nan THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2006 SKCA 55 Date: 20060516 Between: Docket: 1117 Trevor James Drury and Her Majesty the Queen Coram: Lane, Jackson Richards JJ.A. Counsel: Darren Armitage for Trevor James Drury Frank Impey for the Crown Appeal: From: QBJ No. 19 of 2004, J.C. Saskatoon Heard: May 16, 2006 Disposition: Appeal Dismissed (orally) Written Reasons: May 19, 2006 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Richards Jackson J.A. [1] On the hearing of the appeal, the application to adduce fresh evidence and the appeal against conviction were dismissed with brief written reasons to follow. These are those reasons. [2] Trevor Drury appeals his conviction for possession for the purpose of trafficking methamphetamine contrary to s. 5(2) of the Controlled Drugs and Substances Act. [1] His sole ground of appeal hinges on the Court accepting fresh evidence. [3] The central issue at trial was whether the drugs found at the premises being rented by one Sandra Bodkin belonged to Trevor Drury or to Sandra Bodkin. In deciding this issue, as part of the overall facts, the trial judge had to determine whether Trevor Drury was renting part of Sandra Bodkin's basement at the time of the discovery of the methamphetamine. Mr. Drury denied living in Ms. Bodkin’s basement and denied being seller of methamphetamine. Both Ms. Bodkin and Mr. Drury testified. [4] Scheibel J., the learned trial judge, set forth the evidence and his decision as follows: The central issue is one of credibility. The Crown's case is based, in large measure, on the evidence of Sandra Bodkin, who was large drug user at the time of the alleged offence. She claims that she bought drugs from the accused, and used both marihuana and methamphetamine. She called the accused friend, and her dealer for the drugs which she was looking for from time to time. She testified she would pay the accused cash, or give him jewelry as collateral. She claims that she purchased drugs from the accused almost every day. Sandra Bodkin rented duplex which had basement. few days prior to April the 17th, 2003 the accused moved into the open portion of the basement of the duplex, based on Bodkin's evidence. Bodkin further states that the accused was helping her with drugs, so she gave him place to stay. On the 17th day of April Bodkin's brother came over and began hitting the accused with baseball bat. Bodkin testifies she was fearful because she thought her brother was going to kill the accused, and she called the police. After the police arrived Bodkin gave them permission to search the basement portion, which she claims was being used by the accused. As result of the search 23.4 grams of crystal meth was discovered, and several items were seized, including machete, second knife in case, dagger, scale, baggies, jewelry box and ring. Bodkin testified that all of these items seized belonged to the accused, with the exception of the ring, which she claims she gave to him as collateral for drug purchases. The accused claims he was not living in Bodkin's basement, and denies that the drugs and the drug paraphernalia were his. He claims the jewelry box belonged to Bodkin, and the drugs were hers. He also claims he has never seen the knives seized. On the issue of credibility, if believe the evidence of the accused must acquit him of the charges. Even if do not believe the evidence of the accused, but am left in reasonable doubt by it, must acquit the accused. If am not in doubt by the evidence of the accused, still must ask myself whether, on the basis of the evidence which do accept, am satisfied beyond reasonable doubt of the guilt of the accused. The evidence of the accused is supported by Aaron Bradley, friend of the accused, who claims the accused was living with him on April 17th, 2003. He claims he has never seen the accused traffic in drugs, and that he does not allow drugs at his house. The effect of this evidence is to contradict that of Bodkin, as to where the accused was living at the time, and thereby further challenge the Crown's position that the seized items were that of the accused. Given the fact that Sandra Bodkin was heavy user of drugs at the relevant time, must be cautious about accepting her testimony. Without her evidence, the Crown's case must fail. When the police arrived at Bodkin's duplex they determined that she was sober, even though Bodkin states that she was stoned. Despite some concerns about her testimony, found her to be credible on the crucial issues relating to the charge. On the other hand, had great deal of difficulty with the evidence of the accused, and in the end did not find him to be truthful. Aaron Bradley may have been truthful, but, if so, he was mistaken as to the time when the accused was residing with him. Therefore his evidence is of no assistance to the accused. Chad Coles of the R.C.M.P. was called as an expert in drug use, paraphernalia, and street value of drugs. accept his evidence that the 23.4 grams of meth exceeds that which might be for personal use. also accept his evidence that the quantity of drugs is consistent with possession for the purposes of trafficking. With respect to count number in the Indictment, the Crown has proven each and every essential ingredient of the charge to my satisfaction beyond reasonable doubt, and therefore find the accused guilty as charged on that count. [5] At trial Ms. Bodkin denied selling methamphetamine, but said she bought it in small quantities from Mr. Drury almost daily. Mr. Drury’s fresh evidence seeks to prove that Ms. Bodkin was the dealer and that she was the one selling methamphetamine to him. It was argued that if the trial judge had this evidence, which contradicted Ms. Bodkin’s statement that she was not dealer, this would have been enough to raise reasonable doubt in Mr. Drury’s favour. [6] The fresh evidence comes in the form of two affidavits. The first, from Mr. Drury, purports to say what one Megan Bairos and an unnamed friend would say, if they were to testify or swear their own affidavits. Mr. Drury's sworn affidavit dated April 19, 2006 provides: 7. Megan Bairos is/was fellow methamphetamine user. She was living in Saskatoon at the time of my arrest and was willing to testify at trial. She also advised me that friend of hers, who do not know and the particulars of which do not know, was also willing to testify on my behalf. Both would testify that they had purchased methamphetamine, from Sandra Bodkin, around the time of my arrest (which is contrary to Sandra Bodkin's testimony, which was central to the reasoning of Judge Scheibel). 8. Unfortunately, it is the nature of methamphetamine users to be transient and undependable and in fact Ms. Bairos moved, while my trial was pending. did not know where she had gone; had only third hand information (at best) to the effect that she was "in Vancouver". She did not have listing in Vancouver, and nobody knew had any information about her whereabouts. Further, was unable to find out the identity of her friend ... 10. Megan is back in town, or was several weeks ago. was in touch with her and she promised to provide an affidavit for use in this matter. However, she was very pregnant at the time and was due to deliver some time around mid March. The last time talked to her, she was three weeks overdue and was preoccupied and could not be of assistance. 11. Now, her telephone is cut off, and do not know how to contact her. still do not know the identity of her friend. do, however, believe that she is still in Saskatoon and still able to provide evidence.[3] During the trial, Mr. Drury testified that two witnesses were going to testify but that he could no longer find them.[4] [7] The second affidavit, dated April 12, 2006, is from Sherry Brinkman who swears that at some point in the past she knew Ms. Bodkin as methamphetamine dealer. She states: 2. That know the Appellant, Trevor James Drury. met him in the summer of 2004, through his girlfriend, Lisa Harris. did not know him until then, and did not know him at the time when he was charged with the offences in this case. 3. That also know Sandra Bodkin, as hereinafter detailed. know her via my association with my now-ex common-law husband. 4. That, until August of 2004, was living in common-law relationship with Jonathon Moore. 5. That Jonathon was, at that time, and had been for several years by then, regular user of crystal methamphetamine. 6. That it was through Jonathon (and in turn, through Sandra's brother, Rick) that met Sandra Bodkin. 7. After we had known Sandra for short while, Jonathon and would stop by Sandra's home and Jonathon would run in and come back out with methamphetamine. Later still, began to actually go inside with him. After knew her, Jonathon and went to her home regularly; estimate was at her home at least once every ten days. 8. That personally saw Sandra Bodkin sell methamphetamine to Jonathon Moore, on numerous occasions. She kept it hidden about her premises; sometimes producing it from under the couch, other times from her sewing box. 9. That am advised by Trevor Drury and do verily believe that Sandra Bodkin testified at his trial, and that she did swear that she was not in fact seller of methamphetamine, but was actually customer and that in fact the person who sold methamphetamine to her was Trevor Drury. 10. That did not even know Trevor via Jonathon's and my attendance at Sandra Bodkin's home, nor did know him at all during the times when Jonathon was purchasing from Sandra, except near the end. In fact, have never seen Trevor at her house. have never purchased methamphetamine from Trevor, nor have seen him sell it, or heard of him selling it.[5] [8] The test for the admission of fresh evidence is well known. After review of the authorities, McIntyre J., speaking for the Supreme Court of Canada in R. v. Palmer, [6] stated: (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in criminal case as in civil cases: see McMartin v. The Queen [1964 CanLII 43 (SCC), [1964] S.C.R. 484]. (2) The evidence must be relevant in the sense that it bears upon decisive or potentially decisive issue in the trial. (3) The evidence must be credible in the sense that it is reasonably capable of belief, and (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. Other factors are also relevant. For example, s. 683 of the Criminal Code does not authorize the Court of Appeal to dispense with the law of hearsay evidence: R. v. O'Brien.[7] See also, on this point, R. v. Teneycke.[8] [9] Applying this case law to both affidavits, they fail the test for admission for slightly different reasons in each case. [10] With respect to the evidence of Megan Bairos and her friend, we still do not have this evidence before us. All we have is Mr. Drury's statement as to what they will say, which must fail on the basis of hearsay. As Chief Justice Dickson speaking for the Court in O’Brien indicated, any evidence sought to be adduced under the discretion of what is now s. 683 of the Criminal Code must be admissible evidence.[9] [11] With respect to the evidence of Ms. Brinkman, she does not swear that Ms. Bodkin was selling methamphetamine on April 17, 2003, the date when the offence was alleged to have been committed. Indeed, Mr. Drury's affidavit confines Ms. Brinkman's affidavit to 2004 and on. On the hearing of the application, Mr. Drury's counsel confirmed that Ms. Brinkman could not testify as to whether Ms. Bodkin sold methamphetamine in 2003. [12] While not strictly necessary in relation to Mr. Drury’s affidavit, some specific comments may be made in relation to the application of the Palmer principles. First, with respect to due diligence, it must be noted that Mr. Drury had the assistance of experienced counsel at trial and who, indeed, represents him before this Court. Mr. Drury decided, expressly, to proceed with the trial despite the absence of the two witnesses who he now seeks to put forward. If the Court were to permit Mr. Drury's application to succeed, it would encourage the splitting of trial simply to obtain an order for new trial with all of the attendant delays and other problems. It is noted, in this case, that some of the delay was, in part, the product of the Crown being unable to secure the testimony of Ms. Bodkin voluntarily. bench warrant had to be issued for her arrest and, at one point, she was taken into custody. An order for new trial in this case, over three years after the offence, would almost certainly result in the Crown being required to abandon the charges. While clearly not determinative, the avoidance of evidence-splitting with all of its attendant problems, is one reason that supports the requirement of due diligence. [13] As the Palmer principles indicate,[10] due diligence is not applied strictly in criminal matters. This brings into play the fourth factor which is consideration of the effect of the new evidence on the outcome of the trial. Since Ms. Brinkman’s evidence did not exist in 2004, the fourth factor must be considered in relation to her evidence. [14] In our view, the result could not reasonably be expected to be any different if the fresh evidence were admitted and a new trial ordered. As the above review of the trial judge's reasons demonstrates, Scheibel J. was aware of Ms. Bodkin's consumption of drugs. Indeed, Ms. Bodkin testified in what appears to be candid and free manner about growing marihuana in her basement at the time Mr. Drury was living there. She also candidly said she sold drugs but not methamphetamine. Ms. Brinkman, and perhaps Ms. Bairos, may be able to contradict this latter statement, but this testimony would not bear directly on whether Mr. Drury sold methamphetamine and whether the methamphetamine in the basement of her home belonged to him. Ms. Bodkin’s actions, first, in asking the police officers to search her basement because of concern related to the violence started by her brother and then, subsequently, giving them full consent to search the basement portion occupied by Mr. Drury are completely inconsistent with her being the owner of the methamphetamine which was found virtually in plain view. Finally, it must be kept in mind that the trial judge rejected Mr. Drury’s evidence. [15] Before concluding these reasons, it is perhaps important to note that we are aware that the appellant did not follow the procedure outlined by the Supreme Court of Canada in R. v. Lévesque[11] in making this fresh evidence application. Indeed, no notice was given to the Crown of the application for fresh evidence and the original notice of appeal did not make reference to the possibility of an application to adduce fresh evidence. Crown counsel advised the Court of the lack of notice, but did not ask for an adjournment. [16] For all these reasons, the application to adduce fresh evidence is dismissed. There being no ground of appeal other than that there would be a miscarriage of justice if the conviction were affirmed in light of the fresh evidence, the appeal is dismissed. [1] S.C. 1996, c. 19. [2] Trial Transcript, Vol. II, p. 267, line to p. 270, line 10. [3] Appellant's Factum at tab 11. [4] Supra, footnote 2, at pp. 258-59. [5] Supra, note 3, at tab 10. [6] 1979 CanLII (SCC), [1980] S.C.R. 759 at 775. [7] 1977 CanLII 168 (SCC), [1978] S.C.R. 591. [8] (1996), 1996 CanLII 2213 (BC CA), 108 C.C.C. (3d) 53 (B.C.C.A.) at para. 25. [9] Supra, footnote 7, O’Brien at p. 602. [10] Supra, footnote citing McMartin v. The Queen, 1964 CanLII 43 (SCC), [1964] S.C.R. 484 at 491. See also R. v. McAnespie, 1993 CanLII 50 (SCC), [1993] S.C.R. 501 at 502. [11] 2000 SCC 47 (CanLII), [2000] S.C.R. 487.
The appellant appealed his conviction for possession for the purpose of trafficking methamphetamine contrary to s. 5(2) of the Controlled Drugs and Substances Act. His sole ground of appeal hinges on the court accepting fresh evidence. HELD: The application to adduce fresh evidence is dismissed. There being no ground of appeal other than that there would be a miscarriage of justice if the conviction were affirmed in light of the fresh evidence, the appeal is dismissed. 1) Applying the case law to the fresh evidence, they fail the test for admission. 2) With respect to the evidence of Megan Bairos and her friend, we still do not have this evidence before us. All we have is the appellant's statement as to what they will say, which must fail on the basis of hearsay. Any evidence sought to be adduced under the discretion of what is now s. 683 of the Code must be admissible evidence. With respect to the evidence of Ms. Brinkman, she does not swear that Ms. Bodkin was selling methamphetamine at the relevant time. 3) With respect to due diligence, it must be noted that the appellant had the assistance of experienced counsel at trial and who represents him before this court. The appellant decided to proceed with the trial despite the absence of the two witnesses who he now seeks to put forward. If the appellant's application were to succeed, it would encourage the splitting of trial simply to obtain an order for new trial with all of the attendant delays and other problems. 4) In the court's view, the result could not reasonably be expected to be any different if the fresh evidence was admitted and a new trial ordered.