R. v. Rhodes (K.H.C.), 2015 MBCA 100

• Judge: Hamilton, Beard and Pfuetzner, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 01, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBCA 100;(2015), 323 Man.R.(2d) 144 (CA)

R. v. Rhodes (K.H.C.) (2015), 323 Man.R.(2d) 144 (CA);

      657 W.A.C. 144

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. OC.023

Her Majesty The Queen (respondent) v. Kenneth Howard Cecil Rhodes (accused/appellant)

(AR 13-30-08081; 2015 MBCA 100)

Indexed As: R. v. Rhodes (K.H.C.)

Manitoba Court of Appeal

Hamilton, Beard and Pfuetzner, JJ.A.

October 15, 2015.

Summary:

The accused was convicted of sexual assault. He appealed.

The Manitoba Court of Appeal, in a decision reported at [2011] Man.R.(2d) Uned. 87, allowed the appeal and ordered a new trial. The accused was granted judicial interim release. Before a verdict had been handed down in the accused's retrial, he was convicted of breaching a release condition.

The Manitoba Provincial Court, in a decision not reported in this series of reports, declined to conduct a revocation hearing pursuant to ss. 524(3)(b) and 524(8) of the Criminal Code.

The Manitoba Court of Queen's Bench, in a decision reported at (2013), 295 Man.R.(2d) 29 and indexed as R. v. Rhodes (K.), convicted the accused of sexual assault. The Crown brought a motion to have the accused's judicial interim release revoked pending his sentencing.

The Manitoba Court of Queen's Bench, in a decision reported at (2013), 297 Man.R.(2d) 114, granted the motion.

The Manitoba Court of Queen's Bench, in a decision reported at (2013), 297 Man.R.(2d) 247, sentenced the accused to three years' imprisonment and made ancillary orders. The accused appealed his conviction, alleging ineffective assistance of counsel.

The Manitoba Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The Manitoba Court of Appeal stated that "The issue of ineffective assistance of counsel does not arise at trial; it is decided as a matter of first instance on appeal. There being no review, the rules regarding standards of review to be applied to a decision from a lower tribunal are not engaged." - See paragraph 13.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The Manitoba Court of Appeal reviewed the law applicable to ineffective assistance of counsel, stating, inter alia, that there was a strong presumption in favour of competence - See paragraphs 14 to 18.

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 was convicted, for a second time, of sexual assault - The first conviction had been overturned on appeal and a new trial ordered - The accused appealed a second time, alleging ineffective assistance of counsel - He relied on eight examples of what he described as "significant areas of inconsistency" between the complainant's testimony at the first and second trials to support his argument that, had the second trial counsel highlighted these areas, there was a real probability that he would not have been convicted - The Manitoba Court of Appeal dismissed the appeal - There was no inconsistency regarding six of the areas - Further, the second trial judge found that, overall, the complainant was consistent in her evidence - That conclusion was borne out by the transcripts - In the context of all of the evidence, the areas for cross-examination raised by the accused, even considered together, were not significant and could not have affected the verdict - Even if incompetence was presumed, the factual foundation did not support a finding that there was a probable miscarriage of justice - As a result, it was not necessary to go on to consider whether defence counsel's actions at the second trial were incompetent - See paragraphs 19 to 38.

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 third Civil Rights - Topic 3158 ].

Cases Noticed:

R. v. Le (T.D.) (2011), 270 Man.R.(2d) 82; 524 W.A.C. 82; 2011 MBCA 83, appld. [para. 14].

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. 18].

R. v. Joanisse (R.) (1995), 85 O.A.C. 186 (C.A.), refd to. [para. 18].

R. v. Aulakh (B.S.) (2012), 326 B.C.A.C. 177; 554 W.A.C. 177; 2012 BCCA 340, refd to. [para. 18].

R. v. T.P. (2002), 160 O.A.C. 118; 165 C.C.C.(3d) 281; 59 O.R.(3d) 577 (C.A.), refd to. [para. 36].

R. v. M.B. (2009), 251 O.A.C. 81; 2009 ONCA 524, refd to. [para. 36].

R. v. J.B., [2011] O.A.C. Uned. 375; 2011 CarswellOnt 3499; 2011 ONCA 404, refd to. [para. 36].

Counsel:

J.A. Weinstein, for the appellant;

R.N. Malaviya, for the respondent.

This appeal was heard on September 1, 2015, by Hamilton, Beard and Pfuetzner, JJ.A., of the Manitoba Court of Appeal. Beard, J.A., delivered the following decision for the court on October 15, 2015.