R. v. Colpitts, 2016 NSSC 271

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Colpitts , 2016 NSSC 271 Date: 20161011 Docket: CRH 346068 Registry: Halifax Between: Robert Blois Colpitts and Daniel Frederick Potter Applicants v. Her Majesty the Queen Respondent MID-TRIAL RULING APPLICATION TO VARY THE ORDER IN WHICH CO-ACCUSED EVIDENCE IS CALLED Judge: The Honourable Justice Kevin Coady Heard: October 6, 2016 Written Decision: October 11, 2016 Counsel: James Martin, Mark Covan and Scott Millar, for the Crown Robert Blois Colpitts, Self-Represented Brian H. Greenspan and Jane O’Neill, for Daniel Frederick Potter

By the Court: Introduction and Background : [ 1 ] The Applicants, Robert Blois Colpitts and Daniel Frederick Potter are jointly charged with a series of frauds. The Crown alleges that between January 1, 2000 and September 13, 2001 they acted to fraudulently affect the public market price of shares of Knowledge House Incorporated (KHI). Mr. Potter was the President/CEO of KHI while Mr. Colpitts was legal counsel. The Crown has presented their evidence over 90 days. [ 2 ] The Crown has not formally closed its case, as there are outstanding issues associated with exhibits.

It is anticipated these issues will be resolved when the trial resumes. The Defendants have both indicated they will elect to call evidence and that may include their testimony. Mr. Potter has indicated he may call an expert witness. [ 3 ] On the last sitting day (October 6, 2016) Mr. Potter brought forth this Application without notice. Mr. Colpitts, who is not represented by legal counsel, supported this Application. While I have not received briefs, I was provided with able oral submissions from all three parties.

The Crown opposes this Application. [ 4 ] The Applicants request that the conventional approach to the calling of evidence by co-accused be varied. The conventional approach was described by E.G. Ewaschuk, Q.C., at paragraph 16:2650 of his text Criminal Pleadings and Practice in Canada , Second Edition. Accused should be called upon for their defence in the order their names appear in the Information or Indictment. In the present Indictment Mr. Colpitts is named first and Mr. Potter second. [ 5 ] The conventional approach would require Mr.

Colpitts elect to call evidence, to call his evidence and then to close his case. At that point, Mr. Potter would make his election, call his evidence and then close his case. The proposal before me would see both Defendants elect to call evidence at the start of the defence case. They would then collectively design a witness list that includes both Defendants’ witnesses. Once a witness is called, one of the Defendants would declare that witness as their own and would conduct a direct examination. The other Defendant and then the Crown would cross-examine the witness.

This would continue until all of the Defendants’ witnesses are called. Once the witnesses have completed their evidence, the Defendants could elect to take the stand. They could testify in an agreed order or, in the absence of an agreement, as per the order on the indictment. [ 6 ] The conventional rule is just that: a long-standing convention. There is nothing in the Criminal Code that endorses the conventional approach. Notwithstanding, it has become the accepted approach in multiple accused trials. Furthermore, there is little authority on when it is appropriate to adopt a non-conventional method.

I am satisfied that I have the authority to grant this Application either as the Case Management Judge or through my inherent jurisdiction to control the trial process. [ 7 ] The Applicants have advanced the following factors as supportive of this Application: • Allowing the Defendants to call a joint defence will advance the efficiency of the trial as envisioned in R. v. Jordan ( 2016 SCC 27 ). • Mr.

Colpitts is self-represented and granting this application would be an appropriate accommodation to him. • This is not a case where a “cut-throat defence” is likely to arise and any differences between the accused would be minor and of no great consequence. • This approach will provide a more coherent narrative in that it would allow the evidence to be called in a chronological fashion.

• In the event the proposed approach became problematic, the Court could revert to the conventional. The Applicants see no downside to proceeding in this manner. They argue that any suggested pitfalls are speculative and, if they occur, easily rectified. [ 8 ] The Crown describes the proposed change as a “mobile trap”. I take this to mean that it is not possible to predict what pitfalls will emerge. The Crown raises the spectre of a mistrial should disagreements develop between Mr. Colpitts and Mr. Potter.

Additionally, the Crown points out the Applicants have not provided any on-point authority to support this Application. [ 9 ] I accept Mr. Greenspan’s submission that the proposed approach could add efficiency to the calling of defence evidence. He relies on R. v. Jordan , supra, as a clarion call for efficiency in the trial process. While Jordan was concerned with delay and

Section 11(

b) of The Canadian Charter of Rights and Freedoms , this Application addresses an issue of criminal procedure. Nonetheless, I endorse the Court’s evidence as stated at paragraph 139: For the courts, this means implementing more efficient procedures, including scheduling practices. Trial courts may wish to review their case management regimes to ensure that they provide the tools for parties to collaborate and conduct cases efficiently. Trial judges should make reasonable efforts to control and manage the conduct of trials.

Appellate courts must support these efforts by affording deference to case management choices made by courts below. All courts, including this Court, must be mindful of the impact of their decisions on the conduct of trials. While this Decision is primarily about delay, I am satisfied the language is applicable to all aspects of the trial process. I would suggest that such creativity is desirable as long as an accused’s fair trial rights are not compromised. The Court stated at paragraph 44: The intervener Attorney General of Alberta submits that a change in courtroom culture is needed.

This submission echoes former Chief Justice Lamer’s two decades-old call for participants in the justice system to ‘find ways to retain a fair process . . . that can achieve practical results in a reasonable time and at reasonable expense.’ We agree. It is my view that to grant this Application I would have to be satisfied it would not affect trial fairness, especially for Mr. Colpitts. [ 10 ] The Applicant’s second argument is that granting this Application would allow both Defendants to hear all of the evidence before testifying. The reality is that only one Defendant can go last. Mr.

Greenspan has unequivocally stated that he will not surrender Mr. Potter’s present right to testify last. This has the potential to create a schism between these Defendants. If such a disagreement occurs at any time during a joint defence, Mr. Greenspan’s loyalty would be limited to Mr. Potter. It should be noted that Mr. Colpitts is entitled to full disclosure prior to testifying, including any expert reports. [ 11 ] The conventional approach has existed for generations and is designed to avoid causing prejudice to an accused’s fair trial rights.

I am not persuaded the proposed approach can provide such assurances. It is not possible to predict how a trial will unfold, especially a trial as long and complex as this one. [ 12 ] The Applicants’ third argument is that allowing a joint defence would be beneficial to Mr. Colpitts. If one could predict that Messrs Colpitts and Potter would proceed in lock-step until the end of the trial that might be a result. However, there are very few lengthy trials without unexpected complications. It is obvious to the Court that Mr. Greenspan and Ms. O’Neill are in regular conversation with Mr. Colpitts.

I expect that while he clearly understands they are not his counsel, he has become somewhat dependent on their unofficial assistance. I am concerned that if the joint defence breaks down, Mr. Colpitts would find himself in a vulnerable position. He would have challenges proceeding and concerns about the integrity of the assistance already provided by Mr. Potter’s counsel. A remedy for such a development would be elusive. [ 13 ] The Applicants’ fourth argument in favor of this Application is that this is not about a “cut-throat defence”. Mr. Greenspan suggests that it is unlikely such a situation will develop.

While it might be unlikely, such is not a guarantee. I do not expect either Mr. Colpitts or Mr. Potter to fully turn on one another; however, some past evidence suggests differences between them. Once defence evidence is called, the potential for other disputes is very real. Once again, an appropriate remedy may be elusive.

[14] The Applicants’ fifth argument is that the proposed approach will provide a coherent narrative. That may be so but it is hardlya reason to gamble there will be no complications with a joint defence. I am hearing this trial without a jury and I can follow theevidence regardless of when it is called. [15] The Applicants’ sixth argument is that, should the joint defence break down, the Court can revert to the conventional approach. I am not persuaded that such a reversion could remedy such a breakdown. Mr.

Colpitts might find himself in a position where he mightwant to recall witnesses or seek some other remedy. [16] There is no authority directly on point. I have been provided with R. v. Cocks, 2012 BCSC 1336 and R. v. Allen, 2010 YKSC28. I do not find these authorities particularly helpful. In R. v. Cocks, supra, two co-accused retained two law partners to represent themin a murder trial. The accused wanted the lawyers to share all information and to advance a joint defence. They signed a waiver tofacilitate their arrangements with counsel.

The Crown brought a motion to have the two lawyers removed on the basis of a potentialconflict. The Court removed both counsel commenting as follows at paragraph 40: All of that is well and good, but what is a court to do in mid-trial if one of these men stands up and says, ‘I know I signed it. I meant itwhen I signed it. I didn’t really understand what might happen. I have changed my mind. This isn’t fair. I want a new lawyer and a newtrial.’ In my view, that is a realistic possibility given the kind of case that this is.

The issue in this Application was not addressed and the real issue was the conflict. [17] In R. v. Allen, supra, the message was that jurisdictions may have different conventions respecting the giving of defenceevidence in a co-accused trial. For example, in the Yukon defence counsel proceed in order of seniority. In another jurisdiction theaccused charged with the most serious charge goes first. This case is not about presenting a joint defence as envisaged in thisApplication. [18] I have also reviewed Justice Rosenberg’s comments in R. v. Felderhoff, (2003) (ON CA), O.J. No. 4819(Ont.

CA) respecting a Judge’s trial management powers. I see that case as an authority that would allow me to grant this Applicationwere I not concerned about the risks inherent in the proposed approach. My concern for those risks is enhanced by the fact Mr. Colpittsdoes not have trial counsel. I have a duty to assist Mr. Colpitts in receiving a fair trial. The need for that assistance was apparent when,during submissions, he indicated a willingness to sign a document waiving the right to make a mistrial motion regardless of thecircumstance.

Conclusion: [19] For the aforementioned reasons, I am denying this Application. Defence evidence will be called in the conventional manner. This does not preclude defence counsel from coming to an agreement with Mr. Colpitts as to who goes first, as we have done during theCrown’s case. There may be trials when the proposed approach would enhance trial efficiency; however, in a case as lengthy andcomplex as this one, a cost benefit analysis dictates sticking with the tried and true approach. Coady, J.