R. v. Ross (B.R.), (2012) 317 N.S.R.(2d) 243 (CA)

• Judge: Saunders, Oland and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: April 17, 2012
• Jurisdiction: Nova Scotia
• Citations: (2012), 317 N.S.R.(2d) 243 (CA);2012 NSCA 56

R. v. Ross (B.R.) (2012), 317 N.S.R.(2d) 243 (CA);

    1003 A.P.R. 243

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. MY.068

Bradley Roderick Ross (appellant) v. Her Majesty the Queen (respondent) and Gary Jewett (intervenor)

(CAC 356611; 2012 NSCA 56)

Indexed As: R. v. Ross (B.R.)

Nova Scotia Court of Appeal

Saunders, Oland and Bryson, JJ.A.

May 31, 2012.

Summary:

The accused was convicted of sexual interference, contrary to s. 151 of the Criminal Code. The accused appealed the conviction on the ground, inter alia, that he did not receive effective assistance from his trial counsel. The accused also moved to adduce fresh evidence in support of his allegation of ineffective counsel.

The Nova Scotia Court of Appeal admitted the fresh evidence. The court found that trial counsel's representation of the accused was ineffective, resulting in a miscarriage of justice that went both to the reliability of the verdict and the fairness of the trial. The court allowed the appeal, quashed the conviction and ordered a new trial.

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.

Criminal Law - Topic 4964

Appeals - Indictable offences - New trials - Grounds - Competence of counsel - The accused was convicted of sexual interference, contrary to s. 151 of the Criminal Code - The accused appealed the conviction arguing that he did not receive effective assistance from his trial counsel - The accused also moved to adduce fresh evidence in support of his allegation of ineffective counsel - That evidence included evidence that the accused had to give on the merits of his defence (honest but mistaken belief in the age of the complainant) which he said the trial judge did not hear because of the incompetence of counsel - The Nova Scotia Court of Appeal admitted the fresh evidence - The court found that trial counsel's representation of the accused was ineffective, resulting in a miscarriage of justice that went both to the reliability of the verdict and the fairness of the trial - The accused's defence could only succeed if the evidence showed he had a mistaken belief in the age of the complainant and took all reasonable steps to ascertain her age - However, the accused did not testify and, he called no evidence, and his lawyer asked no questions of any witness - The trial judge did not know what the accused thought because his lawyer did not advise him to testify - That failure deprived the accused of any reasonable prospect of successfully defending himself - Since the defence depended on honest but mistaken belief, it was crucial that the grave risks of not testifying be discussed with the accused - Trial counsel gave the accused no advice about the danger of not testifying - The failure to advise on whether to testify was an abdication of counsel's fundamental responsibility that was compounded by the failure to recommend that the accused should testify - The court therefore allowed the appeal and ordered a new trial.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - [See Criminal Law - Topic 4964 ].

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 23].

R. v. Wolkins (R.D.) (2005), 229 N.S.R.(2d) 222; 725 A.P.R. 222; 2005 NSCA 2, refd to. [para. 24].

R. v. Strauss (D.W.) (1995), 61 B.C.A.C. 241; 100 W.A.C. 241 (C.A.), refd to. [para. 26].

R. v. Joanisse (R.) (1995), 85 O.A.C. 186 (C.A.), refd to. [para. 26].

R. v. W.W. and I.W. (1995), 84 O.A.C. 241; 25 O.R.(3d) 161 (C.A.), refd to. [para. 26].

R. v. Gumbly (D.) (1996), 155 N.S.R.(2d) 117; 457 A.P.R. 117 (C.A.), refd to. [para. 26].

R. v. Appleton (W.) (2001), 149 O.A.C. 148 (C.A.), refd to. [para. 27].

R. v. Assoun (G.E.) (2006), 244 N.S.R.(2d) 96; 774 A.P.R. 96; 2006 NSCA 47, refd to. [para. 28].

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. 32].

R. v. J.B., [2011] O.A.C. Uned. 375; 2011 ONCA 404, refd to. [para. 33].

R. v. Gogan (D.) (2011), 309 N.S.R.(2d) 308; 979 A.P.R. 308; 2011 NSCA 105, refd to. [para. 34].

R. v. Fraser (A.) (2011), 306 N.S.R.(2d) 201; 968 A.P.R. 201; 2011 NSCA 70, refd to. [para. 35].

R. v. L.T.P. (1997), 86 B.C.A.C. 20; 142 W.A.C. 20 (C.A.), refd to. [para. 38].

R. v. Osborne (J.M.) (1992), 102 Nfld. & P.E.I.R. 194; 323 A.P.R. 194 (Nfld. C.A.), refd to. [para. 39].

R. v. E.R.M. (2002), 217 Sask.R. 259; 265 W.A.C. 259; 2002 SKCA 30, refd to. [para. 40].

R. v. Chrispen (J.R.) (2009), 331 Sask.R. 212; 460 W.A.C. 212; 2009 SKCA 63, refd to. [para. 40].

R. v. R.W.A. (2005), 203 O.A.C. 56; 202 C.C.C.(3d) 60 (C.A.), refd to. [para. 40].

R. v. Slater (F.), [2006] 5 W.W.R. 233; 269 Sask.R. 42; 357 W.A.C. 42; 2005 SKCA 87, refd to. [para. 41].

R. v. Beals (M.D.) (1994), 136 N.S.R.(2d) 321; 388 A.P.R. 321 (C.A.), refd to. [para. 43].

R. v. Craig (T.P.) (2011), 276 O.A.C. 117; 2011 ONCA 142, refd to. [para. 48].

R. v. D.L. and R.S. (2004), 185 O.A.C. 242 (C.A.), refd to. [para. 48].

R. v. Chan (J.E.) (2005), 232 N.S.R.(2d) 19; 737 A.P.R. 19; 2005 NSCA 61, refd to. [para. 48].

Sankar v. State of Trinidad and Tobago, [1995] 1 All E.R. 236 (P.C.), refd to. [para. 48].

McMartin v. The Queen, [1964] S.C.R. 484, refd to. [para. 55].

R. v. Carr (J.J.) (2010), 493 A.R. 223; 502 W.A.C. 223; 2010 ABCA 386, refd to. [para. 56].

R. v. Cook (1980), 53 C.C.C.(2d) 217 (Ont. C.A.), refd to. [para. 59].

R. v. Prebtani (A.) (2008), 243 O.A.C. 207; 2008 ONCA 735, refd to. [para. 59].

Counsel:

Stanley W. MacDonald, Q.C., for the appellant;

Mark Scott, for the respondent;

William L. Mahody, for the intervenor.

This appeal was heard on April 17, 2012, at Halifax, N.S., before Saunders, Oland and Bryson, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Bryson, J.A., on May 31, 2012.