R. v. Munroe, 2016 NSCA 16

Nova Scotia Court of Appeal Citation: R. v. Munroe , 2016 NSCA 16 Date: 20160309 Docket: CAC 417919 Registry: Halifax Between: Matthew Munroe Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Linda Lee Oland Appeal Heard: December 9, 2015, in Halifax, Nova Scotia Subject: Criminal Law - Admission of Evidence – Text Messages – Corroborative Evidence – Post-Offence Evidence – Oral Decisions

Summary: The appellant appeals from conviction for first degree murder, claiming that the judge made numerous errors in his treatment and reliance on certain evidence. He also points to a discrepancy between the document the judge gave counsel and what the judge said in delivering his decision orally. Issues: Whether the judge erred in law: (

a) by admitting certain text messages; (

b) by admitting alleged hearsay evidence as corroborative evidence; (

c) by relying on the evidence of a post-offence trip as corroborative evidence; (

d) by relying on the evidence of a certain witness as corroborative evidence; and, (

e) by doing so, substantially prejudicing the appellant such that s. 686(1)(b)(iii) of the Criminal Code would not apply. The appellant also argued that the judge’s decision was embodied in the document he gave counsel, which he says showed that the judge had relied on the testimony of a witness that he had found was not reliable. Result: Appeal dismissed. The judge did not err in his admission and reliance of the impugned evidence in (

a) to (

d) inclusive. His decision was not the unsigned document passed to counsel, but what he stated on the record. None of the grounds of appeal having succeeded, it was not necessary to consider the curative provision in the Code . This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 16 pages. Nova Scotia Court of Appeal Citation: R. v. Munroe , 2016 NSCA 16 Date: 20160309 Docket: CAC 417919 Registry: Halifax Between: Matthew Munroe Appellant

v. Her Majesty the Queen Respondent Judges: Beveridge, Saunders and Oland, JJ.A. Appeal Heard: December 9, 2015, in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of Oland, J.A.; Beveridge and Saunders, JJ.A. concurring. Counsel: Eugene Y. S. Tan, for the appellant James A. Gumpert, Q.C., for the respondent Reasons for judgment: [ 1 ] On December 3, 2010, Brandon Hatcher was shot outside his home in Spryfield. He died shortly afterwards. [ 2 ] Matthew Munroe was charged with, among other things, first degree murder. He was then a young person subject to the Youth Criminal Justice Act .

At his trial, the Crown asserted that the shooting of Mr. Hatcher was in retaliation for the shooting of Colin Gillis earlier the same day. It claimed that three men were involved in Mr. Hatcher’s death, namely, Cody Muise, Ryan MacDougall, and Mr. Munroe. [ 3 ] Judge Jamie S. Campbell, then of the Provincial Court, found Mr. Munroe guilty of first degree murder ( 2011 NSPC 83 ). He sentenced him as an adult to imprisonment for life, with parole eligibility after 10 years ( 2013 NSPC 45 ). [ 4 ] Mr.

Munroe appeals against conviction only, claiming the judge made numerous errors in admitting and relying on certain evidence. For the reasons which follow, I would dismiss his appeal. Background [ 5 ] Cody Muise and the appellant were charged with the murder of Mr. Hatcher; Ryan MacDougall was not. The Crown’s case against Mr. Munroe was based, to a large extent, on the testimony of Mr. MacDougall. In his decision on conviction, the judge described Matthew Munroe, then a youth, as “M.R.M.” and Ryan MacDougall, the Crown witness, as “R.M.”. With regard to Mr.

MacDougall, he observed: 5) R.M. has, for a young man, a long criminal history. He has been in trouble of various kinds for some time. He has spent time in jail. 6) He associated himself with a criminal lifestyle and was brought into the ongoing violent dispute over criminal turf. He was readily implicated in the shooting of Brandon Hatcher. He agreed to provide his testimony in exchange for immunity from prosecution. He is now in the witness protection program.

He has both the motive to lie and the history of a pattern of behavior consistent with someone whose values are not in accord with those the justice system seeks to uphold. He says that he now has a child and wants to turn his life around. 7) It would be a high risk proposition to accept R.M.’s evidence on its own, at face value. Pointing the finger at someone else and going into witness protection, while not an ideal choice, is a better one than facing years in jail. 8) It would be wrong however to cavalierly dismiss everything he says.

His testimony may be considered more reliable when it is supported by other independent evidence. That evidence does not have to be of the kind that directly implicates M.R.M.. It must be evidence that helps to restore faith in the reliability of his testimony. That has to be carefully considered. A witness with R.M.’s background and motive to lie, cannot build up his credibility by telling the truth about surrounding circumstances. The risk remains that the lie has been kept in reserve for what really matters. Mere detail can be intended to give an air of verisimilitude to an otherwise unconvincing narrative.

R.M.’s evidence can’t stand on its own for very much. [ 6 ] The judge stated that Mr. MacDougall’s reliability was not such that his testimony could form the basis for conviction without substantial and reliable corroboration. After finding such corroboration in physical evidence, records of text messages and telephone calls, and the evidence of other witnesses, he concluded that Mr. MacDougall’s testimony was reliable. He rejected the defence position

that, although Messrs. Muise, MacDougall and Munroe had fired at Mr. Hatcher, all their shots had missed and the fatal shot had been fired by an unidentified third party. [ 7 ] The grounds of appeal focus on aspects of the corroborative evidence. They allege error in the treatment and reliance on text messages, inadmissible hearsay, a post-offence trip to Digby, and the evidence of James Downs. [ 8 ] To place the arguments by Mr. Munroe and the Crown in context, I will begin with a lengthy passage from the decision under appeal which refers to the matters challenged on appeal.

In it, the judge described the events prior to, surrounding, and after the shooting and death of Mr. Hatcher: 12) During the afternoon of December 3, 2010 R.M. was with M.R.M., Cody Muise and Colin Gillis at the house of another friend, Kyle Cater, playing PlayStation 3. R.M. said he finished playing, and went home, which was a short walk away. 13) He later heard from M.R.M. that Colin Gillis had been shot. That was followed by a call from Cody Muise.

He said that Muise told him to bring a rifle and a bullet proof vest. 14) Between 6:00 p.m. and 7:00 p.m. on December 3 rd there were 14 calls and messages between the phone used by Muise and the one registered to R.M.. At 6:26 p.m., R.M. texted Cody Muise the following: “You only wanted that sweater and poop hockey stick?” Muise responded, “Yea and the good one both.” 15) R.M. said that the “poop hockey stick” was the term used for a 20 gauge sawed off shotgun. He had got it some months before and kept it hidden at his house. The “sweater”, he said, was the word for the bullet proof vest.

The “good one” referred to a rifle. He said that the rifle was about 2 feet long, made of metal and black plastic, with a pistol grip and a clip. He was keeping it at his house as a favour to Muise. 16) He put the items in a guitar case. He couldn’t remember much about that guitar case. He couldn’t say whether it was hard sided or soft sided. He didn’t know whether the guitar itself was an electric guitar or an acoustic guitar. He doesn’t even play the guitar.

Nonetheless, he said he put the two guns and the bullet proof vest in a guitar case. 17) He got a drive to Jamie Downs’ house with a friend to whom he paid $10.00. He didn’t take a taxi because he said he didn’t want to be in a taxi with guns. Why it would be better to be in a friend’s car with guns is anyone’s guess.

If someone is taking illegal firearms and a bullet proof vest to someone else’s house, with a view to using them, it would seem that serious fundamental flaws in judgment are already an integral part of the package. 18) R.M. said that he got to Jamie Downs’ place and was met there by M.R.M. and Muise. Jamie Downs confirmed that Muise and M.R.M. were already there and were met by R.M.. R.M. said that they were going to go to Greystone to look for “Brandon Hatcher or one of them”. He said that they “figured” that those were the people responsible for the shooting of Colin Gillis.

When asked whether anyone had specifically said who they believed was involved in that shooting, R.M. responded, “No, I just kind of knew.” Jamie Downs reported that M.R.M. said, “We’re going to get them mutts”. In the context that could be inferred to mean one of the people responsible for the Gillis shooting. 19) Jamie Downs said that he gave R.M. a darker sweater because the one that R.M. was wearing was too “colourful”. R.M. got a black sweater with silver print on it from Jamie Downs. That was also confirmed by Jamie Downs. 20) R.M. also got a ski mask from M.R.M..

He said that M.R.M. gave it to him at Downs’ place and said words to the effect of “you can use mine.” 21) There is also evidence of text messages sent from M.R.M. and Cody Muise to Stacy Blom at 6:00 p.m. on December 3 rd . Stacy Blom was a friend of Cody Muise. M.R.M. told her that “Codi said he wannts(sic) his mask”. She responded at 6:16 p.m. with “kk”. At 6:19 p.m. Stacy Blom asked where she should drop off the mask. At 7:13 p.m. M.R.M. tells Stacy Blom to drop the ski mask off in R.M.’s mailbox. Stacy Blom said in her evidence that she never did drop the ski mask off.

R.M. said that he never picked up a mask in his mailbox but got it directly from M.R.M. at Jamie Downs’ house. 22) The three began loading up the guns according to R.M.. He took the shotgun and put one shell in it, a 20 gauge slug. He also had a box of shotgun shells with him, in his pocket. 23) He said that Cody Muise had a silver coloured revolver. R.M. said that M.R.M. didn’t want to carry around a rifle so they switched. According to R.M., Muise then had the rifle and M.R.M. had the revolver. 24) They walked to Greystone through the path behind Elizabeth Sutherland School.

They had to walk up one street but the guns were not visible. The shotgun was tucked under R.M.’s arm, the rifle was in Muise’s coat and the revolver was in M.R.M.’s pocket. They got to the edge of the woods and were looking for someone. R.M. said it was “Hatcher, Clyke or one of them.” Clyke refers to Christian Clyke who was a member of the group from Greystone, which police witnesses said was called the Young Mob. It was a phrase that the other witnesses apparently neither cared nor dared to speak. Shooting of Brandon Hatcher: 25) R.M. said that his phone rang. That caused Cody Muise to check his phone.

Then Muise’s phone rang. Cody Muise said, “We’re out back.” The cell phone records for the phone associated with Cody Muise show three phone calls from Brandon Hatcher around the time of the shooting. Hatcher called Muise at 7:21 p.m. and 7:22 p.m. The last call was made at 8:34 p.m. moments before Hatcher was shot. That call is consistent with R.M.’s evidence of a call being received by Muise.

The call was made from the phone owned by Brandon Hatcher’s girlfriend, Amber MacLeod, and that she confirmed was being used by Brandon Hatcher. 26) According to R.M., the three took cover behind some rocks on the far side of Regan Drive from the Greystone housing

development. R.M. identified the area in which spent .30 caliber cartridge cases were later found by the police. 27) R.M. said that a person appeared from behind a fence on Lavender Walk and fired a shot. They started shooting back. R.M. said that he crouched behind a rock and fired one shot. He said that he believed he may have hit the side of a house. That slug was never recovered. He said that M.R.M. was 6 feet away from him, firing shots. Between them was Cody Muise.

He said that he believed that Muise emptied a clip of 15 cartridges. 28) R.M. said that as the shooting was taking place a dark coloured SUV drove up, stopped on Regan Drive then sped away. That vehicle was never identified. 29) At 8:37 p.m., the phone that was being used by Brandon Hatcher placed a call to 911. The evidence of Amber MacLeod was that she placed the call when Brandon Hatcher returned to the house, bleeding after being shot. 30) Brandon Hatcher’s phone was used to call Cody Muise’s phone at 8:34 p.m. The person who placed that call was not Amber MacLeod but was Brandon Hatcher.

Less than three minutes later, Brandon Hatcher was fatally wounded. Return to Jamie Downs’ house: 31) When the shooting ended, R.M. said that the three ran back to Jamie Downs’ house, using a route somewhat different from the one they used to get to Greystone. He threw his shotgun into the woods along with the shells. He said it was too heavy to carry. 32) He also got rid of his sweater and ski mask in the woods along the path they travelled. 33) They got back to Downs’ residence and had Jamie Downs let them in.

Jamie Downs, his mother Patricia Downs and his girlfriend Ashley Boudreau confirmed the return of all three young men, R.M., Muise and M.R.M.. 34) Jamie Downs himself said that after they had left his place earlier that night he heard guns firing about an hour or an hour and a half later. He said, “It was crazy”. Jamie Downs said that he got a call from Cody Muise before they arrived at his house. The phone records show that a call was placed from the phone associated with Cody Muise to Jamie Downs at 8:47 p.m.

This was ten minutes after the 911 call was made by Amber MacLeod. 35) At about the same time, 8:48 p.m., the phone identified as being that of Stacy Blom, texted Cody Muise the message, “cops are at the bottom of gs be safe codi”. A minute later the text is, “Gs is blocked off”. Stacy Blom confirmed that she had sent those messages. They are consistent with Stacy Blom advising Cody Muise, in the moments after the shooting, that the police had blocked the street access to Greystone. It is in fact very difficult to interpret them as meaning anything else. 36) When they got to Jamie Downs’ house, he let them in.

In his words he was, “stressed out bad”. They ran through his house with their muddy shoes, which he thought was “disrespectful”, as if showing up at his house with guns and a bullet proof vest somehow hadn’t already taken respect out of the equation entirely. They went straight up into his bedroom. They dropped two guns on his bed. He and his girlfriend washed the shoes and clothes. He washed the guns with a wet cloth. 37) He reported Cody Muise as having asked the other two, R.M. and M.R.M., whether they had seen the fence splinter like in a movie.

The police found the fence on 125 Lavender Walk splintered after the shooting. That fence is clearly visible in a line of sight from the area where the shots were said by R.M. to have been fired. Mr. Tan noted that from the photographs the holes left in the fence are rather small. Photograph 40, in Exhibit 6, shows what might best be described as a gouge out of the fence. It is not unreasonable to infer from the photographic evidence that a piece of wood that large taken out of the fence might well have been observed. 38) Jamie Downs said that R.M. talked about going back to pick up the gun he had dropped.

He testified that M.R.M. said that no one was leaving the house that night. 39) They turned on the television in Jamie Down’s [sic] room to watch the news. The news reported that someone had been shot and killed. Jamie Downs said that Muise had tears in his eyes. R.M. kept talking about his gun. M.R.M., according to Jamie Downs, said words to the effect of, “I hope I killed him.” He was in Downs’ opinion acting like “Mr. Toughguy”. Then people started calling. 40) That evening at 9:53 p.m., M.R.M. received a text message from Britney Field asking who he was with.

He responded to the message at 9:55 p.m. saying, “me R.M. cody”. 41) All three left Downs’ house the next day. Jamie Downs made no effort to contact the police either during the incident or after. He commented that he feared for his life. He said that he was related to people who are well known for their prominent involvement in violent crime and in his view they would not hesitate to kill him. He said that he felt sympathy for Brandon Hatcher who he described as a guy who “had a heart”. At any rate, Downs appears to be in this thing up to his eyeballs. His evidence has not been considered in light of that.

Issues [ 9 ] Mr. Munroe argues that, having conducted a Vetrovec analysis of the evidence of Mr. MacDougall, the trial judge erred in law: (

a) by admitting text messages attributed to Chris Anderson for the purpose of identifying Cody Muise; (

b) by admitting verbal hearsay evidence of Mr. Muise as corroboration of Mr. MacDougall’s testimony; (

c) by relying upon the evidence of a post-offence trip to Digby as corroborative evidence of Mr. MacDougall’s testimony, or as evidence of guilt;

(

d) by relying on the evidence of Jamie Downs as corroborative evidence of Mr. MacDougall’s testimony; and (

e) by doing so, substantially prejudiced Mr. Munroe to the point that s. 686(1)(b)(iii) of the Criminal Code , the curative proviso, would not apply. [ 10 ] As I will explain later, the decision the judge delivered orally was found not to correspond precisely with the written document from which he read. This led to a further issue, namely, the characterization and effect of this discrepancy. Admission of Cell Phone Records [ 11 ] According to Mr. Munroe, the judge erred in admitting the content of text messages.

The admission of evidence is generally a question of law for which the standard of review is correctness. [ 12 ] The appellant acknowledges that the judge’s general statements about the admissibility of text messages were correct in law. I agree. Here is what the judge wrote: 63) The text messages from the various devices are admissible as evidence that the person to whom that device is associated sent that message.

The message would be admissible to prove that a text message was sent, by whom and to whom it was sent, when it was sent, and the words of the message, provided those words are not put forward for the proof of the contents of the message. If the words are put forward for the truth of their contents those words would have to be considered in light of both traditional hearsay exceptions and the principled approach to hearsay. 64) A comment made in the form of a text message should not, by virtue of having been preserved in that form, gain some kind of immunity from principled hearsay consideration.

If the text message conveys the words of another person, the text itself, by virtue of having been preserved in that form, does not avoid the designation as hearsay. If the statement is hearsay if made in court, it is equally hearsay if made in a text message. [ 13 ] The appellant argues that the judge erred by admitting the contents of several text messages which tended to identify Mr. Muise as the user of the phone, as proof of the truth of who sent or received those messages. Some of the text messages were on a phone registered to a Chris Anderson.

The judge explained how he determined that the phone was being used by Cody Muise: 61) As to the issue of who typed the message or was using the phone, inferences can be made. When a phone is used consistently over a period of days or weeks by a person who identifies himself as Cody and who is referred by others as Cody, and from whom messages are sent to known associates of Cody Muise, making comments of the activities of Cody Muise in the first person, it is reasonable to infer that the phone is being used by Cody Muise.

It is not conclusive proof but a highly reliable inference especially when confirmed by other information. 62) In the days around the time of the shootings there are numerous instances of people texting the phone registered to the name of Chris Anderson making reference to Cody Muise as the person apparently using the phone. The outgoing messages also confirm that the phone was indeed being used by Cody Muise. . . . 68) Text messages purported to have been sent by Cody Muise and received by Cody Muise were used to confirm that he was using the phone registered to the name Chris Anderson.

The content of the message, or what was said in the message, was not the issue. The issue is the name to which it was addressed, the name by which it was signed or the context that associated it to Cody Muise. It is not a reported conversation in the sense that the content of the conversation was being relied upon to prove that content. [Emphasis added] It is apparent that, in determining the sender or receiver of these messages, the judge carefully excluded their content from consideration. I can detect no impermissible admission of hearsay by the judge drawing the inference that the phone was being used by Mr.

Muise. [ 14 ] According to Mr. Munroe, the messages recounted in certain paragraphs of the decision were hearsay and should have been excluded as corroborative evidence. Here are the impugned paragraphs: 69) The evidence that messages were sent back and forth between Muise and M.R.M. from 6:00 p.m. to 7:00 p.m. on December 3 rd is not hearsay. 70) Muise’s response to the question from R.M. about the “sweater and poop hockey stick, was “Yea and the good one both”. It provides only the narrative context for R.M.’s evidence that he brought the rifle as well as the shotgun and bullet proof vest.

There is no reason to rely on the words contained in the text message for anything other than that. . . . 73) Cody Muise’s reported statement that they were “out back” was certainly not tendered for proof of the fact that anyone was out back. It was tendered and admitted as evidence to show that Cody Muise was speaking to someone directing that person to where he and the others were.

The records of the cell phones confirm that inference that the person was indeed Brandon Hatcher. 74) Jamie Downs reported that Cody Muise called him to tell him that they were running through the woods, sometime after he had heard shots being fired. That statement is intended to prove that at that time Cody Muise was running through the woods as he reported. It is significant because it coincides with the approximate time when a call was made from the phone used by Muise to Jamie Downs. The reported conversation is not admitted as evidence.

The telephone records however, confirm that a call was made from Muise to

Downs at that time. The content of the call is excluded. The fact of the call is not. . . . 76) The reported words of Cody Muise are for the most part not hearsay. To the extent that they are, as I have noted, they are not admitted. [ 15 ] In my view, the appellant’s argument that the judge relied on inadmissible hearsay in those paragraphs is not supportable. The judge carefully identified what he accepted and for what purpose, and what he excluded.

He repeatedly stated that he was not relying on the contents of the text messages as evidence of their truth. [ 16 ] Rather, the judge relied on the fact that there had been several communications to support narrative and the inference that calls and texts had been made between certain people at certain times. For example, in ¶ 69 and 74, he admitted only the fact that the messages were sent or the call made, not their contents. In ¶ 70, he recounted that he was relying on the contents of those texts only as narrative.

While the wording in ¶ 73 could have been clearer, it is apparent that the judge did not rely on the “out back” statement for its content. [ 17 ] The appellant also submits that the analysis at ¶ 78 of the decision should have been excluded as corroborative evidence. It reads: 78) As with Cody Muise, M.R.M.’s cell phone records tendered to establish that he was using the cell phone are not hearsay. They were not tendered as proof of the contents of the messages themselves. In this passage, the judge was not admitting Mr. Munroe’s messages as proof of their contents.

Rather, the cell phone records simply showed that the appellant was using his phone. [ 18 ] The judge did not err by admitting records of calls or text messages for any inadmissible purposes. I would dismiss this ground of appeal. Verbal Hearsay Evidence of Cody Muise [ 19 ] Mr. Munroe argues that Cody Muise’s reported statement that they were “out back” was erroneously admitted. He says this amounted to prohibited use of implied hearsay evidence. However, as I explained earlier, the judge in his ¶ 73 indicated that he did not admit the statement as proof that anyone was out back.

It was only admitted for the purpose of showing that Cody Muise was speaking to someone. Other evidence, namely cell phone records, supported the inference that the other person was Brandon Hatcher. [ 20 ] The appellant also submits that the judge erred by admitting another statement by Mr. Muise as implied hearsay evidence that all three men were present when the fence was struck by a bullet.

The judge recounted what James Downs had testified Cody Muise had said about a fence splintering, and later explained how he used that evidence: 37) [James Downs] reported Cody Muise as having asked the other two, R.M. and M.R.M., whether they had seen the fence splinter like in a movie. The police found the fence on 125 Lavender Walk splintered after the shooting. That fence is clearly visible in a line of sight from the area where the shots were said by R.M. to have been fired. Mr. Tan noted that from the photographs the holes left in the fence are rather small.

Photograph 40, in Exhibit 6, shows what might best be described as a gouge out of the fence. It is not unreasonable to infer from the photographic evidence that a piece of wood that large taken out of the fence might well have been observed. . . . 75) When the three returned to the Downs’ residence, Jamie Downs reported that Cody Muise asked the other two if they had seen the fence splinter like in a movie. This is a reported statement of Cody Muise. It is not admitted as proof of the fact that the fence was splintered. There is photographic evidence of the fence having been damaged.

The statement is admitted as evidence of the knowledge of Cody Muise that the fence had splintered and of the context that suggest that all three were present when that happened. [ 21 ] The three men were alleged to have shot at Mr. Hatcher from a vantage point in the area of Regan Drive. Mr. Munroe argues that the photograph to which the judge referred depicts the far side of the fence not visible to anyone standing there. The Crown points to several other photographs in evidence that show damage to the fence which could be seen from that vantage point.

While the appellant suggests that the judge may have made an error of fact, his grounds of appeal did not argue that the verdict was unreasonable or not supported by the evidence. [ 22 ] I would dismiss this ground of appeal. Post-Offence Trip as Corroboration [ 23 ] Mr. Munroe submits that the judge erred by using the evidence of Stacy Blom and Mary Elizabeth Wickwire about a post- offence trip he made to Digby as evidence corroborating Ryan MacDougall’s testimony. He correctly points out that Mr.

MacDougall never mentioned that trip in his evidence. [ 24 ] The judge organized his lengthy decision under several headings. One heading read “Evidentiary Support for the R.M. narrative”. The opening paragraph reads: 46) R.M.’s evidence itself cannot be relied upon to place M.R.M. at the scene of the shooting. At the same time, a reliable narrative can emerge when that evidence is supported by other evidence.

The following paragraphs recounted testimony, cell phone records, and physical evidence such as spent cartridge casings and recovery of a shotgun. The decision continued: 55) Jamie Downs, his mother and Ashley Boudreau all confirmed that the three young men returned together to the house. They had muddy clothes and shoes. Jamie Downs’ description of the night was consistent with what R.M. said.

He added that comments were made that suggested that Muise, R.M. and M.R.M. had gone together to Greystone and had fired shots. 56) The next day, M.R.M. and Muise were in Digby, where they were met by Stacy Blom and Mary Elizabeth Wickwire. They gave no reason for being in Digby. There has been no reason suggested by anyone as to why they would be at a motel in Digby on December 4 th . They returned to Halifax and were apprehended at a motel in Fairview on December 8 th .

Once again, there is no apparent reason for M.R.M. to be at a motel in Fairview. 57) The physical evidence, text messages, telephone records and the testimony of Jamie Downs, Patricia Downs and Ashley Boudreau support the narrative provided by R.M.. There is some issue with how reliable each of those pieces of evidence is. Although the judge indicated that Jamie Downs’ mother, Patricia Downs, had testified before him, she had not actually done so. The appellant did not raise any issue flowing from this misstatement. [ 25 ] Mr.

Munroe’s allegation that the judge used the trip to Digby against him hinges solely on the fact that ¶56 and 57 are found under the “Evidentiary Support for the R.M. narrative” heading. However, nowhere does the judge suggest that he relied on the evidence of Ms. Blom and Ms. Wickwire with regard to the Digby trip as corroborative of Mr. MacDougall’s testimony. It is particularly noteworthy that the trip is not included in his

summary at ¶ 57. It was simply narrative explaining what the appellant did up to the time of his arrest. [ 26 ] In the result, I cannot accept that the judge used the trip to Digby as corroborative evidence. I would dismiss this ground of appeal. Evidence of Jamie Downs [ 27 ] In his factum, Mr. Munroe argues that the judge found that he could not rely on the evidence of Jamie Downs, yet later cited his evidence as supplying reliable confirmation of the evidence of Ryan MacDougall.

If he did so, the appellant says this amounts to error in law. [ 28 ] I am not convinced that the trial judge found he could not reply on the evidence of Jamie Downs. The appellant’s argument is based on ¶ 41 of the decision contained in the Appeal Book. It reads as follows: 41) All three left Downs’ house the next day. Jamie Downs made no effort to contact the police either during the incident or after. He commented that he feared for his life. He said that he was related to people who are well known for their prominent involvement in violent crime and in his view they would not hesitate to kill him.

He said that he felt sympathy for Brandon Hatcher who he described as a guy who “had a heart”. At any rate, Downs appears to be in this thing up to his eyeballs. His evidence has not been considered in light of that . [Emphasis added] [ 29 ] However, a later passage shows that the judge did consider the evidence of Mr. Downs. What is more, he accepted it and treated it as corroborative of that given by Mr. MacDougall: 103) Jamie Downs, Patricia Downs and Ashley Boudreau each confirmed the general narrative of R.M.. There were inconsistencies.

Care has to be taken in accepting their evidence as it relates to anything. Mr. Tan correctly pointed out that each of them has been implicated in this matter in some way. They have something at stake. That in itself presents an interesting issue. Their version, which sets out a reasonably consistent chain of events, implicates themselves and each other. That would make it a rather unusual story to have concocted from whole cloth.

It begs the question why anyone would create a story that would have them so closely involved with a shooting. 104) It was generally acknowledged that these were not among the most sophisticated of witnesses. Mr. Downs himself said that he was just not that smart. That may show a degree of either self deprecation or self awareness that would suggest that he is at least wiser than he thinks. He changed his statement with respect to some of the details, from the time he gave a cautioned police statement.

He said that he had been preoccupied with anger for the past few months and that this had made his memory better. That is hard to accept. It is also hardly the statement or tactic of a cunning manipulator of evidence. . . . 108) As with R.M., it would be a risky proposition to accept the evidence of any one of them alone. Any one of them might be capable of weaving a story to implicate M.R.M.. Together with R.M. though, a reliable and consistent version of events begins to emerge.

If it were a fabrication it would require that four people conspire to construct a detailed and generally quite consistent version of what happened that also had to take into account the physical evidence and the time line established by the cell phone records. [ 30 ] Prior to the date scheduled for the hearing of the appeal, this panel had a Deputy Registrar of this Court send a letter to counsel for the parties, asking them to be prepared to address “the issue of whether the judge misspoke by including ‘not’” in the last sentence of the decision’s ¶ 41, or whether that word was a “typo when read in the context of the judge’s reasons as a whole.” The hearing was adjourned by consent, and counsel for the parties filed supplementary facta before it proceeded. [ 31 ] A review of the record of the trial proceedings showed that when the judge delivered his decision on November 21, 2011, there was a publication ban on any evidence in the proceeding against Mr.

Munroe until the conclusion of the murder trial against Cody

Muise. The judge had prepared his reasons in writing. In court, he stated that, in light of the publication ban and the seriousness of the matter, it was appropriate that he read them aloud. The judge delivered his decision orally, and he gave copies of his written document to counsel for the parties. [ 32 ] In that written document, the last two lines of ¶ 41 read: At any rate, Downs appears to be in this thing up to his eyeballs. His evidence has not been considered in light of that. What the judge said in court was the direct opposite: “At any rate, Downs appears to be in this thing up to his eyeballs.

His evidence has to be considered in light of that.” [ 33 ] The document the judge provided to counsel appeared in the Appeal Book as the judge’s decision. Its cover page indicated that it was an oral decision. It was not signed. Searches by counsel and court staff for a signed decision came up empty. [ 34 ] In view of the discrepancy between the document the judge gave counsel and what he said in court, Mr. Munroe raised the following additional issues: 1.

Having filed a written decision, what authority, if any, is there for the Learned Trial Judge, or a subsequent panel on appeal, to change or amend the written decision? 2. Provided that there is no amendment to either the written or oral decision, how should this discrepancy be addressed? [ 35 ] Mr. Munroe argued that the judge’s decision was embodied in the document he provided to counsel. He relied on case law that prohibits or limits later modification of an oral or a written decision, such as R. v. Melvin , 2005 NSSC 368 , Carrier v. Carrier , 2007 NBCA 23 , and R. v. Wang , 2010 ONCA 435 .

According to the appellant, this panel must address whether, after stating in ¶ 41 that Mr. Down’s evidence would not be considered, the judge erred by doing just that. [ 36 ] With respect, I do not agree that the document passed to counsel contains the judge’s decision. Importantly, it was not signed. Its cover page described the contents as “Oral decision”. Moreover, his reasons read as a whole shows a recounting and reliance on Mr.

Down’s evidence that is completely contrary to ¶ 41 in the document which said that it would not be considered. [ 37 ] In my view, the judge’s actual decision was what he spoke on the record on November 21, 2011. Counsel agree that the judge stated that Mr. Downs’ evidence had to be considered in light of his involvement, not that it was not considered in light of his involvement. As extensive as it was, the document he passed to counsel were speaking notes.

Accordingly, the law regarding changes to written decisions does not apply. [ 38 ] As a consequence, I see no inconsistency between the judge’s characterization of Mr. Downs’ evidence and his subsequent reliance on it. Curative Provision [ 39 ] None of the grounds of appeal having succeeded, it is not necessary to consider whether s. 686(1)(b)(iii) of the Criminal Code applies. Disposition [ 40 ] I would therefore dismiss the appeal. Oland J.A. Concurred in: Beveridge J.A. Saunders J.A.