R. v. West,

• Jurisdiction: Nova Scotia
• Judge: Saunders, Fichaud and Beveridge, JJ.A.
• Neutral Citation: 2010 NSCA 16
• Citation: 2010 NSCA 16,(2010), 288 N.S.R.(2d) 293 (CA),1951 CanLII 325 (NS CA),252 CCC (3d) 23,[2010] NSJ No 80 (QL),288 NSR (2d) 293,[2010] NS.J. No 80 (QL),(2010), 288 NSR(2d) 293 (CA),288 NSR(2d) 293,288 N.S.R.(2d) 293
• Date: 25 February 2010
• Court: Court of Appeal of Nova Scotia (Canada)

R. v. West (W.F.) (2010), 288 N.S.R.(2d) 293 (CA);

    914 A.P.R. 293

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. FE.073

William Fenwick West (appellant) v. Her Majesty The Queen (respondent) and Malcolm Jeffcock, Q.C. (intervenor)

(CAC 280638; 2010 NSCA 16)

Indexed As: R. v. West (W.F.)

Nova Scotia Court of Appeal

Saunders, Fichaud and Beveridge, JJ.A.

February 25, 2010.

Summary:

The accused was charged with multiple counts of armed robbery and related offences respecting the 1998 robbery of a credit union. The lawyer (Jeffcock) who represented the accused from January 2003 until September 2005 withdrew 15 months before trial. The accused was convicted by a jury and sentenced to eight years' imprisonment, consecutive to a 10 year sentence for another armed robbery. The accused appealed against conviction and moved to introduce fresh evidence to expand one of his grounds of appeal (incompetent representation by Jeffcock). In support of that application, the accused filed correspondence between Jeffcock and himself from 2002 until 2005, all of which was subject to solicitor-client privilege. Jeffcock applied for intervenor status to permit him to directly respond to the allegations and sought a declaration that the accused expressly waived solicitor-client privilege.

The Nova Scotia Court of Appeal, per Saunders, J.A., in a judgment reported (2009), 279 N.S.R.(2d) 241; 887 A.P.R. 241, granted Jeffcock leave to intervene, with the right to file a factum and present oral argument at the fresh evidence application and hearing on the merits. The issue of whether solicitor-client privilege was waived by the accused was to be decided by the panel ultimately assigned to hear the appeal. In addition, the Crown moved for a declaration that the accused had waived solicitor-client privilege in respect of two areas of inquiry.

The Nova Scotia Court of Appeal, in a judgment reported (2009), 285 N.S.R.(2d) 41; 905 A.P.R. 41, declared that the accused had waived solicitor-client privilege. As a result, the court permitted Jeffcock to file an affidavit in response to the accused's fresh evidence motion and appeal. In addition, the court permitted the Crown to pursue "two discrete subjects of inquiry" it had identified, so as to assist the court in determining whether a miscarriage of justice occurred. The conviction appeal proceeded.

The Nova Scotia Court of Appeal provisionally admitted some "fresh evidence" on the appeal, but dismissed the appeal.

Civil Rights - Topic 4620.1

Right to counsel - General - Right to effective assistance by counsel - The accused was charged with, inter alia, robbery respecting the 1998 robbery of a credit union - The lawyer (Jeffcock) who represented the accused from January 2003 until September 2005 withdrew 15 months before trial - He had been the accused's third lawyer - The accused represented himself at trial and was convicted by a jury - The accused appealed on the ground of ineffective assistance by counsel - The Nova Scotia Court of Appeal stated that "the appellant's criticisms of Mr. Jeffcock's legal representation may be distilled as a failure to arrange to meet with the appellant or keep notes of their discussions; neglecting to investigate facts which may have assisted with the appellant's defence; and an unwillingness to pursue 'alternate theories' on [the accused's] behalf with the result that important information 'was lost' and cannot now be presented. We unhesitatingly reject the appellant's complaints. This ground of appeal has no merit whatsoever. We say that for three principal reasons. First, we are not aware of any case which suggests that the conduct of counsel who was not trial counsel, can support a claim of ineffective assistance. Second, quite apart from novelty or lack of precedent, there is absolutely no evidence of negligence on Mr. Jeffcock's part. Third, even if we were to assume that [the accused's] claim was tenable and we were to apply recognized legal principles to a scrutiny of Mr. Jeffcock's representation, the appellant has completely failed to demonstrate any prejudice, let alone a miscarriage of justice which could possibly be attributed to the actions or inactions of Mr. Jeffcock." - See paragraphs 262 to 282.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Criminal Law - Topic 4294 and first Criminal Law - Topic 4505 ].

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and functions of - Where accused not represented - A jury convicted the accused of bank robbery - The key identification evidence was that blood left at the point of entry matched the accused's DNA - The self-represented accused appealed, submitting that the trial judge discouraged him from testifying, depriving him of the opportunity of admitting to the jury that although he was near the robbery scene, his blood was transferred to the bank by the real perpetrator, not him - The Nova Scotia Court of Appeal held that a trial judge had to provide a self-represented accused with reasonable assistance or guidance, but was not an advocate for the accused and could not extend the kind of advice expected from counsel - A lack of proper assistance was not a free-standing ground of appeal - If a judge erred by preventing the accused from fully presenting his defence or making tactical decisions for him, the appeal would fail unless the error rendered the trial unfair (Criminal Code, s. 686(1)(a)(iii)) - The accused did not complain about a lack of assistance - He claimed that the judge went too far by strongly and repeatedly warning him that testifying would likely result in a conviction - When the accused first indicated that he wished to testify, the judge properly explained the procedure to him and warned him how to avoid being cross-examined by the Crown on his criminal record, which included a bank robbery conviction 12 months earlier - Just before the jury was to be called in to hear him testify, the accused admitted to the judge that it was his blood in the bank and that he was in the area, but he wished to testify to offer an explanation - Only at that point did the judge make comments that if he testified he was sure to be convicted - The court held that although the judge's comments came close to crossing the line, the accused's right to a fair trial was not denied - After the comments, the judge explained to the accused that he did not wish to discourage him from testifying, but that he felt obliged to warn him of the danger of conviction if he did so - The judge took a recess to allow the accused to consider his options and to obtain independent legal advice from duty counsel - The accused then elected not to testify - The court noted that the accused had a history of ably representing himself with a heightened sophistication in matters of evidence and criminal procedure - Given the entire context of the case, no miscarriage of justice resulted from the judge's strong warnings against testifying - See paragraphs 25 to 120.

Criminal Law - Topic 4414

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Reference to evidence not admitted - The self-represented accused was convicted of robbery by a jury - He had chosen not to testify - The trial judge instructed the accused on making his closing address to the jury, warning him that he could only refer to evidence that was before the jury - The accused appealed, submitting that the judge erred in the manner in which he interfered with his prepared closing address - The Nova Scotia Court of Appeal stated that it was impermissible to introduce new evidence or misstate evidence in a closing address to the jury - As an example, the accused wished to tell the jury that he was in another part of the province when the offence was committed, but the accused had not testified and there was no evidence on this matter - The trial judge intervened only when the accused drifted into giving new evidence or misstated evidence - The judge mildly admonished the accused each time - The accused understood and complied with the admonishments - The court dismissed this ground of appeal as lacking merit - See paragraphs 244 to 254.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - An accused convicted of robbery appealed on the ground that the trial judge erred in finding that the Crown did not violate its pre-trial disclosure obligations - The trial judge held that (1) there was no evidence (or even suspicion) that the police or the Crown wilfully failed to meet their obligation to disclose and (2) the accused failed to prove the existence or relevance of any materials he claimed should have been disclosed - The trial judge noted that there was one instance of inadvertent late disclosure, but that had been remedied and the accused's right to make full answer and defence had not been impaired - The Nova Scotia Court of Appeal held that the trial judge committed no error in finding that there was no material nondisclosure - Further, the procedure at the disclosure hearing was fair - The court noted that "a trial judge has the inherent power to manage the trial being conducted before him or her, and to promote the efficient use of court time" - There was no error in the steps taken by the trial judge to ensure the disclosure application, or the trial, was conducted in a fair and orderly manner - See paragraphs 197 to 224.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - An accused convicted of robbery appealed on the ground that he was denied an adequate opportunity to view exhibits in the custody of the police - The Nova Scotia Court of Appeal held that "we accept that access to physical exhibits can reasonably be viewed as part of the Crown's disclosure obligation" - The access granted to the accused to view the exhibits was adequate to permit him to make full answer and defence - See paragraphs 188 to 196.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - A jury convicted the accused of the armed robbery of a bank - The critical evidence identifying the accused as the robber was two blood smears found on a filing cabinet beside a hole in the wall used by the robber to enter and exit the bank - The blood smears matched the accused's DNA, obtained following his conviction for another armed bank robbery - The accused appealed his conviction and applied to admit "fresh evidence" on the appeal - The proposed "fresh evidence" challenged the jury's verdict, the trial judge's interlocutory rulings and the fairness of his trial - None of the new evidence related to the critical evidence at trial, the DNA evidence - The Nova Scotia Court of Appeal refused to admit the proposed new evidence relating to the jury's verdict or the trial judge's rulings, as that evidence was not reasonably capable of belief - Some of the proposed evidence that related to trial fairness and miscarriage of justice (ground of appeal re incompetent representation by counsel) was admitted as "fresh evidence" under s. 683(1) of the Criminal Code for the limited purpose of considering that issue - See paragraphs 25 to 51.

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 Criminal Law - Topic 4294 and Criminal Law - Topic 5202 ].

Criminal Law - Topic 5202

Evidence and witnesses - General - Admissibility - Whether relevant and material - The self-represented accused appealed his robbery conviction by a jury on the ground that the trial judge erred in not permitting him to enter certain exhibits into evidence - The accused alleged a denial of his right to make full answer and defence - The Nova Scotia Court of Appeal held that, with the exception of one exhibit, exclusion was justified on the grounds that the exhibits were either irrelevant or hearsay - However, the bank robber entered the bank through a hole cut in the wall, through wooden panelling - Although there was in evidence pictures of the size of the hole, and its physical dimensions, the accused wanted to introduce the wooden panel into evidence - It was in police possession and the Crown did not object - The trial judge found no compelling reason to introduce it - The court held that "the trial judge erred in not permitting the appellant to introduce the piece of panel board. There was nothing unreliable or misleading about the proposed exhibit. The appellant believed it would give a better perspective to the jury about the true size of the hole than the photographs. It was therefore relevant and prima facie admissible. ... There may well have been little additional probative value to the proposed exhibit, but we can see no prejudicial effect to the proffered evidence. Instead of engaging in a balancing of any prejudicial effect to its probative value, the trial judge ruled it inadmissible because he had not been given a compellingly good reason why he should. This is not the correct test and he consequently erred in law in refusing to permit the appellant to introduce the exhibit." - However, the court applied the curative provisions of s. 686(1)(b)(iii) of the Criminal Code to dismiss this ground of appeal notwithstanding the error, as there was no substantial wrong or miscarriage of justice where there was no reasonable possibility that the verdict would have been different had the exhibit been entered - The exhibit had no bearing on the key evidence in this case, being a DNA match of blood found at the scene to that of the accused - See paragraphs 131 to 187.

Criminal Law - Topic 5409

Evidence and witnesses - Witnesses - Duty of Crown to call witnesses - The self-represented accused was convicted of bank robbery primarily on the basis of his DNA matching a blood sample left at the point of entry into the bank - The accused appealed, submitting that the trial judge erred in failing to compel the Crown to call the initial person alleged to have secured the blood sample at the R.C.M.P. lab - The Nova Scotia Court of Appeal rejected the submission as being without merit - The Crown had a broad discretion with respect to which witnesses it called and, absent an abuse of process, it was rare for a trial judge to interfere with that discretion - The accused did not complain at trial when the witness was not called, did not suggest any oblique motive on the Crown's part for not doing so and did not subpoena the witness himself, even though he knew he could do so - Further, the continuity of an exhibit went to weight, not to admissibility - There was no legal requirement for the Crown to call the witness and "the trial judge cannot be said to have erred in law in failing to compel the Crown to call a witness when the defence never requested that it should do so" - See paragraphs 121 to 130.

Criminal Law - Topic 5571

Evidence and witnesses - Exhibits - General - [See second Criminal Law - Topic 4505 and Criminal Law - Topic 5202 ].

Cases Noticed:

R. v. Wolkins (R.D.) (2005), 229 N.S.R.(2d) 222; 725 A.P.R. 222; 192 C.C.C.(3d) 378; 2005 NSCA 2, refd to. [para. 28].

R. v. Assoun (G.E.) (2006), 244 N.S.R.(2d) 96; 774 A.P.R. 96; 2006 NSCA 47, leave to appeal denied (2006), 359 N.R. 392; 258 N.S.R.(2d) 400; 824 A.P.R. 400 (S.C.C.), refd to. [para. 28].

R. v. Jones (T.A.) (2006), 249 N.S.R.(2d) 388; 792 A.P.R. 388; 2006 NSCA 136, refd to. [para. 28].

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

R. v. Angelillo (G.), [2006] 2 S.C.R. 728; 355 N.R. 226; 2006 SCC 55, refd to. [para. 31].

R. v. Maciel (R.) (2007), 222 O.A.C. 174; 2007 ONCA 196, leave to appeal denied [2007] 3 S.C.R. xi; 378 N.R. 393; 245 O.A.C. 398, refd to. [para. 32].

R. v. James (W.A.) et al. (2007), 251 N.S.R.(2d) 255; 802 A.P.R. 255; 216 C.C.C.(3d) 490; 2007 NSCA 19, affd. [2009] 1 S.C.R. 146; 383 N.R. 329; 273 N.S.R.(2d) 388; 872 A.P.R. 388; 2009 SCC 5, refd to. [para. 33].

R. v. Smith (N.W.) - see R. v. James (W.A.) et al.

R. v. Fitzpatrick (D.P.) (2006), 244 N.S.R.(2d) 304; 774 A.P.R. 304; 2006 NSCA 65, refd to. [para. 33].

Truscott, Re (2007), 226 O.A.C. 200; 2007 ONCA 575, refd to. [para. 33].

R. v. Chalmers (J.) (2009), 247 O.A.C. 250; 2009 ONCA 268, refd to. [para. 33].

R. v. Phillion (R.J.) (2009), 246 O.A.C. 317; 2009 ONCA 202, refd to. [para. 33].

R. v. Ross (D.) (2009), 246 O.A.C. 201; 2009 ONCA 149, refd to. [para. 33].

R. v. Johnson (B.) (2009), 254 O.A.C. 178; 2009 ONCA 668, refd to. [para. 33].

R. v. O'Brien, [1978] 1 S.C.R. 591; 16 N.R. 271, refd to. [para. 34].

R. v. Dell (C.M.) (2005), 195 O.A.C. 355 (C.A.), refd to. [para. 34].

R. v. Laffin (K.K.) (2009), 275 N.S.R.(2d) 244; 877 A.P.R. 244; 2009 NSCA 19, refd to. [para. 34].

R. v. Kelly (R.W.) (1999), 213 N.B.R.(2d) 1; 545 A.P.R. 1 (C.A.), refd to. [para. 34].

R. v. MacInnis (J.R.) (2006), 246 N.S.R.(2d) 258; 780 A.P.R. 258; 2006 NSCA 92, refd to. [para. 53].

R. v. Nevin (T.L.) (2006), 245 N.S.R.(2d) 52; 777 A.P.R. 52; 2006 NSCA 72, refd to. [para. 53].

R. v. Karas (L.F.) (2007), 422 A.R. 344; 415 W.A.C. 344; 2007 ABCA 362, leave to appeal denied (2008), 386 N.R. 389; 454 A.R. 398; 455 W.A.C. 398 (S.C.C.), refd to. [para. 53].

R. v. Harris (R.L.) (2009), 331 Sask.R. 283; 460 W.A.C. 283; 2009 SKCA 96, refd to. [para. 53].

R. v. Phillips (M.A.) (2003), 320 A.R. 172; 288 W.A.C. 172; 172 C.C.C.(3d) 285; 2003 ABCA 4, affd. [2003] 2 S.C.R. 623; 311 N.R. 94; 339 A.R. 50; 312 W.A.C. 50; 2003 SCC 57, refd to. [para. 53].

United States of America v. Shulman, [2001] 1 S.C.R. 616; 268 N.R. 115; 145 O.A.C. 201; 2001 SCC 21, refd to. [para. 54].

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R. 1; 2003 SCC 70, refd to. [para. 54].

R. v. Duguay (H.) - see R. v. Taillefer (B.).

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 54].

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. 58].

R. v. M.P. (2006), 226 B.C.A.C. 182; 373 W.A.C. 182; 2006 BCCA 236, refd to. [para. 58].

R. v. Smith (S.A.) (2007), 299 Sask.R. 312; 408 W.A.C. 312; 2007 SKCA 71, refd to. [para. 58].

Ridout v. Ridout (2006), 205 Man.R.(2d) 146; 375 W.A.C. 146; 2006 MBCA 59, refd to. [para. 75].

R. v. Moghaddam (A.M.) (2006), 224 B.C.A.C. 104; 370 W.A.C. 104; 2006 BCCA 136, refd to. [para. 75].

R. v. Cook (D.W.), [1997] 1 S.C.R. 1113; 210 N.R. 197; 188 N.B.R.(2d) 161; 480 A.P.R. 161, refd to. [para. 129].

R. v. Simpson and Ochs, [1988] 1 S.C.R. 3; 81 N.R. 267; 46 D.L.R.(4th) 466, refd to. [para. 148].

R. v. Underwood (G.R.) (2002), 320 A.R. 151; 288 W.A.C. 151; 2002 ABCA 310, refd to. [para. 155].

R. v. Pasqualino (C.) (2008), 239 O.A.C. 59; 233 C.C.C.(3d) 319; 2008 ONCA 554, refd to. [para. 155].

R. v. Poulette (B.A.) (2008), 269 N.S.R.(2d) 314; 860 A.P.R. 314; 2008 NSCA 95, refd to. [para. 155].

R. v. Darrach (A.S.), [2000] 2 S.C.R. 443; 259 N.R. 336; 137 O.A.C. 91; 2000 SCC 46, refd to. [para. 159].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, refd to. [para. 160].

R. v. Watson (K.S.) (1996), 92 O.A.C. 131 (C.A.), refd to. [para. 160].

R. v. McMillan (1975), 23 C.C.C.(2d) 160 (Ont. C.A.), affd. [1977] 2 S.C.R. 824; 15 N.R. 20, refd to. [para. 168].

R. v. Grandinetti (C.H.), [2005] 1 S.C.R. 27; 329 N.R. 28; 363 A.R. 1; 343 W.A.C. 1; 2005 SCC 5, refd to. [para. 168].

R. v. Valley (1986), 13 O.A.C. 89; 26 C.C.C.(3d) 207 (C.A.), refd to. [para. 180].

R. v. Hawke (1975), 22 C.C.C.(2d) 19 (Ont. C.A.), refd to. [para. 180].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 180].

R. v. Clarke (H.E.) (1998), 112 O.A.C. 233; 129 C.C.C.(3d) 1 (C.A.), refd to. [para. 180].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 185].

R. v. John, [1985] 2 S.C.R. 476; 63 N.R. 141; 11 O.A.C. 391, refd to. [para. 185].

R. v. Wildman, [1984] 2 S.C.R. 311; 55 N.R. 27; 5 O.A.C. 241, refd to. [para. 185].

R. v. Morley (1988), 87 Cr. App. Rep. 218 (C.A.), refd to. [para. 220].

R. v. Fabrikant (V.) (1995), 67 Q.A.C. 268; 97 C.C.C.(3d) 544 (C.A.), refd to. [para. 220].

R. v. Felderhof (J.B.) (2003), 180 O.A.C. 288; 180 C.C.C.(3d) 498 (C.A.), refd to. [para. 220].

R. v. Schneider (A.M.) et al. (2004), 226 N.S.R.(2d) 110; 714 A.P.R. 110; 2004 NSCA 99, refd to. [para. 220].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, refd to. [para. 230].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 230].

R. v. Sangster (H.A.L.) (2009), 337 Sask.R. 191; 464 W.A.C. 191; 2009 SKCA 99, refd to. [para. 249].

R. v. Neverson (S.) (1991), 42 Q.A.C. 16; 69 C.C.C.(3d) 80 (Que. C.A.), affd. [1992] 1 S.C.R. 1014; 140 N.R. 321; 50 Q.A.C. 241, refd to. [para. 250].

R. v. Jones (1958), 41 M.P.R. 111 (N.B.S.C.), refd to. [para. 251].

R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), leave to appeal refused (1997), 208 N.R. 79; 99 O.A.C. 79 (S.C.C.), refd to. [para. 268].

R. v. M.B. (2009), 251 O.A.C. 81; 2009 ONCA 524, refd to. [para. 268].

R. v. Gordon (C.C.), [2003] O.A.C. Uned. 185 (C.A.), refd to. [para. 270].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201, refd to. [para. 285].

R. v. Abourached (N.) (2007), 259 N.S.R.(2d) 379; 828 A.P.R. 379; 2007 NSCA 109, refd to. [para. 290].

R. v. Pittiman (R.), [2006] 1 S.C.R. 381; 346 N.R. 65; 209 O.A.C. 388; 2006 SCC 9, refd to. [para. 294].

R. v. J.M. (2002), 207 N.S.R.(2d) 262; 649 A.P.R. 262; 2002 NSCA 99, refd to. [para. 294].

R. v. Groot (N.) (1998), 112 O.A.C. 303; 129 C.C.C.(3d) 293 (C.A.), affd. [1999] 3 S.C.R. 664; 144 C.C.C.(3d) 287, refd to. [para. 295].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd Ed. 2009), pp. 60 to 63 [para. 179].

Counsel:

W.F. West, on his own behalf;

Mark Scott, for the respondent;

Michael J. Wood, Q.C., and David Curry (articled clerk), for the intervenor.

This appeal was heard on November 17-19, 2009, at Halifax, N.S., before Saunders, Fichaud and Beveridge, JJ.A., of the Nova Scotia Court of Appeal.

On February 25, 2010, the following judgment was delivered by the Court.