R. v. Dixon (S.), (1997) 156 N.S.R.(2d) 81 (CA)

• Judge: Chipman, Bateman and Flinn, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: Wednesday January 15, 1997
• Jurisdiction: Nova Scotia
• Citations: (1997), 156 N.S.R.(2d) 81 (CA)

R. v. Dixon (S.) (1997), 156 N.S.R.(2d) 81 (CA);

    461 A.P.R. 81

MLB headnote and full text

Spencer Dixon (appellant) v. Her Majesty The Queen (respondent)

(C.A.C. No. 126136)

Indexed As: R. v. Dixon (S.)

Nova Scotia Court of Appeal

Chipman, Bateman and Flinn, JJ.A.

January 15, 1997.

Summary:

Dixon and five others were charged jointly with aggravated assault following a vicious beating that left the victim brain-damaged.

The Nova Scotia Supreme Court, in a judgment reported 148 N.S.R.(2d) 321; 429 A.P.R. 321, convicted all accused. In a subsequent decision (149 N.S.R.(2d) 104; 432 A.P.R. 104), the court sentenced Dixon to seven years' imprisonment. Dixon ap­pealed against conviction and sentence. Dixon claimed that the trial judge (1) failed to consider relevant evidence; (2) misapplied the law respecting identification evidence; (3) erred in using out-of-court statements of Dixon's co-accused; (4) reached an unrea­sonable verdict; (5) that the Crown failed to make timely disclosure of four witness statements; and (6) the sentence was mani­festly excessive.

The Nova Scotia Court of Appeal, Bate­man, J.A., dissenting, dismissed both the conviction and sentence appeals. The first four grounds of appeal were dismissed without discussion for the reasons stated in the appeal of one of the other accused (see R. v. Cole (D.) (1996), 152 N.S.R.(2d) 321; 442 A.P.R. 321). The court held that the nondisclosed statements were of no weight and there was no reasonable probability that, had this information been available at or before the trial, the trial outcome might have been different. Dixon received a fair trial notwithstanding the nondisclosure. Bateman, J.A., would have ordered a new trial, stating that the majority test requiring an accused to show a "reasonable probability" that the result might be different was setting too high a standard; that the test should be "the accused (appellant) must satisfy the court that, as a result of the nondisclosure, he lost a realistic opportunity to garner evidence or make decisions about the defence, which, in turn, rendered the trial process unfair or might have affected the outcome of the trial".

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Nova Scotia Court of Appeal discussed the Crown's duty at common law to disclose to the accused all material evidence whether favourable to the accused or not - The court stated, inter alia, that "the right of an accused to full and timely disclosure is incident to the right at com­mon law to make full answer and defence. This right has been codified in s. 802(1) of the Code and enshrined in s. 7 of the Charter as one of the principles of funda­mental justice." - See paragraphs 17 to 18.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The accused was convicted of aggravated assault - The Crown innocently failed to disclose four witness statements - Knowledge of the existence of the witness statements came to counsel during the trial - Counsel chose not to seek production, raising the issue of due diligence and whether a tactical decision was made not to pursue them - The Nova Scotia Court of Appeal held that counsel appeared to make a tactical decision not to pursue disclosure, which was an important factor in determining whether to order a new trial - The second important factor was the materiality of the nondisclosed statements - The court held that the accused must establish that there was a reasonable prob­ability that had the statements been dis­closed, the trial outcome might have been different - The Crown need not prove lack of prejudice to the accused - The court stated that the statements would not have assisted the accused in advancing a defence and did not damage the Crown's case by diminishing the credibility of its witnesses - The accused received a fair trial - The statements were of no weight and any suggested use of them to the benefit of the accused was highly specu­lative - See paragraphs 17 to 195.

Criminal Law - Topic 5938

Sentence - Aggravated assault - Dixon was one of six accused who committed an unprovoked and savage aggravated assault on Watts, who came to the aid of a friend who was attacked by Smith and Cole - The six accused encircled Watts, prevent­ing his escape or any rescue attempt - One accused jumped up and down on Watt's motionless body - One inflicted a three step kick - As Watts lay helpless, the accused continued to viciously and repeat­edly kick him, leaving him near death and permanently brain-damaged - The accused fled, but returned near the scene to taunt persons assisting Watts - No evidence of planning or deliberation - Spontaneous incident that got out of control - Dixon was 19 years of age at the time - Devel­oped a "bad attitude" at age 18 - Six months on remand - The trial judge sen­tenced Dixon to seven years' imprisonment for aggravated assault, giving one year's credit for remand time - The Nova Scotia Court of Appeal dismissed Dixon's sen­tence appeal - Although the sentence was lengthy, it was not clearly unreasonable or manifestly excessive - See paragraphs 197 to 203.

Cases Noticed:

R. v. Cole (D.) (1996), 152 N.S.R.(2d) 321; 442 A.P.R. 321 (C.A.), dist. [para. 4].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1, refd to. [para. 16].

R. v. W.W. and I.W. (1995), 84 O.A.C. 241; 100 C.C.C.(3d) 225 (C.A.), refd to. [para. 22].

R. v. Peterson (B.) (1996), 89 O.A.C. 60; 106 C.C.C.(3d) 64 (C.A.), refd to. [para. 22].

R. v. McAnespie (R.B.), [1993] 4 S.C.R. 501; 162 N.R. 155; 68 O.A.C. 185; 86 C.C.C.(3d) 191, refd to. [para. 44].

R. v. Bramwell (H.L.) (1996), 72 B.C.A.C. 125; 119 W.A.C. 125; 106 C.C.C.(3d) 365 (C.A.), refd to. [para. 45].

R. v. M.H.C., [1991] 1 S.C.R. 763; 123 N.R. 63; 63 C.C.C.(3d) 385, refd to. [para. 66].

R. v. L.A.T. (1993), 64 O.A.C. 380; 14 O.R.(3d) 378; 84 C.C.C.(3d) 90 (C.A.), refd to. [para. 73].

R. v. Hamilton (K.W.) (1994), 125 Sask.R. 8; 81 W.A.C. 8; 94 C.C.C.(3d) 12 (C.A.), refd to. [para. 75].

R. v. S.E.S. (1992), 100 Sask.R. 110; 18 W.A.C. 110 (C.A.), refd to. [para. 77].

R. v. O'Connor (H.P.) (1995), 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 81].

R. v. Creamer (E.P.) (1995), 57 B.C.A.C. 62; 94 W.A.C. 62; 39 C.R.(4th) 383 (C.A.), refd to. [para. 84].

R. v. O'Grady (G.L.) (1995), 64 B.C.A.C. 111; 105 W.A.C. 111 (C.A.), refd to. [para. 85].

R. v. Groves (A.N.) (1995), 174 A.R. 179; 102 W.A.C. 179 (C.A.), refd to. [para. 87].

R. v. Jarema, [1996] A.J. No. 782 (C.A.), refd to. [para. 88].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81; 82 C.C.C.(3d) 193; 103 D.L.R.(4th) 678; 21 C.R.(4th) 186; 15 C.R.R.(2d) 193; 45 M.V.R.(2d) 161, refd to. [para. 89].

R. v. Antinello (J.J.) (1995), 165 A.R. 122; 89 W.A.C. 122; 39 C.R.(4th) 99; 97 C.C.C.(3d) 126 (C.A.), refd to. [para. 89].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272; 96 C.C.C.(3d) 225, refd to. [para. 89].

R. v. Biscette (S.) (1995), 169 A.R. 81; 97 W.A.C. 81; 99 C.C.C.(3d) 326 (C.A.), affd. (1996), 203 N.R. 244; 187 A.R. 392; 110 C.C.C.(3d) 285 (S.C.C.), refd to. [para. 91].

R. v. McKenzie (P.N.) (1996), 141 Sask.R. 210; 114 W.A.C. 210; 106 C.C.C.(3d) 1 (C.A.), refd to. [para. 95].

R. v. Santocono (V.J.) (1996), 91 O.A.C. 26 (C.A.), refd to. [para. 96].

R. v. Robart (G.) (1997), 157 N.S.R.(2d) 15; 462 A.P.R. 15 (C.A.), refd to. [para. 191].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37; 102 C.C.C.(3d) 193, refd to. [para. 199].

R. v. Silvea (1988), 86 N.S.R.(2d) 346; 218 A.P.R. 346 (C.A.), refd to. [para. 202].

Strickland v. Washington (1984), 46 U.S. 668; 104 S.Ct. 2052, refd to. [para. 210].

United States v. Bagley, 105 S.Ct. 3375, refd to. [para. 215].

R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), refd to. [para. 226].

R. v. Hamilton (G.) (1994), 125 Sask.R. 66; 81 W.A.C. 66; 94 C.C.C.(3d) 37 (C.A.), refd to. [para. 232].

R. v. Durette et al., [1994] 1 S.C.R. 469; 163 N.R. 321; 70 O.A.C. 1; 88 C.C.C.(3d) 1, refd to. [para. 237].

R. v. Farinacci - see R. v. Durette et al.

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 14].

Criminal Code, R.S.C. 1985, c. C-46, sect. 21(1), sect. 27, sect. 268, sect. 650(3), sect. 683(1)(d), sect. 686(1)(a), sect. 686(1)(b)(iii) [para. 14]; sect. 802(1) [para. 18].

Counsel:

Lawrence W. Scaravelli, for the appellant;

Kenneth W.F. Fiske, Q.C., for the respon­dent.

This appeal was heard on September 11, 1996, before Chipman, Bateman and Flinn, JJ.A., of the Nova Scotia Court of Appeal.

On January 15, 1997, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Chipman, J.A. (Flinn, J.A., concurring) - see paragraphs 1 to 204;

Bateman, J.A., dissenting - see para­graphs 205 to 264.