R. v. McCormick (R.A.) et al., (1993) 27 B.C.A.C. 177 (CA)

• Judge: Gibbs, Rowles and Prowse, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 23, 1993
• Jurisdiction: British Columbia
• Citations: (1993), 27 B.C.A.C. 177 (CA)

R. v. McCormick (R.A.) (1993), 27 B.C.A.C. 177 (CA);

    45 W.A.C. 177

MLB headnote and full text

Regina (respondent) v. Rhys Allan McCormick (appellant) and Gerald Walter Lingenfelter (appellant)

(CA015204; CA015460)

Indexed As: R. v. McCormick (R.A.) et al.

British Columbia Court of Appeal

Gibbs, Rowles and Prowse, JJ.A.

April 30, 1993.

Summary:

The accused appealed their convictions for trafficking in cocaine.

The British Columbia Court of Appeal, Gibbs, J.A., dissenting, allowed the appeal and ordered a new trial.

Civil Rights - Topic 3126

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Fair hearing - What constitutes - The accused faced serious charges with penal consequences - Their appointed Legal Aid counsel with­drew their services in a dispute with the Legal Services Society - Since the depar­ture of a key Crown witness from Canada was imminent, the judge allowed his ex­amination-in-chief - Although given time to prepare, the accused declined to cross-examine, citing their inability to cope; they lacked funds to retain counsel and the legal aid dispute remained - A further adjournment was granted only on condition the accused waive their right to cross-examine the witness - The British Colum­bia Court of Appeal held that the blame­less accused were denied a fair trial by the condition - See paragraphs 28 to 44.

Civil Rights - Topic 3157

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

Cases Noticed:

R. v. Ewing (1974), 18 C.C.C.(2d) 356 (B.C.C.A.), refd to. [para. 17].

R. v. Chimienti (1980), 17 C.R.(3d) 306 (Ont. H.C.), refd to. [paras. 17, 39].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 17].

R. v. Richard and Sassano (1992), 55 O.A.C. 43 (C.A.), refd to. [paras. 17, 36].

R. v. Johnson (1973), 11 C.C.C.(2d) 101 (B.C.C.A.), refd to. [paras. 19, 21, 37].

R. v. Barrette (1976), 10 N.R. 321; 29 C.C.C.(2d) 189 (S.C.C.), consd. [para. 32].

R. v. Huxted (1983), 45 A.R. 48 (N.W.T.C.A.), consd. [para. 35].

R. v. Smith (J.J.) (1989), 35 O.A.C. 301; 52 C.C.C.(3d) 90, consd. [para. 38].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 650 [para. 34].

Counsel:

P.D. Ryan, for the appellant, Gerald Walter Lingenfelter;

J.R. Ray, for the appellant, Rhys Allan McCormick;

K.J. Yule and C. Webb, for the Crown.

This appeal was heard in Vancouver, British Columbia, on March 23, 1993, before Gibbs, Rowles and Prowse, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered on April 30, 1993, including the following opinions:

Gibbs, J.A., dissenting - see para­graphs 1 to 27;

Prowse, J.A. (Rowles, J.A., concurring) - see paragraphs 28 to 44.