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Transcript of the Ruling on the Defence application for a mistrial
Decision Content
R. v. Roberts, 2017 NWTSC 34
S-1-CR-2015000026
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
vs.
RICHARD ROBERTS
_____________________________________________________
Transcript of the Ruling (on the Defence application
for a mistrial) by the Honourable Justice S. H.
Smallwood, at Yellowknife in the Northwest Territories,
on January 4th, A.D. 2017.
_____________________________________________________
APPEARANCES:
Mr. R. Clements: Counsel for the Crown
Ms. A. Seaman: Counsel for the Accused
No information shall be published in any document or
broadcast or transmitted in any way which could
identify the victim or a witness in these proceedings
pursuant to s. 486.4 of the Criminal Code of Canada
1 THE COURT: Good morning.
2 MR. CLEMENTS: Good morning.
3 THE COURT: This is an application by
4 Richard Roberts for a mistrial, or to vacate
5 the convictions and reopen the trial to permit
6 the defence to call additional evidence. The
7 application is based upon evidence, that the
8 defence claims is recently discovered, and
9 that impacts upon the credibility of the
10 complainant [name redacted]. There are two
11 aspects to this evidence: A witness
12 [name redacted] who provided a statement to the
13 defence after the trial; and, statements made
14 by [name redacted] in the pre-sentence report
15 prepared for the sentencing of the applicant.
16 The applicant was charged with three
17 counts: break and enter and commit sexual
18 assault, uttering threats to cause bodily
19 harm, and uttering threats to destroy
20 property.
21 The trial was held before me in the
22 Supreme Court of the Northwest Territories
23 here in Yellowknife from May 9th to 12th,
24 2016. Five witnesses testified for the Crown:
25 The complainant [name redacted], [name redacted],
26 [name redacted] and [name redacted] and [name redacted].
27 Mr. Roberts testified on his own behalf.
1
1 On June 20th, 2016, Mr. Roberts was found
2 guilty of sexual assault and two counts of
3 uttering threats. A pre-sentence report was
4 ordered and the matter was adjourned to
5 September 2nd, 2016 for sentencing. Prior to
6 September 2nd, 2016, Dane Bullerwell, who was
7 counsel for Mr. Roberts during the trial, sent
8 a letter to the Court advising that new
9 evidence had been discovered and that the
10 defence would be seeking to have a mistrial
11 declared or the trial reopened. At the
12 appearance on September 2nd, 2016, Mr.
13 Bullerwell applied to be removed from the
14 record and requested the sentencing be
15 adjourned to allow new counsel to make the
16 mistrial application. Mr. Bullerwell was
17 removed from the record and the matter was
18 adjourned.
19 A Notice of Application was filed on
20 October 19th, 2016, seeking a mistrial or an
21 order vacating the applicant's conviction and
22 reopening the case to call fresh evidence.
23 The application for a mistrial was heard on
24 November 10th, 2016.
25 The evidence that forms the basis for the
26 mistrial application is, first, that following
27 the trial Mr. Bullerwell received information
2
1 from a third party witness, [name redacted],
2 regarding the frequency with which the
3 complainant and the applicant had interacted
4 prior to the offence. This information
5 contradicted the evidence of the complainant
6 at trial.
7 Second, that the complainant had made
8 statements in the pre-sentence report about
9 her relationship with the applicant and his
10 spouse which also contradicted her evidence at
11 trial.
12 In the trial, my decision turned on
13 assessment of the credibility of the
14 complainant and the applicant. I rejected the
15 evidence of the applicant, that the sexual
16 intercourse between he and the complainant was
17 consensual, and accepted the evidence of the
18 complainant that she awoke in her bedroom to
19 the applicant on top of her having sexual
20 intercourse with her without her consent.
21 It has been accepted that a judge is not
22 functus officio following a finding of guilt
23 until a sentence is imposed or the case
24 otherwise finally disposed of. A court can
25 vacate a finding of guilt at any time prior to
26 imposing sentence although this power should
27 only be exercised in exceptional circumstances
3
1 where it is clearly called for. This was
2 established in R. v. Lessard, 1976 O.J. 74
3 (SC-CA), at paragraph 10 and 12 by the Ontario
4 Court of Appeal. That the Court has the
5 authority to do this has been reaffirmed by
6 the Ontario Court of Appeal in subsequent
7 cases and endorsed in other jurisdictions.
8 Both the Crown and the applicant are in
9 agreement regarding the authority of the Court
10 to declare a mistrial or to reopen the case
11 following a conviction by the Judge, and both
12 parties are in agreement regarding the test
13 that must be applied.
14 The test to be applied has been stated in
15 R. v. Kowall, [1996] O.J. No. 2715 (C.A), the
16 Ontario Court of Appeal, at paragraphs 31 and
17 32:
18 The test for reopening the defence
case when the application is made
19 prior to conviction has been laid
down by this Court in R. v.
20 Hayward (1993), 86 C.C.C. (3d),
193. However, once the trial
21 judge has convicted the accused a
more rigorous test is required to
22 protect the integrity of the
process, including the enhanced
23 interest in finality. It seems to
have been common ground in this
24 case that the most appropriate
test for determining whether or
25 not to permit the fresh evidence
to be admitted is the test for the
26 admissibility of fresh evidence on
appeal laid down in Palmer and
27 Palmer v. The Queen (1979) 50
C.C.C. (2d) 193, at page 205
4
1 (S.C.C.) The test is as follows:
2 (1) The evidence should
generally not be admitted if,
3 by due diligence, it could
have been adduced at trial
4 provided that this general
principle will not be applied
5 as strictly in a criminal
case as in civil cases...;
6
(2) The evidence must be
7 relevant in the sense that it
bears upon a decisive or
8 potentially decisive issue in
the trial;
9
(3) The evidence must be
10 credible in the sense that it
is reasonably capable of
11 belief; and,
12 (4) It must be such that if
believed it could reasonably,
13 when taken with the other
evidence adduced at trial, be
14 expected to affect the
result.
15
16 The Court continued:
17 These criteria provide helpful
guidance to a trial judge faced
18 with an application to reopen
after conviction. In addition to
19 the Palmer criteria, a trial judge
must consider whether the
20 application to reopen is in
reality an attempt to reverse a
21 tactical decision made at trial.
Counsel must make tactical
22 decisions in every case. Assuming
those decisions are within the
23 boundaries of competence, an
accused must ordinarily live with
24 the consequences of those
decisions. Should the trial judge
25 find the test for reopening has
been met, then the judge must
26 consider whether to carry on with
the trial or declare a mistrial.
27
There is no specific test to determine
5
1 whether a mistrial should be declared or the
2 trial reopened and continued on with. One of
3 the considerations, endorsed by the Ontario
4 Court of Appeal in R. v. Griffith, 2013 ONCA
5 510 at paragraph 40, is whether the
6 credibility findings are impacted by the
7 reopening of the case:
8 The approach taken by Trotter J.
in R. v. Drysdale 2011 ONSC 5451,
9 provides a useful example of the
approach that might have been
10 taken in this case. In Drysdale,
the trial judge, in convicting the
11 accused, had made very strong
adverse credibility findings after
12 rejecting the accused's evidence
on a key issue going to
13 identification. New evidence
touching on identification came to
14 light at the sentencing hearing,
and the trial judge permitted the
15 trial to be reopened and the
findings of guilt to be set aside.
16 The trial judge then concluded
that the only reasonable course of
17 action would be to declare a
mistrial because in light of the
18 credibility findings, any attempt
to judge the accused's credibility
19 on a different basis would be
disingenuous. In the trial
20 judge's view, any result he
reached would be open to question
21 and the only way to avoid that
possibility would be to begin
22 again with a new trial.
23 In this case, the Notice of Application
24 states that the applicant is seeking a
25 mistrial or to reopen the trial to permit the
26 defence to call additional evidence. In oral
27 submissions, counsel for the applicant advised
6
1 that the preferred remedy is for a mistrial to
2 be granted. The Crown is opposed to the
3 application but agreed that the appropriate
4 remedy is a mistrial and not to reopen the
5 trial.
6 I agree with counsel that the preferred
7 remedy would be for a mistrial to be declared
8 if this application was successful. If I were
9 to permit reopening the trial, it could
10 possibly mean that [name redacted] would be
11 recalled for further cross-examination
12 regarding her interactions with the applicant
13 and his spouse prior to the incident, and it
14 would mean that [name redacted] would
15 testify regarding her observations of the
16 relationship between [name redacted] and her
17 spouse [name redacted] and the applicant and his then
18 spouse. The probative nature of the "new
19 evidence", taken at its best, goes to the
20 credibility of the complainant and the
21 applicant.
22 In order to reach a different verdict and
23 acquit the applicant, I would have to come to
24 different conclusions regarding the
25 credibility of [name redacted] than those
26 expressed in the reasons for judgment in June
27 2016. If I were to conclude that the new
7
1 evidence was not sufficient to change my
2 perception of [name redacted]'s evidence, there
3 could be a perception, as contemplated by
4 Justice Trotter in Drysdale, that I had
5 already made up my mind or that nothing was
6 going to change my mind.
7 In my view, because this evidence goes to
8 the credibility findings I made regarding the
9 complainant and the applicant, the most
10 appropriate remedy in that circumstance would
11 be to grant a mistrial.
12 Turning to the evidence that has been
13 presented on this application, the evidence is
14 the affidavit of Dane Bullerwell, who was
15 trial counsel for the applicant, and the
16 pre-sentence report prepared by Su-Ellen
17 Kolback, a probation officer.
18 Mr. Bullerwell's affidavit details his
19 preparation for the trial and his contact with
20 [name redacted] both before and following
21 the trial. Following the trial, Mr.
22 Bullerwell retained someone to take a
23 statement from her which was taken and audio
24 recorded August 10th, 2016.
25 [name redacted] did not testify on the
26 application and her statement was not
27 presented in evidence. I understand from
8
1 counsel's submission that her audio recorded
2 statement was fairly brief, only a few pages
3 long and was not taken under oath. Counsel
4 agree that [name redacted] stated something
5 about "both couples mentioned partying
6 together" and that the statement does not say
7 much more about what [name redacted] could
8 say about the relationship between
9 [name redacted] and her spouse and the applicant
10 and his spouse.
11 Ms. Kolback, the author of the
12 pre-sentence report, did not testify on the
13 application but the pre-sentence report had
14 been filed with the Court on August 26th,
15 2016. In it, under the heading of "interview
16 with victim", the author indicates that she
17 had spoken with [name redacted] and that
18 [name redacted] had provided further comments
19 for the section. At page 6, the report
20 states:
21 [name redacted] confirmed she knew the
accused to some extent, as he was
22 friends with her spouse and she
was friends with the accused's
23 spouse. She noted that since the
charges have come forth, she no
24 longer talks to the accused's
spouse and that the two are no
25 longer friends. [name redacted] advised
that they used to go for coffee
26 and visits, but now those meetings
have ceased.
27 I understand that there may have been
9
1 difficulties in presenting this application
2 but the evidence as presented on this
3 application makes it extremely difficult to
4 assess the proposed new evidence as required
5 under the Palmer test. It is not clear what
6 the evidence of [name redacted] would be
7 should she testify. The known extent of her
8 potential evidence at this point is that she
9 would say that both couples mentioned partying
10 together. It is not clear whether this
11 evidence is admissible, whether it is hearsay,
12 and there are very few details regarding what
13 [name redacted] might be able to say about
14 this relationship. There are many unanswered
15 questions: What is the basis of
16 [name redacted]'s knowledge? Is it from personal
17 observation or hearsay? What exactly can she
18 say about the relationship between
19 [name redacted] and her spouse and the applicant
20 and his spouse? When did she acquire her
21 knowledge regarding the relationship? What
22 time period does her knowledge of the
23 relationship cover? Is [name redacted]
24 available to testify? Is she willing to
25 testify?
26 Similarly, the pre-sentence report
27 presents concerns. While this Court regularly
10
1 sees pre-sentence reports, the contents of the
2 reports are rarely challenged. As such, it is
3 not clear exactly how the reports are
4 prepared. While Ms. Kolback spoke with
5 [name redacted], it is not apparent what exactly
6 [name redacted] said. The pre-sentence report
7 does not contain direct quotes and there is no
8 indication that the comments by [name redacted]
9 were audio recorded, under oath or were her
10 exact words.
11 Counsel filed a number of cases dealing
12 with applications to reopen the case or to
13 grant a mistrial on the basis of new evidence.
14 In most of the cases where the application was
15 successful, the Court had a much clearer
16 understanding of what the proposed evidence
17 consisted of. Often the evidence was filed in
18 an Agreed Statement of Facts or the proposed
19 witness testified on the application.
20 The Ontario Court of Appeal addressed the
21 requirement for relevant evidence in R. v.
22 Arabia, 2008 ONCA 565. The appeal in Arabia
23 centered around an application to permit the
24 defence to reopen their case or to declare a
25 mistrial on the basis of new evidence. The
26 evidence that was presented to the trial judge
27 consisted of two affidavits.
11
1 Justice Watt, writing for the Court of
2 Appeal, noted (at paragraphs 69 and 71) that
3 the threshold for relevance was a modest one
4 but that relevance alone would not be enough
5 to warrant reopening the defence case. What
6 was required was credible evidence, reasonably
7 capable of belief and admissible in accordance
8 with the law of evidence. Justice Watt went on
9 to state at paragraphs 80 to 82:
10 The assessment mandated by the
fourth requirement of the Palmer
11 test adopted in Kowall envisages
an assessment of the impact of the
12 proposed evidence on the result at
trial. That assessment, at least
13 as it seems to me, need only be
performed in connection with
14 evidence that otherwise satisfies
the requirements of Kowall adopted
15 from Palmer. To hold otherwise
would mean that evidence not
16 reasonably capable of belief, or
evidence excluded by an
17 admissibility rule, would
nonetheless qualify for assessment
18 under the fourth requirement, an
absurd result.
19
In my respectful view, neither the
20 Czernik affidavit nor the
affidavit of Bruzzese should have
21 engaged the trial judge's
discretion to permit reopening of
22 the defence case or to declare a
mistrial.
23
Trial counsel for the appellant
24 did little beyond proffer of the
affidavits to assist the trial
25 judge in his task. Counsel did
not adduce any evidence to explain
26 how it was that Czernik came
forward, months after the finding
27 of guilt, to accept responsibility
for an offence committed almost
12
1 three years earlier. Nothing was
said of any connection between
2 Czernik and the appellant, of
Czernik's whereabouts, more
3 importantly of his availability
and willingness to testify. No
4 effort was extended to elaborate
upon the bare acceptance of
5 responsibility in the affidavit to
demonstrate unique knowledge of
6 the circumstances of the offence
committed.
7
8 The situation in this case is not the same
9 as in Arabia - the affidavit in that case was
10 from an individual who purported to be
11 responsible for the offence that Arabia had
12 been convicted of committing. But the
13 concerns raised by the Court about the ability
14 to evaluate the evidence, to determine whether
15 it is relevant, whether it might reasonably
16 have affected the result and whether the
17 Palmer criteria can be evaluated in the
18 absence of evidence that the Court can
19 reasonably assess are all valid concerns.
20 In my view, the evidence that has been
21 presented does not permit the Court to
22 undertake an assessment of the Palmer criteria
23 and the applicant's application must fail on
24 this basis.
25 Having said that, I do want to say a few
26 things about the proposed evidence. It is
27 difficult to assess this evidence, as I have
13
1 stated, but I have considered whether this
2 evidence, based on what is before me, could
3 have reasonably affected the result.
4 The issue of the relationship between
5 [name redacted] and her spouse [name redacted] and that
6 of the applicant and his spouse was just one
7 aspect of the evidence in this trial. In
8 rejecting the evidence of the accused, I had a
9 number of concerns regarding his evidence, one
10 of which was his characterization of the
11 relationship between the people involved. In
12 raising that concern, it was not just the
13 evidence of the complainant and the applicant
14 that I considered but also the evidence of
15 [name redacted].
16 The evidence of [name redacted] differed somewhat
17 from the complainant and the applicant.
18 [name redacted] acknowledged partying with the accused on
19 occasion. In my view, what [name redacted]
20 might say about this, based on the limited
21 information that I have that has been
22 provided, is no different than what [name redacted]
23 testified to - the two couples had partied on
24 occasion.
25 And my reasons did not focus on the
26 relationship between the complainant and the
27 applicant's spouse or having coffee with her.
14
1 The complainant acknowledged that she knew the
2 applicant's spouse and having had coffee with
3 her on an occasion. Now, there were
4 inconsistencies in the complainant's evidence
5 and I acknowledged that in my reasons. But in
6 reviewing my reasons, in accepting the
7 complainant's evidence about what occurred in
8 her bedroom that night, they did not revolve
9 around conclusions about the nature of the
10 relationship between the parties.
11 In my view, this evidence, based on the
12 limited information that is before me, could
13 not have reasonably affected the result.
14 I am also of the view that the evidence of
15 [name redacted] does not meet the due
16 diligence requirement, the first step in
17 Palmer.
18 Mr. Bullerwell's affidavit contains the
19 details of the defence's knowledge of
20 [name redacted] and the contact with her, both
21 before and after trial. It is apparent that
22 [name redacted]'s name arose and was aware to
23 defence prior to trial. Her name was referred
24 to in the initial Crown disclosure and
25 included the information that she had refused
26 to provide a statement to the police. Mr.
27 Bullerwell deposed in his affidavit:
15
1 My view was that, as an apparent
friend of the complainant's, she
2 was unlikely to cooperate with the
defence. My view was also that
3 any evidence she might be able to
give appeared simply to be
4 inadmissible hearsay evidence
essentially repeating the
5 allegations as reported to her by
the complainant.
6
7 Shortly before the trial, the applicant
8 advised Mr. Bullerwell that he had spoken with
9 [name redacted] and that she was willing to
10 speak with him. Mr. Bullerwell attempted to
11 contact her the weekend before the trial. He
12 phoned a number provided to him by the
13 applicant and he spoke to someone he believed
14 to be [name redacted], although she did not identify
15 herself. This person advised that she was not
16 interested in talking to him.
17 Following this conversation, Mr.
18 Bullerwell was of the view that
19 [name redacted] did not have helpful evidence to
20 give in the trial and he was not confident she
21 would be a beneficial witness. He viewed it
22 as extremely risky to consider serving her
23 with a last-minute subpoena or otherwise call
24 her as a defence witness.
25 After the trial, Mr. Bullerwell received
26 information that [name redacted] might have
27 relevant information and he then retained
16
1 someone to take a statement from her.
2 It is apparent that the defence was aware
3 of the existence of [name redacted] well
4 before the trial, her name was referred to in
5 the Crown disclosure. The applicant also had
6 knowledge of [name redacted]. He had spoken
7 to her shortly before his trial and advised
8 his counsel of this. The issue is whether
9 [name redacted]'s evidence could have been
10 obtained through due diligence or whether this
11 was a tactical decision made by counsel.
12 In my view, this appears to have been a
13 tactical decision by counsel. Mr. Bullerwell
14 was aware of [name redacted] early on. He
15 had concerns about her willingness to
16 cooperate which, given her refusal to provide
17 a statement to the police and her friendship
18 with the complainant, may have been a valid
19 concern. However, he did not pursue whether
20 she might have evidence helpful to the defence
21 until it was raised by the applicant shortly
22 before trial. He made the decision, as he
23 stated, not to pursue [name redacted] as a
24 possible defence witness.
25 Once the applicant brought
26 [name redacted] to his attention shortly before
27 the trial, he made an effort to see if she had
17
1 evidence that might assist the defence. He
2 attempted to contact her and the person he
3 spoke to was not interested in speaking with
4 him. At that point, he made the decision not
5 to call [name redacted] as a witness. He was
6 concerned that he did not know what she might
7 say as she had not provided a statement and he
8 was concerned about the risk of her saying
9 something to him and then testifying
10 differently.
11 At this point, Mr. Bullerwell was aware
12 that the relationship between the parties was
13 going to be in issue. This is apparent from
14 his affidavit. He had considered calling the
15 applicant's ex-spouse to testify regarding the
16 relationship but ultimately decided not to as
17 he was uncertain about her cooperation given
18 the status of the relationship between the
19 applicant and his ex-spouse. He decided that
20 the defence evidence about the nature of the
21 relationship could best come from the
22 applicant himself.
23 While subpoenaing a witness of whose
24 evidence you are uncertain is a risky
25 proposition, it was also an avenue open to the
26 defence. Mr. Bullerwell could have subpoenaed
27 [name redacted] and determined prior to
18
1 calling her as a witness whether she had any
2 evidence to offer that might be helpful to the
3 defence. The risk, as Mr. Bullerwell was
4 aware, was that she might testify differently
5 than what she had told him. This had the
6 potential to place him in the position where
7 he might be a witness. However, this could
8 have been alleviated by having another person
9 present during the interview. At that point,
10 calling [name redacted] carried some risk,
11 however Mr. Bullerwell proceeded with the
12 trial and did not further pursue her as a
13 witness.
14 It was a decision that counsel had to make
15 and counsel often have to make the decision
16 whether to call a witness who they do not know
17 exactly what they will say (a witness who has
18 not provided a statement). It is a risk known
19 to all criminal lawyers but it is a decision
20 that has to be made. On occasion, it turns
21 out to be a decision that counsel regret
22 making but in my view, it is ultimately a
23 tactical decision.
24 It was a tactical decision that was also
25 made within the boundaries of competence.
26 Ms. Bullerwell's reasons for not calling
27 [name redacted] reflect a consideration of the
19
1 potential benefits and risks of calling her.
2 Overall, from my perspective, I thought Mr.
3 Bullerwell's representation of the applicant
4 at trial was capably done, he was well
5 prepared, knowledgeable, and did an effective
6 job of representing the applicant. So in my
7 view it was a decision that was made within
8 the boundaries of competence.
9 For these reasons, I am dismissing the
10 application.
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13 Certified to be a true and
accurate transcript pursuant
14 to Rules 723 and 724 of the
Supreme Court Rules,
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19 ____________________________
20 Lois Hewitt,
Court Reporter
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