R. v. Meer (J.D.), (2015) 607 A.R. 358

• Judge: Fraser, C.J.A., Watson and Wakeling, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 04, 2015
• Citations: (2015), 607 A.R. 358;2015 ABCA 340

R. v. Meer (J.D.) (2015), 607 A.R. 358; 653 W.A.C. 358 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. NO.037

Her Majesty the Queen (respondent) v. Jonathan David Meer (appellant)

(1103-0156-A; 2015 ABCA 340)

Indexed As: R. v. Meer (J.D.)

Alberta Court of Appeal

Fraser, C.J.A., Watson and Wakeling, JJ.A.

November 6, 2015.

Summary:

The accused appealed his convictions on three counts of fraud, two counts of theft over $5,000, and one count of money laundering. The theft and money laundering convictions were conditionally stayed pursuant to the Kienapple principle.

The Alberta Court of Appeal dismissed the appeal.

Barristers and Solicitors - Topic 1625

Relationship with client - Duty of confidentiality (or professional secrecy) - Waiver by client - The Alberta Court of Appeal stated that "Counsel have a right to defend against the allegations of incompetence in criminal cases, including the right to file affidavit material ... Most important, solicitor-client privilege is waived with respect to all communications relevant to the incompetence allegations ... In this regard, it is highly problematic and indeed inconsistent with the public interest in a fair trial for a court to consider an allegation regarding incompetence of counsel where the appellant claiming incompetence declines to fully waive privilege in respect of the proceedings in question. A court cannot assess an incompetence allegation in a factual vacuum. It is entitled to know all the relevant facts to allow it to make an informed decision whether the incompetence claim has been made out. In doing so, it is not reasonable for the proceedings to be divided up into selective slivers by the appellant, with the reviewing court being allowed insight only into bits and pieces of the proceedings and related communications between an appellant and his or her counsel." - See paragraphs 24 and 25.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - [See Barristers and Solicitors - Topic 1625 ].

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The Alberta Court of Appeal stated that "In assessing an incompetence of counsel claim, the starting point is this. There is a strong presumption that counsel is competent, and it is insufficient that other counsel might have made different decisions. Grounded in the right to a fair trial, it is not enough to prove incompetence in the abstract. Rather, it must be established that the professional incompetence of trial counsel resulted in a miscarriage of justice, either in the form of an unreliable verdict or an unfair adjudicative process ... It falls to the appellant to prove both the performance and prejudice components of an ineffective representation claim ... There will be no miscarriage of justice where the appellant is unable to establish prejudice. In other words, the appellant must prove not only that the representation provided by trial counsel was incompetent but that this resulted in the prejudice suffered ..." - See paragraph 23.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The accused appealed his convictions on three counts of fraud, two counts of theft over $5,000, and one count of money laundering - He sought to introduce fresh evidence to establish that his counsel at trial (Juneja) was incompetent - The accused refused to waive privilege in respect of the two counsel who succeeded Juneja in representing him in these proceedings - The Alberta Court of Appeal stated that the refusal to waive privilege raised the very real issue of whether the accused made a tactical decision not to pursue an incompetence claim on a timely basis - A number of the alleged omissions by Juneja related to matters that could arguably have been raised by the accused's new counsel before the trial judge rendered his decisions on the charges against the accused - Further, after the evidentiary portion of the trial was concluded, the accused continued to have Juneja represent him on other offences he was charged with and he opposed the Crown's attempt to have Juneja removed from the case and ultimately succeeded in having Juneja continue to represent him - Finally, while the accused's initial grounds of appeal included an incompetence claim (without specifying which counsel), it was part of a lengthy boiler plate list of alleged errors - Juneja was not made aware of the allegations until he received a copy of the accused's affidavit from Crown counsel - That was more than four years after the evidentiary portion of the trial had concluded - For those reasons, the court had serious reservations whether it was appropriate to consider the accused's claim of incompetence - Assuming that the incomplete waiver was not an impediment to determining the issues, and even allowing for the admission of fresh evidence, the accused had been unable to establish that Juneja's omissions resulted in any prejudice to him - It was therefore unnecessary to consider whether Juneja's conduct rose to the level of incompetence - See paragraphs 28 to 39.

Civil Rights - Topic 4620.1

Right to counsel - Right to effective assistance by counsel - [See Barristers and Solicitors - Topic 1625 and second and third Civil Rights - Topic 3158 ].

Company Law - Topic 4681

Officers and agents - Criminal liability - General - At issue was whether the trial judge erred in determining that an accused had committed fraud by misrepresenting to lending institutions that trailers existed so that the institutions would advance him funds equal to the costs of the trailers - The accused asserted that the judge failed to identify the dishonest act that he committed and focussed entirely on reliance - He disputed the judge's conclusion that it was the accused who represented that the trailers existed - He asserted that the evidence only supported the conclusion that someone other than him made the misrepresentations - In particular, he claimed that it was companies and others who made the misrepresentations - The Alberta Court of Appeal rejected the argument - The trial judge concluded that frauds had been committed and that the accused had participated in those frauds before turning to the issue of reliance - The record confirmed that the accused was instrumental in engineering the frauds - He signed various documents in his stated role as vice-president of the companies - The effect of doing so was that he attested to receipt of the trailers in each transaction - He participated in representing that the trailers existed when they did not - He also fraudulently represented that a non-existent company existed - The fact that he made the misrepresentations on behalf of the companies was irrelevant to his personal liability as an officer of the companies - Even if he was not culpable as a principal in committing the frauds, at a minimum, he aided or abetted the companies in the fraudulent transactions - Further, in determining the reasonableness of the verdicts, the court was entitled to consider the accused's failure to testify despite the compelling nature and extent of the evidence against him - The court was entitled to treat his silence as indicating his inability to provide an innocent explanation - See paragraphs 56 to 63.

Criminal Law - Topic 57

Protection against self-incrimination - Unfavourable inference from accused's failure to testify or call evidence - [See Company Law - Topic 4681 ].

Criminal Law - Topic 58

Protection against self-incrimination - Unfavourable inference from accused's silence - [See Company Law - Topic 4681 ].

Criminal Law - Topic 2001

Fraudulent transactions - Fraud - What constitutes fraud - [See Company Law - Topic 4681 ].

Criminal Law - Topic 2001

Fraudulent transactions - Fraud - What constitutes fraud - At issue was whether the trial judge erred in determining that an accused had committed fraud by making misrepresentations to lending institutions - The Alberta Court of Appeal, in dismissing the appeal, stated that "when a lending institution sets out its lending requirements and requires an applicant for a loan to complete them, it is not doing so for nothing. The only reasonable inference, in the absence of any evidence to the contrary, is that these requirements are the basis on which the lending institution is willing to advance the loan in question. To find otherwise is to deny economic and financial realities along with common sense ..." - See paragraph 59.

Criminal Law - Topic 2744

Attempts, conspiracies, accessories and parties - Parties to offences - What constitutes aiding and abetting - [See Company Law - Topic 4681 ].

Criminal Law - Topic 4488

Procedure - Trial - Representation of accused - [See Barristers and Solicitors - Topic 1625 and second and third Civil Rights - Topic 3158 ].

Criminal Law - Topic 4505.2

Procedure - Trial - Special duties of Crown - Duty to disclose arrangements by Crown to obtain evidence - The accused appealed his convictions on three counts of fraud, two counts of theft over $5,000, and one count of money laundering - He asserted that the Crown granted two witnesses (Mizier and Crawford) immunity in exchange for testifying against him - He requested that the Crown disclose "all agreements verbal and written" entered into with the nine witnesses that were called at trial - He also sought production from third parties, including Mizier and Crawford, on the theory that each of the third parties would be able to provide some information favourable to the accused and otherwise shed further light on the events in question - The Alberta Court of Appeal denied further disclosure - There was no evidence that documents relating to Mizier or Crawford existed so as to discharge his onus under R. v. Chaplin (1995, SCC) - Crown counsel was unaware of the existence of any such agreements with Mizier or Crawford - The Crown was under no obligation to justify the non-disclosure of material of which it was unaware - Nor could the Crown be required to disclose documents that did not exist - There was also no reason to believe that had there been any supportive arrangements between any investigator and either Mizier or Crawford that such a circumstance would have had any influence on the outcome - The request that the Crown disclose other information involving other witnesses also had to fail - They were not sufficiently specific in terms of the information that the accused was seeking from each witness - More importantly, the accused had not provided the court with any reason to think that any information obtained from third parties would be of likely relevance to his application to introduce fresh evidence on appeal - See paragraphs 15 to 20.

Criminal Law - Topic 4905.5

Appeals - Indictable offences - Procedure - Crown disclosure on appeal - [See Criminal Law - Topic 4505.2 ].

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - The Alberta Court of Appeal stated that "While fresh evidence is normally admitted in accordance with R. v. Palmer [1980, S.C.C.], that test does not apply where allegations of incompetence of counsel are raised for the first time on appeal ... In these circumstances, the question is simply whether admission of the fresh evidence is in the interests of justice ..." - See paragraph 22.

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 second Civil Rights - Topic 3158 ].

Evidence - Topic 230

Inference and weight of evidence - Inferences - Inference from suppression of evidence - The Alberta Court of Appeal stated that "... as a general rule, no adverse inference can be drawn from the assertion of a privilege. However, where an appellant alleges incompetence of counsel, it is relevant that he or she has failed to put forward key evidence under his or her exclusive control that would permit a full and fair assessment of the conduct in question ...Where an appellant has dismissed one counsel or one counsel has ceased to act and others have then been retained in the criminal proceedings in question, a court may not be able ... to properly consider them without the appellant's waiving privilege with respect to subsequent counsel. ... Accordingly, an appellant cannot argue that his counsel was incompetent but at the same time refuse to disclose what advice he received from subsequent counsel in the same proceedings where the alleged incompetence of earlier counsel includes allegations that may well have been addressed by subsequent counsel before completion of the proceedings were there any merit to them. In addition, an appellant's failure to assert an incompetence claim against a prior counsel within a reasonable time despite having received legal advice in the same proceedings from later counsel may well also be relevant when a court is asked to evaluate an incompetence claim against the first counsel. ... Even setting aside any question of adverse inference, therefore, it has been reasonable for centuries to doubt the cogency of an assertion by a party who withholds the means of evaluating that assertion." - See paragraphs 26 and 27.

Evidence - Topic 2401

Special modes of proof - Presumptions - Specific presumptions - Inference from failure to call or adduce available evidence - [See Evidence - Topic 230 ].

Evidence - Topic 4253.3

Witnesses - Privilege - Lawyer-client communications - Loss of privilege - To permit full answer and defence - [See Barristers and Solicitors - Topic 1625 ].

Evidence - Topic 4254

Witnesses - Privilege - Lawyer-client communications - Waiver - General - [See third Civil Rights - Topic 3158 ].

Evidence - Topic 4257

Witnesses - Privilege - Lawyer-client communications - Waiver - By criticizing counsel - [See Barristers and Solicitors - Topic 1625 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 1].

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, refd to. [para. 18].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 19].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 22].

R. v. Meer (J.D.) (2015), 600 A.R. 66; 645 W.A.C. 66; 2015 ABCA 141, refd to. [para. 22].

R. v. W.W. and I.W. (1995), 84 O.A.C. 241; 25 O.R.(3d) 161 (C.A.), refd to. [para. 22].

R. v. Widdifield - see R. v. W.W.

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 2000 SCC 22, refd to. [para. 23].

R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), refd to. [para. 23].

R. v. Delisle (1999), 133 C.C.C.(3d) 541 (Que. C.A.), refd to. [para. 23].

K.M.W. v. L.J.W. (2010), 297 B.C.A.C. 262; 504 W.A.C. 262; 12 B.C.L.R.(5th) 217; 2010 BCCA 572, refd to. [para. 24].

R. v. Graham (D.) (2014), 324 O.A.C. 97; 2014 ONCA 566, refd to. [para. 26].

R. v. G.D.B. (1997), 200 A.R. 184; 146 W.A.C. 184 (C.A.), refd to. [para. 26].

R. v. Jolivet (D.), [2000] 1 S.C.R. 751; 254 N.R. 1; 2000 SCC 29, refd to. [para. 27].

Blatch v. Archer (1774), 98 E.R. 969, refd to. [para. 27].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 44].

R. v. R.P., [2012] 1 S.C.R. 746; 429 N.R. 361; 2012 SCC 22, refd to. [para. 44].

R. v. Park (S.J.) (2009), 465 A.R. 1; 2009 ABQB 38, affd. (2010), 482 A.R. 153; 490 W.A.C. 153; 2010 ABCA 248, refd to. [para. 58].

R. v. Steinhubl (J.K.) (2012), 536 A.R. 184; 559 W.A.C. 184; 2012 ABCA 260, refd to. [para. 59].

London and Globe Finance Corporation Ltd., Re, [1900-1903] All E.R. Rep. 891 (Ch. Eng.), refd to. [para. 60].

R. v. Canadian Dredge & Dock Co. et al., [1985] 1 S.C.R. 662; 59 N.R. 241; 9 O.A.C. 321, refd to. [para. 61].

R. v. Briscoe (M.E.) et al., [2010] 1 S.C.R. 411; 400 N.R. 216; 477 A.R. 86; 483 W.A.C. 86; 2010 SCC 13, refd to. [para. 62].

R. v. Pickton (R.W.), [2010] 2 S.C.R. 198; 404 N.R. 198; 290 B.C.A.C. 264; 491 W.A.C. 264; 2010 SCC 32, refd to. [para. 62].

R. v. Thatcher, [1987] 1 S.C.R. 652; 75 N.R. 198; 57 Sask.R. 113, refd to. [para. 62].

R. v. Noble (S.J.), [1997] 1 S.C.R. 874; 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1, refd to. [para. 63].

R. v. Saddleback (E.J.) (2013), 556 A.R. 17; 584 W.A.C. 17; 2013 ABCA 250, refd to. [para. 63].

Counsel:

M.J. McGuire, for the respondent;

Jonathan David Meer, the appellant, in person.

This appeal was heard on September 4, 2015, by Fraser, C.J.A., Watson and Wakeling, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the court was filed at Edmonton, Alberta, on November 6, 2015.