R. v. Short (K.J.), 2012 SKCA 85

• Judge: Lane, Ottenbreit and Caldwell, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 20, 2012
• Jurisdiction: Saskatchewan
• Citations: 2012 SKCA 85;(2012), 399 Sask.R. 192 (CA)

R. v. Short (K.J.) (2012), 399 Sask.R. 192 (CA);

    552 W.A.C. 192

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. SE.067

Kyle J. Short (appellant) v. Her Majesty the Queen (respondent)

(CACR2057; 2012 SKCA 85)

Indexed As: R. v. Short (K.J.)

Saskatchewan Court of Appeal

Lane, Ottenbreit and Caldwell, JJ.A.

September 21, 2012.

Summary:

The accused pleaded guilty and was convicted on two counts of trafficking marijuana and one count of possession of the proceeds of an indictable offence. He appealed his conviction, seeking to expunge his pleas. He claimed that the incompetence of his trial counsel undermined the reliability of the verdict and, as a result, a miscarriage of justice occurred. He had already served his sentence, so his appeal from sentence was not pursued.

The Saskatchewan Court of Appeal dismissed the appeal.

Criminal Law - Topic 4233

Procedure - Pleas - Guilty plea - Expungement or setting aside - The Saskatchewan Court of Appeal stated that "A guilty plea is valid if it is voluntary, informed and unequivocal ... A guilty plea made in open court is presumed valid, and an appellate court is not empowered to set it aside, unless the accused can prove it was not voluntary, informed or unequivocal. An accused who applies to expunge a plea for the first time on an appeal bears the onus of proving the plea is invalid but must obtain leave of this Court to do so ... If leave is granted and the plea is proven invalid, the appellate court may properly set aside the plea where the appellant establishes that there has been a miscarriage of justice ..." - See paragraph 3.

Criminal Law - Topic 4233

Procedure - Pleas - Guilty plea - Expungement or setting aside - The accused pleaded guilty and was convicted on two counts of trafficking marijuana and one count of possession of the proceeds of an indictable offence - He appealed his conviction, seeking to expunge his pleas - He claimed that the incompetence of his trial counsel undermined the reliability of the verdict and, as a result, a miscarriage of justice occurred - The Saskatchewan Court of Appeal dismissed the appeal - The court held that the accused had the evidentiary and persuasive burden in proceedings of this nature - Considering the whole of the proffered evidence, the court concluded that the evidence simply did not support the accused's contention that a miscarriage of justice had occurred in his case - In such circumstances, the court was not empowered to expunge his guilty pleas - See paragraphs 1 to 11.

Criminal Law - Topic 4488

Procedure - Trial - Representation of accused - The Saskatchewan Court of Appeal stated that "A miscarriage of justice will occur where a verdict is rendered unreliable due to incompetent representation by trial counsel if the appellant also demonstrates that, had trial counsel performed competently, there is a reasonable possibility that the verdict could have been different" - See paragraph 4.

Criminal Law - Topic 4488

Procedure - Trial - Representation of accused - The Saskatchewan Court of Appeal stated that "... the jurisprudence indicates a claim of miscarriage of justice by reason of the incompetence of trial counsel has three elements, each of which must be established by the appellant on a balance of probabilities. First, the appellant must establish the facts, including the acts or omissions of trial counsel, upon which the claim of incompetence is based. Second, the appellant must establish that the representation provided by trial counsel was incompetent. Third, the appellant must establish that the incompetent representation resulted in a miscarriage of justice" - See paragraph 5.

Criminal Law - Topic 4488

Procedure - Trial - Representation of accused - The Saskatchewan Court of Appeal stated that "Where an allegation of incompetent counsel arises, appellate courts take a cautious approach in their after-the-fact assessment of trial counsel's performance. The assessment starts with a strong presumption in favour of competence, which the appellant will only displace by proving, on a balance of probabilities, that trial counsel's acts or omissions fell outside the range of reasonable professional assistance in the circumstances. Competence is measured against a reasonableness standard, which necessarily admits a wide range of reasonable professional assistance because no two counsel will defend an accused in the same way; which is to say: different counsel may reasonably use very different strategies and tactics to address the same set of legal, factual and procedural circumstances. Because of this, it has been said, the wisdom of hindsight has no place in an appellate court's assessment of trial counsel's competence" - See paragraph 6.

Cases Noticed:

R. v. R.T. (1992), 58 O.A.C. 81; 10 O.R.(3d) 514 (C.A.), refd to. [para. 3].

R. v. Kim (D.) (2011), 375 Sask.R. 68; 525 W.A.C. 68; 272 C.C.C.(3d) 15; 2011 SKCA 74, refd to. [para. 3].

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. 3].

R. v. R.W.A. (2005), 203 O.A.C. 56; 202 C.C.C.(3d) 60 (C.A.), refd to. [para. 4].

R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), refd to. [para. 4].

R. v. White (H.S.) and Sennet (S.) (1997), 99 O.A.C. 1; 114 C.C.C.(3d) 225 (C.A.), refd to. [para. 6].

R. v. Riley (M.W.) (2011), 303 N.S.R.(2d) 321; 957 A.P.R. 321; 2011 NSCA 52, refd to. [para. 9].

Counsel:

Peter A. Abrametz, for the appellant;

Wade McBride, for the respondent.

This appeal was heard on September 20, 2012, before Lane, Ottenbreit and Caldwell, JJ.A., of the Saskatchewan Court of Appeal. The following written decision was delivered for the court, by Caldwell, J.A., on September 21, 2012.