R. v. Chambers, 2023 NSCA 29

Nova Scotia Court of Appeal Citation: R. v. Chambers, 2023 NSCA 29 Date: 20230427 Docket: CAC 511751 Registry: Halifax Between: Adam David Chambers Appellant v. His Majesty the King Respondent Restriction on Publication: s. 486.5 of the Criminal Code of Canada Judge: The Honourable Justice Carole A.

Beaton Appeal Heard: March 28, 2023, in Halifax, Nova Scotia Subject: Criminal; Criminal Code; Criminal - assault with a weapon; Criminal - break and enter; Criminal -obstruction; Criminal - robbery; Misapprehension of evidence; Miscarriage of justice; Motion; Motion- fresh evidence; Unreasonable verdict Cases Considered: R. v. W.(D.), (SCC), [1991] 1 SCR 742; Palmer v. The Queen, (SCC),[1980] 1 S.C.R. 759; R. v. Hannan, 2023 NSCA 7; R. v. Sinclair, 2011 SCC 40; R. v. Delorey, 2010NSCA 65; and Rouse v. Her Majesty the Queen, 2020 NSCA 8.

Summary: The appellant did not make a motion to adduce fresh evidence, but referred to new evidence in hissubmissions. Even properly constituted, such a motion could not have met the test for admission setout in Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759. The appellant was convicted of assault with a weapon, break and enter, robbery and obstruction. Heseeks to have the Court overturn his convictions and order a new trial on the basis of errors by the trialjudge.Issues: 1. Was the verdict unreasonable, leading to a miscarriage of justice? 2. Did the trial judge misapprehend evidence?

Result: The record does not support any errors were made by the trial judge. The verdict could not be characterized as unreasonable, and therefore no miscarriage of justice occurred. The trial judge mis- identified an inconsequential aspect of the evidence, however this did not amount to a misapprehension of evidence. 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 8 pages. Nova Scotia Court of Appeal Citation: R. v.

Chambers , 2023 NSCA 29 Date: 20230427 Docket: CAC 511751 Registry: Halifax Between: Adam David Chambers Appellant v. His Majesty the King Respondent Restriction on Publication: s. 486.5 of the Criminal Code of Canada Judges: Bourgeois, Scanlan and Beaton, JJ.A. Appeal Heard: March 28, 2023, in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of Beaton J.A.; Bourgeois and Scanlan JJ.A. concurring Counsel: Adam David Chambers, self-represented appellant Mark Scott, K.C., for the respondent Order restricting publication — victims and witnesses 486.5

(1) Unless an order is made under

section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or

witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that theorder is in the interest of the proper administration of justice. Reasons for judgment: [1] On September 28, 2021, Judge Rhonda van der Hoek of the Provincial Court of Nova Scotia (the “judge”) convicted theappellant Mr. Chambers of four Criminal Code offences. On December 29, 2021, she sentenced Mr.

Chambers for those matters: sevenyears in custody for assault with a weapon (s.267(a)); one year concurrent for break and enter (s.348(1)(d)); three years concurrent forrobbery (s.344); sixty days concurrent for obstruction of a peace officer (s.129(a)). Ancillary DNA and Firearms Prohibition orders werealso imposed. [2] On January 7, 2022, Mr. Chambers filed a Notice of Appeal, identifying the only ground of appeal as “Judge’s Reasons forDecision contradicted what the alleged victim said and testified to at trial”. Mr. Chambers asks this Court to overturn his convictionsand order a new trial.

For the reasons that follow, I would dismiss the appeal. [3] The judge heard two days of evidence and submissions in Mr. Chambers’ trial. He was represented by counsel and testified inhis own defence. The following week the judge delivered an unreported oral decision convicting him. At the outset of her decision, thejudge introduced the theory of the case as put before her by the Crown: Mr. Campbell called Ms. O'Neill to request in-home sexual services from [H.B.]. Ms. O'Neill dropped [H.B.] at his residence,collected the agreed upon payment, $50, and left.

She agreed to collect [H.B.] from the agreed upon location and [H.B.] returned to Mr.Campbell's residence to await Ms. O'Neill's arrival. When Ms. O'Neill arrived to collect [H.B.], Mr. Campbell was startled to see she had brought Mr. Chambers, a person unknownto him. Ms. O'Neill demanded from Mr. Campbell additional money. He refused the demand. Mr. Chambers verbally reinforced thedemand, striking Mr. Campbell in the head with a sock containing a rock. Ms. O'Neill fled with Mr. Campbell's wallet. The othersfollowed. A short while later a car carrying Mr.

Chambers was stopped by police and he provided the officer a false name. [4] The judge had heard from the Crown witnesses the victim Mr. Campbell, his landlord Mr. Barry and H.B., the person whoprovided the sexual services. The victim had arranged those services through Ms. O’Neill, who was Mr. Chambers’ girlfriend. Twopolice officers also testified. As noted earlier, the lone defence witness was Mr. Chambers. [5] In his written and oral submissions before this Court, Mr. Chambers referenced evidence not presented at trial, being that onthe date of the offences his girlfriend Ms.

O’Neill had only wi-fi capability on her cell phone and no calling capacity, and so could nothave phoned H.B. at the victim’s residence; thus he and Ms. O’Neill were compelled to enter the residence to retrieve H.B. Mr.Chambers submits such evidence is relevant and significant as Ms. O’Neill’s inability to communicate with H.B. by phone demonstratesthe reason he and Ms. O’Neill attended and entered the victim’s home, rather than picking up H.B. at an earlier agreed upon location. [6] While Mr.

Chambers did not file with the Court a formal motion to adduce fresh evidence, he referred to this “new” evidencethroughout his submissions. Had Mr. Chambers had followed the proper procedure to adduce fresh evidence in an admissible form(which he did not), regardless I am not persuaded the evidence he seeks to adduce could have been admitted. The test for admission offresh evidence was set out in the seminal decision of Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759. It requires thisCourt to consider: 1. was there due diligence in the effort to adduce the evidence at trial? 2. is the fresh evidence relevant?

3. is the fresh evidence credible? 4. could the fresh evidence have reasonably affected the result? See also R. v. Hannan, 2023 NSCA 7, at para. 70. [7] The evidence sought to be adduced could not have met the due diligence requirement as it was evidence available to Mr.Chambers at the time of trial. Indeed, he represents to the Court he is now responding to a matter the Crown had raised during the trial,being why both Ms. O’Neill and Mr. Chambers would have needed to attend the victim’s residence.

Furthermore, I am not persuaded theevidence was of such significance that it could have affected the outcome of the trial, given the whole of the evidence before the judgeand the elements of the offences the Crown was required to prove. [8] To the extent any fresh evidence motion could be said to have been before this Court, I would dismiss it. [9] Mr. Chambers’ chief complaint is the judge’s decision “contradicted” the evidence of the victim. As suggested by therespondent Crown, Mr. Chambers appears to be arguing either that the verdict is unreasonable or that the trial judge misapprehended theevidence. Mr.

Chambers’ written and oral submissions did not clearly delineate between the two. I shall discuss both. [10] In a case such as this, the standard of review guides the task of this Court in considering an appeal. It sets the parameters orlimits of the Court’s function on consideration of the arguments. The Court’s role is not to re-try the case, to now come to a differentdecision. The Court cannot modify those facts supported by the evidentiary record as found by a trial judge.

The Court’s review islimited to assessing whether a judge has made any errors of law, errors of mixed fact and law or palpable and overriding errors. [11] The Crown refers to R. v. Sinclair, 2011 SCC 40 to identify the standard of review applicable to this case. To conclude thejudge’s verdict was unreasonable, we must be persuaded the verdict could not have reasonably been reached by a properly instructedjudge or jury (Sinclair, at para. 4). As to whether the judge misapprehended the evidence, Mr. Chambers must establish there was amaterial misapprehension and that it informed the judge’s reasoning.

That misapprehension “must go to a central element of the trialjudge’s reasoning on which the conviction is based” and will “amount to a miscarriage of justice only if striking it from the judgementwould leave the trial judge’s reasoning on which the conviction is based on unsteady ground” (Sinclair, at para. 56). See also R. v.Delorey, 2010 NSCA 65 at para. 27; Rouse v. Her Majesty the Queen, 2020 NSCA 8 at para. 25.

Was the verdict unreasonable? [12] In her decision, the judge correctly identified the onus on the Crown, the standard of proof beyond a reasonable doubt, and thepresumption of innocence in favour of Mr. Chambers. Key to her decision was her application of the R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 framework to the facts of the case as she determined them. [13] The record reflects the judge had ample evidence before her to support the conclusions she reached, including with respect toinconsistencies in that evidence.

The judge was in the best position to assess the witnesses and to accept some, all or none of theevidence of each one. Her decision reflects a thorough review of the evidence, and I am satisfied her assessment of it was reasonable. [14] Applying the W.(D.) framework, the judge concluded she had “real concerns about the reliability of Mr. Chambers’ testimonyand his overall credibility”. The judge provided a cogent analysis of how that conclusion informed her assessment of whether the Crownhad met its burden. She found: In this case, I accept the evidence of Mr. Campbell and [H.B.]. I find that Mr.

Chambers attended the residence for the purposeof acting as protection for Ms. O'Neill. When Ms. O’Neill engaged in the actions of robbery by demanding money from Mr. Campbell,Mr. Chambers took on the role of enforcer. He echoed her demand for money and assaulted Mr. Campbell with a hard item containedinside of a sock to the head when Mr. Campbell refused to provide it. In doing so, he supported Ms. O'Neill in her efforts and assistedher opportunity to steal Mr. Campbell's wallet before fleeing the scene.

When he encountered the police shortly thereafter, Mr. Chambers chose to conceal his identity. I reject his testimony where it differs from that of [H.B.] and Mr. Campbell. . . . As pointed out by the Supreme Court of Canada in R. v. Van, 2009, "a trial is not a contest of credibility between witnesses," and a trial judge does not have to accept the defence evidence in full in order to acquit. This was not such a contest, but rather an exercise in the Crown laying a solid foundation of accepted evidence that established beyond reasonable doubt Mr. Chambers' guilt to all the charges .

He did enter the residence without permission, he did demand money from Mr. Chambers (sic), he did attend for the purpose of protecting Ms. O'Neill, he did assault Mr. Campbell with a weapon, he has admitted breaching the provisions -- sorry, he did admit wilfully obstructing the police officers in the execution of their duties by failing to provide his name to a police officer. (emphasis added) [ 15 ] The whole of the evidence before her supported the judge’s findings and conclusions regarding Mr. Chambers’ involvement in the offences. This Court is not to interfere with findings that are, despite Mr.

Chambers’ view to the contrary, logical and supported by the evidence the judge accepted. [ 16 ] I am not persuaded the judge’s verdict was unreasonable. I would dismiss this argument. Did the judge misapprehend evidence? [ 17 ] Mr. Chambers’ misapprehension of evidence argument rests on what he says are both internal contradictions in the evidence of the victim and contradictions between the victim’s evidence and his own. Mr. Chambers says those inconsistencies include the victim’s testimony he was rendered unconscious during the robbery, and Mr.

Chambers’ evidence that he physically confronted the victim in self- defence and only after the victim became physical with him. [ 18 ] The trial judge did what was required in the face of contradictions in the evidence by considering and resolving them, explaining how they did or did not factor into her determinations. In addition, she applied the W.(D.) analysis to her examination of Mr.

Chambers’ evidence , noting she was to “avoid falling into the trap of viewing this case as a choice between the accused and the complainant”. [ 19 ] I am satisfied the judge came to reasonable conclusions as to the evidence she accepted, or not, and why. For example, in relation to the victim’s evidence he was rendered unconscious during the robbery, I agree with the observations set out in the Crown’s factum: 76. In this case, the trial Judge was alive to Campbell’s evidence that he was knocked out, and resolved it as follows: …. Mr.

Campbell's evidence regarding time was impacted by the head injury, and I find his immediate statement to police about how [H.B.] was meant to be picked up matters little to the credibility and reliability of his evidence because of the injury to the head and that [H.B.] somewhat agreed with his testimony. . . . I also find Mr. Campbell's belief that he was unconscious for a few minutes necessarily unreliable. This was a guess on his part. The evidence of [H.B.] and the landlord do not support it given how quickly events unfolded. . . . 77.

The trial Judge was not required to reject all of Campbell’s evidence because of his plainly unreliable evidence about being knocked out. Her resolution of the evidence was reasonable and the whole of the evidence supported her ultimate conclusions regarding

guilt. At bottom, the trial Judge’s assessment of the evidence was logical and there was no material misapprehension of it. [ 20 ] In coming to her conclusion that “Mr. Chambers was not a reliable or credible witness” the judge provided a detailed explanation and referenced aspects of the evidence in support thereof. She found “his testimony was neither believed, nor did it raise a doubt.” I do not see any error in the judge’s treatment of the evidence. [ 21 ] Mr. Chambers also emphasized the internal contradictions in the evidence of the victim as to when he noticed his wallet had been stolen. Mr.

Chambers says the judge was incorrect in her characterization of the timing of the victim’s discovery it was missing. He views this as a critical error on the judge’s part, one that he suggests calls into question her ability to understand the significance of that evidence. [ 22 ] The trial transcript reveals that on direct examination, the victim testified: Q. All right. So you went back to y o ur residence. A. Yeah. Q. So what did you notice about your residence when you went back? A. Everything was gone.

There was -- there was, like, indication -- like, numbered stickers all over the wal l , like, where there was blood. On this side of the stairs going ou t of the residence there was finger dust, like, I'm assuming to grab fingerprints with. Q. Okay. And what did you notice what e l se did yo u notice missing? A. I know my wallet was stolen. That's really about it. Q. Okay. A. All my ... Q. And when did you -- when did you first notice your wallet was gone? A. I noticed my wallet was gone, like, at, like, right after the incident happened. [ 23 ] And he later stated: Q. Okay.

And how did you -- how'd you come to realize that your -- how'd you find your wallet missing? A. I noticed it wasn't on the counter shortly after this incident, like, after they made their getaway and everything. Q. Okay.

A. I tried to collect myself, you know, like, get my composure together, and I noticed my wallet was gone . [ 24 ] On cross-examination, the victim then said: A. And my wallet was sitting right on the counter. Q. Okay. And when did you -- when did you place your wallet on the counte r before it went missing? A. That was just before Deanna and Adam, Mr. Chambers, came downstairs. [ 25 ] Mr. Chambers says the judge was therefore in error when she commented the victim had noticed his wallet missing as the other individuals left his home.

While the victim’s evidence was certainly not definitive as to the timing of the moment when he realized his wallet was gone, it is reasonable to take from the whole of his evidence that he noticed it missing at some point after the altercation with Mr. Chambers. [ 26 ] On that point the judge said: “He fell back on the bed, tried to get up and follow them as they ran away. He saw his wallet was gone and tried to grab Mr. Chambers on the stairs, but he got away.” The judge misspoke, but her mistake was immaterial.

To prove the offence of robbery, the Crown was required to establish beyond a reasonable doubt, among other matters, that the victim was deprived of property, in this case his wallet. The judge was clearly satisfied the Crown had met its burden in that regard. Whether the victim’s evidence was that he formed a realization his wallet and its contents went missing in the moments after the robbery or at some later time, the offence was made out. The judge’s observation does not rise to the level of legal error that could justify this Court’s intervention. [ 27 ] I return to the judge’s overall analysis of the case.

She recognized that “even where evidence inconsistent with Mr. Chambers’ guilt is rejected in its entirety, he should not be convicted unless the evidence that is given credit proves him guilty beyond a reasonable doubt.” The judge was satisfied such evidence had been put before her, and it led her to conclude Mr. Chambers’ guilt. The judge was clearly alive to the task she was to perform, and I see no error in the way she did so. [ 28 ] With respect, I agree with the Crown’s observation in its factum that the essence of Mr. Chambers’ appeal is “nothing more than dissatisfaction with the result” at trial.

Despite Mr. Chambers’ arguments, he has not established any error on the judge’s part that could justify appellate intervention. Accordingly, I would dismiss the appeal. Beaton J.A. Concurred in: Bourgeois J.A. Scanlan J.A.