R. v. Dugas (L.E.), (2012) 322 N.S.R.(2d) 72 (CA)

• Judge: Saunders, Oland and Beveridge, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 14, 2012
• Jurisdiction: Nova Scotia
• Citations: (2012), 322 N.S.R.(2d) 72 (CA);2012 NSCA 102

R. v. Dugas (L.E.) (2012), 322 N.S.R.(2d) 72 (CA);

    1021 A.P.R. 72

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. SE.053

Luke Earl Dugas (appellant) v. Her Majesty The Queen (respondent)

(CAC 362840; 2012 NSCA 102)

Indexed As: R. v. Dugas (L.E.)

Nova Scotia Court of Appeal

Saunders, Oland and Beveridge, JJ.A.

September 25, 2012.

Summary:

The accused was convicted of break and enter with intent to commit an indictable offence. He was sentenced to three years' imprisonment less three months for remand time. The accused appealed his conviction and sought leave to admit fresh evidence.

The Nova Scotia Court of Appeal granted leave to admit the fresh evidence but dismissed the appeal.

Civil Rights - Topic 4620.1

Right to counsel - General - Right to effective assistance by counsel - The accused was convicted of break and enter with intent to commit an indictable offence - He appealed, arguing, inter alia, that he did not receive effective representation from his trial counsel in that the trial counsel failed to conduct proper cross-examinations of Crown witnesses (incl. complainant), including failing to test the reliability of Crown witnesses, which resulted in a miscarriage of justice - The Nova Scotia Court of Appeal rejected the argument - Even if the court were to have determined that trial counsel could have questioned the complainant witness on an aspect of her police statement which appeared inconsistent, it could not be said that the accused's defence was prejudiced to the extent that a miscarriage of justice resulted - Similarly, the defence counsel's failure to question the complainant respecting other inconsistencies and to call a police officer to testify did not amount to professional incompetence - See paragraphs 47 to 64.

Courts - Topic 555

Judges - Powers - To intervene in examination of witnesses - [See Criminal Law - Topic 4574 ].

Courts - Topic 590

Judges - Duties - Duty to appear just and impartial - [See Criminal Law - Topic 4574 ].

Courts - Topic 592

Judges - Duties - Duty to conduct fair and impartial proceedings - [See Criminal Law - Topic 4574 ].

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The accused was convicted of break and enter with intent to commit an indictable offence - He appealed, arguing, inter alia, that the trial judge erred in applying the law with respect to reasonable doubt in that he did not consider or apply the third part of the R. v. D.W. test (even if the accused's evidence was disbelieved in its entirety, the judge also had to consider whether there was reasonable doubt, from the totality of the evidence) to his evidence of lawful justification or excuse - He testified that he was in the complainant's home hoping to use the phone and denied entering the home through the window - The Nova Scotia Court of Appeal rejected the argument - The trial judge found that the accused entered the home through the window - That finding implicitly answered all of the R. v. D.W. questions - His rejection of the accused's story that he had not gone inside the home proper, and his determination on the method of entry eliminated any need for him to fully articulate the third stage of the R. v. D.W. test and to deal with the arguments regarding lawful excuse - See paragraphs 24 to 29.

Criminal Law - Topic 4574

Procedure - Conduct of trial - Interventions by trial judge - The accused was convicted of break and enter with intent to commit an indictable offence - During the trial, the judge questioned the accused - In a final question he asked "It [the accused panicking when he saw the home owner] wasn't because you'd just been in the house, breaking in?" - The accused appealed, arguing, inter alia, that the nature and extent of the judge's questioning created at least an appearance of unfairness in the trial process - The Nova Scotia Court of Appeal rejected the argument - The judge's questioning of the accused, either cumulatively or his final question in isolation, did not undermine trial fairness - It was unclear why, having obtained the accused's clarifications of his evidence, the judge asked that last question - However, there was no suggestion that his tone then or during any other of his inquiries was sarcastic or aggressive, or that the judge conveyed the impression that he disbelieved the accused - His questions were not extensive and none were aggressive - The judge gave the Crown and defence counsel full opportunity to ask further questions and allowed rebuttal evidence - The final question was unfortunate and was "certainly cause for concern" - However, neither that inquiry nor his other questions gave rise to a perception of bias - A reasonable observer present throughout the trial would not consider that the accused had not had a fair trial - See paragraphs 30 to 46.

Criminal Law - Topic 4961.01

Appeals - Indictable offences - New trials - Grounds - Intervention by judge - [See Criminal Law - Topic 4574 ].

Criminal Law - Topic 4964

Appeals - Indictable offences - New trials - Grounds - Competence of counsel - [See Civil Rights - Topic 4620.1 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - The accused was convicted of break and enter with intent to commit an indictable offence - He appealed, alleging, inter alia, ineffective representation - He sought to admit fresh evidence (his affidavit and his counsel's reply affidavit) - He alleged, inter alia, that his counsel had received Crown disclosure which included reports by a police officer and an audio recording of the complainant's statement to the police, yet his counsel neither called the officer to testify, nor cross-examined the complainant on certain apparent inconsistencies in her audio statement or the report - The Nova Scotia Court of Appeal granted leave to admit the fresh evidence - The fresh evidence related to evidence which the trial judge allegedly did not hear because of the incompetence of counsel - It was credible and relevant in the sense that it bore upon the judge's assessment of the evidence, and the truthfulness and reliability of the testimony given by the witnesses at trial - Where it was argued that trial counsel's conduct resulted in a miscarriage of justice, it was in the interests of justice to receive this fresh evidence - See paragraphs 14 to 22.

Cases Noticed:

R. v. Fraser (A.) (2011), 306 N.S.R.(2d) 201; 968 A.P.R. 201; 2011 NSCA 70, refd to. [para. 17].

R. v. Ross (B.R.) (2012), 317 N.S.R.(2d) 243; 1003 A.P.R. 243; 2012 NSCA 56, refd to. [para. 18].

R. v. Letto, 2008 CanLII 76110 (N.L. Prov. Ct.), refd to. [para. 27].

R. v. Brouillard, [1985] 1 S.C.R. 39; 57 N.R. 168, refd. to. [para. 34].

R. v. Valley (1986), 13 O.A.C. 89; 26 C.C.C.(3d) 207 (C.A.), refd to. [para. 35].

R. v. Parmar (D.S.) (2005), 211 B.C.A.C. 94; 349 W.A.C. 94; 2005 BCCA 187, refd to. [para. 37].

R. v. Stucky (D.) (2009), 256 O.A.C. 4; 2009 ONCA 151, refd to. [para. 37].

R. v. Russell (J.N.) (2011), 302 B.C.A.C. 208; 511 W.A.C. 208; 2011 BCCA 113, refd to. [para. 40].

R. v. West (W.F.) (2010), 288 N.S.R.(2d) 293; 914 A.P.R. 293; 2010 NSCA 16, refd to. [para. 55].

Counsel:

Melissa P. MacAdam, for the appellant;

Mark Scott, for the respondent;

Stacey Gerrard, for Alexander Pink.

This leave application and appeal were heard on May 14, 2012, before Saunders, Oland and Beveridge, JJ.A., of the Nova Scotia Court of Appeal. The reasons for judgment of the court were delivered by Oland, J.A., on September 25, 2012.