2023 NBPC 6, 2023 NBPC 6

CANADA PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT Hearing Date: April 13th, 2023 Decision Date: April 19th, 2023Docket No.: 158105 Neutral Citation: 2023NBPC06 HIS MAJESTY THE KING - and - KEVIN JAMES CORCORAN Decision of the Honourable Judge Scott A. Brittain Provincial Court of New Brunswick Note: Non-substantive editorial/grammatical changes were made to this decision following it being delivered orally on April 19th, 2023. APPEARANCES: Alana Napke, on behalf of His Majesty The KingDustin Caissie, on behalf of Mr. Corcoran DELIVERED ORALLY INTRODUCTION AND CONTEXT 1.

In a decision following trial rendered on December 20th, 2022, Kevin Corcoran (“Mr. Corcoran”) was found guilty of twoindictable offences: the first under

section 132 (perjury) and the second under subsection 140(2) (public mischief) of the Criminal Codeof Canada (the “Criminal Code”). This decision is reported at 2022 NBPC 8 , 2022 NBPC 08. 2. His sentencing hearing was held on February 1st, 2023 and this Court reserved decision until March 17th, 2023 owing to the widely divergent recommendations of counsel. In the intervening period, on February 21st, 2023, Mr. Corcoran filed a Notice of Applicationwith this Court seeking that the case be reopened, a mistrial declared and a new trial ordered.

The ground relied upon in support of this remedy is that “new evidence” came to Mr. Corcoran’s attention after trial by way of a January 9th, 2023 response to an October 11th,2022 request made to the Miramichi Police Force (the “MPF”) pursuant to the Right to Information and Protection of Privacy Act, 2009S.N.B., c. R-10.6 (the “RTIPPA”). Because Mr. Corcoran has not been sentenced, a “conviction” has not been entered. As a result, thisCourt retains jurisdiction respecting this Application. 3.

The Notice of Application was subsequently amended on March 14th, 2023 to require the presence of Constable Tyler Gray of theMPF to provide viva voce evidence at the hearing of same. The “new evidence” appended to the Affidavit of Mr. Corcoran’s solicitor,

which was sworn to on February 18 th , 2023 in support of the Application (see Exhibit “C” thereof), consists of a heavily redacted police report prepared by Constable Gray on June 3 rd , 2020 relative to a complaint he dealt with and quickly disposed of on June 2 nd , 2020. Mr. Corcoran was the subject of the complaint. The redactions were made by the MPF to the police report pursuant to the mandatory and discretionary exemptions to disclosure set out in the RTIPPA. 4 .

An unredacted copy of this police report was admitted as Exhibit “D-1” at the hearing of this Application and reveals the complainant to be Tristan Munn (“Mr. Munn”), a former employee of Mr. Corcoran and the boyfriend of Mr. Corcoran’s ex-spouse, Ashton Corcoran (“Ms. Corcoran”). It details a call that had recently been placed by Mr. Corcoran to Ms. Corcoran while he was serving a sentence at the Southest Regional Correctional Centre in Shediac, New Brunswick (the “SRCC”). This call was intercepted at some point by Mr. Munn. Mr. Munn and/or Ms.

Corcoran recorded at least part of the call and played it for Constable Gray upon meeting with him on June 2 nd , 2020. The complaint advanced by Mr. Munn was that the content of the recorded call from Mr. Corcoran amounted to the utterance of a threat or threats. Constable Gray listened to the recorded call, found it to be too vague to support further action under the Criminal Code , documented the complaint and his steps taken in relation to it and closed the file. 5 . Bad blood most certainly exists between Mr. Corcoran, Mr. Munn and Ms. Corcoran.

The intense level of acrimony that saturates their relationship was addressed in the trial decision and will not be revisited here. For the purpose of this introduction, suffice it to say that the central issue at trial was a narrow one: whether Mr. Corcoran knowingly provided a false KGB statement to the MPF on June 26 th , 2020 with the intention to mislead which, in turn, caused the MPF to embark on a meritless criminal investigation into whether Mr. Munn uttered threats to Mr. Corcoran by telephone on June 22 nd , 2020, being the day Mr.

Corcoran was released from the SRCC after completing a four-month sentence. 6 . Both Mr. Munn and Ms. Corcoran testified at trial and were ultimately found to have given “compelling and believable” testimony that was “cogent, consistent, credible and reliable in all material respects…which is strongly supported by the independently verified records found in Exhibits C-4 and C-5” (see paragraph 64). In arriving at this conclusion, the following observations were made at paragraph 59: “…this Court does not believe the evidence of Mr. Corcoran nor is this Court left in reasonable doubt by it.

Turning to the evidence before this Court that is accepted, this Court is not left in reasonable doubt regarding Mr. Corcoran’s guilt” . 7 . The crux of the argument put forward by Mr. Corcoran in support of the Application is that the aforementioned police report “directly contradicted the evidence of a key witness at trial, Ashton Corcoran, which was in the possession of the Miramichi Police Force at the time of trial but not disclosed” and that Mr. Corcoran’s solicitor had, well in advance of trial “specifically requested disclosure of records from the impugned time period” . 8 .

In advancing this position, much is made by Mr. Corcoran’s solicitor of an error at paragraph 29 of the trial decision, where the following is stated: “Ms. Corcoran was unequivocal in testifying that at no point did she hear Mr. Corcoran’s voice on June 22 nd , 2020. Indeed, she testified that she hadn’t heard Mr. Corcoran’s voice for months and that he was incarcerated between February of 2020 and June 22 nd , 2020, during which he was bound by a non-communication order” (emphasis added). A detailed review of the trial recording confirms acknowledgment in the testimony of both Mr. Munn and Ms.

Corcoran of a call placed by Mr. Corcoran to Ms. Corcoran in or about early June of 2020 from the SRCC while Mr. Corcoran was incarcerated there. This call was never meaningfully pursued on cross- examination with either Mr. Munn or Ms. Corcoran. It is also important to highlight that Mr. Corcoran was a party to this call. He initiated it and, accordingly, had full knowledge of it. What’s more, he mentioned it in his trial testimony. The statement in the trial decision that Ms. Corcoran “hadn’t heard Mr.

Corcoran’s voice for months” is clearly in error having regard to the relevant excerpts from the trial recording. The Crown takes the position that Mr. Corcoran has chosen to latch onto this in his Application to amplify the significance, or at least potential significance, of the so-called “new evidence” . The “direct contradiction” identified by Mr. Corcoran’s solicitor, says the Crown, is not with the evidentiary record that was before this Court but rather with the discrete and erroneous “for months” statement made at paragraph 29 of the trial decision. 9 . Mr.

Corcoran states that the Crown was obligated to disclose this police report and, had this police report indeed been disclosed, his solicitor would have been much better equipped to carry out a robust and involved cross-examination of both Mr. Munn and Ms. Corcoran that may have worked the effect of placing a negative patina on this Court’s assessment of their credibility and, correspondingly, helped bolster a reasonable doubt about Mr. Corcoran’s guilt based on the trial evidence that was accepted by the Court. 10 .

The Crown is of the view that the police report in question was not disclosable because it was in no way pertinent to the narrow issues before this Court at trial. The Crown also notes that it only learned of the police report upon the service of this Application. Moreover, it is the Crown’s position that if the police report had indeed been disclosed, the use to which it would have been put, as revealed in the Application and through argument, would have constituted inadmissible collateral fact evidence. 11 . Turning to the statement made in the Application that Mr.

Corcoran’s solicitor had “specifically requested disclosure of records from the impugned time period” , the Crown is quick to note that Mr. Corcoran’s solicitor sought by way of correspondence dated January 10 th and 17 th , 2022 disclosure of the “[p]hone records of Kevin Corcoran for June 2020 from the Shediac Institution” and “City Police Report of Leo Murty from when he went to take Mr. Corcoran’s items from Ashton Corcoran in July 2020” (see Exhibit “A” to the Affidavit of Mr. Caissie, sworn to on February 18 th , 2023).

Responding to this disclosure request on January 21 st , 2022, the Crown advised that it did not have the requested phone records from the SRCC in its possession and that the July 2020 police records “post- date[d] the offence… [and] would presumably not be disclosable as part of this file” (see Exhibit “B” to the Affidavit of Mr. Caissie, sworn to on February 18 th , 2023). 12 . Finally, the Crown notes that on the heels of the Crown’s correspondence of January 21 st , 2022, Mr. Corcoran’s solicitor filed an O’Connor Application on February 2 nd , 2022 to obtain Mr.

Corcoran’s calling records from the SRCC only to subsequently advise the Court and the Crown by correspondence dated February 17 th , 2022 that the hearing of same, which was scheduled for March 4 th , 2022, was no longer required because “representatives from the jail…consent to this request and will provide the requested items with a

production order”. Closing the loop on this at the hearing of this Application, Mr. Corcoran’s lawyer tendered an Affidavit from Luc Cormier, Deputy Superintendent at the SRCC, which was sworn to on March 11th, 2022 and confirms that “all calls made from KevinCorcoran in June 2020 on the Synergy Telemate system is no longer recorded”. Deputy Superintendent Cormier’s Affidavit was markedas Exhibit “D-2” at the hearing of this Application. 13. The Crown sees this Application, when stripped of its varnish, as nothing more than an attempt on Mr. Corcoran’s part to secure asecond bite at the cherry. THE EVIDENCE 14.

The evidence on the Application before this Court consists of the following: a. The Affidavit of Mr. Caissie, sworn to on February 18th, 2023; b. Exhibit “C-1”, being audio excerpts from the recording of the trial; c. Exhibit “D-1”, being the unredacted police report of Constable Gray, dated June 3rd, 2020; d. Exhibit “D-2”, being the Affidavit of Deputy Superintendent Cormier, sworn to on March 11th, 2022, and e. The viva voce testimony of Constable Gray. Testimony of Constable Gray 15. Constable Gray has been a general duty police officer with the MPF since 2019.

On June 2nd, 2020 at approximately 11:00 pm,Constable Gray attended at the residence of Mr. Munn and Ms. Corcoran in relation to a complaint received from Mr. Munn. The natureof Mr. Munn’s complaint was that Mr. Corcoran, while incarcerated at the SRCC, had made recent contact by telephone and uttered athreat or threats to Mr. Munn. The conversation between Mr. Corcoran and Mr. Munn, or at least part of it, had been recorded by Mr.Munn and/or Ms. Corcoran and was played for Constable Gray. 16.

Constable Gray documented the details of this complaint in a police report he prepared the following day, which was marked asExhibit “D-1”. The

summary of the recorded call, as provided by Constable Gray in his police report, is that Mr. Corcoran called fromthe SRCC to speak to Ms. Corcoran but Mr. Munn took control of the phone and refused to allow Mr. Corcoran to speak to her. Thingsescalated quickly and became quite heated. Voices were raised and, amidst the cacophony created by the exchange of obscenities andshouting, Constable Gray could only discern Mr. Corcoran stating to Mr. Munn to “[j]ust wait and see till I get out”.

As earlier noted,Constable Gray concluded that “the conversation was more of a two-sided argument and there was no real threat of harm made byKevin, therefore we would not be able to charge given the recording I listened to”. Constable Gray advised Mr. Munn and Ms. Corcoranof this conclusion, which they accepted, and further explained that they should refrain from engaging Mr. Corcoran if he were to makefurther contact. In his testimony, Constable Gray largely confirmed the contents of Exhibit “D-1”. He explained that much of therecording made by Mr. Munn and/or Ms.

Corcoran was incomprehensible owing to the cursing and hollering between Mr. Munn and Mr.Corcoran. THE ISSUES 17. At issue in this proceeding is whether the so-called “new evidence”, being Exhibit “D-1”, warrants the reopening of this case and, ifso, ought a mistrial be declared and a new trial ordered? THE APPLICABLE LAW AND ANALYSIS The Solicitor of Record as Witness 18. Before entering upon the substance of the Application, this Court wishes to briefly comment on the Affidavit sworn to in supportthereof by Mr. Corcoran’s solicitor of record, Mr. Caissie.

At the outset of the hearing of this Application, this Court inquired of Mr.Caissie respecting the whereabouts of his co-counsel, Benjamin Reentovich, while taking appearances. At a previous appearance on thismatter, the Crown explained that it had not ruled out the prospect of cross-examining Mr. Caissie on the content of his Affidavit.Accordingly, this required Mr. Caissie to involve Mr.

Reentovich as co-counsel in this Application owing to the potentially intractableand easily avoided conflict that is frequently set in motion when a solicitor of record chooses to continue to wear such hat while alsobecoming a witness in the same proceeding. This practice has been strongly admonished by the Court of Appeal of New Brunswick timeand again. As Robertson, J.A. observed in Hughes v. The City of Moncton (2006), 2006 NBCA 83 , 304 NBR (2d) 92 (NBCA)at paragraph 1:

Once again this court must caution lawyers not to argue cases in which they have submitted affidavit evidence in support of a contentiousissue. The common law rule is straightforward: a lawyer cannot act as both counsel and witness in the same proceeding. Moreover, thecommon law rule has found its way into the Law Society of New Brunswick’s “Code of Professional Conduct”: see

Chapter 8,Commentary 6. This is not to deny that the law permits the giving of affidavit evidence with respect to formal or procedural matters, solong as those matters are and remain uncontested… (emphasis added) 19. Mr. Caissie clarified during appearances that the Crown had contacted him in advance of the hearing of the Application to advisethat they had decided not to cross-examine him on his Affidavit and, as a result, Mr. Reentovich was relieved from having to attendbefore this Court to argue this Application. The point made here is a simple one: this practice ought to be avoided.

The Mistrial Remedy: A High Threshold 20. For a trial judge to invoke the remedy of a mistrial, the threshold is very high. At paragraphs 11 through 13 in R. v. Colpitts, 2017NSSC 200 (NSSC), Cody J. provided an excellent overview of the applicable law: [11] It is well established that a mistrial is a remedy of last resort. It is only available when Defendants can establish that irreparableprejudice has occurred during a trial. In R. v. Burke, 2002 SCC 55, Justice Major commented at paragraphs 74 and 75: There are broad common law powers to declare a mistrial.

Mistrials have been ordered or considered as a potential solution in a range ofsituations: where a jury member is discharged (R. v. Taillefer (1995), (QC CA), 40 C.R. (4th) 287 (Que. C.A.), leaveto appeal refused, [1996] 1 S.C.R.; and R. v. Lessard (1992), (QC CA), 74 C.C.C. (3d) 552, [1992] R.J.Q. 1205(C.A.), leave to appeal refused, [1992] 3 S.C.R. vii); where inadmissible evidence is adduced during trial which might influence the jury(R. v. Woods (1989), (ON CA), 49 C.C.C. (3d) 20 (Ont.

C.A.), leave to appeal refused, [1990] 2 S.C.R. xii); wherethere is inadmissible communication between a witness and a juror causing prejudice (R. v. Martineau (1986), (QCCA), 33 C.C.C. (3d) 573 (Que. C.A.)); where disclosure is made immediately prior to or during the trial (R. v. Antinello (1995), 1995ABCA 117 , 97 C.C.C. (3d) 126 (Alta. C.A.); R. v. T. (L.A.) (1993), (ON CA), 84 C.C.C. (3d) 90 (Ont.C.A.)); and where the jury had already rendered a verdict but had not decided on the issue of mental disorder, making it impossible forthe judge to enter the intended conviction without ‘taint’ (R. v.

Rondeau, [1998] O.J. No. 5759 (QL) (Gen. Div.)). The common themerunning through this case law is the test of whether there is a [TRANSLATION] ‘real danger’ of prejudice to the accused or danger of amiscarriage of justice: Lessard, supra, at p. 562 C.C.C. In declaring a mistrial, the trial judge therefore turns his or her mind to the question of whether a mistrial is needed to prevent amiscarriage of justice. This determination will necessarily involve an examination of the surrounding circumstances.

Injustice to theaccused is of particular concern, given that the state with all its resources acts as the singular antagonist of the individual accused in acriminal case. This factor should be balanced against other relevant factors, such as the seriousness of the offence, protection of thepublic and bringing the guilty to justice.

It may be fitting to allow the announced verdict to stand where the period the accused has beenat liberty and under the mistaken impression that he or she had been acquitted has been lengthy, and where the charge is not so egregiousas to bring the administration of justice into disrepute. As has already been stated, the trial judge is in the best position to assess thecircumstances of each individual case and select the most appropriate remedy.

The language “real danger of prejudice” or a “danger of miscarriage of justice” indicates the height of the threshold for granting amistrial. [12] Applications for a mistrial call for the exercise of judicial discretion. In R. v. Chan, 2009 ABCA 88, Justice Ritter spoke of thisat paragraph 16: The granting of a mistrial application involves the exercise of discretion and appellate courts should proceed with caution, not lightlyinterfering with the trial judge’s discretion.

However, if the discretion was based on an incorrect principle or resulted in a miscarriage ofjustice, the appellate court may take corrective action: R. v. Barrette (SCC), [1977] 2 S.C.R. 121. [13] In R. v. MacDonald, 2016 ABQB 154, Justice Hughes heard an Application by the Crown for an Order for Certiorari withMandamus in aid to quash the declaration of a mistrial. He canvassed the principles at paragraph 30: A trial judge should only declare a mistrial in the ‘clearest of cases’. The remedy of a mistrial contemplates a fatal wounding to theadministration of justice which cannot be cured by remedial measures.

A mistrial is an exceptional remedy. It is the trial judge who is best suited to determine whether such applications succeed or fail.(emphasis added) The Test for Reopening a Case 21. The test for reopening a case was articulated by the Court of Appeal of Ontario in R. v. Kowall, (ONCA), leave toappeal to the SCC refused, as follows: 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 forthe admissibility of fresh evidence on appeal laid down in Palmer and Palmer v. The Queen (1979), (SCC), 50 C.C.C.(2d) 193, at page 205 (S.C.C.) (see: R. v. Mysko (1980), (SK CA), 2 Sask. R. 342 (C.A.).) That test is as follows:

(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle 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 taken with the other evidence adduced at trial, be expected to have affected the result.

These criteria provide helpful guidance to a trial judge faced with an application to reopen after conviction. In addition to the Palmer criteria, a trial judge must consider whether the application to reopen is in reality an attempt to reverse a tactical decision made at trial. Counsel must make tactical decisions in every case. Assuming those decisions are within the boundaries of competence, an accused must ordinarily live with the consequences of those decisions.

Should the trial judge find that the test for reopening has been met, then the judge must consider whether to carry on with the trial or declare a mistrial. One further observation should be made. New counsel for the appellant acted properly in bringing his application to reopen rather than simply allowing the case to proceed to sentencing. The trial judge is in a better position to assess the proposed fresh evidence than is the appellate court.

Had counsel in this case waited and raised the matter for the first trial on appeal he would have faced an argument that he failed to exercise due diligence in presenting the evidence . (emphasis added) 22 . Though R. v. Kowall has not been the subject of judicial consideration in New Brunswick, its reasoning has been either adopted or favourably cited by superior trial and appellate courts throughout Canada. See , for example, R. v. Gauthier , 2022 BCCA 377 at para. 37 ; R. v. MacGregor , 1997 NSCA 88 at p. 4 ; R. v. Cathcart, 2022 SKQB 84 at para. 8 and R. v. Wilden , 2020 ABQB 648 at para. 25 . Has Mr.

Corcoran’s Solicitor Demonstrated Due Diligence? 23 . Turning to the first criteria of “due diligence”, as set out in the applicable four-part test, Mr. Corcoran submits that the “new evidence” , being Exhibit “D-1”, was only received after the trial decision was rendered and, further, only after resort was made to a request under the RTIPPA . Moreover, Mr. Corcoran notes that a request was made of the Crown for “phone records related to the impugned time period well ahead of trial ”. 24 .

The Crown, as noted earlier, emphasizes that the O’Connor Application filed to obtain the call recordings from the SRCC was abandoned for the reasons earlier noted in the introduction to this decision, namely that the SRCC consented to provide them only to advise Mr. Corcoran’s solicitor a short time thereafter that those call recordings no longer existed. As for the police report, it is the Crown’s position that it was not disclosable in any event. Had it been disclosable, the Crown’s first knowledge of same arose only upon being served with this Application. 25 .

In the circumstances, and given the more relaxed approach that applies in criminal cases, this Court is satisfied that sufficient due diligence has been demonstrated by Mr. Corcoran’s solicitor to advance to the second part of the four-part test. Is the So-Called “New Evidence” Relevant to a Decisive or Potentially Decisive Trial Issue? 26 . Mr. Corcoran submits “the Court made specific credibility findings with respect to Ashton Corcoran and, by extension, Tristan Munn” and “[t]he evidence sought to be adduced directly contradicts Ms.

Corcoran’s testimony and would potentially impact the credibility findings of the Court” (emphasis added). 27 . The Crown disagrees with this assessment and for sound reason. This brings us back to what I will call the “for months” error at paragraph 29 of the trial decision. As is rightly noted by the Crown, “[a] review of Ashton Corcoran’s testimony reveals that she never used the term ‘for months’ when describing her last communication with the accused prior to June 22 nd , 2020. The term ‘for months’ appears to represent the trial judge’s

summary and his

interpretation of her evidence…” As is clear upon a revisitation of the trial recording of the testimony of both Ms. Corcoran and Mr. Munn, relevant excerpts from which were marked as Exhibit “C-1”, both witnesses acknowledged one-time telephone contact initiated by Mr. Corcoran while he was incarcerated at the SRCC between February of 2020 and his release date of June 22 nd , 2020. 28 . Turning first to the testimony of Ms. Corcoran, she noted “I remember one phone call um, in June, early June 2020 um, but I don’t remember any much more communication other than that between February and June” .

This was not meaningfully pursued by Mr. Corcoran’s solicitor on cross-examination despite having been given some latitude to do so in the face of the Crown’s objection to that line of questioning based on relevance. Mr. Munn also acknowledged that Mr. Corcoran “did call once from in jail…I know there was one time he called from he was in but I don’t know if that was prior or after this because speaking today that’s June 22 nd , 2020 I don’t know the date he got charged and went to jail for that other racket” . As with Ms. Corcoran, this was also not meaningfully pursued by Mr.

Corcoran’s solicitor during his cross-examination of Mr. Munn. As for Mr. Corcoran, he specifically referenced the call he made on June 2 nd , 2020 to Ms. Corcoran from the SRCC during cross-examination.

29 . It bears repeating at this juncture that Mr. Corcoran was a party to the early June 2020 call from the SRCC. He was the one who initiated it. Accordingly, knowledge of both its content and context directly resided with him independent of having the call recordings from the SRCC or the benefit of Exhibit “D-1” at trial. This so-called “new evidence” says the Crown is not, in actual fact, new evidence at all. Moreover, in the Crown’s view it would only serve to solidify rather than diminish the credibility findings made at trial respecting the testimony of Ms. Corcoran and Mr. Munn. 30 .

This Court finds the relevance of this so-called “new evidence” to a “decisive or potentially decisive issue in the trial” to be somewhat tenuous given the circumstances described above coupled with the specific nature of the charges against Mr. Corcoran; however, I am satisfied through the grant of a similar degree of latitude that I gave to Mr. Corcoran’s solicitor at trial that Mr. Corcoran has satisfied this component of the four-part test. Is the So-Called “New Evidence” Reasonably Capable of Belief? 31 . There is no quarrel between Mr.

Corcoran’s solicitor and the Crown that the so-called “new evidence” , being Exhibit “D-1”, is both credible and reasonably capable of belief. There is absolutely no reason to disbelieve or otherwise question the testimony of Constable Gray, which provided context for Exhibit “D-1”. His evidence was direct, straightforward, consistent and very matter of fact. In this Court’s estimation, it was highly credible and there was alignment in all material respects between his police report of June 3 rd , 2020 and his recollection of same almost three years later.

In view of this finding, the third part of the four-part test is satisfied. When Taken With the Other Evidence Adduced at Trial, Could the So-Called “New Evidence” be Reasonably Expected to Have Affected the Trial Result? 32 . It is at this fourth and final stage of the four-part test where this Application languishes and ultimately unravels. On this point, Mr. Corcoran’s solicitor again returns to paragraph 64 of the trial decision, where it was found that the position of the Crown was “compellingly and believably support by the evidence of Ms. Corcoran and Mr.

Munn, which the Court found to be cogent, consistent, credible and reliable in all material respects”. Continuing further, Mr. Corcoran’s solicitor queries whether what he refers to as a “contradiction” would have made Ms. Corcoran less credible in the eyes of the Court and asks “[h]ow would she have responded when presented with the contradiction? It should be kept in mind that the incident she forgot was not a routine exchange but a call that she took the following steps with respect to: (

a) she recorded it; (

b) called the police; (

c) played the recording for the police officer, and (

d) expressed her concerns about the nature of the call to the officer” . Similar questions were raised respecting Mr. Munn. 33 . In returning to what I have earlier called the “for months” error, the Crown highlights that the “contradiction” in the trial decision being emphasized by Mr. Corcoran’s solicitor is grounded in my mistaken statement regarding what the Crown characterizes as a largely peripheral or immaterial factual error rather than being anchored in the actual testimony given at trial by Ms. Corcoran and Mr. Munn, as reflected in the relevant excerpts from the trial recording.

These excerpts clearly demonstrate an acknowledgement on the part of Mr. Munn and Ms. Corcoran that there was a telephone call initiated by Mr. Corcoran while he was incarcerated at the SRCC between February of 2020 and his release date of June 22 nd , 2020, so it had actually been a matter of weeks, not months, since Ms. Corcoran had heard Mr. Corcoran’s voice . Accordingly, this Court is of the view that the so-called “contradiction” that Mr.

Corcoran’s solicitor suggests goes to the very root of trial fairness and, by necessity, invites the exceptional remedy of declaring a mistrial and ordering a new trial is woefully overblown. It bears repeating at this juncture that Mr. Corcoran was a party to the call that was recorded by Ms. Corcoran and/or Mr. Munn and reported to the police on June 2 nd , 2020 but there was no meaningful cross-examination of either Ms. Corcoran or Mr. Munn regarding this call after they each acknowledged on cross-examination that one had been received from Mr. Corcoran while he was incarcerated at the SRCC. 34 .

I agree with the Crown’s submission that the so-called “new evidence” would more likely have served to confirm what was already known and expanded upon at great length at trial (and with considerable latitude extended by this Court to Mr. Corcoran’s solicitor in the face of the Crown’s relevance objection): that the relationship between Mr. Corcoran, Ms. Corcoran and Mr. Munn is infused by mutual disdain. Having more evidence to nourish this already ineluctable conclusion hardly constitutes “new evidence” that could reasonably be expected to have affected the trial result.

This Court also agrees with the Crown that there is considerable overlap rather than contradiction between the so-called “new evidence” comprising Exhibit “D-1” and the testimony provided by Mr. Munn and Ms. Corcoran respecting the telephone call from the SRCC while Mr. Corcoran was incarcerated. Is this Application an Attempt to Reverse a Tactical Decision Made at Trial? 35 . Notwithstanding my finding above under the fourth part of the four-part test, I will briefly address the question of whether this Application, in reality, constitutes an attempt to reverse a tactical decision made at trial?

The short answer is “yes” and is supported by much of the analysis already provided. This Court again returns to the fact that Mr. Corcoran was a party to the early June 2022 telephone call made from the SRCC that he says constitutes “new evidence” that was not otherwise or previously available to him. Indeed, he initiated it. Moreover, that telephone call was acknowledged in the testimony of both Ms. Corcoran and Mr. Munn. What did Mr. Corcoran’s solicitor do with that on cross-examination?

Essentially nothing despite being given latitude to explore those details further by the Court in the face of the Crown’s relevance objection. Mr. Corcoran’s solicitor now claims that had he only had knowledge of the June 2 nd , 2020 complaint to the MPF, which was a complete non-starter and went absolutely nowhere, it would have provoked a line of questioning that would or could, in turn, have had a material impact on this Court’s assessment of Ms. Corcoran and Mr. Munn’s credibility. 36 . This Court disagrees.

As is obvious from the trial decision, there were many nuanced and layered factors that ultimately informed this Court’s positive assessment of Ms. Corcoran and Mr. Munn’s credibility, which included their testimony, the documentary evidence of their cellular phone records, the documentary evidence provided by Bell Canada and the related testimony of Marlo Denny. It falls to the Court of Appeal of New Brunswick to decide whether the erroneous “for months” statement made in the trial decision amounts to a

palpable and overriding error that invites appellate intervention but I can say for certain that this Application, when laid bare, amounts to nothing more than an attempt to secure a do-over or second bite at the cherry. In view of this finding, I need not consider the broader questions raised by the Crown respecting whether the so-called “new evidence” was indeed disclosable and whether such evidence would amount to inadmissible collateral fact evidence. CONCLUSION 37 . For the reasons expressed in the foregoing analysis, this Application is dismissed and the trial decision stands.

The remaining task which falls to this Court is the passing of sentence, which was placed in a state of suspended animation with the filing of this Application. This Court will now endeavour to set a date for the sentencing decision to be rendered in short order to bring finality and closure to this proceeding. Brittain, PCJ