R. v. Aulakh (B.S.), (2012) 326 B.C.A.C. 177 (CA)

• Jurisdiction: British Columbia
• Judge: Hall, D. Smith and Neilson, JJ.A.
• Date: 15 August 2012
• Citation: (2012), 326 B.C.A.C. 177 (CA),2012 BCCA 340
• Subject Matter: CRIMINAL LAW
• Court: Court of Appeal (British Columbia)

R. v. Aulakh (B.S.) (2012), 326 B.C.A.C. 177 (CA);

    554 W.A.C. 177

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. AU.014

Regina (respondent) v. Baljit Singh Aulakh (appellant)

(CA038347; 2012 BCCA 340)

Indexed As: R. v. Aulakh (B.S.)

British Columbia Court of Appeal

Hall, D. Smith and Neilson, JJ.A.

August 15, 2012.

Summary:

The accused was convicted of sexual assault. He appealed on the sole ground that a new trial was warranted because the ineffective assistance of his trial counsel resulted in a miscarriage of justice.

The British Columbia Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4949

Appeals - Indictable offences - New trials - Grounds - New evidence - The accused was convicted of sexual assault - He appealed, seeking a new trial because the ineffective assistance of his trial counsel resulted in a miscarriage of justice - The accused sought to introduce fresh evidence on appeal, i.e., an affidavit by a solicitor detailing areas in which trial counsel demonstrated professional incompetence, in particular in relation to cross-examination and adducing evidence that would have raised reasonable doubt - The British Columbia Court of Appeal admitted the fresh evidence for the limited purpose of determining the accused's allegation of ineffective assistance of counsel - However, the court held that it was clear from the trial record that the accused suffered no prejudice from trial counsel's representation - Thus the fresh evidence could not have affected the result at trial and therefore the application to adduce fresh evidence on the substantive issue of whether there had been a miscarriage of justice had to be dismissed - See paragraphs 70 to 90.

Criminal Law - Topic 4949

Appeals - Indictable offences - New trials - Grounds - New evidence - The accused was convicted of sexual assault - He appealed on the sole ground that a new trial was warranted because the ineffective assistance of his trial counsel resulted in a miscarriage of justice - The accused sought to introduce fresh evidence under s. 683(1) of the Criminal Code, i.e., an affidavit by an associate of his appeal counsel detailing areas in which he said trial counsel demonstrated professional incompetence - The British Columbia Court of Appeal opined that the procedure (R. v. Stolar) and legal test (R. v. Palmer) for the admission of fresh evidence had to be modified in this context - The court set out the modified procedure and test - See paragraphs 56 to 68.

Criminal Law - Topic 4964

Appeals - Indictable offences - New trials - Grounds - Competence of counsel - The British Columbia Court of Appeal reviewed the legal principles applicable where an accused appeals, alleging ineffectiveness of trial counsel - See paragraphs 40 to 55.

Criminal Law - Topic 4964

Appeals - Indictable offences - New trials - Grounds - Competence of counsel - [See first Criminal Law - Topic 4949 ].

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - [See both Criminal Law - Topic 4949 ].

Criminal Law - Topic 4971

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - Effect of - New trial - [See both Criminal Law - Topic 4949 ].

Cases Noticed:

R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), refd to. [para. 41].

Strickland v. Washington (1984), 466 U.S. 668, refd to. [para. 42].

R. v. Jim (G.) (2003), 178 B.C.A.C. 29; 303 W.A.C. 29; 2003 BCCA 411, refd to. [para. 50].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 2000 SCC 22, refd to. [para. 53].

R. v. R.W.A. (2005), 203 O.A.C. 56; 202 C.C.C.(3d) 60 (C.A.), refd to. [para. 55].

R. v. Dunbar (A.A.) et al. (2003), 191 B.C.A.C. 223; 314 W.A.C. 223; 2003 BCCA 667, refd to. [para. 55].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 57].

R. v. Warsing (K.L.), [1998] 3 S.C.R. 579; 233 N.R. 319; 115 B.C.A.C. 214; 189 W.A.C. 214, refd to. [para. 57].

R. v. Nielsen and Stolar, [1988] 1 S.C.R. 480; 82 N.R. 280; 52 Man.R.(2d) 46, refd to. [para. 58].

R. v. W.W. and I.W. (1995), 84 O.A.C. 241; 43 C.R.(4th) 26; 100 C.C.C.(3d) 225; 1995 CarswellOnt 983 (C.A.), refd to. [para. 59].

R. v. Sauve (G.J.) (1997), 101 B.C.A.C. 21; 164 W.A.C. 21; 121 C.C.C.(3d) 225 (C.A.), refd to. [para. 59].

R. v. S.G.T. (2011), 366 Sask.R. 90; 506 W.A.C. 90; 265 C.C.C.(3d) 550; 2011 SKCA 4, refd to. [para. 62].

R. v. Steele (A.G.), [2010] B.C.A.C. Uned. 15; 2010 BCCA 125, refd to. [para. 81].

R. v. Sauve (G.J.) (1997), 101 B.C.A.C. 21; 164 W.A.C. 21; 121 C.C.C.(3d) 225 (C.A.), refd to. [para. 81].

Counsel:

R. Peck, Q.C., and T. Paisana, for the appellant;

M. Ainslie, for the respondent.

This appeal was heard before Hall, D. Smith and Neilson, JJ.A., of the British Columbia Court of Appeal, in Vancouver, British Columbia, on June 20 and 21, 2012. The following decision was delivered for the court, on August 15, 2012, by D. Smith, J.A.