R. v. Cheng (W.M.), 2014 BCCA 342

• Judge: Chiasson, Garson and Goepel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 05, 2014
• Jurisdiction: British Columbia
• Citations: 2014 BCCA 342;(2014), 360 B.C.A.C. 281 (CA)

R. v. Cheng (W.M.) (2014), 360 B.C.A.C. 281 (CA);

    617 W.A.C. 281

MLB headnote and full text

Temp. Cite: [2014] B.C.A.C. TBEd. SE.010

Regina (respondent) v. Wilson Mark Cheng (appellant)

(CA040914; 2014 BCCA 342)

Indexed As: R. v. Cheng (W.M.)

British Columbia Court of Appeal

Chiasson, Garson and Goepel, JJ.A.

September 5, 2014.

Summary:

The accused was convicted of possession of cocaine and heroin for the purpose of trafficking. The accused appealed on the ground of ineffective representation by counsel at trial. He sought a new trial. The accused argued that counsel failed to challenge an alleged strip search as an unreasonable search and seizure (Charter, s. 8). Accordingly, although the strip search did not lead to evidence, the accused argued that he was deprived of an opportunity for a Charter remedy such as a stay of proceedings, exclusion of the evidence upon which his conviction was based, or a reduction in sentence. The Crown, based on the evidence of the arresting police officers that no strip search occurred, argued that there was no miscarriage in judgment in arguing an unwinnable issue.

The British Columbia Court of Appeal dismissed the appeal. Although it was unlikely that the accused was strip searched, the court was unwilling to totally discount that possibility. However, it was reasonable for counsel to determine that it was highly unlikely, given the two police officers' denial that a strip search occurred, that the accused's testimony would be accepted. That decision was a "judgment call" that was the result of reasonable professional judgment that fell within the wide range of reasonable assistance. There was no ineffective assistance by counsel and no miscarriage of justice.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - See paragraphs 17 to 49.

Civil Rights - Topic 4620.1

Right to counsel - General - Right to effective assistance by counsel - See paragraphs 17 to 49.

Criminal Law - Topic 4964

Appeals - Indictable offences - New trials - Grounds - Competence of counsel - See paragraphs 17 to 49.

Cases Noticed:

R. v. G.D.B. (2000), 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 2000 SCC 22, refd to. [para. 17].

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. 18].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 20].

R. v. Aulakh (B.S.) (2012), 326 B.C.A.C. 177; 554 W.A.C. 177; 2012 BCCA 340, refd to. [para. 21].

R. v. Nasogaluak (L.M.) (2010), 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 35].

R. v. Golden (I.V.) (2001), 279 N.R. 1; 2001 SCC 83, refd to. [para. 36].

R. v. Ballantyne (L.F.) (2012), 328 B.C.A.C. 68; 558 W.A.C. 68; 2012 BCCA 372, refd to. [para. 46].

Counsel:

E.J. Duncan, for the appellant;

P. Eccles, for the respondent.

This appeal was heard on June 26, 2014, at Vancouver, B.C., before Chiasson, Garson and Goepel, JJ.A., of the British Columbia Court of Appeal.

On September 5, 2014, Goepel, J.A., delivered the following judgment for the Court of Appeal.