R. v. Clyke

R. v. Clyke Court Court of Appeal Date 2026-04-30 Citation 2026 NSCA 35 Docket CAC 488562 Judge/Registrar/Adjudicator Bourgeois, Cindy A. (Honourable Justice) (CA); Fichaud, Joel E. (Honourable Justice) (CA); Beaton, Carole A. (Honourable Justice) (CA) Document Type Decision Decision Content Nova Scotia Court of Appeal Citation: R. v. Clyke, 2026 NSCA 35 Date: 20260430 Docket: CAC 488562 Registry: Halifax Between: Christian Clyke Appellant v. His Majesty the King Respondent Judges: Bourgeois, Fichaud and Beaton, JJ.A. Appeal Heard: January 28 and 29, 2026, in Halifax, Nova Scotia Facts: The appellant was convicted of second-degree murder after confessing to the shooting of a victim outside her apartment. He later claimed his confession was influenced by ineffective legal counsel and unresolved Charter challenges. The appellant had a history of mental health issues, including schizophrenia, and was initially deemed unfit to stand trial on other charges shortly after his confession (paras 1-3, 14-23). Procedural History: • R. v. Clyke, 2019 NSSC 137: The Supreme Court of Nova Scotia ruled that the appellant's statements to police were admissible, finding he had an operating mind when the statements were made (para 5). • R. v. Clyke, 2019 NSSC 140: The appellant was sentenced to life imprisonment with no parole eligibility for 12 years following his conviction based on an Agreed Statement of Facts (para 36). Parties’ Submissions: • Appellant: Argued that ineffective assistance of counsel led to a miscarriage of justice, as his lawyer failed to pursue Charter breach arguments, advance certain defenses, and properly advise him on entering the Agreed Statement of Facts (paras 7-9, 51-71). • Respondent (Crown): Contended that the appellant failed to demonstrate any deficiency in counsel's representation that resulted in prejudice or a miscarriage of justice, asserting that the representation fell within the range of reasonable conduct (paras 11, 58-60, 73-75). • Intervenor (Jonathan Hughes): Defended his representation of the appellant as reasonable under the circumstances, arguing that his actions did not lead to a miscarriage of justice (para 10). Legal Issues: • Was there a miscarriage of justice due to ineffective assistance of counsel? • Did the lack of disclosure of a portion of the audio recording breach the appellant's right to make full answer and defense under s. 7 of the Charter? • Did the lack of disclosure further demonstrate ineffective assistance of counsel that impeded a fair trial for the appellant? Disposition: • The appeal was dismissed. Reasons: Per Beaton J.A. (Fichaud and Bourgeois JJ.A. concurring): The Court found that the appellant did not establish a miscarriage of justice due to ineffective assistance of counsel. The evidence did not demonstrate that counsel's preparation of expert witnesses or failure to pursue certain Charter arguments prejudiced the appellant. While the Crown acknowledged the breach of the Appellant's s. 7 Charter rights due to the late disclosure of the audio recording, the Court was not persuaded there was any reasonable probability it could have affected the trial outcome or its fairness. The appellant's decision to enter into the Agreed Statement of Facts was made with sufficient understanding of its implications, and the reduced parole eligibility period was a tangible benefit (paras 12, 60-68, 72-101, 111-114). This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 122 paragraphs. Nova Scotia Court of Appeal Citation: R. v. Clyke, 2026 NSCA 35 Date: 20260430 Docket: CAC 488562 Registry: Halifax Between: Christian Clyke Appellant v. His Majesty the King Respondent Judges: Bourgeois, Fichaud and Beaton, JJ.A. Appeal Heard: January 28 and 29, 2026, in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of Beaton, J.A.; Fichaud and Bourgeois, JJ.A. concurring Counsel: Matthew Kennedy and Steven Degen, for the appellant Erica Koresawa, for the respondent Shane McCracken, for the Intervenor, Jonathan Hughes Reasons for judgment: Introduction [1] The appellant Mr. Clyke was convicted of second degree murder. He says that as a result of his lawyer’s conduct of his case, he “gave up his right to stand trial in a case that had a defence on the merits and unresolved Charter challenges, in exchange for the right to appeal his conviction when no viable grounds of appeal ever existed”. [2] On April 29, 2011, Angela Hall was shot to death in the corridor outside her apartment. Five and a half years after, on November 29, 2016 Mr. Clyke contacted police to confess to the murder. Six days later a psychiatrist opined in relation to other criminal charges he then had pending that Mr. Clyke was unfit to stand trial. [3] Seven months following, Mr. Clyke was charged with the murder of Ms. Hall contrary to s. 235(1) of the Criminal Code, R.S.C. 1970, c. C.34, s. 1. Owing to his history of mental health difficulties and a previous schizophrenia diagnosis, another fitness to stand trial assessment was conducted (s. 672.11 of the Code) and he was found to be fit. [4] On his path through the criminal justice system on the murder charge, Mr. Clyke was represented by counsel Jonathan Hughes. Following a preliminary inquiry, during which committal for trial was not contested, Mr. Clyke elected trial by judge and jury. The proceeding was scheduled for April 2019. [5] In advance of trial, Justice Peter Rosinski of the Supreme Court of Nova Scotia conducted a voir dire to determine the admissibility of two statements Mr. Clyke had given to police concerning the murder. In his March 2019 decision (2019 NSSC 137) the judge concluded Mr. Clyke had possessed an operating mind when those statements were voluntarily given, and they would be admissible before the jury. [6] On April 8, 2019, Mr. Clyke re-elected trial by judge alone and consented to an Agreed Statement of Facts (“ASF”). On invitation by the Crown, the judge then found Mr. Clyke guilty of the murder. On May 1, 2019, the judge sentenced Mr. Clyke to life imprisonment, with no eligibility for parole for 12 years. [7] On appeal, Mr. Clyke does not challenge the judge’s admissibility ruling; he puts forward fresh evidence to support what he says was a miscarriage of justice flowing from the ineffective assistance of his trial counsel. He says that as a result, he did not receive a fair trial. [8] Mr. Clyke’s position is that before he consented to the ASF, his counsel was ineffective in the carriage of the file by: (a) not pursuing possible Charter breach arguments, (b) not advancing certain defences to the charge, and (c) not properly counselling him about entering into the ASF. [9] In addition, Mr. Clyke maintains his s. 7 Charter right to a fair trial was breached when Crown and police did not disclose, and his counsel did not pursue, securing an audio recording of a portion of the events that transpired during the taking of his video-taped confession. He says that same breach offers additional support for his argument of ineffective assistance of counsel. [10] As an Intervenor on the appeal, Mr. Hughes defends his representation of Mr. Clyke as reasonable in the circumstances, maintaining that nothing he did, or did not do, on behalf of his client led to a miscarriage of justice. [11] The respondent Crown maintains Mr. Clyke has not established any aspect of Mr. Hughes’ representation was so deficient that it demonstrates prejudice to Mr. Clyke. It says Mr. Hughes’ representation fell within the wide range of reasonable conduct thus deference must be shown on appeal. [12] While the evidence before the Court suggests aspects of Mr. Hughes’ representation lacked attention to detail, I am not persuaded it has been established Mr. Clyke suffered any prejudice, much less to the extent it could be said that Mr. Hughes’ representation resulted in a miscarriage of justice. For the reasons that follow, I would dismiss the appeal. [13] The circumstances leading to Mr. Clyke’s conviction provide context for the arguments advanced on appeal. Background leading to conviction (i) The statements [14] In November 2016 Mr. Clyke telephoned police from the local correctional centre where he was in custody on other matters. He told the dispatcher he wanted to “give a statement” about “something that happened a long time ago…something unsolved”. When pressed for more details, he said it had happened “about five years ago” and it was something he did to someone else. [15] Later that afternoon Cst. Rainault met with Mr. Clyke who told her he wanted to confess to a crime. The officer first gave Mr. Clyke his Charter warning and caution, and he immediately revealed he had shot Ms. Hall. Confronted with that statement Cst. Rainault took notes as she posed a series of questions, to which Mr. Clyke responded, eliciting further details of and clarification about the events of the evening Ms. Hall died (statement 1). [16] Cst. Rainault then requested the presence of Major Crimes investigators to assume carriage of the matter. D/Cst. Bowers and Cst. Shupe arrived to meet and video an interview with Mr. Clyke (statement 2). They again provided Mr. Clyke his Charter right to counsel and police caution. He asked to speak to lawyer Eugene Tan, and to use the washroom. At that point the video camera was turned off, although in the intervening fifteen minutes before the camera was re-engaged, the audio continued to record.[1] [17] A delay ensued because Mr. Clyke could not leave the room unless corrections officers retrieved him. He was eventually escorted to the washroom and on his return was once again warned and cautioned by the officers. Mr. Clyke again expressed his wish to speak to counsel. He was then placed in another room and police assisted in locating the number for Mr. Tan. The office was called but Mr. Clyke was only able to reach a pre-recorded message. Before us, Mr. Clyke testifies he did not leave “a voice mail” for Mr. Tan. [18] During the ensuing wait, Mr. Clyke said to the officers “Let’s just get this done. Just get this finished.” He no longer wished to speak to counsel. [19] Approximately four minutes later, Mr. Clyke was asked by the officers whether he wanted to speak to Nova Scotia Legal Aid (“NSLA”), as D/Cst. Bowers had taken it upon himself to contact their office. Mr. Clyke was advised NSLA was on the phone and was asked if he wished to speak with them. Mr. Clyke said he did not. He then went to the phone and advised the Legal Aid receptionist he did not wish to speak with them. [20] He was returned to the room containing the recording equipment and the video was re-engaged. Mr. Clyke expressed his wish to “get this over with” and was interviewed about the murder for approximately 75 minutes. In the statement he shared certain “hold-back” information—details and specifics about the homicide never made public and likely known only to someone present during its commission. [21] When Crown disclosure was eventually provided to Mr. Clyke’s counsel months later, it included a copy of the video recording of statement 2, and a transcript of the audio of that statement. There was one item overlooked in the disclosure package – the transcript that represented that portion of the audio recording during the approximately 15 minute period when the camera was turned off. That audio captured discussion among the police officers, Mr. Clyke and correctional staff during the interlude between Mr. Clyke’s request to speak to counsel and the commencement of statement 2. This transcript was only discovered much later, during the course of earlier appellate counsel’s preparation for Mr. Clyke’s appeal in 2022.[2] [22] The day after the two statements were taken, officers Shupe and Bowers returned to the correctional centre at the behest of Mr. Clyke. He told them he was not sure of what had happened when Ms. Hall died, but that a “cartel” had instructed him to confess, telling him: (i) they would represent him in court, (ii) they would secure his acquittal, and (iii) he would then be able to successfully sue police for a million dollars. [23] As noted earlier, six days after giving statements 1 and 2, Mr. Clyke was seen by forensic psychiatrist Dr. Kronfli for the purpose of conducting a court-ordered fitness assessment on other charges he then faced. Among other matters, he spoke to the doctor about killing someone five years earlier, and that he should now confess. Dr. Kronfli determined Mr. Clyke unfit to stand trial on the other charges. (ii) Carriage of Mr. Clyke’s case [24] When formally charged with Ms. Hall’s murder on June 27, 2017, Mr. Clyke was no longer in custody. He was remanded to await trial on the murder charge. [25] Police had identified Mr. Clyke as a possible suspect during the initial investigation of Ms. Hall’s death in 2011. Had he not asked to meet with them in November 2016 it is questionable whether Mr. Clyke would ever have been charged with the murder. Thus, the centrepiece of the Crown’s case against him was his inculpatory statements 1 and 2. [26] A preliminary inquiry was held on January 31, 2019, and Mr. Clyke was committed to stand trial by consent. [27] At an admissibility voir dire, the Crown needed to succeed in having Mr. Clyke’s statements ruled admissible, so they could be put before a jury. Mr. Clyke needed to persuade the judge the statements should not be admitted in evidence. [28] At the voir dire Mr. Clyke’s counsel planned to contest the voluntariness of the statements and whether Mr. Clyke had an operating mind at the time he gave them. At the August 2018 contested voir dire, the judge heard evidence from forensic psychiatrists Dr. R. Kronfli and Dr. S. Theriault, and the police officers who had engaged with Mr. Clyke on the day the statements were provided. [29] Mr. Hughes’ approach at that hearing was to focus on Mr. Clyke’s state of mind when he gave the statements. Counsel argued there was a reasonable doubt as to whether Mr. Clyke had made his statements voluntarily in November 2016, because he may have already been in the psychotic state that manifested itself to Dr. Kronfli six days later. [30] Counsel also advanced the “novel”[3] argument that when Mr. Clyke gave the statements, his words were not his own, but rather those of the “cartel people” who he perceived at that time to be telling him what to say. Counsel argued Mr. Clyke had effectively falsely confessed, due to his impression of threats from the “perceived entity”, the cartel. Counsel argued in the alternative that even if the judge was satisfied Mr. Clyke possessed an operating mind when the statements were given, nonetheless their probative value was outweighed by their prejudicial effect. [31] In March 2019, the judge gave his “bottom line” decision on the voir dire, cognizant counsel were in the midst of preparations for the imminent jury trial. Advising written reasons would follow, the judge indicated he had concluded Mr. Clyke’s statements were the product of an operating mind, voluntarily provided and thus admissible at trial. [32] In the days following, communication initiated by the Crown offered Mr. Clyke a plea deal. When counsel shared the details with Mr. Clyke, he immediately rejected the offer. Discussions then ensued between counsel and his client about a possible appeal of the judge’s ruling on the admissibility of the statements.[4] [33] Counsel and the Crown later worked to craft the ASF to be put before the judge, because at that point Mr. Clyke was instructing Mr. Hughes to accept the Crown’s plea deal. Counsel also discussed with the Crown how to preserve Mr. Clyke’s ability to appeal the judge’s voir dire decision in the face of the ASF. [34] Mr. Hughes testifies before this Court (on cross-examination by Mr. Clyke’s appellate counsel) that prior to receiving the judge’s voir dire reasons, he had discussed with his client both the novel theory of internal pressure as a potential ground of appeal, and the uncommon but not unheard of procedure of consenting to an ASF while preserving a right of appeal. [5] [35] At the commencement of trial, the ASF was submitted and the Crown requested the judge make a finding of guilt. Mr. Clyke offered no position. The judge questioned Mr. Clyke on his understanding of the facts to satisfy himself Mr. Clyke appreciated the consequences of the ASF. The quid pro quo, when Mr. Clyke did not contest the ASF, was to be the Crown’s sentencing request of a considerably reduced parole eligibility period of 12 years. The judge entered a conviction. [36] It was no secret to the judge that Mr. Clyke had offered no submission in relation to the making of a finding of guilt in order to preserve his right of appeal of the judge’s voir dire decision. At the May 1, 2019 sentencing hearing the judge imposed the 12 year parole eligibility period jointly recommended by the parties (2019 NSSC 140). Fresh evidence motion [37] The foundation of Mr. Clyke’s appeal rests in his fresh evidence motion. It is the scaffolding for both his primary argument of ineffective assistance of counsel and his additional assertion of a s. 7 Charter breach due to late disclosure. All the evidence put before the Court on the motion is admitted, to permit assessment and analysis of the issues raised. [38] During the hearing, Mr. Clyke and Mr. Hughes were cross-examined on their affidavits. The Court also has the benefit of affidavit evidence from the following witnesses: Dr. R. Kronfli,[6] Dr. S. Theriault, Laura Hare, Charlene Moore and Melissa Berry (all entered by consent) along with two Agreed Statement(s) of Fact concerning the circumstances surrounding the taking of Mr. Clyke’s statements 1 and 2. [39] Consideration of the fresh evidence in these circumstances follows the principles canvassed in R. v. Barrett, 2022 NSCA 3: [14] […] The principles applicable to the admission of such evidence were discussed by this Court in R. v. P.C.H., 2019 NSCA 63: [41] This Court, most recently in R. v. Finck, 2019 NSCA 60, has articulated the principles that govern the admission of fresh evidence on appeals involving allegations of ineffective assistance of counsel: • There is wide discretion for the Court to admit fresh evidence “where it considers it in the interests of justice”: Criminal Code, s. 683(1). • Fresh evidence in such appeals will generally fall into the categories of [,] evidence relating to an issue adjudicated at trial, and evidence relating to the trial process. The former correlates to miscarriage of justice due to an unreliable verdict; the latter correlates to miscarriage of justice occasioned by an unfair trial (R. v. Finck, supra, para. 19). • Fresh evidence directed at issues adjudicated at trial generally must satisfy the well-established test in R. v. Palmer, [1980] 1 S.C.R. 759 for the admission of fresh evidence on appeal. The criteria require consideration of due diligence, relevance, whether the evidence is reasonably capable of belief, and whether, if believed, the evidence, taken with other evidence admitted at trial, could reasonably be expected to have affected the result (R. v. Finck, supra, para. 20; R. v. Ross, 2012 NSCA 56, para. 23). [40] All of the fresh evidence put before the Court relates to the second Finck category, given Mr. Clyke’s assertion of a miscarriage of justice stemming from Mr. Hughes’ alleged inadequate representation. Therefore, the Palmer criteria are not required to be strictly adhered to, as the Court is being asked to examine whether counsel’s assistance “rendered the adjudicative process unfair” (R. v. A.A.K., 2023 MBCA 8 at para. 38). [41] Recognizing the challenges admitted by both Mr. Clyke and Mr. Hughes in trying to recall and testify about matters occurring a number of years ago, and over a protracted period, I have not formed the impression either was being intentionally evasive. Each was sometimes uncertain or imprecise in their recall, perhaps owing to the passage of time. However, there is nothing on the whole of Mr. Clyke’s or Mr. Hughes’ evidence that sits in any significant contradiction one to the other, save their disagreement about how often Mr. Hughes kept in touch with his client. [42] Mr. Clyke describes in his evidence that counsel contacted him infrequently and did not discuss trial strategy with him “enough”. Mr. Clyke says he sometimes did not understand what Mr. Hughes was telling him about the case. Yet he also agrees it was possible Mr. Hughes was unaware of this. [43] For his part, Mr. Hughes testifies he did not recall Mr. Clyke asking for “a lot” of clarification when things were explained, nor expressing concerns about trial strategy or complaining he could not contact him. He also recalls the bulk of the period during which their solicitor-client relationship unfolded was during the Covid-19 pandemic, negatively impacting opportunities for frequent communication and in-person meetings. Issues [44] The issues raised by Mr. Clyke are as follows: 1. Was there a miscarriage of justice due to the ineffective assistance of counsel because: a) counsel did not properly prepare the expert witnesses called by Mr. Clyke at the voir dire and did not properly pursue other available arguments and defences, and/or b) counsel did not pursue exclusion of Mr. Clyke’s statements on the basis of three discrete potential breaches of his s. 10(b) Charter rights[7], and/or c) counsel improperly led Mr. Clyke to enter into the ASF? 2. Did the lack of disclosure of a portion of the audio of Mr. Clyke’s statement 2: a) breach Mr. Clyke’s right to make full answer and defence, contrary to s. 7 of the Charter[8], and/or b) further demonstrate ineffective assistance of counsel that impeded a fair trial for Mr. Clyke? Standard of Review [45] All issues advanced by Mr. Clyke, save one discussed later, go to his ineffective assistance of counsel argument, for which the standard of review is well entrenched.[9] The Court first considers whether a miscarriage of justice has been established. Only if answered in the affirmative, do we then turn to an assessment of counsel’s conduct (Bezanson at para. 33). [46] G.K.N. instructs “[t]he appellant must show that but for counsel’s error there was a ‘reasonable probability’ that the trial outcome would have been different, or that trial fairness was otherwise compromised” (para. 44). Furthermore, assertions of ineffective assistance of counsel are not a platform to second guess the strategic and evidentiary decisions counsel may have made during the “dynamic process” of a trial (Barrett at para. 7). [47] As R. v. Singh, 2025 ABCA 416 reminds, examination of counsel’s conduct takes place within: [10] […] a strong presumption that trial counsel is competent and that counsel’s conduct fell within the wide range of reasonable professional assistance: R v GDB, 2000 SCC 22 at para 27. The conduct of counsel is assessed against a standard of reasonableness in the context of the trial and not with the benefit of hindsight: Van Mackelberg at para 16, citing R v Hanaysha, 2024 ABCA 79 at para 2. See also R. v. Kuang, 2026 ONCA 72 at para. 23. [48] The burden rests with Mr. Clyke to establish his claim on a balance of probabilities. In asserting a miscarriage of justice Mr. Clyke must substantiate more than “… an appearance of unfairness”. The standard for establishing a miscarriage of justice on this basis is high. “…[T]he defect must be ‘so serious that it shakes public confidence in the administration of justice’ ”: R. v. White, 2022 SCC 7 (para. 9). R. v. Kahsai, 2023 SCC 20 tells us this bar “is even higher when claimed based on perceived unfairness instead of actual prejudice” (para. 68). [49] Both parties agree that for Mr. Clyke to succeed on his ineffective assistance of counsel claim, the Court must be persuaded: …the appellant has established a factual basis to the complaint, that there was a prejudice experienced, and that the performance component of the representation constituted ineffective assistance such that a miscarriage resulted. There is a strong presumption of professional competence. [Appellant’s Factum (para. 155)] [50] The second issue raised by Mr. Clyke, a s. 7 Charter breach owing to the lack of disclosure of an audio recording, arises for the first time on appeal thus no standard of review governs. Issue No. 1 - Ineffective Assistance of Counsel [51] Mr. Clyke is critical of three aspects of his counsel’s representation. He maintains a miscarriage of justice is found, individually or cumulatively, in the following: (a) Counsel did not properly prepare witnesses Dr. Kronfli and Dr. Theriault to provide expert opinion evidence at the voir dire, which directly impacted the judge’s decision to admit the statements. Furthermore, counsel neglected to pursue other viable arguments supportive of the inadmissibility of the statements as well as other potential defences to the charge. (b) Counsel did not pursue exclusion of the statements on the basis of any of three possible arguments of a s. 10 Charter breach which should have been advanced, being: (i) Mr. Clyke did not receive a Sinclair warning (R. v. Sinclair, 2010 SCC 35) from Cst. Rainault, who should have re-stated his Charter rights and caution at the moment during statement 1 when his jeopardy changed; (ii) Mr. Clyke was deprived of a reasonable opportunity to consult with counsel of choice prior to providing statement 2 (R. v. Willier, 2010 SCC 37); (iii) Mr. Clyke did not receive a Prosper warning (R. v. Prosper, [1994] 3 S.C.R. 236) once he changed his mind about and abandoned speaking to counsel prior to providing statement 2. (c) Counsel did not properly advise Mr. Clyke concerning both the process and the consequences of entering into an ASF. a) Preparation of expert witnesses to testify at the voir dire [52] The evidence of the two forensic psychiatrists was central to the voir dire. Mr. Hughes told the Crown he intended to have Dr. Kronfli testify to Mr. Clyke’s condition on the day the statements were provided to police. Before us, Mr. Hughes testifies his sole purpose in calling Dr. Kronfli was to have him, as Mr. Clyke’s treating psychiatrist, provide a history of his patient’s “illness and symptomology as well as his impression when and how it would have onset prior to the statements”. [53] The record captures that during the voir dire, Mr. Hughes questioned Dr. Kronfli as to his opinion about Mr. Clyke’s mental health on the day the statements were taken, later relying on that evidence in his submissions to the judge urging a reasonable doubt about Mr. Clyke’s fitness on that day. [54] In his voir dire decision, the judge wrote at some length about how Dr. Kronfli’s evidence informed his conclusions, including the following observations: [64] In spite of Dr. Kronfli’s opinion that Mr. Clyke was probably unfit to stand trial on November 29, 2016, I am satisfied beyond a reasonable doubt that at the relevant times Mr. Clyke had an operating mind. [65] I will next elaborate upon why I conclude this. [66] Dr. Kronfli did not have the benefit of: 1. hearing the testimony in relation to, nor the contents of, Mr. Clyke’s telephone call to the police dispatcher at 1 pm, or the 2 pm unrecorded police statement made to Constable Rainault; 2. similarly, regarding the 3 pm videotaped police statement; 3. he did not review the Crown disclosure or see the testimony of persons who had contact with Mr. Clyke that day … . . . [69] Dr. Kronfli was not aware that in his statements to Constables Rainault, Shupe and Bowers, Mr. Clyke alluded to “hold back information” which would be known only by persons who were either present at the time of Angela Hall’s murder, or who had received information from those persons present . . . [55] Mr. Clyke maintains it was “essential” Dr. Kronfli was properly prepared to testify at the voir dire and counsel’s inadequate preparation is “underscored” by the judge’s reasons. Mr. Clyke is critical of counsel not having met with Dr. Kronfli more than once, and not ensuring the doctor was present in court to hear the evidence of the other voir dire witnesses. He says that before Dr. Kronfli testified, counsel should have provided him with a copy of the videotaped statement 2 and the disclosure as to what other witnesses said about Mr. Clyke’s presentation on the day the statements were taken. [56] Mr. Clyke relies on Dr. Kronfli’s evidence to this Court that when later provided with those same materials the judge had referenced, in anticipation of swearing fresh evidence for Mr. Clyke’s appeal, they led him to change his opinion. Dr. Kronfli testifies he now believes Mr. Clyke was “most probably” fit to stand trial on the day he gave statements 1 and 2. Mr. Clyke says had Dr. Kronfli been properly prepared for the voir dire, he would have given counsel the revised opinion he has now formed. [57] Mr. Clyke now questions whether Dr. Kronfli’s evidence would even have been led by him at the voir dire, had the doctor been fully informed and in a position to offer his now-revised opinion. Mr. Clyke says he was prejudiced by an ill-prepared witness who could not properly assist in the challenge to the admissibility of his statements. [58] The Crown maintains Dr. Kronfli’s evidence about Mr. Clyke’s history of psychosis is a different matter than the question of his fitness, and it was the former that Mr. Hughes was trying to illustrate before the judge. The Crown points to counsel’s evidence of email exchanges, two phone conversations and a meeting before the voir dire to understand Dr. Kronfli’s opinion on Mr. Clyke’s mental health at the time the statements were provided as all demonstrating appropriate preparation. [59] I pause to note that in written argument, the Crown suggests that had Dr. Kronfli required further information to assist in formulating his opinion ahead of the voir dire, as a “very experienced” witness he would have known he could request counsel’s assistance in accessing materials to aid him. This begs the question how Dr. Kronfli would have known exactly what material he should have been requesting? I do not accept the suggestion such a duty rested with Dr. Kronfli. [60] Regardless, the evidence does not persuade me Mr. Hughes’ preparation of Dr. Kronfli prejudiced Mr. Clyke. The judge’s assessment of Dr. Kronfli’s evidence was not focussed only on information Dr. Kronfli did not have, nor was Dr. Kronfli’s evidence the only evidence the judge relied upon in reaching his voir dire decision. [61] The nature of Dr. Kronfli’s evidence before this Court does not displace the purpose for which counsel called him at the voir dire, given counsel’s stated goal to give the judge an understanding of Mr. Clyke’s overall mental health history. [62] Similarly, Mr. Clyke maintains that not only would proper preparation of Dr. Kronfli have signalled to counsel Mr. Clyke was “probably fit” to stand trial and had an operating mind at the time he gave his statements, the proper preparation of Dr. Theriault to testify would have then confirmed it. [63] At the voir dire Dr. Theriault testified he relied on the determination made by Dr. Kronfli that Mr. Clyke was unfit to stand trial on December 6, 2017. Dr. Theriault could not definitively state that Mr. Clyke would have been unfit when he gave his statements to police six days before seeing Dr. Kronfli. Dr. Theriault was nonetheless of the view Mr. Clyke may have been “psychiatrically unwell” when he gave the statements. [64] Dr. Theriault tells this Court he told counsel via email prior to the hearing he could not speak directly to Mr. Clyke’s mental state on the day the statements were given. Mr. Clyke says counsel’s lack of preparation meant he did not recognize Dr. Theriault would not be a helpful witness on the voir dire, especially since the Crown had earlier advised counsel that it was considering calling Dr. Theriault. [65] The Crown asserts Dr. Theriault was adequately prepared to testify and his overall view of Mr. Clyke’s mental health history was precisely what counsel asked the judge to consider during voir dire submissions. I agree. [66] The evidence of both doctors was tendered during the voir dire to support a finding of reasonable doubt about Mr. Clyke’s operating mind and why, even if voluntary, the statements should have been excluded. While the judge ultimately did not reach the conclusion Mr. Clyke wanted, preparation of the experts to testify was sufficient for the purpose for which their evidence was being elicited. The opinions and the evidence of both doctors supported counsel’s argument there was a reasonable doubt as to whether Mr. Clyke had an operating mind when his statements were made. [67] Preparation by Mr. Hughes that included providing the doctors with all the disclosure in his file might have been helpful to them. However, the evidence before us does not permit a conclusion that different preparation by counsel could have been a straight line to a different outcome in respect of the judge’s voluntariness decision. [68] I am not persuaded that because the operating mind argument was unsuccessful it was advanced improperly, unreasonably or in a fashion that rendered it prejudicial to Mr. Clyke. Other available arguments or defences [69] Mr. Clyke is also critical of counsel’s decision to pursue the novel argument that asked the judge to consider whether Mr. Clyke’s confession had been secured through his own internally generated pressure grounded in a distorted belief that cartel members were urging him to contact the police and indicate he had shot Ms. Hall. Mr. Clyke now characterizes the argument as a fanciful theory, without precedent, which distracted counsel at the expense of advancing Charter arguments about the admissibility of his statements to police (to be discussed in greater detail later). [70] The evidence is not persuasive that counsel’s pursuit of the novel theory at the voir dire was to the exclusion of other “better” arguments. Counsel’s pre-hearing written submissions to the judge made plain the issue of voluntariness of the statements remained the primary argument. As the Crown observes, novel does not directly equate to prejudicial. [71] Whether counsel neglected to pursue other viable defences due to sole focus on the voluntariness of the statements can be dispensed with quickly. Cross-examination of Mr. Clyke confirms his recall that counsel discussed with him other possible defences. This is in tandem with Mr. Hughes’ evidence he assessed the viability of other defences, such as intoxication for example, and discussed them with his client. Those discussions led to counsel’s determination certain other defences would not be sustainable. There is a dichotomy between Mr. Clyke’s complaints about Mr. Hughes’ performance and Mr. Clyke’s own evidence confirming discussions with counsel about other possible defences, despite Mr. Clyke’s memory now being, in his word “foggy”. b) The s. 10(b) Charter arguments not made [72] Mr. Clyke characterizes this argument as the mainstay of his appeal. He says Mr. Hughes’ overly-narrow focus on the voluntariness of his statements ignored the circumstances under which the statements were taken. He says there was a strong likelihood exclusion of the statements could have been achieved on the basis of any one of three discrete s. 10(b) Charter breach arguments. He asks the Court to conclude the opportunity was lost because counsel did not provide reasonably competent advice about or pursue those arguments, thereby prejudicing his ability to secure exclusion of the statements. Mr. Clyke maintains the s. 10(b) issues should have first been explored by counsel during the preliminary inquiry, and then become the focus of the voir dire. [73] The Pre-Trial Conference form completed by Mr. Hughes documents he had turned his mind to possible Charter issues before trial dates were set. Mr. Hughes’ evidence is that when he discussed the relative weakness of the Charter arguments, his client was content to accept that advice. The Crown notes Mr. Clyke never raised any concerns before the judge when it was noted no Charter issues were being advanced. [74] In his evidence, Mr. Clyke recollects discussing the idea of Charter arguments and recounts his understanding Mr. Hughes would not be pursing them. Mr. Hughes testifies he knew there were “red flags” about possible Charter arguments based on the disclosure, but he was without any “input” from his client about whether Mr. Clyke felt pressured during the interview process, why he first asked to speak with Mr. Tan or why he eventually changed his mind about speaking to counsel. Mr. Hughes was not confident Mr. Clyke could discharge the burden to establish a Charter breach on a balance of probabilities, a determination that was his to make. All this evidence is not supportive of Mr. Clyke’s assertion about the viability of advancing s. 10(b) arguments. [75] The Crown also asks us to consider the vacuum in which this argument is advanced, in light of Mr. Hughes’ evidence he advised his client on the relative weakness of any Charter arguments based on the information available to him at the time. The Crown urges the Court not to speculate on the nature of evidence that might have been offered at the voir dire, given the absence of any record upon which to now assess the viability of any Charter argument never made. [76] Mr. Clyke’s submissions focus on three discrete, albeit not advanced, s. 10(b) arguments which I will refer to in turn as the Sinclair issue, the Willier issue and the Prosper issue. Each is considered bearing in mind Mr. Clyke’s evidence confirming he and his counsel did discuss possible Charter issues. The Sinclair issue [77] The first issue relates to the interaction between Mr. Clyke and Cst. Rainault during the taking of statement 1. When Cst. Rainault encountered Mr. Clyke she first provided him his Charter rights and caution. He immediately advised her he wished to confess to shooting “Angela Rodriguez”.[10] Cst. Rainault then posed a series of questions requiring elaboration by Mr. Clyke about details of the killing. Mr. Clyke now says the moment when Cst. Rainault started posing those questions, his jeopardy changed and he should have been re-cautioned. [78] R. v. Sinclair instructs: [2] We conclude that s. 10(b) does not mandate the presence of defence counsel throughout a custodial interrogation. We further conclude that in most cases, an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s. 10(b). However, the police must give the detainee an additional opportunity to receive advice from counsel where developments in the course of the investigation make this necessary to serve the purpose underlying s. 10(b) of providing the detainee with legal advice relevant to his right to choose whether to cooperate with the police investigation or not. To date, this principle has led to the recognition of the right to a second consultation with a lawyer where changed circumstances result from: new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the first information provided was deficient. The categories are not closed. [Emphasis added] [79] How could it be said with any measure of certainty that on a Charter voir dire the judge would have concluded that during the interview Mr. Clyke was subjected to “a discrete change in the purpose of the investigation” (R. v. Paulin, 2013 NBCA 15 at para. 21; R. v. Tahmasebi, 2020 ONCA 47 at para. 34, quoting R. v. Guthrie, 2016 ONCA 466 at para. 11)? It cannot be known a change of jeopardy argument would have unfolded in a manner leading to Mr. Clyke’s now-desired conclusion. This is so because the record before us establishes that once provided his right to counsel, Mr. Clyke did not exercise it, instead embarking immediately on the subject he raised, which was the impetus for the further questions posed by Cst. Rainault. [80] In R. v. Fogarty, 2015 NSCA 6 the Court distinguishes between new jeopardy following the exercise of the right to counsel, and the “linear progression” of “not disjunctive investigative techniques” (para. 48). In a similar vein, R. v. Richard, 2013 MBCA 105 recognizes the investigative technique of gradually revealing the case against the accused is not a change in jeopardy (para. 56). [81] Only Mr. Clyke knew what he was going to say to Cst. Rainault after she cautioned him. Rather than deciding whether to cooperate with police, it was he who summonsed them and then told them he had shot the victim. It would be conjecture for this Court to now be satisfied on a balance of probabilities the judge would have concluded there was a s. 10(b) breach had the evidence and that argument been put before him. The Willier issue [82] The second s. 10(b) Charter breach Mr. Clyke says should have been argued by his counsel is grounded in the principles articulated in R. v. Willier, 2010 SCC 37. [83] Willier instructs that when a detainee wishes to speak to a particular lawyer the police are required to provide a reasonable period of time for that to occur before statement taking begins. What constitutes a reasonable period of time is contextual: [35] Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation: Black. If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended: R. v. Ross, [1989] 1 S.C.R. 3; and Black. […] [Emphasis added] [84] Mr. Clyke says police failed to provide him a reasonable opportunity to contact counsel of choice before embarking on statement 2 and their questions, and Mr. Hughes should have pursued that failure during a voir dire. [85] The video recording of Mr. Clyke’s statement 2 illustrates that as soon as he was warned and cautioned, he asked to speak to a specific lawyer, Mr. Tan. He later changed his mind about speaking to Mr. Tan, saying he just wanted “to get this over with”. He was provided a further opportunity to speak to NSLA. Then police questioning got underway. Mr. Clyke asserts the s. 10(b) violation occurred because he was never offered either a reasonable opportunity to wait until Mr. Tan was available, or to contact alternate private counsel. [86] It is Mr. Clyke’s evidence that when Mr. Tan’s office voicemail was reached, he never left a message for Mr. Tan—his ostensible counsel of choice. This begs the question: what period of time would have been reasonable to wait when Mr. Tan could never have known Mr. Clyke wished to contact him? Mr. Clyke did not do what was solely within his control, in order to give effect to the wish he had expressed to the police. He did not alert Mr. Tan’s office that he wanted to exercise his right to counsel. [87] The reasonable opportunity to contact counsel does not oblige police to ensure a detainee actually contacts counsel (R. v. Beauregard, 2016 ABCA 37 at para. 14). [88] R. v. Edwards, 2024 ONCA 135 sets out the overlap between the principles established in Willier and those enshrined in the earlier Supreme Court of Canada decision in Prosper: [23] In Willier, the detainee, relying on Prosper, argued that he should have been told he was entitled to wait a reasonable amount of time to permit his lawyer of choice to respond before speaking with duty counsel. The majority in Willier distinguished Prosper, holding that the additional informational requirement in Prosper applied only where a detainee was diligent but unsuccessful in contacting counsel and subsequently declined counsel. In short, Prosper was a waiver case. The “additional informational obligation” laid down by Lamer C.J.C. was intended to ensure that the waiver of the right to counsel was both informed and effective. In Willier, there was no waiver. The detainee had elected to exercise his right to counsel by speaking with duty counsel. […] [24] Willier applies in this case. The respondent, having been unsuccessful in contacting counsel of choice, chose to exercise his right to counsel by speaking with duty counsel. There was no waiver and, hence, no concern about the validity of any waiver. . . . [27] The right to counsel in s. 10(b) clearly includes the right to a reasonable opportunity to contact counsel of choice. Police conduct which interferes with a detainee’s ability to contact counsel of choice within a reasonable time will amount to an infringement of s. 10(b). Counsel has provided this Court with several cases involving allegations that the police conduct led the detainee to believe that he had to either speak with duty counsel when offered, or forgo the opportunity to consult with counsel (citations omitted). In those cases, trial judges had made findings that the conduct of the police led the detainee to believe that his only option was to speak with duty counsel, and that waiting to speak with counsel of choice was no longer a viable option: see also Willier, at para. 43. [89] Mr. Clyke posits the Willier requirement of the implementational duty on police was not fulfilled in his situation, and during the preliminary inquiry his counsel should have pursued the circumstances relating to his request to speak to counsel as statement 2 got underway. [90] The Crown submits Mr. Clyke has now “changed his story” with the benefit of hindsight and the opportunity to assert fresh evidence. The Crown’s cross-examination of Mr. Clyke explored the specific circumstances he now says form the basis of a viable Willier argument. The responses elicited from Mr. Clyke lay bare his recall of those circumstances originates in having listened to the previously undisclosed audio recording capturing events when the video was disengaged for 15 minutes (which disclosure will be discussed later). [91] Mr. Hughes testifies and Mr. Clyke corroborates that during their trial strategy discussions, Mr. Clyke communicated to Mr. Hughes his decision to not speak with counsel was his alone. [92] The previously undisclosed audio chronicles Mr. Clyke twice waived the opportunity to speak to counsel which, as Edwards suggests, likely makes this line of argument a Prosper issue of waiver. In any event, prejudice to Mr. Clyke has not been established. I am not persuaded on the evidence before us that Mr. Clyke would necessarily have been successful in establishing a Willier breach leading to exclusion of statement 2, had Mr. Hughes pursued the argument. Even assuming the evidence would have unfolded in voir dire in the manner Mr. Clyke now suggests, that does not permit the lone conclusion that Mr. Clyke was insisting on speaking only with Mr. Tan and police unreasonably deprived him of that opportunity. The Prosper issue [93] The third event relied upon by Mr. Clyke in relation to an unmade s. 10(b) argument relates to the absence of a Prosper warning. Mr. Clyke says the police failed to provide him with a Prosper warning at a necessary juncture as the actual statement 2 got underway, and Mr. Hughes should have advanced that argument on his behalf before trial. [94] As noted earlier, a Prosper warning relates to the additional informational duty upon police at the point when a detainee, having already asserted their right to counsel and having been reasonably diligent about trying to reach unavailable counsel, then forfeits the right to speak to a lawyer. Police are obliged to again explain the right to counsel, and to not take any statement until there has been a reasonable opportunity for the detainee to understand what it is they are giving up. In Willier, the Prosper warning is explained as: [32] … warranted in such circumstances so as to ensure that a detainee is informed that their unsuccessful attempts to reach counsel did not exhaust the s. 10(b) right, to ensure that any choice to speak with the police does not derive from such a misconception, and to ensure that a decision to waive the right to counsel is fully informed. [95] At the point when Mr. Clyke told police for the second time that he wished to proceed with giving statement 2, he was given an opportunity to speak to Legal Aid, albeit one initiated by the officer. Mr. Clyke is highly critical of the officer having waited only four minutes, after Mr. Clyke hung up from the call to Mr. Tan’s office, to phone NSLA. However, we know Mr. Clyke also declined that opportunity; the officer then asked him to communicate that waiver directly to Legal Aid. Mr. Clyke did so, once again in control of the call for assistance, and once again abandoning his right to speak to a lawyer and expressing his desire to proceed with giving a statement. [96] The Crown says police did nothing inappropriate in contacting NSLA and did nothing to coerce Mr. Clyke to speak to NSLA. It contends a Prosper warning would have been required only if diligent, but unsuccessful, pursuit of counsel of choice then led Mr. Clyke to waive his right to counsel. Given the evidence before us, it does not strike me that a successful Prosper argument was obvious low-hanging fruit for Mr. Hughes to pluck. It is not possible to say how evidence and argument would have unfolded before the judge, much less that on a balance of probabilities Mr. Clyke would have been successful in establishing a Prosper breach if only counsel had made the argument. [97] The law in relation to Willier, Sinclair and Prosper is well-established, and its application in any given case will be illuminated and informed by the circumstances of that case, the context in which the events under scrutiny unfolded and the facts drawn from the evidence put before a judge. [98] The arguments Mr. Clyke makes on this appeal are capable of framing what could have been argued. That is different than a question of whether they should have been argued by counsel but were not due to carelessness, neglect, ineptitude or any other reason. Mr. Clyke’s present frustration that certain arguments were not pursued does not equate to any degree of certainty that had they been, the outcome of his murder charge would have been different. [99] It is not possible to say in retrospect how the judge would have decided any one of the s. 10(b) arguments proposed by appellate counsel in argument before us. I do not want to be seen to suggest counsel’s representation of a client can never be later scrutinized. However, the potential for the s. 10(b) arguments Mr. Clyke now raises must be examined against the backdrop of the fresh evidence before us. It confirms Charter arguments were indeed considered by Mr. Hughes, and discussed with Mr. Clyke, but not advanced. [100] Mr. Clyke reflects as to whether there was anything to be lost had counsel pursued the s. 10(b) arguments? The Crown bristles, calling the question “irresponsible” in light of the principles articulated in R. v. Jordan, 2016 SCC 27 related to accused persons being tried within a reasonable time. Mr. Clyke’s hypothesis the arguments should have been made because there was nothing to lose is one, with respect, perched on a slippery slope. [101] Mr. Clyke has not demonstrated his counsel missed a reasonable opportunity to have the critical evidence in his statements excluded on Charter grounds. The Charter arguments set out before us were not assured success. Had any one of the s. 10(b) arguments been able to successfully establish a breach, Mr. Clyke would have then had to obtain exclusion of the statements pursuant to s. 24(2) of the Charter.[11] This point was not addressed in argument. We cannot know if a Court would have resolved the three so-called Grant factors (R. v. Grant, 2009 SCC 32) for exclusion in his favour, particularly in light of Mr. Clyke’s determination to confess, the actions of the police and the seriousness of the offence. The Agreed Statement of Facts [102] In acknowledging it is not an argument that could by itself sustain a successful appeal, Mr. Clyke asks for consideration of the overall cumulative effect of his assertion he was not properly advised about the implications of entering into the ASF and further, he was misled about the chances of success on appeal of the voir dire decision. [103] On the issue of consultation between an accused and their counsel Barrett reminds us: [11] In some cases, an appellant may allege their trial counsel did not adequately consult them with respect to decisions made in the course of trial. It is important to remember that there is no obligation on counsel to have client approval for every strategic decision made; although, there are some issues on which client instructions are essential. This Court in Snow described it this way: [29] There are numerous decisions an accused must make. Sometimes they are difficult. Counsel, when advising an accused on those decisions, often must balance multiple conflicting considerations. Frequently there is no one right answer. [30] During the course of a trial, counsel need not get instructions on each issue that may present. But on at least two, they have a duty to advise and get instructions: whether to plead guilty and whether to testify. [31] If counsel fails in this duty, procedural fairness and the reliability of the result can sustain a miscarriage of justice pronouncement (see: R. v. G.D.B., supra at para. 34). [12] In G.K.N., the obligation on counsel to exercise their own independent judgment, rather than simply adhere to client instructions, was highlighted: [57] While counsel must take instructions regarding election and plea and whether or not to testify, the conduct of the case generally does not require client instructions. […] [104] There is ample evidence before the Court to support that counsel cautioned Mr. Clyke, when he instructed he wished to accept the Crown’s resolution offer and proceed to an appeal, that he should not fixate on the prospect of an appeal before the judge’s reasons on the voir dire were known.[12] [105] The Crown asks us to consider the absence of any objective evidence Mr. Clyke thought resolution of the trial by an ASF was the only route to an appeal. It argues it was reasonable for Mr. Clyke to resolve the charge as he did, the validity of the ASF was not diminished by having ended the trial to pursue an appeal and it was Mr. Hughes who ensured Mr. Clyke’s right of appeal was preserved. Thus, says the Crown, it cannot be said there resulted any miscarriage of justice. [106] Mr. Clyke corroborates Mr. Hughes’ evidence he discussed with his client the difficulties that would be faced at a trial. Mr. Hughes specifies he talked to Mr. Clyke about the challenges of going to trial, parole eligibility and the Crown’s refusal to accept a plea to manslaughter. I note also Mr. Clyke’s evidence that “I don’t think I asked too many questions”, in reference to his discussions with his counsel. [107] Regarding the question of Mr. Clyke entering into an ASF and the resultant finding of guilt, the following lengthy exchange during the Crown’s cross-examination of Mr. Clyke is illuminating: Q. And you bring up appealing the voir dire decision right? That statement decision? A. Yeah. Q. And again, Mr. Hughes isn’t able to tell you whether you will be able to be successful or what your chances of success are, right? A. Well, ah, say it again? Q. So when you said something about like “let’s appeal that, that statement decision”? A. Right. Q. But he still doesn’t tell you “oh yeah, you’ve got a good chance and you’ve got a bad chance.” He doesn’t say anything like that, right? A. No, he didn’t say nothing. Q. Right. A. Just pretty much said like “yeah, like we’ll do it”. Q. Okay. But he did make sure that you were actually wanting to plead guilty freely and voluntarily, right? A. Well… Q. Did he talk to you about that? A. I don’t really remember. . . . Q. Is it possible that he talked to you about those and you just don’t remember? A. Did not. Q. Is it possible that he also told you, you should only be pleading guilty if you were willing to accept the facts of the Crown’s case that you were, that you shouldn’t do it for any other reason? A. No. There was no discussion like that. I am telling you it was quick. He just let me, let me, he never talked me out of it. I told him I wanted to and he was onboard with it. So okay. He said we can, he told me that he would represent me on the appeal. Q. Was that during that same conversation? A. He never talked me out of it. I told him I wanted to and he was onboard with it. Q. Did he make sure that you understood what that meant? Like you wouldn’t have a trial, you would have to accept certain facts, there would be a sentence at the end of that. Like, he told you about those things, right? A. No, no. Q. No. A. No. Q. Is it possible that he talked to you about that? A. I don’t really remember. . . . Q. Is it possible that he talked to you about those and you just don’t remember? A. Did not. Q. Is it possible that he also told you, you should only be pleading guilty if you were willing to accept the facts of the Crown’s case that you were, that you shouldn’t do it for any other reason? A. No, there was no discussion like that. I’m telling you it was quick. He just let me, let me, he never talked me out of it. I told him I wanted to and he just listened, onboard with it. So okay. He said we can, he told me that he would represent me on the appeal. Q. Was that during that same conversation or did he tell you that later? A. Um, it could have been on that same conversation. I honestly don’t remember, but I feel like it was on that conversation. I could be wrong, but I feel like it was. Q. So earlier you said you wanted to take the deal, you were willing to take the deal, so that you could appeal. Right? That was what you were expecting to happen? A. Well, pretty much yeah. Q. So you didn’t understand at that time that you could have your trial and appeal if the trial hadn’t gone your way? A. Say it again, sorry? Q. Sorry I will back up a little bit. So that earlier conversation on March 20th. A. Yes. Q. When you said, “I don’t want to take the deal”. A. Yes. Q. And to go ahead to trial? A. Yeah. Q. In your mind, you knew you can have [my] trial, right? A. Yeah. . . . Q. Okay. So you knew that it could, you might get a better outcome at trial than a murder conviction, right, a manslaughter or [a] possibly an acquittal? A. Well, not at the time. Like at the time, I thought um, like I thought, he was Jonathan was going to help me with the appeal. All I thought was he knows the case. He’s been working on the case, so at least I got. I didn’t know how it works. Obviously, it doesn’t work like that, but I was under the impression that he was going to do the appeal for me and I guess it just doesn’t go like that, so I, I, I don’t know. [108] The preceding passage illustrates three features that permeated all of Mr. Clyke’s evidence: (a) his lack of accurate recall, (b) his confirmation he did not seek clarification from his counsel on matters about which he was unclear or uncertain and (c) during the relevant time period he was prepared to rely on his counsel to do what needed to be done. All of this bolsters the Crown’s assertion that Mr. Clyke’s appeal is premised on his regret in hindsight, rather than the culpability of counsel. [109] There is ample evidence before us that Mr. Clyke initiated the discussion about accepting a plea deal, and it was counsel who ensured Mr. Clyke’s express wish to challenge the voir dire decision did not become compromised during that process. The evidence does not establish prejudice was suffered by Mr. Clyke in that regard. [110] As noted earlier (at para. 35), Mr. Clyke achieved the reduced period of parole eligibility that resulted from the ASF negotiated by counsel on his behalf. On a question from the panel, both parties estimate a contested sentence might have garnered a considerably higher parole eligibility period. Thus, there was a tangible benefit to Mr. Clyke in the 12 year period imposed. It is not as though there was no benefit to Mr. Clyke in the manner in which counsel’s representation of him unfolded. Issue No. 2: The missing disclosure [111] Mr. Clyke says he was denied a fair trial when his counsel did not pursue disclosure of the impugned 15 minutes of audio recording (discussed earlier) relating to the time period when the video recording of the circumstances of the taking of statement 2 was paused but the audio recording continued. [112] The transcript of the audio recording in question was not disclosed until February 11, 2022, just shy of three years following Mr. Clyke’s conviction. Until then, it had escaped the attention of all counsel involved at various points up to that time. Mr. Clyke asserts there existed a reasonable possibility, had the information been known, that it would have provided fodder for a s. 10(b) Prosper argument and thus he would not have entered into the ASF had that transcript been available. He says the opportunity was lost when Mr. Hughes was not diligent in pursuing disclosure. Mr. Clyke says this omission is another example of how counsel’s representation constituted ineffective assistance of counsel. [113] The Crown concedes Mr. Clyke’s right to disclosure of the impugned transcript was breached, but submits any reasonable probability that breach affected the trial outcome or its fairness has not been established. I agree. [114] The error in not having the material disclosed was repeated by more lawyers than just Mr. Hughes who had involvement over the life of the case both at trial and on appeal. That said, the missing disclosure does not constitute information so material that having it could have differently informed Mr. Hughes’ approach, when one considers the evidence of Mr. Hughes and Mr. Clyke pertaining to the unmade s. 10(b) arguments in relation to events over the same fifteen minute time period. I am not persuaded Mr. Clyke lost any opportunity, nor has he established prejudice in light of the error made. Conclusion [115] The warning recently delivered in Kuang signals the care needed in the circumstances of this case: [23] The adjudication of IAC claims requires caution. There may be a strong incentive to make unfounded claims against trial counsel when things did not go as the accused person hoped: Fiorilli, at para. 51. [ … ] … in Archer, at para. 141, Doherty J.A. warned that: “[c]ommon sense dictates a cautious approach to allegations against trial lawyers made by convicted persons who are seeking to avoid lengthy jail terms.” There is “a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance”. [Citations omitted] [116] Even in the face of the presumption, it must be said Mr. Hughes’ file obviously suffers from a paucity of note-keeping,[13] memos, research summaries, correspondence and records of conversations that would have chronicled his advice to his client, his client’s instructions, his activity on the file and his work product. In some cases the same types of deficiencies have been of a magnitude that warranted a finding of ineffective assistance (Alexander at para. 60, quoting R. v. Lam, 2020 BCCA 276 at para. 59). [117] More thorough “papering” of the file by Mr. Hughes might well have avoided later strife and saved a vulnerable person such as Mr. Clyke, and Mr. Hughes the significant time and effort, along with that of others, that has taken them to the point of this decision. This case illustrates there may be processes that start or continue long after originating events, when memories will have faded and documentation and record-keeping can help to fill gaps. [118] Mr. Clyke faced the most serious of charges, and was in jeopardy from the moment he requested police meet with him on November 29, 2016. With the opportunity to look back, this case gives room to think about what might have been done differently by defence counsel. But such is not the test. [119] Having considered all the evidence before us within the context of the high bar to establish prejudice to Mr. Clyke, I am not persuaded any defect pointed to here could fairly be said to meet the White requirement of undermining public confidence in the administration of justice. [120] As noted in R. v. Allred, 2026 ONCA 258: …Trial fairness is to be considered from both the perspective of the accused and of the community: R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, at para. 45. Therefore, trial fairness must not be ‘confused with the most advantageous trial possible from the accused’s point of view’… (para. 79) [121] I do not see the evidence clearly establishing a reasonable probability the case would have turned out differently, but for Mr. Hughes’ carriage of the file, or that trial fairness was compromised by his representation of Mr. Clyke. Such is not a foregone conclusion an informed, reasonable person would necessarily make. [122] For these reasons, I would dismiss the appeal. I commend counsel for their written and oral advocacy in this challenging case. Beaton, J.A. Concurred in: Fichaud, J.A. Bourgeois, J.A. [1] That audio recording forms the basis of Mr. Clyke’s s.7 breach argument discussed later in these reasons. [2] Mr. Clyke’s appeal hearing began in June 2022 before a different panel of this Court. A dismissal order issued after he abandoned the process mid-hearing. Before this panel, his later motion to re-open the appeal was granted (2024 NSCA 66), resulting in the hearing which forms the basis of this decision. [3] Before the panel, all parties use the label “novel” in reference to this particular argument on involuntariness as pursued at the voir dire. [4] Mr. Hughes testifies before this Court he advised Mr. Clyke not to take any steps until the judge’s written reasons for the decision would be produced. Mr. Clyke’s evidence on that point effectively corroborates him. [5] Mr. Clyke testifies that in his discussions with Mr. Hughes, counsel had told him the argument about internal pressure from “the cartel” might be a “test case” that could “go as far as the Supreme Court of Canada”. Mr. Hughes concedes he had shared this view with Mr. Clyke. [6] Dr. Kronfli had been cross-examined on his Affidavit at Mr. Clyke’s earlier but abandoned appeal (per footnote 4). The transcript of that evidence is part of the fresh evidence before this panel. [7] Section 10(b) of the Charter provides: “Everyone has the right on arrest or detention… (b) to retain and instruct counsel without delay and to be informed of that right”. [8] Section 7 of the Charter provides: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” [9] Examples: R. v. Messervey, 2010 NSCA 55 at para. 21; R. v. Fraser, 2011 NSCA 70 at para. 34; R. v. G.K.N., 2016 NSCA 29 at paras. 40-44; R. v. Simpson, 2018 NSCA 25 at paras. 40-41; R. v. P.C.H., 2019 NSCA 63 at paras. 160-61; R. v. Publicover, 2021 NSCA 78 at paras. 50-51; R. v. Murphy, 2022 NSCA 26 at para. 76; R. v. Ross, 2023 NSCA 13 at paras. 146-48; R. v. Purvis, 2024 NSCA 54 at paras. 198-99; R. v. Alexander, 2024 NSCA 103 at paras. 40-44; R. v. Bezanson, 2025 NSCA 55 at para. 32. [10] While Mr. Clyke used the name Rodriquez initially, the victim’s surname was in fact Hall. That misnaming by Mr. Clyke was not raised as a concern at trial nor is it raised on appeal. [11] Section 24(2) provides where “a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.” [12] The evidence of Mr. Hughes, Ms. Hare and Mr. Clyke is corroborative each of the others on this point. [13] In evidence, Mr. Hughes agrees with appellate counsel he could have taken “better notes”.