B.P. Applicant And: His Majesty the King Respondent Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way., 2022 NLSC 170

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. B.P. , 2022 NLSC 170 Date : November 25, 2022 Docket : 202104G0260 Between: B.P. Applicant And: His Majesty the King Respondent Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Peter N.

Browne Reasons for Judgment Given Orally Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: November 18, 2022 Date of Oral Judgment: November 21, 2022

Summary:

The Applicant, B.P., has been convicted and sentenced under the Criminal Code for one count of s. 266(b), one count of s. 264.1(1) andtwo counts of s. 271(

b) and sentenced for a total of 22 months and 8 days. He appealed both conviction and sentence and is now awaitinghis appeal hearing. In the interim, his counsel makes application pursuant to s. 683(1)(

a) for the admission of fresh evidence pursuant tothe Palmer criteria. The Court held that the Applicant did not meet the due diligence criterion but this was not dispositive of the outcome of trial so itproceeded with an analysis of the proposed fresh evidence pursuant to the cogency criteria under Palmer.

The Court concluded that theproposed evidence, an email chain between the Applicant’s legal counsel and L.P.’s legal counsel in the family law matter, did notprovide the Court with the ability to draw a conclusion or an inference that its admission could have reasonably affected the outcome attrial and dismissed the application. Appearances: T. James Bennett Appearing on behalf of the Applicant Kellie A. Cullihall Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: R. v. Palmer, (SCC), [1980] 1 S.C.R. 759, 50 C.C.C. (2d) 193; R. v. Stolar, (SCC), [1988] 1 S.C.R. 480, 40 C.C.C. (3d) 1; R. v.

Hay, 2013 SCC 61; R. v. Nyoni, 2017 BCCA 106; and R. v. McClure, 2001 SCC 14 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; and Family Violence Protection Act, S.N.L. 2005, c. F-3.1 REASONS FOR JUDGMENT Browne, J.: INTRODUCTION [1] B.P. (hereinafter “the Applicant”) was convicted on February 4, 2021 and sentenced on November 19, 2021 for four offencesunder the Criminal Code, R.S.C. 1985, c.

C-46: a. one count of assault contrary to s. 266(b); b. one count of uttering threats contrary to s. 264.1(1); and c. two counts of sexual assault contrary to s. 271(b). [2] The facts involved incidents of partner violence and partner sexual assault. His sentence, which included guilty pleas to twobreaches under the Family Violence Protection Act, S.N.L. 2005, c. F-3.1 and one breach of an undertaking to a police officer, was for atotal of 22 months and 8 days. The Applicant has appealed both conviction and sentence.

Background [3] The Applicant now makes an interlocutory application to introduce fresh evidence in support of his appeal. The legal basisunderlying the application is that this evidence could not have been anticipated at trial through the use of due diligence.

Had it been,when placed together with other evidence adduced at trial, it could bear directly on L.P.’s (the complainant) credibility and thus affectthe outcome. [4] The fresh evidence the Applicant’s legal counsel seeks to bring forward is a compilation of email exchanges between himself,L.P.s family lawyer and the Crown prosecutor over the period of May 19, 2020 to May 25, 2020. [5] At paragraph 2 of the supporting affidavit of Laura House, assistant to the Applicant’s legal counsel, she states that the

Applicant retained his legal counsel on February 24, 2020. Paragraphs 3 - 8 of Laura House’s affidavit summarizes portions of the emailexchanges that occurred between his legal counsel, the legal counsel for L.P. and the Crown. These email exchanges were attached intheir entirety as exhibits to the affidavit. [6] Included as part of the application record were portions of the transcript of the Applicant’s trial conducted over the months ofDecember 2020 and February, April, August and November 2021.

The emails in question predate the dates of the Applicant’s trial andwere available to the Applicant’s legal counsel to use during his cross-examination of L.P.

Neither the supporting affidavit nor theapplication filed by the Applicant’s legal counsel explain why these emails could not have been used during the course of the trial asthey were in the possession of legal counsel and in some instances were authored by legal counsel. [7] During oral submissions, the Applicant’s counsel informed the Court that it was not until he began preparing his client’sappeal did he appreciate the significance of the emails and their salutary effect on the assessment of L.P.’s credibility such that theirintroduction during her cross-examination could have reasonably affected the outcome at trial.

The Law [8] In the decision R. v. Palmer, (SCC), [1980] 1 S.C.R. 759, 50 C.C.C. (2d) 193, the Supreme Court of Canadaoutlined the principles governing the admission of fresh evidence on appeal. These principles remain good law today. [9] A court of appeal has a broad discretion under s. 683(1)(

a) to admit fresh evidence: Powers of court of appeal 683(1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice, (

a) order the production of any writing, exhibit or other thing connected with the proceedings; [10] Overriding consideration must be given to the words "the interests of justice”. Accordingly, it would not serve the interests ofjustice to permit any witness by simply repudiating or changing their trial evidence to reopen trials as this would lead to the generaldetriment of the administration of justice. [11] The test for determining whether or not to permit the admission of fresh evidence after a conviction has been entered after trialwas set out by the Supreme Court of Canada at paragraph 22 of Palmer: 22 . . .

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases: (see McMartin v. The Queen (SCC), [1964]S.C.R. 484).

(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, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affectedthe result. [12] Later in R. v. Stolar, (SCC), [1988] 1 S.C.R. 480, 40 C.C.C. (3d) 1 at paragraph 14 the Supreme Court ofCanada outlined the procedure to be followed by a reviewing court should it not dismiss an application for fresh evidence: 14 The procedure which should be followed when an application is made to the Court of Appeal for the admission of fresh evidence isthat the motion should be heard and, if not dismissed, judgment should be reserved and the appeal heard.

In this way, the Court ofAppeal has the opportunity to consider the question of fresh evidence against the whole background of the case and all the otherevidence in the case. It is then in a position where it can decide realistically whether the proffered evidence could reasonably have beenexpected to affect the result of the case. If, then, having heard the appeal, the court should be of the opinion that the evidence could notreasonably have affected the result, it would dismiss the application for the [page492] introduction of fresh evidence and proceed to adisposition of the appeal.

On the other hand, if it should be of the view that the fresh evidence is of such nature and effect that, takenwith the other evidence, it would be conclusive of the issues in the case, the Court of Appeal could dispose of the matter then and there.Where, however, the fresh evidence does not possess that decisive character which would allow an immediate disposition of the appealbut, nevertheless, has sufficient weight or probative force that if accepted by the trier of fact, when considered with the other evidence inthe case, it might have altered the result at trial, the Court of Appeal should admit the proffered evidence and direct a new trial where theevidence could be heard and the issues determined by the trier of fact.

This approach is consistent with that taken in Palmer, supra,where it was said, at pp. 776-77:

Because the evidence was not available at trial and because it bears on a decisive issue, the inquiry in this case is limited to two questions. Firstly, is the evidence possessed of sufficient credibility that it might reasonably have been believed by the trier of fact? If the answer is no that ends the matter but if yes the second question presents itself in this form. If presented to the trier of fact and believed, would the evidence possess such strength or probative force that it might, taken with the other evidence adduced, have affected the result?

If the answer to the second question is yes, the motion to adduce new evidence would have to succeed and a new trial be directed at which the evidence could be introduced. This statement must be read, however, subject to the power of the Court of Appeal to deal with the matter when the proffered evidence is clear and conclusive of the result.

Position of the parties: The Applicant [ 13 ] The Memorandum of Fact and Law filed by the Applicant’s legal counsel (Part IV - Argument) at paragraphs 16 - 30 asserts that L.P. was not truthful in providing her evidence at trial, specifically her knowledge about his client’s release conditions. [ 14 ] His argument is based on the proposition that L.P. was motivated to lie during her testimony because if she were believed by the trial judge then the Applicant would be convicted of the offences and these convictions would influence the outcome of the family proceedings in her favour. [ 15 ] He contends that when the content of the emails is compared with L.P.’s evidence at trial it is obvious that she did not tell the Court the truth.

The Crown [ 16 ] The Crown takes the position that this application should be dismissed for three reasons: a. The evidence sought to be introduced is not new. It was known to the Applicant’s counsel at the time of trial as he was not only in possession of it but was the author of parts of it. b. The evidence does not meet the cogency requirement in that it is not relevant and would not change the outcome. c. Lastly, the evidence in question relates to a person (L.P.’s family lawyer) who is not a compellable witness.

As well, the Applicant’s legal counsel would have to be a witness himself for the evidence to be tendered. He cannot be both a witness and counsel for the Applicant. [ 17 ] For the reasons which follow, I dismiss the Applicant’s application to allow fresh evidence. Analysis [ 18 ] As noted by the Supreme Court of Canada in R. v. Palmer , the first step in the determination of whether fresh evidence tendered by an appellant should be admitted is whether it is evident that through the use of due diligence, the evidence could have been adduced at trial. If so, then the evidence should generally not be admitted.

Due diligence [ 19 ] In the circumstances of this appeal, counsel of record for the criminal trial and for the family matter were one in the same. Therefore, it is puzzling as to why the content of the email chain (the origins of which stemmed from the Applicant’s counsel almost seven months prior to the start of trial) could not have been put to L.P. at the criminal trial to impeach her credibility.

I make this observation as the appellate judge who does not have the vantage point of a trial judge hearing the viva voce evidence of both parties so as to determine issues of credibility. [ 20 ] More to the point, the Applicant’s legal counsel relies on the exchange set out at pages 84 - 85 of the transcript to support his position: Page 84 . . . Q. And you were in St. Johns and you were in the parking lot of Elizabeth Towers? A. Yes

Q. And that was where Mr. [P.] was living at the time? A. I didn’t know that at the time. Q. You knew his release conditions and you knew--you saw the variation. A. The variation of what? Q. Did you not have the copy of the variations for your Family law counsel? A. Family Law? Q. Yes A. What variations? I’m sorry, I’m just--I’m not following. For Family Law about-- Q. Hadn’t your Family lawyer kept you up to date on what’s happening with Mr. [P.]’s criminal case? A. No, my family law lawyer hasn’t been talking to me about his criminal case. She’s been dealing with our family case. Q. Every time that Mr.-- A.

I’m just confused. Q. Every time that Mr. [P.] requested a variation, did you not have to be contacted so you could consent or not consent? A. No. Q. So you didn’t consent? A. No. . . . [ 21 ] At no stage during this exchange did counsel for the Applicant directly confront L.P. about whether she was advised of the specific details of her husband’s release conditions.

Rather, the exchange demonstrates that L.P. had not been kept informed of the criminal proceedings and was not aware of any variations to the Applicant’s release conditions. [ 22 ] During oral submissions, the Applicant’s counsel acknowledged it would have been prudent at this point in the trial to have requested a postponement for the purpose of obtaining the email chain in order to confront L.P. during cross-examination, but he did not. [ 23 ] Despite this acknowledgement, he suggests this testimony, when viewed in the context of the email chain, confirms L.P. was lying about knowing the Applicant’s release conditions and where he was residing in St.

John’s, Her evidence at pages 85 – 86, however, suggests that she was in the vicinity of where the Applicant was living because it housed an eye clinic where she was having LASIK surgery performed. [ 24 ] While the failure to meet the due diligence criterion is not dispositive of the issue, it "exists to ensure finality and order — values essential to the integrity of the criminal process" (see R. v. Hay , 2013 SCC 61 at paragraph 64 ).

In a case like the present, to overlook this requirement would bring the administration of justice into disrepute. [ 25 ] I find counsel for the Applicant has not provided a satisfactory explanation as to why this evidence was not adduced at trial and has failed to meet the due diligence criterion under Palmer. The email chain of May 19 - 25, 2020 was known to the Applicant’s counsel as a discernable piece of evidence that could have been used to cross-examine L.P. and does not constitute fresh evidence. To allow it at this stage would be improper.

Assuming I am in error in my analysis regarding the due diligence criterion, I will proceed with my analysis of the Palmer cogency requirements. The Palmer cogency requirements: (

i) relevance; (ii) credible; and (iii) if believed it could reasonably be expected to have affected the result. The law [ 26 ] In R. v. Nyoni , 2017 BCCA 106 , the British Columbia Court of Appeal discusses what has been called the cogency requirements, the last three requirements in the test discussed in Palmer . At paragraph 13 the Court states: 13 As stated, failure to meet the due diligence requirement is not always dispositive of the matter. In R. v.

Walle , 2012 SCC 41 (S.C.C.), Moldaver J. for the Court stated: [83] This failure to adduce the evidence at trial weighs heavily against its admission in this Court. That said, I would not let it stand in the way of admission if I were otherwise satisfied that the proposed evidence could reasonably be expected to have affected the result at trial.

[ 27 ] Further, at paragraph 15 the Court notes: 15 The fresh evidence cannot be considered on its own. As Watt J.A. put it in Manasseri: [213] The cogency inquiry requires a qualitative assessment of the proposed evidence. But not on its own, as if it were some island cast adrift. The evaluation must measure the probative potential of the evidence considered in the entirety of the evidence admitted on appeal and heard at trial: Truscott, at para. 100. Relevance [ 28 ] In R. v.

McClure , 2001 SCC 14 , the Supreme Court noted at paragraphs 53 - 55, when undertaking the inquiry regarding fresh evidence that may involve solicitor-client communication, a court must apply the following process: 53 It falls to the accused to demonstrate some evidentiary basis for his claim that there exists a solicitor-client communication relevant to the defence he raises. Mere speculation as to what a file might contain is insufficient. 54 That is then followed by a requirement that the communication sought by the accused could raise a reasonable doubt as to his guilt.

This must be considered in light of what the accused knows. It is likely that the accused who, it must be remembered, has had no access to the file sought, may only provide a description of a possible communication. It would be difficult to produce and unfair to demand anything more precise. It is only at stage two that a court determines conclusively that such a communication actually exists. 55 The evidence sought should be considered in conjunction with other available evidence in order to determine its importance. It is the totality of the evidence that governs.

However, when the accused is either challenging credibility or raising collateral matters, it will be difficult to meet the standards required of stage one . [emphasis added] [ 29 ] In this case, this would require some written communication or note regarding a conversation between L.P. and her legal counsel that confirms her counsel saw and discussed the variation of the Applicant’s bail conditions with her and specifically that L.P. was aware of where the Applicant would be living in St. John’s.

There is nothing in the email exchange sought to be introduced as fresh evidence that would go directly to one of the elements of the offence. To suggest otherwise is mere speculation on the part of the Applicant’s legal counsel. [ 30 ] Accordingly, I make the following findings as to the relevance criterion: a. The email chain does not relate to the substance of the events surrounding the charges. b. The email chain is between counsel and not the parties themselves.

It relates to whether L.P. was prepared to allow the Applicant’s father to enter the matrimonial home for the purpose of retrieving the Applicant’s belongings. The email chain sought to be introduced does not support a finding that L.P. was made aware of the Applicant’s release conditions. It ends with the Applicant’s legal counsel advising L.P.’s legal counsel that a copy could be obtained from either the police or the Court. c. How this information could be dispositive of whether the Applicant committed assault, sexual assault and uttered threats as alleged is again puzzling.

Credible [ 31 ] The issue before this Court is solely whether L.P. knew details of the Applicant’s release conditions including his St. John’s address. There is no information in the email chain to support this inference. If believed it could reasonably be expected to have affected the result [ 32 ] As to the final Palmer criterion, I find that there no information contained in the email chain that, if believed, could reasonably change the result of the Applicant’s four convictions .

A review of the pertinent passages from the trial transcript as set out above demonstrates L.P. was clearly confused about the line of questioning being pursued by the Applicant’s counsel. More importantly, L.P. was never specifically asked whether she saw a condition in the release order that specified the Applicant was to live at a certain address in St. John’s. [ 33 ] Later during closing submissions at trial, the Applicant’s counsel suggested that L.P. lied about knowing where the Applicant was living in St. John’s when he stated at lines 13 and 14 of the transcript at page 138: . . .

What are the odds that she would show up in the very parking lot where he is required to live . . . and goes on to say at line 22, page 138 – line 1, page 139 . . . she knew where he was and she was stalking him; . . .

[ 34 ] I have reached the conclusion the trial judge was never presented with any evidence that would support a finding that L.P. was aware of the Applicant’s release conditions. Further, I am unable to find any evidence that L.P. knew the Applicant’s address and lied about it. The email chain sought to be introduced as fresh evidence does not provide any such conclusion or inference that could have reasonably affected the outcome at trial. DISPOSITION [ 35 ] In the result the application to admit fresh evidence is dismissed. _____________________________ Peter N. Browne Justice