R. v. Smith (S.A.), 2007 SKCA 71

• Judge: Gerwing, Jackson and Smith, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 20, 2007
• Jurisdiction: Saskatchewan
• Citations: 2007 SKCA 71;(2007), 299 Sask.R. 312 (CA)

R. v. Smith (S.A.) (2007), 299 Sask.R. 312 (CA);

      408 W.A.C. 312

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. JN.044

Stanley Armstrong Smith (appellant) v. Her Majesty The Queen (respondent)

(1092)

Her Majesty The Queen (appellant) v. Stanley Armstrong Smith (respondent)

(1093; 2007 SKCA 71)

Indexed As: R. v. Smith (S.A.)

Saskatchewan Court of Appeal

Gerwing, Jackson and Smith, JJ.A.

June 20, 2007.

Summary:

The accused was convicted of possession of a controlled substance for the purpose of trafficking and unlawful production of marijuana. He was sentenced to imprisonment for two years less a day. The accused appealed his convictions and applied to adduce "fresh evidence" to substantiate his submission of ineffective assistance by trial counsel. The Crown appealed the sentence.

The Saskatchewan Court of Appeal admitted the fresh evidence and concluded that there was a reasonable possibility that the trial outcome would have been different but for trial counsel's inexperience. The court ordered a new trial.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - [See Civil Rights - Topic 4620.1 ].

Civil Rights - Topic 4620.1

Right to counsel - General - Right to effective assistance by counsel - The accused was convicted of two drug offences - The accused appealed his conviction on the ground of ineffective assistance by trial counsel and sought to adduce "fresh evidence" to substantiate the claim - The Saskatchewan Court of Appeal admitted the fresh evidence, allowed the appeal and ordered a new trial - Trial counsel's inexperienced representation of the accused at the voir dire and the trial undermined the reliability of the verdict - Had trial counsel performed competently, there was a reasonable possibility of a different outcome - Trial counsel misunderstood the purpose and scope of the voir dire, the first he ever conducted - Counsel asked the accused only 28 questions, failing to lead relevant information necessary to establish a factual foundation for his Charter arguments respecting unreasonable search and seizure, denial of right to counsel and exclusion of evidence - Other witnesses were ineffectively questioned - Counsel inexplicably consented to the accused's voir dire testimony being admitted at trial, even though the accused admitted guilt during the voir dire during extensive Crown cross-examination - Counsel mistakenly believed the Crown would not have "free rein" on cross-examination - The court stated that "trial counsel was simply too inexperienced to determine what preparation was necessary for himself, what he was entitled to demand by way of an approach in relation to testing the issues that he wished to have tested, i.e. whether his client had a reasonable expectation of privacy or whether the search was reasonably conducted or whether the statement was voluntary." - Further, it was clear that counsel failed to prepare the accused for questioning - This was not a case of questioning defence tactics or strategy - The appropriate remedy was not a stay of proceedings or acquittal, but a new trial.

Criminal Law - Topic 4964

Appeals - Indictable offences - New trials - Grounds - Competence of counsel - [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. Palmer (1979), 30 N.R. 181 (S.C.C.), refd to. [para. 2].

R. v. G.D.B. (2000), 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1 (S.C.C.), refd to. [para. 2].

R. v. Lévesque (R.) (2000), 260 N.R. 165 (S.C.C.), refd to. [para. 2].

R. v. R.W.A. (2005), 203 O.A.C. 56 (C.A.), refd to. [para. 6].

R. v. Edwards (C.) (1996), 192 N.R. 81; 88 O.A.C. 321 (S.C.C.), refd to. [para. 13].

R. v. Jim (G.) (2003), 185 B.C.A.C. 173; 303 W.A.C. 173 (C.A.), refd to. [para. 25].

R. v. Joanisse (R.) (1995), 85 O.A.C. 186 (C.A.), refd to. [para. 25].

R. v. Deneault (R.Y.) (1993), 33 B.C.A.C. 156; 54 W.A.C. 156 (C.A.), refd to. [para. 25].

R. v. Keepness (S.C.) (2007), 293 Sask.R. 77; 397 W.A.C. 77; 2007 SKCA 42, refd to. [para. 34].

R. v. P.L.S. (1991), 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234 (S.C.C.), refd to. [para. 34].

Counsel:

Bob P. Hrycan, for the accused;

Douglas G. Curliss, for the Crown;

Alan G. McIntyre, for R. Drew Belobaba.

This appeal was heard on December 14, 2006, before Gerwing, Jackson and Smith, JJ.A., of the Saskatchewan Court of Appeal.

On June 20, 2007, Jackson, J.A., delivered the following judgment for the Court of Appeal.