JUDGE DECLARES MISTRIAL IN CALDER CASE

Lawyer's right to fair trial violated with late disclosure of new
evidence

A judge has declared a mistrial in the case of a Halifax lawyer
charged with passing drugs to a client at the Dartmouth jail.

Anne Calder's right to a fair trial was violated when the Crown
disclosed new evidence against her last Friday, Justice Peter Bryson
ruled Wednesday in Nova Scotia Supreme Court in Halifax.

Bryson said the evidence, which is banned from publication, was
"highly prejudicial" to Calder and that its late disclosure breached
her right to make "full answer and defence" to the charges against
her.

"Ms. Calder has satisfied me that last week's late disclosure to her
did adversely affect her, owing to decisions that she had already made
regarding her defence and trial strategy."

Calder made a significant decision last month, Bryson said, when she
gave up the right to a jury trial and re-elected to be tried by a
judge alone.

The judge said he couldn't cure the prejudice done to Calder simply by
giving the defence an adjournment, as the prosecution suggested.

Bryson also rejected the option of allowing the trial to proceed
without the new evidence.

"Cases should be decided on all relevant and admissible evidence," the
judge said. "The truth-seeking function of the court would be impaired
if I were to grant an order excluding the evidence.

"In my view, this new evidence should be heard but not by this court
and not in this trial.

"Accordingly, and with much reluctance, I've come to a conclusion that
a mistrial should be ordered."

The judge ordered Calder to return to Supreme Court on May 6 to begin
the process of setting dates for a new trial. He said she has the
right to elect a jury trial.

Calder, 56, is accused of giving an envelope containing drugs to an
inmate at the Central Nova Scotia Correctional Facility on the
afternoon of July 14, 2009.

The former Crown attorney was arrested that night at her Halifax home
and charged with trafficking in hydromorphone, a prescription
painkiller. She was also charged with possession of hydromorphone and
marijuana for the purpose of trafficking after police searched her
home on July 15.

Calder's trial got underway last week and heard from five Crown
witnesses, all correctional officers, before the new evidence was
disclosed and defence lawyer Craig Garson applied for a mistrial.

Bryson heard arguments on the application Tuesday and reserved his
decision until Wednesday.

In his ruling, Bryson said he didn't consider the breach by the Crown
to be deliberate.

The Crown said new information about Calder's past was brought to its
attention "by pure happenstance" during the lunch break last Thursday.

"I do accept that Crown counsel had no prior knowledge of this
evidence and until last week neither did the immediate investigative
team," the judge said.

"Counsel acted quickly and appropriately when it learned of this new
evidence."

Calder and Garson didn't want to comment on the decision outside
court.

"Thanks for asking," a smiling Calder told reporters.

Crown attorney Paul Adams said the ruling means "we'll have to start
again."