Aug 7, 2020

Canadian Criminal Appeals - Week of July 27, 2020

R v Lundrigan, 2020 ABCA 281 (CanLII)

In R v Lundrigan, 2020 ABCA 281 (per curiam) the appellant claimed that his lawyer, who had been appointed under s. 486.3 of the Code for the purpose of cross-examining the complainant in his sexual assault trial, had provided ineffective assistance by, inter alia, performing an incomplete cross-examination of the complainant (including an alleged Browne v Dunn violation). In dismissing the appeal, the ABCA sounded a “cautionary note” about counsel taking on a role far beyond the 486.3 task (79). Acknowledging that while the purpose of 486.3 is to protect vulnerable complainants, providing assistance to an accused “often happens” (81). Nevertheless, the ABCA warned 486.3 counsel to “tread a careful line”: they should “confer with the accused to ensure all appropriate lines of questioning consistent with the theory of the defence are pursued in the cross-examination of the complainant” but they should not become “a puppet controlled by the accused” (82). With respect, even fully retained defence counsel are not puppets controlled by the accused! NB: With respect the claim that ‘trial counsel’ (whose role was blurred beyond the 486.3 appointment) failed to adequately advise and inform the appellant about his decision to testify, the ABCA took a questionable approach: even if there was an issue “we are not satisfied that his testimony was likely to lead to a different result” and therefore there was no prejudice or unfairness (97, 101-102). Some courts suggest that inaccurate advice which leads to a decision to not testify will affect trial fairness: R v Pajackowski, 2018 ONSC 384 at 19 per Schreck J.; R v AWH, 2019 NSCA 40 at 64-65.

In R v Garnier, 2020 NSCA 52 the NSCA (per Beveridge JA) dismissed a second degree murder conviction appeal which had involved the killing of an off-duty female police officer shortly following the appellant’s initially-pleasant “chance meeting” with her at a Halifax bar. The appellant testified at trial that it was “erotic asphyxiation gone wrong” (12). However, the appellant had provided a “damning” inculpatory statement to the police (that he punched her a few times and “choked her with his hands until he heard her last breaths”) and the trial judge, in a “comprehensive and meticulous decision”, ruled the statement voluntary (9-10& 50). While the NSCA agreed that some of the (“limited time offer”) language used by the police interrogators (eg “this is your opportunity” and “this is your chance” etc.) can risk improperly inducing a statement, the trial judge properly considered these concerns in an overall contextual analysis (48-50). Given that the trial judge’s factual findings were amply supported by the record (including that “it appeared to me that Mr. Garnier wanted to speak with the police from the outset”), his decision was entitled to deference: “it is not our function, absent clear and material error or an error in law or principle, to come to a different conclusion”(54). NB: The decision also includes a helpful discussion about the dangers of “after-the-fact demeanour evidence” (104-107).