R. v. Price, 2022 NLSC 24

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Price , 2022 NLSC 24 Date : February 22, 2022 Docket : 201906G0099 Her Majesty The Queen v. Harvey Murlin Price Before: Justice Katherine O'Brien Place of Hearing: Grand Bank, Newfoundland and Labrador Dates of Hearing: July 7, 2021; November 25, 2021

Summary: The Applicant, having been found guilty of offences under the Criminal Code but not sentenced, applied to introduce fresh evidence and to have a mistrial declared. He alleged ineffectiveness of his trial counsel. The Court dismissed the application. Appearances:

Tina M. Walsh, Q.C. Appearing on behalf of the Crown Phillip C.W. Whalen Appearing on behalf of the Accused Jason A. Edwards Appearing on behalf of Michael Ralph Authorities Cited: CASES CONSIDERED: R. v. Price, 2021 NLSC 6; R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742; R. v. Kippax, 2011ONCA 766; R. v. Lessard (1976), (ON CA), 30 C.C.C. (2d) 70, [1976] O.J. No. 74 (C.A.); R. v. Kowall (1996), 108C.C.C. (3d), 31 W.C.B. (2d) 533 (Ont. C.A.); Palmer v. R., (SCC), [1980] 1 S.C.R. 759; R v. M.T., 2017 ONCA 736; R. v.B. (G.D.), 2000 SCC 22; R. v. Archer (2005), (ON CA), 202 C.C.C. (3d) 60, [2005] O.J.

No. 4348 (C.A.); R. v.Ryan, 2012 NLCA 9; R. v. G.C., 2018 ONCA 392; R. v. Wong, 2016 BCCA 416; R. v. White (1997), (ON CA), 114C.C.C. (3d) 225, [1997] O.J. No. 961 (C.A.); R. v. X.X.S (2006), 68 W.C.B. (2d) 377, [2006] O.J. No. 5 (Sup. Ct. J.); R. v. Green, 2018ONSC 2912; R. v. Price, 2020 NLSC 124 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Canadian Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982, being

Schedule B to the Canada Act 1982, (U.K.) 1982, c. 11 REASONS FOR JUDGMENT O'Brien, J.: INTRODUCTION [1] I found Mr. Price guilty of seven offences under the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”) following a judge alonetrial. His sentencing hearing proceeded. Prior to my pronouncing sentence, Mr. Price changed legal counsel and applied to reopen thetrial to introduce fresh evidence and, in the alternative, to have a mistrial declared. Mr. Price alleged ineffectiveness of his trial counsel.Trial counsel was given notice of the application and chose to participate. This is my decision on Mr.

Price’s application. [2] The facts of the case are set out in my decision on conviction (R. v. Price, 2021 NLSC 6). Briefly, the offences arise out ofinteractions between Mr. Price and his former brother-in-law, Edison Avery, and Mr. Avery’s partner, Christopher Neal. [3] Mr. Price seeks to introduce the following fresh evidence: a. Evidence of John Berghuis, a land surveyor, primarily regarding the distance between Mr. Avery’s cabin and a nearby Bed andBreakfast. I found that Mr. Price discharged a shotgun at the cabin. b. Evidence of Darlene Smith, the owner of the Bed and Breakfast. Ms.

Smith testified at trial. The additional evidence that Mr. Priceseeks to introduce primarily concerns the fact that Ms. Smith did not hear gunshots on the day in question. [4] In support of his application, Mr. Price filed affidavits of Mr. Berghuis and Ms. Smith. [5] Mr. Price wants a mistrial declared based on the ineffectiveness of trial counsel. Specifically, he alleges: a. Trial counsel failed to receive and review specific disclosure, namely, the audio statement of Ms. Smith; b. Trial counsel failed to appreciate the evidence of Ms. Smith and failed to cross-examine her at trial. c.

Trial counsel failed to appreciate and make appropriate use of Mr. Price’s evidence given during the hearing of a pre-trialapplication under the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the CanadaAct 1982, (U.K.) 1982, c. 11 (the “Charter”). Specifically, Mr. Price alleges that the principles articulated in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742 to guide a trier of fact’s analysis of an accused person’s testimony were engaged and that trial counselshould have made submissions to the Court on that basis.

[6] Mr. Price refined his position at the oral hearing. First, he clarified his position that a new trial was required even in relation tothe fresh evidence. Mr. Price submits that because I have already made findings of fact and credibility, it would be inappropriate for meto reopen the trial to hear new evidence and reconsider my findings. [7] Second, Mr. Price abandoned the application as it related to his attitude toward people who are homosexual. Having cross-examined trial counsel on this topic, Mr.

Price was satisfied with the explanation given and no longer considered this grounds for freshevidence or a mistrial. As such, I will not address this topic further. [8] I have decided to dismiss Mr. Price’s application for the reasons that follow. Issues [9] The matters of fresh evidence and the effectiveness of trial counsel’s representation are interrelated. I will deal with the issuesraised in the following order: a. Trial counsel’s alleged failure to receive and review the audio statement of Ms. Smith. b. Trial counsel’s alleged failure to appreciate the evidence of Ms.

Smith and his decision not to cross-examine her at trial. c. Fresh evidence from the land surveyor. d. Trial counsel’s decision not to make submissions to the Court regarding W.(D.). LAW Application to reopen a case to admit fresh evidence after conviction [10] A trial judge who has made a finding of guilt on disputed facts has the authority to vacate the adjudication of guilt at any timebefore the imposition of sentence or other final disposition. However, this authority should be exercised only in exceptionalcircumstances and in the clearest of cases.

The test for re-opening the trial is more rigorously applied than on a similar application priorto an adjudication of guilt (R. v. Kippax, 2011 ONCA 766 at paras. 62 and 63, citing R. v. Lessard (1976), (ON CA),30 C.C.C. (2d) 70, [1976] O.J. No. 74 (C.A.) and R. v. Kowall (1996), 108 C.C.C. (3d), 31 W.C.B. (2d) 533 (Ont. C.A.)). [11] When deciding whether fresh evidence should be admitted, courts are guided by the Palmer criteria, from Palmer v. R., (SCC), [1980] 1 S.C.R. 759, at 775: a.

The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial, although this principle isnot applied as strictly in criminal cases as in civil cases; b. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; c. The evidence must be credible in the sense that it is reasonably capable of belief; and d. The evidence must be such that, if believed, it could reasonably be expected to have affected the result, when taken with the otherevidence adduced at trial. [12] In R v.

M.T., 2017 ONCA 736, the Ontario Court of Appeal summarized these criteria in the context of a post-verdictapplication to reopen as: admissibility, cogency, and due diligence. [13] In addition to the Palmer criteria, the court in Kippax held that a trial judge must also consider whether the application to re-open is, in essence, an attempt to reverse a tactical decision made at trial (see para. 63). Application for a mistrial due to ineffectiveness of legal counsel [14] In R. v.

B. (G.D.), 2000 SCC 22, the Supreme Court of Canada considered an appeal in which a defendant, who had beenconvicted of sexual and indecent assault, sought to admit fresh evidence and also alleged that his trial counsel had been ineffective. Thefresh evidence was an audio recording in which the complainant denied sexual misconduct by the defendant. [15] The Supreme Court analyzed the fresh evidence using the Palmer criteria. It addressed the allegations of counselineffectiveness in its consideration of the due diligence requirement, because trial counsel could have adduced the recording at trial, butchose not to.

In so doing, the Supreme Court provided a framework for ineffective counsel claims: 26 The approach to an ineffectiveness claim is explained in Strickland v. Washington, 466 U.S. 668 (1984), per O’Connor J. Thereasons contain a performance component and a prejudice component. For an appeal to succeed, it must be established, first, thatcounsel’s acts or omissions constituted incompetence and second, that a miscarriage of justice resulted. 27 Incompetence is determined by a reasonableness standard.

The analysis proceeds upon a strong presumption that counsel’sconduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissionsof counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in thisassessment.

28 Miscarriages of justice may take many forms in this context. In some instances, counsel’s performance may have resulted inprocedural unfairness. In others, the reliability of the trial’s result may have been compromised. 29 In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider theperformance component of the analysis. The object of an ineffectiveness claim is not to grade counsel’s performance or professionalconduct. The latter is left to the profession’s self-governing body.

If it is appropriate to dispose of an ineffectiveness claim on theground of no prejudice having occurred, that is the course to follow (Strickland, supra, at p. 697). [16] In R. v. Archer (2005), (ON CA), 202 C.C.C. (3d) 60, [2005] O.J. No. 4348 (C.A.), the Ontario Court ofAppeal formulated three requirements of an ineffective assistance of counsel claim at paragraphs 119 and 120: a. Where the claim is based on contested facts, the applicant must establish the material facts on a balance of probabilities. b.

The applicant must demonstrate that counsel’s acts or omissions amounted to incompetence, which is measured against areasonableness standard. There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professionalassistance and hindsight plays no role in the assessment. c. The applicant must demonstrate that counsel’s ineffective representation caused a miscarriage of justice. A miscarriage of justiceoccurred if the appearance of trial fairness was undermined or if the verdict was rendered unreliable. [17] In R. v.

Ryan, 2012 NLCA 9, the Newfoundland and Labrador Court of Appeal considered the test for ineffective counsel as setout in B. (G.D.), adding: [123] The hurdle to be gotten over before a court will determine that counsel’s representation was incompetent is a high one and eventhen it must be shown that a miscarriage of justice resulted. [124] The standard of counsel competence to which an accused is entitled is therefore grounded in results: was there a miscarriage ofjustice resulting from procedural unfairness or lack of “reliability of the trial’s result” brought about by a level of representation that wasbelow reasonable professional judgment.

Although establishing counsel incompetence is difficult and, fortunately such cases areinfrequent, what is important for present purposes is that actions taken by an accused’s legal representative, when they do fall outsidewhat can be characterized as reasonable professional judgment, can result in judicial intervention even if the actions were taken in goodfaith, to prevent a miscarriage of justice. [18] The Court of Appeal went on to consider what a miscarriage of justice is: [145] In Wolkins, Cromwell J.A. described a miscarriage of justice this way: [88] But what is a miscarriage of justice? [89] The clearest example is the conviction of an innocent person.

There can be no greater miscarriage of justice. Beyond that, it ismuch easier to give examples than a definition; there can be no "strict formula ... to determine whether a miscarriage of justicehas occurred": R. v. Khan, 2001 SCC 86 , [2001] 3 S.C.R. 823 per LeBel, J. at para. 74. However, the courts have generallygrouped miscarriages of justice under two headings. The first is concerned with whether the trial was fair in fact. A conviction enteredafter an unfair trial is in general a miscarriage of justice: Fanjoy, supra; R. v. Morrissey (1995), (ON CA), 97 C.C.C.(3d) 193 (Ont. C.A.) at 220-221.

The second is concerned with the integrity of the administration of justice. A miscarriage of justice maybe found where anything happens in the course of a trial, including the appearance of unfairness, which is so serious that it shakes publicconfidence in the administration of justice: R. v. Cameron (1991), (ON CA), 64 C.C.C. (3d) 96 (Ont. C.A.) at 102;leave to appeal ref'd [1991] 3 S.C.R. x. [146] A miscarriage of justice can occur, therefore, either: (

i) because the trial was unfair; or (ii) the conduct of the trial shakes publicconfidence in the administration of justice. As noted by Major J. in G.D.B. at para. 28, a miscarriage of justice may result where “thereliability of the trial’s result may have been compromised”. Where the reliability of the result of the trial is compromised, that is surelya situation where public confidence in the administration of justice could be shaken. [19] In R. v. G.

C., 2018 ONCA 392, the Ontario Court of Appeal held that the test for ineffective assistance of counsel when amistrial is sought should be different than the test applied on appeal: [3] The appellant maintains that the trial judge erred in law by failing to apply the same standard as that used to assess claims forineffective assistance of counsel on appeal. On appeal, the test focusses on whether there is a “reasonable possibility” that a miscarriageof justice resulted from ineffective assistance at trial: R. v. Stark, 2017 ONCA 148, 347 C.C.C. (3d) 73, at paras. 14-15. The test for amistrial is different.

The decision whether to grant a mistrial is a matter that lies within the discretion of the trial judge, “who must assesswhether there is a real danger that trial fairness has been compromised”: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 79.

[4] We disagree that the same test to assess ineffective assistance claims on appeal should apply at trial. An incompetence of counselclaim, brought during the course of a trial, should be approached within the principled framework for mistrial applications. Bearing inmind the unique dynamics of each trial, judges need to be left with a broad discretion to manage the trial process. A mistrial is a remedyof last resort, and it falls squarely within the discretion of the trial judge who is in the best position to assess whether such a remedy isneeded in order to avoid miscarriages of justice.

No new test is required. ANALYSIS Issue 1: Trial counsel’s alleged failure to receive and review the audio statement of Darlene Smith [20] The audio statement of Ms. Smith was not in the file when Mr. Price’s new counsel received it. Trial counsel was unable toconfirm whether he had received Ms. Smith’s audio statement from the Crown. [21] Regardless of whether trial counsel ever had the audio file, Mr.

Price has not established that he suffered any prejudice by trialcounsel’s not having listened to the recording. [22] It is not contested that trial counsel had, and relied upon, the notes of the police officer who interviewed Ms. Smith. Mr. Pricehas not pointed to any information in the audio recording that was additional to, or different from, that contained in the police officer’snotes. Of particular relevance to Mr. Price’s criticisms of trial counsel, the police officer’s notes included a statement that “[Ms. Smith]did not hear anything in regard to the shots fired”. [23] Mr.

Price has not identified any way in which the audio statement could have affected the conduct of his defence. If listening tothe audio would not have given trial counsel any more information than he already had, there can be no prejudice or unfairness and nomiscarriage of justice. As a result, this allegation cannot found a claim for ineffective assistance of counsel. Issue 2: Trial counsel’s alleged failure to appreciate the evidence of Ms. Smith and his decision not to cross-examine her [24] Given that Ms.

Smith testified at trial and that trial counsel chose not to cross-examine her, my consideration of this issue willfocus on the allegation of counsel ineffectiveness. This follows the Supreme Court of Canada’s approach in B. (G.D.). [25] Trial counsel filed an affidavit and was cross-examined on it. He agreed that the credibility of Mr. Avery and Mr. Neal, both ofwhom testified that they heard two shots from Mr. Price’s gun, was a central issue for trial. In trial counsel’s opinion, the best evidenceto impeach the credibility of the complainants on the issue of whether a shotgun was fired, was that of Cpl.

Conrod. [26] Cpl. Conrod was a forensic identification expert with the Royal Canadian Mounted Police who examined the scene. He found asingle shotgun shell casing on the ground. He did not find any wading or expended shot. He could not say how long the shell casing hadbeen there (see Trial Decision, paragraphs 31-36). [27] Trial counsel testified that he chose not to cross-examine Ms. Smith because she was not an eyewitness, she was a distanceaway from the area of the alleged shooting, and she was occupied running her bed and breakfast at the time. He testified that he made atactical decision to focus on Cpl.

Conrod’s testimony with respect to evidence of a gun being fired. [28] Mr. Price does not accept that trial counsel made a tactical decision. He distinguishes the present case from B. (G.D.), thedecision in which trial counsel chose not to adduce an audio statement of the complainant denying any abuse. Mr. Price submits that trialcounsel in B. (G. D.) articulated a clear and reasonable basis for his decision, which Mr. Price submits is lacking in the present case. [29] Mr. Price agrees that shots being fired was not an essential element of any of the charged offences and that Ms.

Smith’sevidence would not have been determinative of the issue in any event. Rather, he submits that her not hearing shots was circumstantialevidence that could have been used, in tandem with that of Cpl. Conrod, to challenge the complainants’ credibility. [30] Trial counsel submits that there is a wide range of acceptable conduct for counsel and that incompetence is measured against astandard of reasonableness. Relying on B. (G. D.), Archer, R. v. Wong, 2016 BCCA 416 and R. v. White (1997), (ONCA), 114 C.C.C. (3d) 225, [1997] O.J.

No. 961 (C.A.) he notes that different lawyers may handle cases differently and that courts shouldbe cautious in reviewing a trial counsel’s decisions. [31] Both respondents submit that trial counsel’s decision not to cross-examine Ms. Smith was a strategic one, which was open tohim to make. They state that Mr. Price has failed to establish that trial counsel was incompetent. [32] Additionally, both respondents submit that Mr.

Price has failed to establish any prejudice and that there has been no miscarriageof justice. [33] The failure to cross-examine a witness can be grounds to reopen a trial or to declare a mistrial. In R. v. X.X.S (2006), 68 W.C.B.(2d) 377, [2006] O.J. No. 5(Sup. Ct. J.), the defendant, who had been convicted of sexual assault, applied to reopen the trial prior to sentencing. Trial counsel inX.X.S. conceded that he had made a gross error in his assessment of an internet communication made by the complainant, which he hadnot adduced at trial nor cross-examined the complainant about.

The internet communication was relevant to the complainant’s credibilityand her motive to fabricate the allegations. The trial judge found that it was material evidence and potentially exculpatory. The trial wasreopened. [34] Similarly, in R. v. Green, 2018 ONSC 2912, the defendant applied for a mistrial following conviction for attempted robbery

but prior to sentence, on the basis that his trial counsel had been incompetent. Numerous grounds were raised, a number of which involved trial counsel’s cross-examination of three Crown witnesses, two of whom were the complainants.

The court identified numerous problems with the cross-examinations, including: a failure to cross-examine one complainant on his prior criminal history and on a number of inconsistences between his prior statements and his trial evidence, a failure to cross-examine one complainant on inconsistencies between his evidence and that of the other complainant, and a failure to cross-examine either of the complainants about an important piece of Crown evidence.

Given the concerns that the trial judge had, he was not satisfied that the outcome would have been the same had the cross-examinations been “within the prevailing standard of competence by counsel” in a case where the credibility of those witnesses was of “paramount importance” ( Green , para. 85 ). [ 35 ] However, in my view, X.X.S. and Green are distinguishable from the present case. Both of those cases involved cross- examination of complainants on matters that were directly relevant to their credibility. In X.X.S., the evidence was relevant to the complainant’s potential motive to fabricate the allegations.

In Green , the faults found with the cross-examination were numerous. [ 36 ] In the present case, Ms. Smith’s credibility was not at issue. She was not a complainant and she could not give direct evidence about the facts in issue. She saw Mr. Avery and Mr. Neal drive towards Mr. Avery’s cabin while she had friends visiting. She then testified: I don’t remember when it was, but anyway [Mr. Avery and Mr. Neal] were up there. And then we were just chatting and having coffee and then the dogs were barking.

We have two small dogs and they were kicking up a ruckus and I wasn’t really sure what was going on, so I just ignored them. I thought it was just traffic. Usually it’s cars driving by, and then the next thing [Mr. Avery] was at the door and he was visibly upset and he said that he was trying to call the police. (Trial Transcript, page 112) [ 37 ] Therefore, at the approximate time of relevant events, Ms. Smith was chatting with friends inside her house, with two dogs barking and “kicking up a ruckus” for reasons unknown to her. In these circumstances, there were reasonably possible explanations for why Ms.

Smith may not have heard shots other than that they were not fired. Ms. Smith’s evidence on the matter would have been of marginal relevance to the decisive issue at trial, which was the credibility of the complainants. [ 38 ] When taken with the other evidence adduced at trial, I cannot find that Ms. Smith’s evidence as to what she did not hear could reasonably be expected to have affected the result. I am not convinced that a cross-examination of Ms. Smith would have had any reasonable possibility of changing the outcome. As such, I can find no unfairness or prejudice to Mr. Price.

I can find nothing in the failure to cross-examine that would render the verdict unreliable or shake public confidence in the administration of justice. In short, I do not find that trial counsel’s decision not to cross-examine Ms. Smith resulted in a miscarriage of justice. [ 39 ] Following the direction from B. (G.D.) , having found no miscarriage of justice, I do not need to consider trial counsel’s performance or the nature of his decision not to cross-examine Ms. Smith further. [ 40 ] I want to address one further point in relation to this issue. In his written submission, Mr.

Price referred to evidence of other people at the Bed and Breakfast not hearing any gun shot. In oral submissions, counsel for Mr. Price conceded that there was no admissible evidence before me about what anyone other than Ms. Smith heard at the Bed and Breakfast that day. The onus is on Mr. Price to establish the material facts he relies upon for the purpose of the present application. He did not do so in relation to any other potential witnesses and, as a result, I have not considered this matter further. Issue 3: Fresh evidence from the land surveyor [ 41 ] Mr.

Price presented fresh evidence from land surveyor John Berghuis about the distance between Mr. Avery’s cabin and Ms. Smith’s Bed and Breakfast and the distance between Ms. Smith’s Bed and Breakfast and Mr. Price’s parents’ home, which is on the other side of a cove. [ 42 ] Mr. Price does not allege any wrongdoing by trial counsel in relation to Mr. Berghuis’ potential evidence, so this issue requires me to consider the law of fresh evidence only. Ultimately, I find that the evidence does not satisfy three of the four Palmer criteria. [ 43 ] The first Palmer criteria relates to due diligence.

There is nothing to suggest that with the due diligence of trial counsel, Mr. Berghuis’ evidence could not have been adduced at trial. Although this could be enough reason to deny this aspect of Mr. Price’s application, this Palmer criteria is not applied strictly in criminal cases and so I will continue the analysis. [ 44 ] The second Palmer criteria relates to relevance. Mr. Berghuis’ evidence would be most useful to Mr. Price in conjunction with the evidence he sought to introduce from Ms. Smith, namely, that she did not hear gunshots. The inference Mr.

Price advances is that with a distance of approximately 266 feet (as Mr. Berghuis measured) between the Avery cabin and the Bed and Breakfast, someone at the Bed and Breakfast would have heard shots fired. Even without the evidence of Ms. Smith, there might be some relevance to Mr. Berghuis’ testimony given that there was evidence before the Court of people at the Bed and Breakfast and no evidence that anyone heard shots. [ 45 ] The proposed relevance of Mr. Berghuis’ evidence with respect to the distance between the Bed and Breakfast and Mr. Price’s parents’ home, rests on testimony from Mr. Avery that Mr.

Price’s parents’ house was across an inlet and close enough to the Bed and Breakfast that you could actually sing out and speak to people there, if you wanted. The inference that Mr. Price relies on is that if you could sing out from the Bed and Breakfast and be heard across the water at a property further away than the cabin, then someone at the Bed and Breakfast would have heard shots fired at the cabin. [ 46 ] However, as with Ms. Smith’s evidence, I find Mr.

Berghuis’ proposed evidence to be of marginal relevance, at best. [ 47 ] Although there is a relationship between the distance sound travels from its source and its volume, there are other factors that affect whether a sound will be heard at a given location. For example, any barriers between the source and the reception point, such as trees or walls, may affect the volume. And whether the volume is detectable at the reception point is dependent on further factors, including other noise in the area. Mr. Berghuis was not proposed as an expert on sound. Although courts may take judicial notice of

matters that can be readily verified by sources whose accuracy cannot reasonably be questioned, there are limits to this doctrine. The inferences that Mr. Price advances are not as straightforward as he suggests and this lessens the relevance of the measured distances. [ 48 ] I do not find Mr. Berghuis’ proposed evidence to be sufficiently relevant to a decisive or potentially decisive issue in the trial to warrant introducing it as fresh evidence. To say it another way, even accepting the distance Mr. Berghuis measured, that information bears minimally on the key issue of whether Mr. Avery and Mr.

Neal were credible and gave a reliable account of events that day. As such, I find that the second Palmer criteria is not met. [ 49 ] The third Palmer criteria is met as I am satisfied that Mr. Berghuis’ proposed evidence is credible in the sense that it is reasonably capable of belief. [ 50 ] The fourth Palmer criteria, which considers what effect the proposed evidence could reasonably be expected to have on the result at trial, is not met. Much of my analysis with respect to why Ms. Smith’s additional testimony would not have had any reasonable possibility of changing the outcome, applies equally to Mr.

Berghuis’ evidence, and I will not repeat it. [ 51 ] Of additional relevance to my consideration of Mr. Berghuis’ evidence, is the fact that there was evidence presented at trial, which indicated that the cabin and the Bed and Breakfast were not far apart. Mr. Avery described the Bed and Breakfast in his testimony as “just down the laneway from” the cabin. He also referred to it as “the closest property” to the cabin (Trial Transcript, page 76). Mr. Neal testified similarly (Trial Transcript, page 122). So although Mr.

Berghuis’ measurement would add some precision to the distance, the fact that there was already evidence that the properties were close, reinforces my conclusion that Mr. Berghuis’ evidence would not have affected the outcome of the trial. [ 52 ] As three of the four Palmer criteria are not met, Mr. Price’s application for fresh evidence in relation to Mr. Berghuis is denied. Issue 4: Trial counsel’s decision not to make submissions to the Court regarding W.(D.) [ 53 ] Mr. Price brought an application under the Charter seeking to exclude certain evidence. Mr.

Price testified at the hearing of the application, which was in advance of the trial proper. He was largely successful on the application. My reasons are reported at R. v. Price , 2020 NLSC 124 . By agreement of counsel, evidence admitted during the hearing of the Charter application was adopted for use at the trial. [ 54 ] During closing arguments at trial, trial counsel did not refer to Mr. Price’s evidence at the Charter application other than to confirm the agreement with respect to its use, in response to a question from me, and to confirm in a general way the nature of his evidence.

Trial counsel did not make any submissions regarding W. (D.) . W. (D.) is a well-known and often-cited decision of the Supreme Court of Canada, which provides a framework to guide a trier of fact’s analysis of an accused person’s testimony (or any exculpatory evidence) in assessing whether charges have been proven beyond a reasonable doubt. [ 55 ] Mr. Price submits that trial counsel’s failure to make submission on W. (D.) fell below the standard of competent counsel. [ 56 ] Both trial counsel and the Crown disagree with this position. Firstly, they submit that Mr.

Price did not testify to any of the events surrounding the charges and restricted his testimony at the Charter application to the circumstances surrounding his arrest. As a result, they submit that W. (D.) was not engaged. [ 57 ] Trial counsel and the Crown further submit that Mr.

Price has failed to establish any prejudice or show that a W. (D.) analysis could have resulted in a different verdict. [ 58 ] Finally, they submit that regardless of trial counsel’s submissions, the trial judge is the gatekeeper of evidence and bears the responsibility of properly considering the evidence in rendering a verdict. [ 59 ] This final point is the key one for my determination. My consideration of trial counsel’s decision with respect to submissions regarding W. (D.) at this stage of the trial would be, in effect, my consideration of a decision that I have already made.

Regardless of trial counsel’s submissions, only I am responsible for my decision and the consideration I gave the evidence. If I have made an error, then the proper avenue for redress is an appeal. DISPOSITION [ 60 ] In the result, I dismiss Mr. Price’s application to admit fresh evidence and for a declaration of a mistrial. _____________________________ Katherine O'Brien Justice