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

• Judge: Bateman, Beveridge and Farrar, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 17, 2010
• Jurisdiction: Nova Scotia
• Citations: 2010 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.