STEPHEN TRIMM APPLICANT/APPELLANT AND: HIS MAJESTY THE KING RESPONDENT, 2022 NLCA 63

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation: R. v. Trimm, 2022 NLCA 63 Date: December 12, 2022 Docket Number: 202201H0050 Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code, information that may identify theperson described in this judgment as the complainant shall not be published in any document or broadcast or transmitted in any way. BETWEEN: STEPHEN TRIMM APPLICANT/APPELLANT AND: HIS MAJESTY THE KING RESPONDENT Coram: Hoegg J.A. Court Appealed From: Provincial Court of Newfoundland and Labrador, St.

John’s Application Heard: November 8, 2022 Memorandum of Disposition Filed: December 12, 2022 Counsel for the Applicant/Appellant: Iain R.W. Hollett Counsel for the Respondent: Sheldon B.J. Steeves Authorities Cited: CASES CITED: R. v. McNei1, 2009 SCC 3, [2009] 1 S.C.R. 66; R. v. Trotta (2004), (ON CA), 23 C.R. (6th) 261(ON CA), 119 C.R.R. (2d) 334; R. v. Murray (R.) (2006), (NB CA), 306 N.B.R. (2d) 178 (NB CA); R. v. MacKay,2019 BCCA 101; R. v. Travers, 2019 NSCA 56; R. v. Schirmer, 2022 BCCA 214. STATUTES CONSIDERED: Criminal Code, RSC 1985, c. C-46, sections 172.1, 163.1, 683.

MEMORANDUM OF DISPOSITION HOEGG J.A.: INTRODUCTION [1] On February 23, 2022, Stephen Trimm was convicted of child luring and distributing child pornography under sections 172.1and 163.1 of the Criminal Code, RSC 1985, c. C-46. On July 18, 2022, he was sentenced to 34 months incarceration and subjected toancillary orders. Mr. Trimm appealed his convictions and sentence, and on August 8, 2022, he was released on bail pendingdetermination of his appeal. [2] Sometime after Mr.

Trimm’s judicial interim release, it came to the attention of his counsel that the police officer whoinvestigated the complaints that led to his convictions had a disciplinary record. This information was previously unknown to both Mr.Trimm and the prosecuting Crown. [3] After obtaining and reviewing the officer’s disciplinary file, the Crown denied its disclosure on the basis of relevance. [4] Mr. Trimm subsequently applied to this Court for disclosure of the officer’s disciplinary file in accordance with the law set outby the Supreme Court of Canada in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66.

ANALYSIS [5] It is unusual for a McNeil disclosure application to be heard by a Court of Appeal. Such an application is usually heard by apresiding trial judge. Nevertheless, the right to disclosure of relevant evidence extends to appeals, as Charron J. stated at paragraph 17 inMcNeil: … The Crown’s obligation survives the trial and, in the appellate context, the scope of relevant information therefore includes anyinformation in respect of which there is a reasonable possibility that it may assist the appellant in prosecuting an appeal.

This is as it should be, in order to serve the interests of justice and help prevent wrongful convictions. [6] See also R. v. Trotta (2004), (ON CA), 23 C.R. (6th) 261 (ON CA), 119 C.R.R. (3d) 334, at paras. 22-24. [7] The Court of Appeal’s power to order the production of documents respecting a criminal appeal is found in

section 683 of theCriminal Code: 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; ... [8] The question raised in Mr. Trimm’s application was whether a single appellate judge has the power to order McNeil disclosurein accordance with section 683(1), or whether it is only a court of appeal that has the power to do so. [9] Several Canadian appellate courts have considered this question. In R. v. Murray (R.) (2006), (NB CA),306 N.B.R. (2d) 178, Richard J.A. (as he then was) was of the view that he, as a single appellate judge, was without jurisdiction toreceive evidence pertaining to an appeal: [4] As for the relief sought by the Attorney General pursuant to s. 683(1)(

d) of the Criminal Code, I am without power to grant it.Section 683 sets out the powers of the Court of Appeal, and paragraph 1(

d) provides that the "court of appeal may, where it considers itin the interests of justice ... receive the evidence, if tendered, of any witness ...". A single judge of the Court of Appeal has no powersunder Section 683(1)(d). [10] In R. v. MacKay, 2019 BCCA 101, Stromberg-Stein J.A., writing for the court, ordered production of evidence under s.683(1)(a). In so doing, she stated that the Criminal Code vests the power to do so in a “court of appeal”, and that it does not state that “ajudge of that court” is able to do so (para. 4). [11] In R. v.

Travers, 2019 NSCA 56, an application for production of material which was argued to possibly assist an applicationfor fresh evidence on appeal was decided by the Court of Appeal, and not a single appellate judge (paras. 19-22, 24).

Likewise in R. v.Schirmer, 2022 BCCA 214, Justice DeWitt-Van Oosten wrote for the Court of Appeal in denying requests for production of materialwhich was argued to possibly assist the appellant in prosecuting his appeal (paras. 3-4). [12] I was not provided with any jurisprudence where production of material connected with appeal proceedings was ordered by asingle appellate judge, and my pre-hearing research did not uncover any.

[ 13 ] In considering whether a single judge can order production of material, it is useful to reflect on what an order for production of McNeil disclosure pursuant to an appeal would involve. The relevance of the requested material to the appeal would have to be determined in accordance with established law respecting McNeil disclosure. If the requested disclosure were determined to be relevant, the applicant would obtain disclosure and it would then be up to the applicant to decide whether to file an application for fresh evidence on appeal.

If an application for fresh evidence were filed, admissibility of the proposed fresh evidence would have to be determined. Such a determination involves consideration of the grounds of appeal, the evidentiary record, the arguments, and the applicable law, including whether admissibility of the proposed evidence could make a difference to the appeal.

It goes without saying that a single appellate judge hearing an application for McNeil disclosure is not as equipped as a court of appeal is to make the determinations referenced above. [ 14 ] In this regard, I note that applications to introduce fresh evidence on appeal are invariably heard at the hearing of the appeal, where the Court has the full context of the case under appeal. Such context informs relevance, and whether the proposed evidence could make a difference to the appeal. [ 15 ] In the result, in keeping with the wording of

section 683 of Criminal Code and the preponderance of authorities cited above, I was of the view that it was not open to me to order production of documents which could possibly assist an application for fresh evidence that could possibly assist Mr. Trimm in the prosecution of his appeal. [ 16 ] I therefore ordered the parties to argue Mr. Trimm’s application before the Court, and set the appeal to be heard on February 9, 2023. _____________________________ L. R. Hoegg J.A.