R. v. Fraser (A.), (2011) 306 N.S.R.(2d) 201 (CA)

• Judge: Saunders, Oland and Beveridge, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: July 21, 2011
• Jurisdiction: Nova Scotia
• Citations: (2011), 306 N.S.R.(2d) 201 (CA);2011 NSCA 70

R. v. Fraser (A.) (2011), 306 N.S.R.(2d) 201 (CA);

    968 A.P.R. 201

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. JL.049

Antoine Fraser (appellant) v. Her Majesty The Queen (respondent) and Lawrence William Scaravelli (intervenor)

(CAC 330167; 2011 NSCA 70)

Indexed As: R. v. Fraser (A.)

Nova Scotia Court of Appeal

Saunders, Oland and Beveridge, JJ.A.

July 21, 2011.

Summary:

The accused high school teacher was convicted of touching a young person (former student) for a sexual purpose while in a position of trust or authority. The accused discharged his trial counsel (Scaravelli) and retained new counsel (Arnold) for sentencing and his conviction appeal. The accused appealed his conviction on the grounds of ineffective representation by trial counsel and breach of the Crown's ongoing disclosure obligation. Trial counsel moved for leave to intervene in the conviction appeal. The Crown and accused consented to trial counsel intervening with the right "to file a factum and present oral argument with respect to the fresh evidence application and at the hearing on the merits of the appeal".

The Nova Scotia Court of Appeal, per Beveridge, J.A., in a judgment reported (2010), 296 N.S.R.(2d) 281; 940 A.P.R. 281, granted trial counsel leave to intervene, with conditions. Trial counsel could file a factum not to exceed 25 pages and present oral argument only on the complaint of ineffective representation. Oral argument was not permitted on any aspect of the merits of the appeal.

The Nova Scotia Court of Appeal allowed the appeal and ordered a new trial on the ground that trial counsel provided ineffective legal advice and representation at trial. The accused was denied his right to make full answer and defence and a miscarriage of justice resulted. The court held that the Crown met its disclosure obligations.

Civil Rights - Topic 4620.1

Right to counsel - General - Right to effective assistance by counsel - The accused appealed his conviction for a sexual offence on the ground of ineffective representation by trial counsel resulting in a miscarriage of justice - The Nova Scotia Court of Appeal stated that "I am satisfied that the appellant has demonstrated that the conduct and failures of his trial counsel amount to incompetence and that the incompetence resulted in a miscarriage of justice, necessitating a new trial" - First, the accused was black and the complainant was white - Trial counsel failed to advise the accused of his statutory right to challenge potential jurors (all white) for cause on racial grounds - This alone required a new trial - Further, the court noted multiple instances of incompetent preparation and conduct of the trial - The accused's wife had relevant and material evidence, yet trial counsel refused to call her as a witness - The wife's statement to police was not requested or reviewed - Trial counsel did not prepare for the preliminary hearing and his ineffective cross-examination of the complainant failed to obtain critical evidence that could have been used at trial to discredit the complainant - Trial counsel failed to interview or call at trial defence witnesses who had important evidence to discredit the complainant - Trial counsel mishandled a s. 276 Criminal Code application to determine whether the complainant's prior sexual activity (alleged molestation by her father) would be admissible - Nothing was done to prepare the accused to give evidence or be cross-examined - Notwithstanding that shortly before, or on the first day of trial, new allegations by the complainant were disclosed to the accused, trial counsel did not seek an adjournment - Trial counsel's incompetent representation denied the accused a fair trial and prejudiced his right to make full answer and defence - See paragraphs 53 to 120.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 4620.1 ].

Criminal Law - Topic 4964

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

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - The accused appealed his conviction for touching a young person for a sexual purpose while in a position of trust or authority on the ground of ineffective representation by trial counsel - On appeal, the accused sought to introduce fresh evidence to establish a miscarriage of justice at the hands of trial counsel - The Nova Scotia Court of Appeal admitted the fresh evidence under s. 683(1)(d) of the Criminal Code in the "interests of justice" - In addressing the due diligence requirement, the court stated that "I am not prepared to say that a strict enforcement of this requirement ought to bar the admission of fresh evidence in this case. First, we know that this general principle will not be applied as strictly in a criminal case as in a civil case. Second, we know that the failure to exercise due diligence is not determinative. Third, we know that the due diligence criterion should not be applied inflexibly and will yield where its application might lead to a miscarriage of justice. ... But even more significant is the fact that the first criterion requires any applicant seeking leave to adduce fresh evidence on appeal to demonstrate in effect that the exercise of reasonable diligence at trial would not have mattered. ... the principal ground of appeal is that [the accused's] trial counsel was neither diligent in his preparations, nor effective in providing legal representation. ... when an appellant bases his appeal on a claim of ineffective assistance of counsel, one will not expect that appellant to make the case for due diligence. For it is the very lack of diligence upon which he rests his complaint ... In such circumstances, it would hardly be in the 'interests of justice' to refuse to admit evidence which forms the principal ground of appeal, simply because the applicant may have difficulty in refuting the argument that the evidence should not be admitted because it could have been adduced at trial had due diligence been exercised." - See paragraphs 36 to 37.

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 Civil Rights - Topic 4620.1 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - [See Criminal Law - Topic 4970 ].

Cases Noticed:

R. v. West (W.F.) (2010), 288 N.S.R.(2d) 293; 914 A.P.R. 293; 2010 NSCA 16, refd to. [para. 34].

R. v. Hobbs (K.P.) (2010), 291 N.S.R.(2d) 340; 922 A.P.R. 340; 2010 NSCA 53, refd to. [para. 34].

R. v. Messervey (A.C.) (2010), 291 N.S.R.(2d) 359; 922 A.P.R. 359; 2010 NSCA 55, refd to. [para. 34].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 81, refd to. [para. 34].

R. v. Wolkins (R.D.) (2005), 229 N.S.R.(2d) 222; 725 A.P.R. 222; 2005 NSCA 2, refd to. [para. 36].

R. v. Assoun (G.E.) (2006), 244 N.S.R.(2d) 96; 774 A.P.R. 96; 2006 NSCA 47, leave to appeal denied (2006), 359 N.R. 392 (S.C.C.), refd to. [para. 36].

R. v. Jones (T.A.) (2006), 249 N.S.R.(2d) 388; 792 A.P.R. 388; 2006 NSCA 136, refd to. [para. 36].

R. v. Angelillo (G.), [2006] 2 S.C.R. 728; 355 N.R. 226, refd to. [para. 36].

Truscott, Re (2007), 226 O.A.C. 200; 2007 ONCA 575, refd to. [para. 38].

R. v. Parks (C.) (1993), 65 O.A.C. 122 (C.A.), refd to. [para. 59].

R. v. Williams (V.D.), [1998] 1 S.C.R. 1128; 226 N.R. 162; 107 B.C.A.C. 1; 174 W.A.C. 1, refd to. [para. 64].

R. v. Spence (S.A.), [2005] 3 S.C.R. 458; 342 N.R. 126; 206 O.A.C. 150; 2005 SCC 71, refd to. [para. 64].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 80].

R. v. J.B., [2011] O.A.C. Uned. 375; 2011 ONCA 404, refd to. [para. 120].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 125].

Authors and Works Noticed:

Ives, Dale E., Failure to Interview a Potential Defence Witness as the Basis for an Ineffective Assistance of Counsel Claim (2008), 53 Crim. L.Q. 490, generally [para. 79].

Counsel:

Craig M. Garson, Q.C., and Joshua M. Arnold, Q.C., for the appellant;

Mark Scott, for the respondent;

Michael Wood, Q.C., and Lauren Grant (articled clerk), for the intervenor.

This appeal was heard on June 1-2, 2011, at Halifax, N.S., before Saunders, Oland and Beveridge, JJ.A., of the Nova Scotia Court of Appeal.

On July 21, 2011, Saunders, J.A., delivered the following judgment for the Court of Appeal.