R. v. Dew (E.J.),

JurisdictionManitoba
CourtCourt of Appeal (Manitoba)
JudgeMonnin, Steel and Hamilton, JJ.A.
Neutral Citation2009 MBCA 101
Citation2009 MBCA 101,(2009), 245 Man.R.(2d) 211 (CA),[2009] 11 WWR 579,247 CCC (3d) 487,[2009] CarswellMan 481,245 Man R (2d) 211,245 ManR(2d) 211,(2009), 245 ManR(2d) 211 (CA),245 Man.R.(2d) 211
Date08 April 2009

R. v. Dew (E.J.) (2009), 245 Man.R.(2d) 211 (CA);

      466 W.A.C. 211

MLB headnote and full text

Temp. Cite: [2009] Man.R.(2d) TBEd. OC.014

Her Majesty The Queen (respondent) v. Ernest John Dew (accused/appellant)

(AR 08-30-06950; 2009 MBCA 101)

Indexed As: R. v. Dew (E.J.)

Manitoba Court of Appeal

Monnin, Steel and Hamilton, JJ.A.

October 20, 2009.

Summary:

Dew was charged with four counts of trafficking in a controlled substance and three counts of unlawful possession of proceeds of crime. Dew conceded that the Crown had proven six of the seven charges. At issue was whether the Crown had proven the last remaining charge of trafficking in cocaine on September 6, 2005.

The Manitoba Court of Queen's Bench, in a decision reported at (2008), 227 Man.R.(2d) 48, found Dew guilty of trafficking in cocaine on September 6, 2005. Sentencing proceeded.

The Manitoba Court of Queen's Bench, in a decision reported at (2008), 232 Man.R.(2d) 1, sentenced Dew to five years' incarceration on the first trafficking charge and seven years on the remaining three, concurrent to each other, but consecutive to the five year sentence, two years concurrent on each possession of proceeds of crime charge and one year consecutive in lieu of payment of fines imposed. The total period of incarceration of 13 years was reduced by 56 months for credit for time served, leaving a sentence of eight years and four months to be served. Proceeds from the sale of Dew's home and articles seized from the home were forfeited to the Crown. The court also imposed a lifetime weapons prohibition and ordered Dew to provide a sample of DNA for storage and analysis. Dew appealed from the conviction and from the sentence.

The Manitoba Court of Appeal allowed the appeal from conviction, ordering a new trial. It was unnecessary to consider the sentence appeal.

Editor's Note: For a decision related to the seizure of this accused's home, see (2007), 222 Man.R.(2d) 204.

Civil Rights - Topic 3126

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Fair hearing - What constitutes - Dew was charged with four counts of trafficking in a controlled substance and three counts of unlawful possession of proceeds of crime - The investigation had involved the use of an undercover police agent and intercepted communications (wiretaps) - At trial, after finding that Dew did not have the financial means to retain counsel, the matter involved serious charges and Dew could not effectively represent himself, the trial judge made a limited Rowbotham (1988 Ont. C.A.) order, appointing counsel (Innes) for Dew for the purpose of cross-examining the police agent and preparing for that examination - Innes formed the opinion that she could not do Dew justice with such a limited participation and filed a motion for a mistrial - The motion was dismissed, but the trial judge granted an expanded Rowbotham order providing counsel for certain matters for the remainder of the trial - After receiving the affidavits filed in support of the wiretap authorizations, Innes brought a Charter motion challenging the admissibility of the wiretap evidence - The trial judge refused to hear the motion - Dew was convicted - He appealed, asserting, inter alia, that the trial judge had erred in law in declining to grant the motion for a mistrial and in refusing to hear the motion challenging the admissibility of the wiretap evidence - The Manitoba Court of Appeal allowed the appeal, ordering a new trial - The expansion of the initial Rowbotham order as an alternative remedy to the mistrial did not ensure that Dew received a fair trial - This was best illustrated by the manner in which the trial proceeded when Innes attempted to exclude the wiretaps that had already been admitted into evidence - The trial judge refused to hear the motion, commenting that Dew had had the assistance of counsel in pretrial proceedings and had not brought such a motion - However, this was not the case - If Dew had in fact had counsel from the beginning and the motion had only been brought at this point in the trial, the refusal to hear the motion might have been within the trial judge's discretion - But, given the limited nature of the initial Rowbotham order and the volume of the disclosure, Innes could not be faulted for the motion's timing - See paragraphs 67 to 82.

Civil Rights - Topic 3126

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Fair hearing - What constitutes - Dew was charged with four counts of trafficking in a controlled substance and three counts of unlawful possession of proceeds of crime - The investigation had involved the use of an undercover police agent and intercepted communications (wiretaps) - At trial, after finding that Dew did not have the financial means to retain counsel, the matter involved serious charges and Dew could not effectively represent himself, the trial judge made a limited Rowbotham (1988 Ont. C.A.) order, appointing counsel (Innes) for Dew for the purpose of cross-examining the police agent and preparing for that examination - Innes formed the opinion that she could not do Dew justice with such a limited participation and filed a motion for a mistrial - The motion was dismissed, but the trial judge granted an expanded Rowbotham order providing counsel for certain matters for the remainder of the trial - After receiving the affidavits filed in support of the wiretap authorizations, Innes brought a Charter motion challenging the admissibility of the wiretap evidence - The trial judge refused to hear the motion - Dew was convicted - The Manitoba Court of Appeal allowed Dew's appeal, ordering a new trial - Dew had been denied a fair trial - The limited order originally granted did not go far enough - Dew was unrepresented throughout the majority of the evidence called by the Crown - The expansion of the Rowbotham order was done in hindsight and did not eliminate the appearance of unfairness - The court ought to have ordered counsel for the entire trial - While it was true that Dew was in custody and had been so for a considerable length of time, his charges were serious and complex and, therefore, his right to a fair trial ought to have superseded any concerns about delay - This was particularly true where Dew had always expressed a desire to be represented - The failure to appoint counsel was an error in law - The lack of defence counsel impaired the appearance of fairness and possibly the ability to make full answer and defence and resulted in a miscarriage of justice - Most importantly, there was also a constitutional right that had to be respected - Dew did not have to establish prejudice in order to obtain a new trial - Even if conviction was the correct result, the Charter guaranteed every accused not only a fair trial, but the appearance of a fair trial - See paragraphs 83 to 101.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See second Civil Rights - Topic 3126 ].

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial (incl. appeal hearing) - [See both Civil Rights - Topic 3126 ].

Civil Rights - Topic 4631

Right to counsel - Appointment of counsel by the court or the state - General - Dew was charged with four counts of trafficking in a controlled substance and three counts of unlawful possession of proceeds of crime - The investigation had involved the use of an undercover police agent and intercepted communications (wiretaps) - At trial, after finding that Dew did not have the financial means to retain counsel, the matter involved serious charges and Dew could not effectively represent himself, the trial judge made a limited Rowbotham (1988 Ont. C.A.) order, appointing counsel (Innes) for Dew for the purpose of cross-examining the police agent and preparing for that examination - Innes formed the opinion that she could not do Dew justice with such a limited participation and filed a motion for a mistrial - The motion was dismissed, but the trial judge granted an expanded Rowbotham order providing counsel for certain matters for the remainder of the trial - After receiving the affidavits filed in support of the wiretap authorizations, Innes brought a Charter motion challenging the admissibility of the wiretap evidence - The trial judge refused to hear the motion prior to the cross-examination of the police agent - Dew was convicted - He appealed, asserting, inter alia, that the trial judge had erred in granting a Rowbotham order limited to the examination of the police agent - The Manitoba Court of Appeal allowed the appeal, ordering a new trial - The trial judge erred in two respects in ordering a limited retainer - First, she applied too stringent a test when determining the complexity of the case - There was an enormous amount of disclosure - Further, the trial judge's analysis on the complexity issue was unduly narrow when she considered the need for legal representation only within the context of the courtroom, itself, and when she failed to consider the practical complexity of trial preparation for an incarcerated accused - Second, the trial judge misapprehended the evidence as to whether Dew had received appropriate legal advice with respect to pretrial motions - See paragraphs 32 to 66.

Civil Rights - Topic 4635

Right to counsel - Appointment of counsel by the court or the state - Duty of trial judge - [See both Civil Rights - Topic 3126 and Civil Rights - Topic 4631 ].

Civil Rights - Topic 4636

Right to counsel - Appointment of counsel by the court or the state - For preliminary matters - [See Civil Rights - Topic 4631 ].

Civil Rights - Topic 8380.20

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - New trial or mistrial - [See second Civil Rights - Topic 3126 ].

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - [See first Civil Rights - Topic 3126 ].

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See second Civil Rights - Topic 3126 ].

Criminal Law - Topic 4964.1

Appeals - Indictable offences - New trials - Grounds - Denial of state-funded counsel - [See second Civil Rights - Topic 3126 ].

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See second Civil Rights - Topic 3126 ].

Cases Noticed:

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), consd. [para. 1].

R. v. Richard and Sassano (1992), 55 O.A.C. 43 (C.A.), refd to. [para. 16].

R. v. Bitternose (Q.L.) (2009), 331 Sask.R. 19; 460 W.A.C. 19; 244 C.C.C.(3d) 218; 2009 SKCA 54, refd to. [para. 17].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81, refd to. [para. 18].

R. v. Howell (D.M.), [1996] 3 S.C.R. 604; 203 N.R. 247; 155 N.S.R.(2d) 247; 457 A.P.R. 247, affing. (1995), 146 N.S.R.(2d) 1; 422 A.P.R. 1 (C.A.), refd to. [para. 19].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 19].

R. v. Wood (J.) (2005), 197 O.A.C. 43; 196 C.C.C.(3d) 155 (C.A.), refd to. [para. 21].

R. v. Peterman (B.) (2004), 186 O.A.C. 83; 70 O.R.(3d) 481 (C.A.), refd to. [para. 23].

R. v. Drury (L.W.) et al. (2000), 150 Man.R.(2d) 64; 230 W.A.C. 64; 2000 MBCA 100, refd to. [para. 25].

Child and Family Services of Winnipeg v. J.A. et al. (2003), 180 Man.R.(2d) 161; 310 W.A.C. 161; 2003 MBCA 154, refd to. [para. 26].

R. v. Grant (I.M.) et al. (2003), 179 Man.R.(2d) 88; 2003 MBQB 254, refd to. [para. 26].

R. v. R.C., [2003] Q.J. No. 7541 (C.A.), refd to. [para. 27].

R. v. Rushlow (W.) (2009), 250 O.A.C. 75; 66 C.R.(6th) 245; 2009 ONCA 461, refd to. [para. 28].

R. v. Ahmad, [2007] O.J. No. 5662 (Sup. Ct.), refd to. [para. 33].

R. v. Keating (K.K.) (1997), 159 N.S.R.(2d) 357; 468 A.P.R. 357 (C.A.), refd to. [para. 40].

R. v. Phillips (M.A.) (2003), 320 A.R. 172; 288 W.A.C. 172; 172 C.C.C.(3d) 285; 2003 ABCA 4, refd to. [para. 40].

R. v. Rain (M.M.) (1998), 223 A.R. 359; 183 W.A.C. 359; 130 C.C.C.(3d) 167 (C.A.), refd to. [para. 40].

R. v. Hiller (1990), 66 Man.R.(2d) 174; 58 C.C.C.(3d) 16 (C.A.), refd to. [para. 40].

R. v. Kim (F.) (2002), 164 B.C.A.C. 126; 268 W.A.C. 126; 2002 BCCA 133, leave to appeal denied [2002] S.C.C.A. No. 160, refd to. [para. 46].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 66].

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 79].

R. v. Pires (F.B.) - see R. v. Lising (R.) et al.

R. v. Oliver (J.J.) et al. (2005), 194 O.A.C. 284; 194 C.C.C.(3d) 92 (C.A.), refd to. [para. 79].

R. v. Durette et al. (1992), 54 O.A.C. 81; 72 C.C.C.(3d) 421 (C.A.), refd to. [para. 80].

R. v. Grant (I.M.) (2009), 236 Man.R.(2d) 54; 448 W.A.C. 54; 2009 MBCA 9, refd to. [para. 83].

R. v. Nichols (R.) (2001), 148 O.A.C. 344; 46 C.R.(5th) 294 (C.A.), refd to. [para. 86].

R. v. Phillips (M.A.), [2003] 2 S.C.R. 623; 311 N.R. 94; 339 A.R. 50; 312 W.A.C. 50; 2003 SCC 57, refd to. [para. 87].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 245 C.C.C.(3d) 1; 2009 SCC 32, refd to. [para. 89].

R. v. Beals (E.W.) (1993), 126 N.S.R.(2d) 130; 352 A.P.R. 130 (C.A.), refd to. [para. 91].

R. v. Darlyn (1946), 88 C.C.C. 269 (B.C.C.A.), refd to. [para. 95].

Authors and Works Noticed:

Code, Michael A., Law Reform Initiatives Relating to the Mega Trial Phenomenon (2008), 53 Crim. L.Q. 421, generally [para. 79].

Counsel:

S.A. Inness, for the appellant;

C.J. Mainella and J.S. Kliewer, for the respondent.

This appeal was heard on April 8, 2009, by Monnin, Steel and Hamilton, JJ.A., of the Manitoba Court of Appeal. On October 20, 2009, Steel, J.A., delivered the following reasons for judgment for the court.

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11 practice notes
  • Table of cases
    • Canada
    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...561, 563, 565, 653 R v Desmond, 2010 ONSC 2945 ..........................................................271, 289, 326 R v Dew, 2009 MBCA 101 ..................................................................................... 76 R v Dexter, 2013 ONCA 744 ........................................
  • Mahjoub, Re, (2012) 448 N.R. 356 (FCA)
    • Canada
    • Canada (Federal) Federal Court of Appeal (Canada)
    • November 15, 2012
    ...to. [para. 16]. R. v. Malik (R.S.), [2003] B.C.T.C. 1439; 111 C.R.R.(2d) 40; 2003 BCSC 1439, refd to. [para. 16]. R. v. Dew (E.J.) (2009), 245 Man.R.(2d) 211; 466 W.A.C. 211; 2009 MBCA 101, refd to. [para. 16]. R. v. Rushlow (W.) (2009), 250 O.A.C. 75; 2009 ONCA 461, refd to. [para. 16]. Ne......
  • Choosing and Refusing Clients
    • Canada
    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...cannot be made without a prior judicial determination of discrimination. 29 23 See, for example, R v Rushlow , 2009 ONCA 461; R v Dew , 2009 MBCA 101; R v Williams , 2011 BCCA 85. 24 These applications will be granted only exceptionally, in particular where an accused cannot find competent ......
  • International Relief Fund for the Afflicted and Needy (Canada) v. Canada (Minister of Public Safety and Emergency Preparedness), (2015) 478 F.T.R. 59 (FC)
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • March 18, 2015
    ...1998 ABCA 315, refd to. [para. 33]. R. v. Malik (R.S.), [2003] B.C.T.C. 1439; 2003 BCSC 1439, refd to. [para. 33]. R. v. Dew (E.J.) (2009), 245 Man.R.(2d) 211; 466 W.A.C. 211; 2009 MBCA 101, refd to. [para. R. v. Rushlow (W.) (2009), 250 O.A.C. 75; 96 O.R.(3d) 302; 2009 ONCA 461, refd to. [......
  • Request a trial to view additional results
9 cases
  • Mahjoub, Re, (2012) 448 N.R. 356 (FCA)
    • Canada
    • Canada (Federal) Federal Court of Appeal (Canada)
    • November 15, 2012
    ...to. [para. 16]. R. v. Malik (R.S.), [2003] B.C.T.C. 1439; 111 C.R.R.(2d) 40; 2003 BCSC 1439, refd to. [para. 16]. R. v. Dew (E.J.) (2009), 245 Man.R.(2d) 211; 466 W.A.C. 211; 2009 MBCA 101, refd to. [para. 16]. R. v. Rushlow (W.) (2009), 250 O.A.C. 75; 2009 ONCA 461, refd to. [para. 16]. Ne......
  • International Relief Fund for the Afflicted and Needy (Canada) v. Canada (Minister of Public Safety and Emergency Preparedness), (2015) 478 F.T.R. 59 (FC)
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • March 18, 2015
    ...1998 ABCA 315, refd to. [para. 33]. R. v. Malik (R.S.), [2003] B.C.T.C. 1439; 2003 BCSC 1439, refd to. [para. 33]. R. v. Dew (E.J.) (2009), 245 Man.R.(2d) 211; 466 W.A.C. 211; 2009 MBCA 101, refd to. [para. R. v. Rushlow (W.) (2009), 250 O.A.C. 75; 96 O.R.(3d) 302; 2009 ONCA 461, refd to. [......
  • R. v. Krantz (J.J.), (2011) 266 Man.R.(2d) 36 (PC)
    • Canada
    • Manitoba Provincial Court of Manitoba (Canada)
    • April 21, 2011
    ...ONSC 2433, refd to. [para. 10]. R. v. Cote (B.I.) (2002), 222 Sask.R. 233; 2002 SKQB 333, refd to. [para. 11]. R. v. Dew (E.J.) (2009), 245 Man.R.(2d) 211; 466 W.A.C. 211; 2009 MBCA 101, refd to. [para. R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1; 1988 CanLII 147 (C.A.), r......
  • R v Robinson, 2020 MBCA 12
    • Canada
    • Court of Appeal (Manitoba)
    • January 31, 2020
    ...understand and conduct his or her own defence, as well as factors relating to the financial means of the accused. (See also R v Dew (EJ), 2009 MBCA 101 at paras [23] The key issue the sentencing judge had to determine on the Rowbotham application was whether the accused had the money to ret......
  • Request a trial to view additional results
2 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...561, 563, 565, 653 R v Desmond, 2010 ONSC 2945 ..........................................................271, 289, 326 R v Dew, 2009 MBCA 101 ..................................................................................... 76 R v Dexter, 2013 ONCA 744 ........................................
  • Choosing and Refusing Clients
    • Canada
    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...cannot be made without a prior judicial determination of discrimination. 29 23 See, for example, R v Rushlow , 2009 ONCA 461; R v Dew , 2009 MBCA 101; R v Williams , 2011 BCCA 85. 24 These applications will be granted only exceptionally, in particular where an accused cannot find competent ......

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