R. v. Rodgers

R. v. Rodgers Collection Decisions of the Court of Appeal Date 2000-05-26 Docket numbers C26933 Judges Catzman, Marvin Adrian; Weiler, Karen Merle Magnuson; Laskin, John Ivan Subject Criminal Decision Content DATE: 20000526 DOCKET: C26933 COURT OF APPEAL FOR ONTARIO CATZMAN, WEILER and LASKIN JJ.A. BETWEEN: HER MAJESTY THE QUEEN ) Trevor Shaw, for the respondent ) (Respondent) ) ) –and– ) ) Dennis Rodgers ) Gregory Lafontaine and ) Tanya Kranjc, for the appellant (Appellant) ) ) ) Heard: May 18, 2000 On appeal from the conviction imposed by Poupore J. and a jury dated November 26, 1996. BY THE COURT: [1] We direct that the publication ban in connection with this matter be continued. [2] We called upon the Crown to respond only to two of the arguments raised by the appellant. Those arguments are: ineffective assistance of counsel; and improper use of testimony on the appellant’s bail hearing relating to his knowledge of the complainant’s residence address and (in a related subject) the improper admission of reply evidence relating to the contents of the bail sheet. (1) ineffective assistance of counsel [3] A finding of incompetence requires the appellant to establish, first, that counsel’s acts or omissions constituted incompetence and, second, that a miscarriage of justice resulted: R. v. G.D.B., 2000 S.C.C. 22. The suggested fresh evidence in this case establishes neither. [4] The proposed strategy to point to another suspect would, in our assessment, have been problematic. It would have opened the door to the admission of evidence of the appellant’s record for sexual interference and of a psychological assessment that labelled him as a psychopathic deviant: R. v. Rodgers, Ont. C.A., April 4th, 2000, unreported; R. v. McMillan, [1977] 2 S.C.R. 824; R. v. Parsons (1993), 84 C.C.C. (3d) 226 (Ont. C.A.). Weighed against this is the high-risk approach of shifting suspicion to an individual who, despite an undeniable facial resemblance, was significantly shorter and weighed significantly less than the assailant described by the complainant and who had only a limited opportunity to commit the offence. [5] Another basis on which ineffective assistance of counsel is alleged is that defence counsel proceeded to trial without full disclosure. It is argued that trial counsel failed to interview certain defence witnesses prior to giving a list of potential witnesses to the Crown, as a result of which the Crown learned of two witnesses whose evidence proved unhelpful to the defence. In fact, the police already knew the names of these witnesses because the appellant, contrary to his counsel’s advice, had made a statement to police in which he gave their names. [6] The third basis on which ineffective assistance of counsel is alleged is in the failure to prepare the defence witnesses sufficiently for trial. If the cross-examination of these witnesses, on the application to admit fresh evidence on appeal, is any guide, fuller preparation by trial counsel would have yielded evidence that was not only unfruitful but indeed was detrimental to the appellant’s defence. Indeed, the alibi letter written by the appellant to trial counsel a month after the offence date (which came to light only on the motion to admit fresh evidence in this court) belies the integrity of the further alibi evidence now proferred on his behalf. [7] Lastly, it is submitted that the appellant’s consciousness of his innocence should have been brought out more extensively than it was at the trial. This submission is, in essence, a rehash of evidence that was already before the jury at the trial and which was, in any event, of minimal assistance to the appellant’s defence. [8] The suggested fresh evidence does not foretell the possibility of a different verdict or demonstrate any miscarriage of justice. The application to admit it is dismissed. (2) improper use of the bail hearing evidence and reply on the bail document: [9] The appellant’s argument on this point turned on what counsel described as “a broad interpretation of the phrase ‘used to incriminate’ the witness appearing in section 13 of the Charter”. In our view, what happened in this case never engaged s.13, nor (as was fairly argued by Crown counsel as an alternative basis for this submission) did it violate s.7. The appellant was never confronted with evidence given on his bail hearing. At the highest, he was asked, without any reference to his bail hearing, a question which he was constrained to answer truthfully because an untruth might have contradicted an answer he had given at that hearing. The result was that the appellant gave at trial evidence that was consistent with the evidence he gave at the bail hearing. We see no impropriety in the asking of that question. As to the use, in reply, of the bail document, trial counsel effectively established that that document was not the sole source of knowledge available to the appellant regarding where the complainant lived, and the effect of that reply evidence was entirely unconsequential to the result. Disposition [10] The appeal is dismissed. Released: MAY 26 2000 Signed: “M.A. Catzman J.A.” “K.M. Weiler J.A.” “John Laskin J.A.”