots were still in there – were in that - up in that room. THE COURT: Okay. A. And then at that point in time I looked at the sheriff and the sheriff was still looking at me and I’m still looking at him. He can hear every word I’m saying.

I said I’ve got to try and find a way of getting my keys to my wife so my son can get the boots because he has to work and where he was working – we live here but he works in Perth-Andover. At that time the sheriff offered to take my key, if I wished to, if I wished to and on his way home because he passed through there he can hand it to my wife either at home or at work.

But then there, then another discussion came about too, I said and if it’s – I asked the sheriff if it’s held over and we can’t come to a judgment, which hotel will we be at so I can give you the keys to give to her so I can tell her to be at this hotel room, and that’s all that was said. THE COURT: Okay. So what arrangements were made for your wife to get the keys? A. To go to the actual motel room or the hotel, sorry. The hotel so the sheriff can give her the keys. THE COURT: Okay. Did you give the keys to the sheriff? A. Not at that time, no. THE COURT: Okay.

So when you finished your conversation in the parking lot with your wife, the arrangement was what? That the sheriff would have the keys? A. Yes, that he – she would have to retrieve the keys from the motel. THE COURT: Okay. So the arrangement was that your wife was going to come by to the motel that you were staying? A. That’s right. THE COURT: She was to do what? Contact you or contact the sheriff? A. She would contact the sheriff. THE COURT: Okay and the sheriff understood that was what was going to happen? A. Yes, sir. THE COURT: Okay. So did your wife in fact come to the motel?

A. No, sir. We didn’t went up at the motel. THE COURT: Right, okay. That’s correct. So you had no conversation afterwards there were – I take it when you went hop... when you went home that evening you opened the door to the room, is that correct? A. Yes, sir, I did. […] THE COURT: And is it your evidence that the sheriff could overhear your conversation with your wife? A. Yes, sir. THE COURT: Okay. How long did the call last? A. Five minutes maybe. THE COURT: And how did you return to the jury room? A. I walked in with the sheriff. THE COURT: Which way did you come in? A.

Same way, up the hallway and into the room and sat down. THE COURT: And you were with the same sheriff when you came back? A. Yes, sir, I was. THE COURT: Do you know what time you returned to the jury room? A. No, sir, I don’t. All I know is the placed call was only about five minutes and then right after I was finished I handed the cell phone to him and – oh, no, sorry, I – yeah, I handed the cell phone to him and went into the room and that was it. THE COURT: Okay. And did you resume deliberations after you went into the room? A. Yes, sir. THE COURT: Were you advised to resume deliberations?

Did anybody tell you to resume deliberat... deliberations?

A. No. We just went after there – after I arrived then we started talking about it again. THE COURT: Okay. So when you first went out everybody was on a break? A. Not everyone. THE COURT: No. When you say that were some, some of the jurors outside having a cigarette? A. That’s my – there was several times where they were outside but yeah. THE COURT: And when – and where were the non smoking jurors? A. Oh, I don’t know. THE COURT: You don’t know. A. No, I was out too busy doing the phone call. THE COURT: Okay.

When you went back into the jury room did you discuss the contents of the telephone call with the other jurors? A. Yes, I did. There was one other, I said – I mentioned it to one of the other jurors that I was happy that my son is going to be able to get back on his feet again because he got himself a nice job, and that was about it. THE COURT: And that was the extent of what you - A. Yeah, I was just proud of my son that he’s going to be able to get back on his feet again. THE COURT: Okay. Did you make more than one phone call? A. No.

THE COURT: Did you send or receive any texts when you were in the parking lot with the cell phone? A. No. [ 13 ] Juror 3 also testified that he made the call from beside his truck, “between the rear door and another vehicle”, in the main parking lot, and that he “stayed just leaning against [his] truck”, facing the sheriff, for the duration of the call. It is unclear from the evidence why juror 3 waited until after deliberations had begun to place the phone call, given that he had received the text message from his wife around the lunch hour.

The judge did not pursue this line of questioning so as to avoid “cross-examining a juror”, and agreed with Crown counsel that “whether juror number three decided to wait is irrelevant”.

[ 14 ] Several of the other jurors made noteworthy statements about the deliberations. The exercise of asking the same set of questions to the different jury members is illustrative of how memories of the same event can differ immensely, even less than two months later. The jurors were inconsistent even as to how many breaks they had, with some remembering one, some two, and one juror “three at most”.

There was also inconsistency regarding how many jurors went outside or stayed in during the breaks, with one juror (juror 9) testifying to everyone having gone outside. [ 15 ] Four jurors testified to having stayed inside when the others went out for breaks, but were not clear as to whether a sheriff was in the jury room with them at that time. Juror 4 testified to there having been two sheriff’s “helpers”, at least one of which was in the jury room. Juror 5 recalled there might have been a “little guy” in the jury room.

She thought there had been two sheriffs, as they both had on sheriff uniforms, but in the end could not recall for certain whether a sheriff had been in the jury room with them or not. Juror 11 stated a sheriff had been in the room “part of the time”, but could not recall whether a sheriff was in the jury room with them when the others went outside. Juror 12 believed a sheriff remained in the room with them. [ 16 ] The details with respect to whether juror 3 made a phone call or not, and, if he did, of what nature, are also somewhat unclear having regard to the jurors’ testimony alone.

Juror 4 recalled juror 3 relating a phone conversation to the rest of the jurors. Recall that juror 3 testified as to discussing the contents of his phone call with one other juror: “I said – I mentioned it to one of the other jurors that I was happy that my son is going to be able to get back on his feet again because he got himself a nice job, and that was about it”. However, juror 4’s testimony on this point was as follows: THE COURT: At any time did juror number three, who I believe was your foreman, discuss or advise you of the contents of a telephone conversation he had? A. Yes. THE COURT: Okay.

What was said and when? Can you give me some of the circumstances of that? A. I’m trying to remember exact words, but he said he was talking to either a brother-in-law or a relative of his in Ontario. THE COURT: In Ontario? A. If I remember correctly, I think it was Ontario he said. THE COURT: And was this after the deliberations had started? A. Yes. Yes, it was. THE COURT: And do you recall what the, what the nature of the conversation that he – what did he tell you about the conversation? A.

Basically he was talking to this person in Ontario, and if I remember correctly, relating the series of what was happening here, as far as the jury’s or actu... not the jury so much but the actual trial. THE COURT: He was talking to a relative in Ontario and discussing what? A. Parts of the trial as I remember correctly.

THE COURT: He was discussing parts of the trial with this person in – A. Yeah, just relating, whether it was totally the trial or just trying to get some kind of background of where the trial would go or how he would adjust this trial or address this trial. […] A. As far as I recollect, he basically was talking to somebody in Ontario, and if I remember correctly, he said it could have been one of his relatives. Now I can’t remember the whole story because I just didn’t pay that much attention to it. And he was talking to him and talking to some affect as to the go... the way the trial was progressing here.

Now that’s about as far as I can recollect and what he’s talked about. THE COURT: Was there anyone else present when he said this to you? A. In the jury room? THE COURT: Yes. A. Yes, there was. Yep. THE COURT: And this was said to you specifically or to everyone? A. Just, just an open conversation. THE COURT: Do you know if all the jurors heard it or? A. That I can’t comment on. I can only comment on me. THE COURT: Do you have any idea when – what time of day this was? A. Early afternoon or late morning? THE COURT: So this would have been before you started your jury deliberations?

If my recollection is correct sir, that I, I probably charged the jury somewhere – you probably went and started your deliberations around 3:00 in the afternoon? A. Three, yep. Yep. THE COURT: Was it before or after that? A. I think it was before but I couldn’t be absolutely positively sure, but I think it was before we actually – you gave us deliberations to go out and put us in charge.

THE COURT: And do you recall anything more about that conversation than what you’ve just related? A. Not really. It was just an open con... very vague conversation that he’s - just came out and said this for some reason. Like I said, I was (sic) paying a whole bunch of attention to it, so. [Emphasis added] [ 17 ] No other jurors recalled similar details, although juror 6 remembered someone asking one of the sheriffs if she or he could make a call home during one of the breaks, and juror 7 testified to juror 3 making a call, using a cell phone, from the jury room .

Juror 7 stated that the call occurred after they had started deliberating but before supper, and there was a sheriff present in the room at the time. He believed juror 3 called his girlfriend, and he “just heard him say, listen, I’m probably not going to be home tonight. We might be staying”.

Juror 10 did not recall any reference to a phone call, but did recall one of the other jurors requesting to go retrieve something from his vehicle, and that a sheriff had escorted that juror to do so. [ 18 ] All of the jurors, including juror 3, testified that no deliberations occurred, to their knowledge, when all of the jurors were not present.

Juror 2 added, “I believe we were told not to” in this regard. [ 19 ] Lastly, the two sheriff’s officers who had been sworn to supervise the jury and ensure that their deliberations would be held in private, Sheriff’s Officers McDonald and Manuel, testified regarding their interactions with the jury. The senior of the two, Sheriff McDonald, testified first. According to him, the jury requested and was allowed two breaks during their deliberations so as to give some of the jurors an opportunity to go outside to smoke.

The second break was requested shortly after the jurors had eaten supper, and included more jurors than the first break because some wanted to go outside to get some fresh air. Two sheriff’s officers, who had not been sworn, remained upstairs, outside of the jury room, with the jurors who did not want to go outside, while Sheriff McDonald escorted the rest downstairs.

It was on the way downstairs that juror 3 made the request to him to make a phone call, which request he describes: “he asked me going down the stairs if he could use the phone to call his ex-wife because his son was leaving for out west to Fort McMurray in the morning, early in the morning at four, three or four in the morning because he had to get a plane out of Moncton, I believe, I’m no... if I’m not mistaken, and he had clothes at his house that his son needed but he – his – he couldn’t get the keys to him”. [ 20 ] Importantly, Sheriff McDonald acknowledged that the process normally used for requests to contact a third party during a jury trial was not followed, as he “didn’t inform” the judge.

He noted during his cross-examination that “in hindsight, [he] should have”. Further, during direct examination, his explanation of what it meant to be sworn and “take charge of the jury” illustrates he understood the jury was to be kept secluded: Q. Alright and you did in fact take charge of the jury? A. I did. Q. What – so what does that mean in fact? A.

I have – well, what it means I have to follow what the judge – when I was sworn in with the justice, I swore to the justice that I’d look after the jury, keep them secluded, not let them talk to anybody, not, not anybody talk to them, make sure that they were secure in their of... in their room, make sure that they were fed and meals were brought to them whenever they were required, and any other needs that the jury requested.

The jury itself had been instructed on this point in the judge’s charge prior to sequestration: “[o]nce you retire to your jury room to consider your verdict the law requires that you be kept separate and apart until you reach a verdict and what that means is separate and apart together”. [ 21 ] Instead of following what he knew was the proper process, subsequent to juror 3’s request to make the phone call, Sheriff McDonald instructed Sheriff’s Officer Manuel “to take juror number three down to his vehicle, go and stay, stay with him the whole time. Don’t leave his side.

Get his cell phone, let him make his call, and then proceed back exactly up to the jury room after he was finished with the cell phone call”. After the smoke break, Sheriff McDonald returned to the jury room with his group first,

following which Sheriff Manuel returned with juror 3. According to Sheriff McDonald, the latter had been separated from the group for about five minutes. [ 22 ] As to whether the jury had engaged in deliberations when not all jurors were present, Sheriff McDonald testified that he had not heard any such discussion among the jurors he escorted outside. Before going downstairs for the first break, he gave the jurors certain instructions respecting deliberating while separated: Q. Alright. Are they given instructions as to what they discuss when the break is ongoing? A.

I told them before, before we go downstairs nobody is to talk about the trial unless they’re altogether at one with the whole 12. I said they could talk about the weather, talk about knitting, hockey games, anything other than the trial. [ 23 ] He acknowledged on cross-examination that the two officers who were outside the jury room during the breaks would not have been able to hear what the jurors inside the room were talking about. [ 24 ] Sheriff Manuel testified next, and corroborated what Sheriff McDonald had relayed regarding the events leading up to the phone call made by juror 3.

He also provided there is no sheriff’s policy, to his knowledge, whereby a sheriff’s officer stays in the jury room with any remaining jurors when there is a break. Following the instruction to escort juror 3 to his truck, Sheriff Manuel left the building with juror 3 as some of the other jurors went outside with Sheriff McDonald. Sheriff Manuel and juror 3 proceeded to walk west toward the truck, where juror 3 retrieved his cell phone from the centre console. Sheriff Manuel testified to being arm’s length away from juror 3 as the call was being made. Juror 3 first dialed his wife at home and then at work.

Sheriff Manuel briefly summarized the conversation, essentially repeating the testimony by juror 3: “the whole point of the conversation was he wanted to give the keys to – he was trying to get the keys to his ex-wife to unlock the door for things for his son… it was all about how to get her to find a way to find somebody to come to the courthouse to get those keys. There was – that was basically the conversation”.

To Sheriff Manuel’s recollection, juror 3 did not discuss the trial with his wife during the conversation. [ 25 ] Although juror 3 testified to only having made one phone call, Sheriff Manuel stated that juror 3 also made another call, which lasted about 25 seconds, to his girlfriend as they walked back toward the courthouse from the truck. He believed the purpose of that phone call was also to try and find a way to get the keys to juror 3’s wife. After this second conversation was finished, Sheriff Manuel took the phone from juror 3 before they went back inside the courthouse.

On re-direct examination, Sheriff Manuel agreed with Crown counsel that the jury members would have gone through the same security measures as anyone else in the building, and thus a cell phone would have gone “beep, beep, beep on the system”. [ 26 ] Sheriff Manuel testified to having been in the room when Sheriff McDonald instructed the jury not to discuss the case unless all the jurors were present: “like as soon as they were sequestered, Art McDonald went in and myself, I was with him, and he told them that if they were ever to take a break or go for a cigarette to make sure that they – if they only – they can only talk about the trial when they’re altogether (sic)”. [ 27 ] The trial judge concluded the inquiry by commenting that with regard to credibility findings he was in no better a position than the Court of Appeal, as nothing in the witness’ demeanour suggested he should find one way or another: THE COURT: I had considered and this will form part of the transcripts so it’s on the record, I had considered whether I should make – in the event that there was issues of credibility, conflicts in evidence, whether I would be in a position, a better position than the Court of Appeal to make findings of credibility and whether I should comment on that.

Having heard the witnesses today I saw nothing, quite frankly, in the demeanour of the witnesses that would give me any guidance one way or the other on terms of a finding of credibility. There may be issues with respect to the evidence itself in terms of timings and so on and what one witness said over another witness but that’s in the transcript. I certainly didn’t detect anything that would be considered demeanour, observations that I would make in the demeanour of the witness that would allow me to – would sway a credibility finding one way or the other. I’m not talking about the evidence itself.

It’s just the demeanour of the witnesses. So at tha... at this point I don’t think there’s anything in terms of helpfulness or guidance I can offer the Court of Appeal in terms of my observations of the witnesses’ demeanour on the witness box and I’m going to leave it at that. III. Issues on Appeal

[ 28 ] Mr. Martin raises several grounds of appeal, most of which allege he was denied the right to a fair and impartial trial, or the appearance thereof. In his submission, the grounds are summarized as follows:

A) Pursuant to s. 686(1)( a )(iii) of the Criminal Code of Canada , the jury’s verdict cannot stand on the basis the appellant suffered a miscarriage of justice as a result of procedural irregularities that were permitted to occur at his trial;

B) That the trial judge erred in finding that, after the introduction of evidence that procedural errors occurred during the trial and juror deliberations, which gave rise to miscarriage of justice or appearance thereof, he did not have the jurisdiction to grant a mistrial after the jury had been discharged;

C) That the trial judge imposed a sentence that was demonstrably unfit and unreasonable in the context of the facts of the case before him having regard to the fundamental purpose and objectives of sentencing contained in s. 718, and principles enunciated in s. 718.1 and 718.2 of the Criminal Code of Canada , by placing undue emphasis on the concept of general deterrence in crafting his sentence, considering the jury’s finding of guilt as an indication of the public interest, considering the appellant’s status as a lawyer an aggravating factor at sentencing, and failing to give proper consideration to sentence reduction principles contained in R. v.

Nasogaluak , 2010 SCC 6 , [2010] 1 S.C.R. 206 , following the admission of evidence that was obtained in violation of the accused’s Charter rights. IV. Law and Analysis A. Miscarriage of Justice [ 29 ] Mr. Martin submits this Court has the power to allow the appeal, pursuant to s. 686(1)( a )(iii) of the Criminal Code , on the basis that procedural irregularities at his trial caused a miscarriage of justice, or the appearance thereof. Section 686(1) ( a ) (iii) of the Criminal Code provides: 686.

(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal (

a) may allow the appeal where it is of the opinion that […] (iii) on any ground there was a miscarriage of justice[.] 686.

(1) Lors de l’audition d’un appel d’une déclaration de culpabilité ou d’un verdict d’inaptitude à subir son procès ou de non- responsabilité criminelle pour cause de troubles mentaux, la cour d’appel :

a) peut admettre l’appel, si elle est d’avis, selon le cas : […] (iii) que, pour un motif quelconque, il y a eu erreur judiciaire[.] [ 30 ] The powers of an appellate court in an appeal against a conviction contained in s. 686 of the Criminal Code include the power to dismiss an appeal notwithstanding certain errors, including errors of law. However, that power does not exist where there is a procedural error or irregularity that does not amount to an error of law, albeit a rare occurrence: R. v. Khan , 2001 SCC 86 , [2001] 3 S.C.R. 823 , at para. 18 .

If an error or irregularity of a procedural nature occurs at trial that does not amount to an error of law, the court of appeal must assess the appeal under s. 686(1)( a )(iii) and determine whether a miscarriage of justice has occurred, and no remedial provision can cure such an error or irregularity.

If a miscarriage of justice is found, “the appeal must be allowed and either an acquittal entered or a new trial ordered” (para. 18). [ 31 ] The error or irregularity alleged in the present case cannot amount to an error of law, because none of it can be attributed to the trial judge, and, as such, if the Court finds there was a miscarriage of justice, we cannot consider any of the remedial

provisions of s. 686. [32] Khan details the analysis to be undertaken under s. 686(1)(a)(iii). I adopt the helpful

summary Rouleau J.A.set out in R. v. Spiers, 2012 ONCA 798, [2012] O.J. No. 5450 (QL): Criminal Code, s. 686(1)(a)(iii) allows this court to set aside a conviction where we are of the opinion that “on any ground there was amiscarriage of justice”. In R. v. Khan, LeBel J., at paras. 69-87 (in dissent, but not on this point) provided an extensive overview of theconcept of a “miscarriage of justice”. He noted that there is no strict formula for determining whether a miscarriage of justice has takenplace and that irregularities may take many unpredictable forms.

The gravity of the irregularities and the impact of these on trial fairnessand the appearance of fairness are to be evaluated on a case-by-case basis. An appearance of a miscarriage of justice requiring a new trialexists “if the irregularity would be such as to taint the administration of justice” in the eyes of a reasonable and objective observer. “Wemust look at whether a well-informed, reasonable person considering the whole of the circumstances would have perceived the trial asbeing unfair or as appearing to be so”: para. 73. Also see R. v.

Cameron (1991) (ON CA), 2 O.R. (3d) 633 (Ont.C.A.). [para. 32] [33] The Supreme Court of Canada, in R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828, also picked up on theconcurring opinion of LeBel J. in Khan when discussing the meaning of miscarriage of justice under s. 686(1)(a)(iii): In his concurring opinion in R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, LeBel J. considered the scope of the miscarriages of justicecontemplated by s. 686(1)(a)(iii).

He concluded, at para. 69, that when considering whether an irregularity that occurred during a trialrises to the level of a miscarriage of justice, "[t]he essential question in that regard is whether the irregularity was severe enough torender the trial unfair or to create the appearance of unfairness." In R. v. Wolkins, 2005 NSCA 2, 229 N.S.R. (2d) 222, at para. 89, Cromwell J.A. provided a helpful

summary of the two types ofunfairness contemplated within the meaning of miscarriage of justice under s. 686(1)(a)(iii): ... the courts have generally grouped miscarriages of justice under two headings. The first is concerned with whether the trial was fair infact. A conviction entered after an unfair trial is in general a miscarriage of justice ... . The second is concerned with the integrity of theadministration of justice.

A miscarriage of justice may be found where anything happens in the course of a trial, including the appearanceof unfairness, which is so serious that it shakes public confidence in the administration of justice ... . [Citations omitted.] […] Where no actual prejudice has been demonstrated, in order to warrant a new trial the appearance of unfairness must be pronounced, suchthat it would be a serious interference with the administration of justice and offend the community's sense of fair play and decency.

Indetermining whether the conduct reaches the level of a miscarriage of justice, “[w]e must look at whether a well-informed, reasonableperson considering the whole of the circumstances would have perceived the trial as being unfair or as appearing to be so” (Khan, perLeBel J., at para. 73). [paras. 50-51, 74] [Emphasis added] [34] In R. v. Cameron, (ON CA), [1991] O.J. No. 415 (Ont. C.A.) (QL), Labrosse J.A.emphasizes that actual prejudice to the accused need not be shown in every circumstance where there is alleged irregularity in jurydeliberations.

Reconciling prior caselaw that was arguably conflicting, he explains: The reconciliation of these apparently conflicting approaches lies in identifying the concern raised by the offending circumstance. If, asin Gilson and Labelle, the offensive conduct is not such as to taint the administration of justice, then the concern is properly directed towhether actual prejudice was occasioned to the accused.

Where the events in question are so serious as to affect the administration ofjustice, as they were in Hertrich, then the focus turns upon the justice system and the miscarriage of justice occurs whenever theconfidence of the public in the system is shaken; that confidence is equally shaken by the appearance as by the fact of an unfair trial.[para. 22] [35] Thus, a miscarriage of justice under s. 686(1)(a)(iii) can occur in two ways: (1) there is actual prejudice to the

accused; or, (2) the events in question are sufficiently serious to affect the administration of justice, whether by the fact or appearance ofan unfair trial. This case revolves around the second, since no actual prejudice to Mr. Martin has been demonstrated. The question istherefore whether the errors of the Sheriffs in fulfilling their oaths or the irregularities surrounding the jury deliberations are sufficient toshake public confidence in the system because the trial would appear to have been unfair. [36] In Mr.

Martin’s submission, the procedural irregularities giving rise to a miscarriage of justice include: thebreaks in jury sequestration, juror 3’s unauthorized telephone calls to third parties, the unknown third party supervision of the jury, andbias and insufficient questioning on the part of the trial judge at the inquiry. I respectfully reject the last of these propositions.

Thejudge’s questioning of the jurors does not, in my view, suggest any bias or insufficiency. [37] The Crown replies by submitting that “[i]t is no longer realistic to expect every criminal trial to be completelyfree from procedural irregularity”, and relies on R. v. Horne, [1987] A.J. No. 440 (C.A.) (QL) to establish that “not every inappropriatecommunication with a sitting jury will result in a mistrial”. Crown counsel goes on to argue that “each case turns on its own factssurrounding the improper jury conduct”, and “[g]iven the facts in the case at Bar…appellate intervention is not warranted”.

I respectfullydisagree. [38] Several facts are clear from the record of the inquiry: two sheriff’s officers were sworn in to be in charge of thejury; juror 3 made at least one phone call sometime after the jury was sequestered; a sheriff’s officer accompanied juror 3 while the callwas made; the judge was not informed of juror 3’s request to contact a third party; and at one point, without the judge’s permission, thejurors were split into three different groups: one group inside, one group outside with Sheriff McDonald smoking or getting fresh air, andjuror 3 making a phone call near his truck in the presence of Sheriff Manuel.

There is conflicting testimony as to how many phone callsjuror 3 made, how long those calls lasted, the nature of those calls, whether a sheriff or sheriff’s “helper” remained in the jury room withthose jurors that stayed inside during breaks, and how many breaks there were after the deliberations started. Other than the testimony ofjuror 7, the evidence was consistent that juror 3’s phone was in his truck except for when he used it in Sheriff Manuel’s presence.

Asidefrom the plain fact that at some point the jurors were split into different groups, there is no evidence deliberations took place at any timewhen not all of the jurors were present. [39] Upon reviewing the caselaw, it is clear that the circumstances in the present case do not constitute the mostegregious example of irregularities that have taken place at a trial.

For example, in Cameron the jury in a murder trial went to dinner in aprivate room of a local restaurant; besides the jury, also present were the two sworn court constables, three additional unsworn courtconstables, the court registrar, the court reporter, a sheriff's deputy, a sheriff's officer in charge of prisoner control and a uniformed citypolice constable who was a close first cousin of the victim in the murder case.

In addition, after the jurors had retired to their hotel for theevening, before deliberations were continued in the morning, an unsworn court constable, who had been at dinner, invited one juror tohave a drink with him at the hotel bar, which they did. The Ontario Court of Appeal found the conviction could not stand, as theappearance of unfairness was “incontrovertible” (para. 26). See also R. v. Masuda, (BC CA), [1953] B.C.J. No. 102(B.C.C.A.) (QL), where a murder conviction was overturned on appeal because Crown witnesses had dined with the jury members. [40] In Rex v. Nash, [1949] N.B.J.

No. 7 (N.B.C.A.) (QL), a jury verdict convicting the accused of murder was setaside. In the case, the jury members spent several nights in a hotel as deliberations extended over several days. During that time, severaljury members contacted family members on a pay phone while supervised by a sworn constable; one jury member was attended to by aphysician; and the jury attended the showing of a film about a man to be hanged for his crimes, at which they mingled with the crowd. Anew trial was ordered due to the improper separation of the jury. [41] R. v. Arsenault, [1956] N.B.J.

No. 3 (N.B.C.A.) (QL) provides an example of a less serious irregularity duringdeliberations. In that case, during a trial on a charge of bank robbery, a clerk of the court entered the jury room during deliberations andanswered a jury question on available verdicts. Even though the judge did not recall the jury after the incident to inquire into any possibleinfluence, our Court determined no miscarriage of justice had resulted and the jury’s verdict of acquittal was allowed to stand.

For similarirregularities involving one instance of unauthorized contact with a sequestered jury, in both of which the jury verdicts stood on appeal,see R. v. Gilson, [1965] O.J. No. 1003 (Ont. C.A.) (QL); R. v. Labelle, [1981] O.J. No. 126 (Ont. C.A.) (QL). [42] Falling somewhere in the middle of these cases in terms of seriousness of irregularity, the constellation of factsin the present case, in my view, results in an undeniable appearance of unfairness.

Of particular concern are the unauthorized phone callsmade by juror 3, the apparent presence of unsworn sheriff’s officers or “helpers” in the jury room, and the unauthorized separation of thejury members on at least one occasion during their deliberations.

Although in Nash Richards C.J. suggested the phone calls themselvesdid not warrant overturning the conviction, stating that “while they were irregular and improper it had been shown that during theseveral contacts by the jurors with other persons no reference had been made to the trial and the jury could not have been influenced bysuch contacts” (para. 23), there are additional facts in the present case, besides the phone calls made by juror 3, that create themiscarriage of justice, just as there were additional facts in Nash.

Further, regardless of there being no evidence of actual prejudice to theaccused, in that none of the evidence at the inquiry suggests there was any improper influence of the jury, like Cameron:

[…] incidents so blatantly irregular on the part of those placed in charge of a sequestered jury and on the part of those charged with theresponsibility for the administration of justice cannot be excused. It is not enough to say that actual prejudice has not been demonstratedand that the jurors took an oath to bring a true verdict according to the evidence. The inquiry established that no actual prejudice had been demonstrated, but it did little, if anything, with respect to the appearance ofunfairness which in my view, is incontrovertible.

The conviction cannot be allowed to stand. [paras. 25-26] [43] As indicated above, Mr. Martin has also raised an issue with respect to the trial judge’s manner of questioningthe jury members during the inquiry. Although it may have been preferable to question juror 3 after the other jurors to allow questions tobe raised regarding their evidence, I echo the trial judge’s comments with respect to the inquiry being a fact-finding exercise, the purposeof which was not to cross-examine the jury members.

It is not possible or permissible to inquire into details surrounding the actual jurydeliberations, and as such, records from inquiries of this nature will of necessity always be partially incomplete. The trial judgeconducted the inquiry fairly and properly, and allegations to the contrary have not contributed to my finding that there was a miscarriageof justice in the present case. B. Other grounds of appeal [44] In light of the conclusion of a miscarriage of justice warranting a new trial, it is unnecessary to address theremaining grounds to dispose of the appeal.

In addition, I need not address the request for leave to appeal sentence. However, I wouldmake a comment with respect to a trial judge’s jurisdiction to declare a mistrial in circumstances where evidence of proceduralirregularities arises after the jury has returned a verdict and been discharged, but before sentencing. At the initial hearing of this appeal,we asked counsel for supplementary written submissions on this very issue, following receipt of which the hearing was continued. Inthe meantime, one of our colleagues was appointed to another court.

Therefore, the hearing continued before only two judges, as allowedby s. 8(5) of the Judicature Act, R.S.N.B. 1973, c. J-2. [45] Mr. Martin has made a compelling argument that the trial judge retained the jurisdiction to order a mistrial inthe circumstances of this case, and the respondent has countered with equal force. Considering the reduction in our number created byour colleague’s departure and of the fact that it is not necessary for us to address the question in light of our conclusion, I think it best notto determine the issue at this time. I do note, however, that his case is not like those of R. v.

Head, (SCC), [1986] 2S.C.R. 684, [1986] S.C.J. No. 76 (QL) and R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, which established the rule and the exceptionin cases where a jury’s verdict may have been improperly recorded. This is not a case of an improperly recorded verdict, as in Burke, orof the failure to receive a full verdict as in Head, where the verdict on lesser offences was never communicated. Rather, this is a case ofthe failure of court authorities to take the proper precautions according to law and to the judge’s instructions to ensure there would be noimproprieties or appearance of improprieties.

It is more akin to a situation where, after a verdict something in the nature of jurytampering was proven to have occurred. A most compelling argument can certainly be made that, in such situations, a trial judge shouldbe able to declare a mistrial rather than pass sentence. [46] Until the issue is settled, I certainly endorse the procedure the trial judge adopted in this case of building arecord for the Court of Appeal. V.

Conclusion and Disposition [47] In conclusion, in my view, the constellation of errors and irregularities of a procedural nature surrounding thejury’s deliberations, none of which can be attributed to the trial judge or amount to an error of law, establishes there was a miscarriage ofjustice, in the sense that a well-informed, reasonable person considering the whole of the circumstances would conclude the processfollowed appears unfair. I would, therefore, allow the appeal, set aside the verdict and order a new trial. ______________________________ J.C. MARC RICHARD, J.A. I CONCUR:

______________________________ BRADLEY V. GREEN, J.A.