R. v. Messervey (A.C.), 2010 NSCA 55

JudgeBateman, Beveridge and Farrar, JJ.A.
CourtCourt of Appeal of Nova Scotia (Canada)
Case DateJune 17, 2010
JurisdictionNova Scotia
Citations2010 NSCA 55;(2010), 291 N.S.R.(2d) 359 (CA)

R. v. Messervey (A.C.) (2010), 291 N.S.R.(2d) 359 (CA);

    922 A.P.R. 359

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. JN.029

Arnold Clifford Messervey (appellant) v. Her Majesty The Queen (respondent)

(CAC 295554; 2010 NSCA 55)

Indexed As: R. v. Messervey (A.C.)

Nova Scotia Court of Appeal

Bateman, Beveridge and Farrar, JJ.A.

June 17, 2010.

Summary:

The accused was charged with a number of offences for the physical abuse of his common law spouse. In an unchallenged statement to police, the accused admitted the alleged incidents, but downplayed their seriousness and argued that the abuse was justified because of the wife's infidelities. On the morning of the trial, on counsel's advice, the accused changed his plea from not guilty to guilty. After the accused was sentenced to a more severe sentence than he believed he would get, he appealed his conviction, seeking to withdraw his guilty plea. The accused alleged ineffective assistance by counsel, particularly that counsel unfairly pressured him into pleading guilty. The accused sought to introduce fresh evidence to establish the ineffective assistance.

The Nova Scotia Court of Appeal denied leave to adduce the fresh evidence and dismissed the appeal. There was no credible evidence that counsel pressured the accused to plead guilty. A conviction was inevitable on the basis of the accused's statement to police, which he did not dispute the accuracy of. The accused knew the consequences of pleading guilty, including that sentencing was solely in the judge's hands. Even if there was some basis to some of the complaints (e.g, lack of communication, failure to seek full disclosure), the accused was not prejudiced and there was no miscarriage of justice warranting the withdrawal of his guilty plea on appeal.

Civil Rights - Topic 4620.1

Right to counsel - General - Right to effective assistance by counsel - The accused was charged with a number of offences for physically abusing his common law spouse - In an unchallenged statement to police, the accused admitted the alleged incidents, but downplayed their seriousness and argued that the abuse was justified because of the wife's infidelities - On the morning of the trial, on counsel's advice, the accused changed his plea from not guilty to guilty - He was subsequently sentenced to a more severe sentence than he believed he would get - He appealed his conviction, seeking to withdraw his guilty plea - For the first time, the accused alleged ineffective assistance by counsel, particularly that he unfairly pressured him to plead guilty - The accused sought to introduce fresh evidence to establish ineffective assistance - The Nova Scotia Court of Appeal denied leave to adduce the fresh evidence and dismissed the appeal - There was no credible evidence that counsel pressured the accused to plead guilty - A conviction was inevitable on the basis of the accused's statement to police, which he did not dispute the accuracy of - The accused knew the consequences of pleading guilty, including that sentencing was solely in the judge's hands - Even if there was some basis to some of the complaints (e.g, lack of communication, failure to seek full disclosure), the accused was not prejudiced and there was no miscarriage of justice warranting the withdrawal of his guilty plea on appeal - The accused still accepted the truth of what he told the police and offered no possible defences.

Criminal Law - Topic 4227

Procedure - Pleas - Change of plea from guilty to not guilty - [See Civil Rights - Topic 4620.1 ].

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - [See Civil Rights - Topic 4620.1 ].

Cases Noticed:

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. 22].

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

R. v. Nevin (T.L.) (2006), 245 N.S.R.(2d) 52; 777 A.P.R. 52; 2006 NSCA 72, refd to. [para. 22].

R. v. West (W.F.) (2010), 288 N.S.R.(2d) 293; 914 A.P.R. 293; 2010 NSCA 16, refd to. [para. 22].

R. v. Brosseau, [1969] S.C.R. 181; [1969] 3 C.C.C. 129, refd to. [para. 57].

R. v. Thibodeau, [1955] S.C.R. 646, refd to. [para. 57].

Adgey v. R., [1975] 2 S.C.R. 426; 13 C.C.C.(2d) 177, refd to. [para. 57].

R. v. Melanson (1983), 59 N.S.R.(2d) 54; 125 A.P.R. 54 (C.A.), refd to. [para. 60].

R. v. Hirtle (1991), 104 N.S.R.(2d) 56; 283 A.P.R. 56 (C.A.), refd to. [para. 61].

R. v. Lamoureux (1984), 13 C.C.C.(3d) 101 (Que. C.A.), refd to. [para. 61].

R. v. Laperrière (Y.), [1996] 2 S.C.R. 284; 198 N.R. 81; 109 C.C.C.(3d) 347, reving. (1995), 198 N.R. 82; 101 C.C.C.(3d) 462 (Que. C.A.), refd to. [para. 62].

R. v. Murphy (L.A.) (1995), 138 N.S.R.(2d) 231; 394 A.P.R. 231 (C.A.), refd to. [para. 63].

Counsel:

Kevin A. Burke, Q.C., for the appellant;

Mark A. Scott, for the respondent.

This appeal was heard on April 7, 2010, at Halifax, N.S., before Bateman, Beveridge and Farrar, JJ.A., of the Nova Scotia Court of Appeal.

On June 17, 2010, Beveridge, J.A., delivered the following judgment for the Court of Appeal.

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10 practice notes
  • Plea Discussions
    • Canada
    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...CR (4th) 247 at para 13 (Ont CA) [ RT ]; Duong , above note 6 at para 12; R v Hoang , 2003 ABCA 251 at para 17 [ Hoang ]; R v Messervey , 2010 NSCA 55 at para 56 [ Messervey ]; R v Brown , 2006 PESCAD 17 at para 37 [ Brown ]. 8 See DMG , above note 7 at para 41; Brown , above note 7 at para......
  • Table of cases
    • Canada
    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...634, 651 R v McVay (1982), 66 CCC (2d) 512, [1982] OJ No 65 (CA) ............................. 502 R v Messervey, 2010 NSCA 55 .............................................................429, 431, 434 R v Mian (1998), 172 NSR (2d) 162, 133 CCC (3d) 573, [1998] NSJ No 398 (CA) ...................
  • R. v. Fraser (A.), (2011) 306 N.S.R.(2d) 201 (CA)
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • July 21, 2011
    ...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......
  • Barton v. Nova Scotia (Attorney General) et al., (2015) 358 N.S.R.(2d) 104 (CA)
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • April 14, 2015
    ...968 A.P.R. 201; 2011 NSCA 70, refd to. [para. 16]. Adgey v. R., [1975] 2 S.C.R. 426, refd to. [para. 18]. R. v. Messervey (A.C.) (2010), 291 N.S.R.(2d) 359; 922 A.P.R. 359; 2010 NSCA 55, refd to. [para. 18]. R. v. Grant, [1991] 3 S.C.R. 139; 130 N.R. 250; 93 Nfld. & P.E.I.R. 181; 292 A.......
  • Request a trial to view additional results
8 cases
  • R. v. Fraser (A.), (2011) 306 N.S.R.(2d) 201 (CA)
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • July 21, 2011
    ...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......
  • Barton v. Nova Scotia (Attorney General) et al., (2015) 358 N.S.R.(2d) 104 (CA)
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • April 14, 2015
    ...968 A.P.R. 201; 2011 NSCA 70, refd to. [para. 16]. Adgey v. R., [1975] 2 S.C.R. 426, refd to. [para. 18]. R. v. Messervey (A.C.) (2010), 291 N.S.R.(2d) 359; 922 A.P.R. 359; 2010 NSCA 55, refd to. [para. 18]. R. v. Grant, [1991] 3 S.C.R. 139; 130 N.R. 250; 93 Nfld. & P.E.I.R. 181; 292 A.......
  • R. v. G.K.N., 2016 NSCA 29
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • November 30, 2015
    ...has occurred. If not, the question of counsel's performance does not arise: R. v. G.D.B. , 2000 SCC 22, ¶ 29; R. v. Messervey , 2010 NSCA 55 at ¶ 21; R. v. L.B. , 2014 ONCA 748, ¶ 8; R. v. Meer , 2015 ABCA 141, ¶ 27. [44] The appellant must show that but for counsel's error there was a "rea......
  • R. v. Dugas (L.E.), (2012) 322 N.S.R.(2d) 72 (CA)
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • May 14, 2012
    ...considered by this Court in recent cases. See, for example, R. v. West , 2010 NSCA 16; R. v. Hobbs , 2010 NSCA 53; and R. v. Messervey , 2010 NSCA 55. Section 683(1) of the Criminal Code permits the Court of Appeal to allow the introduction of fresh evidence "where it considers it in the in......
  • Request a trial to view additional results
2 books & journal articles
  • Plea Discussions
    • Canada
    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...CR (4th) 247 at para 13 (Ont CA) [ RT ]; Duong , above note 6 at para 12; R v Hoang , 2003 ABCA 251 at para 17 [ Hoang ]; R v Messervey , 2010 NSCA 55 at para 56 [ Messervey ]; R v Brown , 2006 PESCAD 17 at para 37 [ Brown ]. 8 See DMG , above note 7 at para 41; Brown , above note 7 at para......
  • Table of cases
    • Canada
    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...634, 651 R v McVay (1982), 66 CCC (2d) 512, [1982] OJ No 65 (CA) ............................. 502 R v Messervey, 2010 NSCA 55 .............................................................429, 431, 434 R v Mian (1998), 172 NSR (2d) 162, 133 CCC (3d) 573, [1998] NSJ No 398 (CA) ...................

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