R. v. G.D.B., (2000) 261 A.R. 1 (SCC)

• Judge: Major, Bastarache, Binnie, Arbour and Lebel, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 28, 2000
• Jurisdiction: Canada (Federal)
• Citations: (2000), 261 A.R. 1 (SCC);2000 SCC 22;45 WCB (2d) 567;81 Alta LR (3d) 1;225 WAC 1;[2000] 1 SCR 520;253 NR 201;143 CCC (3d) 289;[2000] ACS no 22;[2000] 8 WWR 193;JE 2000-919;184 DLR (4th) 577;[2000] FCJ No 22 (QL);[2000] CarswellAlta 348;261 AR 1;32 CR (5th) 207;[2000] SCJ No 22 (QL)

R. v. G.D.B. (2000), 261 A.R. 1 (SCC);

    225 W.A.C. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2000] A.R. TBEd. AP.069

G.D.B. v. Her Majesty The Queen

(27240; 2000 SCC 22)

Indexed As: R. v. G.D.B.

Supreme Court of Canada

Major, Bastarache, Binnie, Arbour and Lebel, JJ.

April 27, 2000.

Summary:

An accused appealed his conviction on charges of sexual assault and indecent assault, alleging that his trial counsel was incompetent. He also sought to adduce fresh evidence in the form of tape recorded state­ments in which the complainant denied the alleged assaults.

The Alberta Court of Appeal, O'Leary, J.A., dissenting, in a decision reported at 232 A.R. 307; 195 W.A.C. 307, held that the fresh evidence was inad­missible and dis­missed the appeal. The accused appealed.

The Supreme Court of Canada dismissed the appeal.

Editor's note: for a related proceeding see 200 A.R. 184; 146 W.A.C. 184.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - An accused was charged with, inter alia, the indecent and sexual assault of his adopted daug­hter - Defence counsel had a taped recor­ding of the dau­gh­ter telling her mother that she had not been assaulted - Counsel did not adduce the record­ing into evidence because it could discredit the mother, who was a defence witness - The accused was con­victed - He appealed, seeking a new trial based on fresh evi­dence - He asserted that the evidence could not have been adduced at trial by due dili­gence due to incom­pe­tent repre­sen­ta­tion - He also claimed that counsel did not advise him that the tapes would not be used - The appellate court held that the fresh evidence was inadmis­sible and dis­missed the appeal - The Supreme Court of Canada dis­missed the accused's appeal - There was no mis­car­riage of justice - Counsel had implied au­thority to make tactical deci­sions - The accused failed to satisfy the due dili­gence requirement - Finally, the reliability of the trial's result was not com­promised - See para­graphs 16 to 41.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The Supreme Court of Canada reviewed the general approach to take when determining a claim of in­competent representation - The client had to establish that the counsel's acts or omissions consti­tuted incompetence and that a miscarriage of justice resulted - Where it was apparent that no prejudice had occurred, it would usually be undesir­able for appellate courts to consider the performance components of the analysis - The object of an ineffec­tiveness claim was not to grade counsel's performance or professional conduct - The latter was left to the profession's self-governing body - If it was appro­priate to dispose of an inef­fectiveness claim on the ground of no prejudice having occurred, that was the course to follow - See paragraphs 26 to 29.

Civil Rights - Topic 4620.1

Right to counsel - Right to effective assistance by counsel - [See both Civil Rights - Topic 3158 ].

Criminal Law - Topic 4488

Procedure - Trial - Representation of accused - [See both Civil Rights - Topic 3158 ].

Criminal Law - Topic 4949

Appeals - Indictable offences - New trials -Grounds - New evidence - [See first Civil Rights - Topic 3158 ].

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evi­dence - General - [See first Civil Rights - Topic 3158 ].

Practice - Topic 9032

Appeals - Evidence on appeal - Criminal cases - [See first Civil Rights - Topic 3158 ].

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 14 C.R.(3d) 22 (Eng.); 106 D.L.R.(3d) 212; 50 C.C.C.(2d) 193; 17 C.R.(3d) 34 (Fr.), refd to. [para. 14].

R. v. Warsing (K.L.), [1998] 3 S.C.R. 579; 233 N.R. 319; 115 B.C.A.C. 214; 189 W.A.C. 214 (S.C.C.), refd to. [para. 16].

R. v. McBirnie (P.S.) (1992), 59 O.A.C. 1; 77 C.C.C.(3d) 402 (C.A.), refd to. [para. 19].

R. v. McMartin, [1964] S.C.R. 484, refd to. [para. 19].

R. v. Price (S.L.), [1993] 3 S.C.R. 633; 157 N.R. 378; 145 A.R. 231; 55 W.A.C. 231, affing. (1992), 131 A.R. 54; 25 W.A.C. 54 (C.A.), refd to. [para. 19].

R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), refd to. [para. 25].

Strickland v. Washington (1984), 466 U.S. 668 (S.C.), refd to. [para. 26].

Authors and Works Noticed:

Law Society of Alberta, Alberta Code of Professional Conduct, Chapter 9, rule 12 [para. 33].

Counsel:

Ben R. Plumer, for the appellant;

Joshua B. Hawkes, for the respondent.

Solicitors of Record:

Ben R. Plumer Law Office, Bassano, Alberta, for the appellant;

Department of Justice, Calgary, Alberta, for the respondent.

This appeal was heard on January 28, 2000, by Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada. Major, J., delivered the following decision for the court in both official lan­guages on April 27, 2000.