R. v. Paris

R. v. Paris Court Supreme Court Date 2014-09-09 Citation 2014 NSSC 326 Docket Pic 418985 Judge/Registrar/Adjudicator Wood, Michael J. (Honourable Justice) (SC) Document Type Decision Relations Library Sheet - R. v. Paris - 2014 NSSC 326 - 2014-09-09 - Library Sheet Decision Content SUPREME COURT OF Nova Scotia Citation: R. v. Paris, 2014 NSSC 326 Date: 2014-09-09 Docket: Pic No. 418985 Registry: Pictou Between: Michael Corwyn Paris v. Her Majesty the Queen in Right of the Province of Nova Scotia DECISION Judge: The Honourable Justice Michael J. Wood Heard: May 26, 2014, in Pictou, Nova Scotia Written Decision: September 09, 2014 Counsel: Laura McCarthy, for Michael Corwyn Paris T.W. Gorman, for Her Majesty the Queen By the Court: [1] On January 24, 2013 Michael Corwyn Paris was tried on a charge of assault under s.266 of the Criminal Code. The alleged victim was his wife, Amy Christine Paris. His defence counsel was Douglas Lloy and the prosecutor was Edward J. (Jody) McNeill. Mr. Paris was convicted following trial and on August 26, 2013 filed a Notice of Summary Conviction Appeal. The ground of appeal was ineffective assistance of his trial counsel Mr. Lloy. The particulars of this ground of appeal were failure to call material witnesses, inadequate cross-examination of Ms. Paris and failure to obtain material information from third parties including employees of Child Protection Services and a physiotherapist who had treated Ms. Paris. The Notice of Appeal included the following catch-all provision: 3. Such further and other grounds as counsel may advise and this Honourable Court may permit. [2] As is typical in appeals involving allegations of ineffective trial counsel an application was made by Mr. Paris for leave to introduce fresh evidence on the appeal. Although the Notice of Application indicated the possibility of filing affidavits of a number of persons, in the end it was only the affidavit of Mr. Paris which was tendered. This was filed on March 6, 2014 and included the additional allegation that the prosecutor, Mr. Jody McNeill, was in a conflict because he had previously represented Mr. Paris on unrelated criminal charges which arose in April 2002. The affidavit alleges that Mr. Lloy was aware of Mr. McNeill’s prior representation of Mr. Paris and did not raise the potential conflict with the Court. [3] On March 19, 2014 the Crown filed an affidavit of Mr. Lloy responding to Mr. Paris’ allegations. Both of the affidavits were provisionally admitted for purposes of the appeal. On July 28, 2014 the Application for Leave to introduce fresh evidence and the appeal were heard together. At that time Mr. Lloy was cross-examined on his affidavit. The Crown chose not to cross-examine Mr. Paris. Preliminary Issues [4] In its Factum and at the hearing the Crown raised issues with respect to the admissibility of some paragraphs of Mr. Paris’ affidavit and whether the issue of potential conflict could not be raised since it was not mentioned in Mr. Paris’ Notice of Appeal or his subsequent Statement of Particulars. [5] An illustration of the Crown’s concerns with respect to Mr. Paris’ affidavit is para. 15 which reads as follows: 15. I feel the Child Protection Agency’s case notes are important because Amy Paris made statements to the Child Protection Workers inconsistent to her statement to police. [6] There are other paragraphs where Mr. Paris expresses his opinion about what evidence may exist in third party documents. I agree with the submissions of the Crown that any opinions set out in Mr. Paris’ affidavit are not admissible. His statements with respect to what witnesses would have said or what information might be contained in third party documents are hearsay and also inadmissible. I have ignored these portions of Mr. Paris’ affidavit for purposes of this appeal. [7] I do not accept the Crown’s objection to the conflict of interest issue being raised by Mr. Paris. The Crown was informed of the details of the allegation at the time Mr. Paris’ affidavit was filed in early March. Mr. Lloy’s affidavit responds in detail to the allegation as does the Crown’s Factum. There has been no prejudice as a result of the Notice of Appeal or Statement of Particulars not specifically referencing this matter. I am satisfied that the conflict issue is covered by the catch-all provision of the Notice of Appeal. Even if it were not I would permit Mr. Paris to amend the Notice to include that allegation. Application for Leave to Introduce Fresh Evidence on Appeal [8] Appeals involving allegations of ineffective trial counsel invariably require applications for leave to introduce fresh evidence particularly where the allegation is the failure of trial counsel to call available and relevant evidence. The test for admission of fresh evidence on appeal was set out by the Nova Scotia Court of Appeal in R. v. Fraser 2011 NSCA 70, at pg. 34: 34 The law governing the admission of fresh evidence on appeal is well settled and has been extensively considered by this Court in recent cases. See, for example, R. v. West, 2010 NSCA 16 (N.S. C.A.); R. v. Hobbs, 2010 NSCA 53 (N.S.C.A.); and R. v. Messervey, 2010 NSCA 55 (N.S.C.A.). Section 683(1) of the Criminal Code permits the Court of Appeal to allow the introduction of fresh evidence “where it considers it in the interests of justice”. In R. v. Palmer (1979), [1980] 1 S.C.R. 759 (S.C.C.), at p. 775, the Supreme Court said the “interests of justice” in a s.683(1)(d) are governed by four factors: (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases. … (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. (3) The evidence must be credible in the sense that it is reasonably capable of belief, and, (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [9] Where an appellant alleges ineffective assistance of trial counsel fresh evidence is often required in order for the reviewing court to assess the merit of the concerns being raised. The Court in Fraser described the considerations for the admission of such evidence as follows: 37 But even more significant is the fact that the first criterion requires any applicant seeking leave to adduce fresh evidence on appeal, to demonstrate in effect, that the exercise of reasonable diligence at trial would not have mattered. In other words, careful preparation would not have uncovered the new information. But here the principal ground of appeal is that Mr. Fraser's trial counsel was neither diligent in his preparations, nor effective in providing legal representation. Surely, in such circumstances, when an appellant bases his appeal on a claim of ineffective assistance of counsel, one will not expect that appellant to make the case for due diligence. For it is the very lack of diligence upon which he rests his complaint and pins his hope for a new trial. In such circumstances, it would hardly be in the "interests of justice" to refuse to admit evidence which forms the principal ground of appeal, simply because the applicant may have difficulty in refuting the argument that the evidence should not be admitted because it could have been adduced at trial had due diligence been exercised. 38 It is also important to recall that Mr. Fraser's complaints are not directed at findings of fact, or evidentiary rulings by the trial judge but rather challenge the validity of the trial process itself. His purpose in introducing the new evidence is to persuade us that the process was so unfair that he was denied the opportunity to effectively defend himself and respond to the Crown's case against him. As a result, he says the verdict is unreliable and must be set aside on the basis that a miscarriage of justice occurred. The Ontario Court of Appeal put it nicely in R. v. Truscott , 2007 ONCA 575 (Ont. C.A.) at para. 85: 85 The second category of fresh evidence that may be tendered on appeal is not directed at re-litigating factual findings made at trial, but instead is directed at the fairness of the process that produced those findings. Where an appellant proffers this kind of evidence on appeal, he or she attempts to demonstrate that something happened in the trial process that materially interfered with his or her ability to make full answer and defence. An appellant claims that the verdict is rendered unreliable because the unfairness of the process denied the appellant the opportunity to fully and effectively present a defence and to challenge the Crown's case. When this kind of fresh evidence is received and acted on in the court of appeal, the conviction is quashed as a miscarriage of justice. The miscarriage of justice lies in the unreliability of a verdict produced by a fatally flawed process. As I see it, that is precisely the situation here. [10] I am satisfied that Mr. Paris should be given leave to file his affidavit as fresh evidence on the appeal (subject to my earlier comments concerning admissibility of some of the contents). I will also admit Mr. Lloy’s responding affidavit. These two affidavits and Mr. Lloy’s cross-examination provide the evidentiary basis for the Court to consider Mr. Paris’ appeal. Allegations of Ineffective Trial Counsel [11] In order to succeed on an appeal alleging ineffective assistance of trial counsel the appellant has a heavy burden. They must establish conduct of counsel which amounts to incompetence and also that the conduct resulted in a miscarriage of justice. The applicable legal principles were described by the Court in Fraser as follows: 53 Here again the law is well-settled. As this Court said in West, supra: [268] The principles to be applied when considering a complaint of ineffective assistance of counsel, are well known. Absent a miscarriage of justice, the question of counsel's competence is a matter of professional ethics and is not normally something to be considered by the courts. Incompetence is measured by applying a reasonableness standard. There is a strong presumption that counsel's conduct falls within a wide range of reasonable, professional assistance. There is a heavy burden upon the appellant to show that counsel's acts or omissions did not meet a standard of reasonable, professional judgment. Claims of ineffective representation are approached with caution by appellate courts. Appeals are not intended to serve as a kind of forensic autopsy of defence counsel's performance at trial. See for example, B.(G.D.), [2000] 1 S.C.R. 520, supra; R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.), leave to appeal ref'd [1996] S.C.C.A. No. 347; and R. v. M.B., 2009 ONCA 524. [269] One takes a two-step approach when assessing trial counsel's competence: first, the appellant must demonstrate that the conduct or omissions amount to incompetence, and second, that the incompetence resulted in a miscarriage of justice. As Major J., observed in B.(G.D.), supra, at para. 26-29, in most cases it is best to begin with an inquiry into the prejudice component. If the appellant cannot demonstrate prejudice resulting from the alleged ineffective assistance of counsel, it will be unnecessary to address the issue of the competence. [12] As this passage suggests the initial step in the analysis should be a consideration of whether the appellant has established a miscarriage of justice. If they are able to do so only then should the Court engage in an assessment of trial counsel’s competence. [13] Where the allegations include the failure to call witnesses the appellant must provide fresh evidence indicating what the witnesses would have said and satisfy the Court that there is a reasonable probability that this evidence would have changed the outcome of trial. The analysis of this issue was described by the Ontario Court of Appeal in R. v. L. (R.) 2013 ONCA 504 as follows: 18 The appellant suggested to his trial counsel that both S.D. and L.P. be called as witnesses at trial to undermine S.M.'s disclosure claim. After discussion with the appellant, his trial counsel declined to do so. 19 The appellant concedes that trial counsel's failure to call these prospective witnesses, by itself, does not constitute ineffective assistance of counsel. However, he argues that this failure, coupled with trial counsel's failure to interview S.D. and L.P., fell below the requisite standard of professional competence. He asserts that his trial counsel's decisions not to interview or call these witnesses were based on speculative and unreasonable considerations, rather than reasonably diligent inquiries into what their evidence would be. The appellant argues that these decisions contributed to a miscarriage of justice. 20 I disagree. The appellant did not file fresh evidence on appeal demonstrating what these witnesses would have said at trial, if they had been called to testify. In the absence of some clear indication of the nature of S.D.'s and L.P.'s potential evidence and that it was material and may have affected the outcome of the appellant's trial, there is no basis for concluding that the failure to interview or call these witnesses caused a miscarriage of justice. On the record before this court, the appellant's submissions in this regard are again speculative. [14] In Fraser the appellant filed affidavits from seven potential witnesses who did not testify at trial. The Court described the significance of some of that evidence as follows: 104 Had sufficient thought and preparation been given to Mr. Fraser's defence, the significance of the evidence of Viola and Rosella Fraser would have been obvious. Their testimony could reasonably be expected to have struck a serious blow to the complainant's credibility based on the version of events she had recounted for her sister, M.M., and which M.M. described in her own testimony at trial. Yet trial counsel's failure to interview Viola and Rosella Fraser and realize how important their evidence would be to the defence, meant that a golden opportunity was lost. [15] It is clear from these authorities that in order for an appellant to succeed in an argument that trial counsel did not call important evidence the appellant must provide the reviewing court with that evidence. In addition they must satisfy the court that the missing evidence was so significant that its absence may have affected the outcome of the trial resulting in a miscarriage of justice. Speculation as to what the evidence might have been and its impact on the outcome is not enough. [16] Where the allegation on appeal is that one of the lawyers at trial was in a conflict it is necessary, on appeal, to demonstrate by evidence the actual existence of the conflict. This was the conclusion of the Ontario Court of Appeal in R. v. Joanisse 1995 CanLII 3507 at pgs. 38 and 39: The first component requiring that the appellant establish the facts on which the claim is based is consistent with the generally accepted rules governing pleadings. It is the appellant who is making the allegation and it is the appellant who, as between the appellant and the Crown, is in the better position to establish the underlying facts. The cases involving allegations of ineffective representation based on conflict of interests provides a good example of the operation of this first component. In those cases, the appellant must demonstrate the existence of an actual conflict of interests. It is not enough for the appellant to show that there may have been a conflict of interests: R. v. Widdifield and Widdifield, supra, at pp. 16-23. [17] In situations where the argument is not that trial counsel neglected to call evidence but rather failed to obtain an adjournment, such as might be required where a conflict arises, it is still necessary to provide evidence on appeal with respect to what would have happened. An illustration is the following passage from the Fraser decision: 116 As noted earlier in these reasons, it was during a break in the proceedings on the first day of the appellant's trial when the intervenor told him, in the presence of his mother, father and wife, that he had just been advised by the Crown that J.M.'s story had changed. She was now making other allegations and providing further details. I am satisfied Mr. Fraser asked his lawyer whether they could get full particulars and have time to review it, but that he was told the trial had already started and there was nothing they could do about it. When pressed to explain why he had not sought an adjournment, the intervenor said his client "wanted to get this over with and behind him". I suspect that is true of anyone charged with a criminal offence who faces the prospect of a trial. But it is hardly an answer as to why an adjournment on such a serious matter was not requested, or at the very least, meaningfully discussed by the intervenor with his client. 117 I am also satisfied that the only details passed along by the intervenor with respect to J.M.'s new allegations were that she was now alleging attempted anal sex, and oral sex in the classroom. The appellant did not become aware of the full extent of the complainant's new allegations until he read Alonzo Wright's correspondence to his appeal counsel, the year following his conviction. 118 I accept the appellant's evidence that had he been informed by the intervenor of the full extent of the allegations, and had the intervenor explained to him his options including his right to request an adjournment, the appellant would have asked the intervenor to request an adjournment of his trial. Application of Principles to the Appeal [18] Mr. Paris did not file any affidavits from the people which he says should have been called as witnesses nor did he provide the physiotherapy records which he says Mr. Lloy should have obtained. Without this information the Court is in no position to determine what evidence might have been presented and how its absence may have affected the trial result. [19] Mr. Lloy’s affidavit attaches copies of some documents obtained from the Crown disclosure process including police statements for the potential witnesses. In my view these materials are not adequate substitutes for affidavits of those persons. The witness statements are hearsay and therefore not admissible for their truth. Mr. Paris argues that these statements indicate that Ms. Paris gave different versions of the incident to various people and that they could have contradicted her and undermined her credibility at trial. When I examine the witness statements I see no substantial discrepancies with the statement given by Ms. Paris to the police. Even if those people had been called and testified exactly as their police statements suggest, this would not have significantly undermined Ms. Paris’ credibility. Three of the proposed witnesses were members of Ms. Paris’ family who apparently had a strong dislike for Mr. Paris. They would not have been cooperative witnesses. [20] One of the witnesses that Mr. Paris wanted to call was Ciaria Paris who apparently could say that Amy Paris had recanted her allegations. According to Mr. Lloy, Ms. Paris was out of the province at the time of trial and therefore unavailable to testify. In his affidavit Mr. Lloy said that he was told by Mr. Paris that he did not want an adjournment of the trial in order to have her available for testimony. Mr. Paris’ affidavit does not indicate that he had asked for an adjournment of the trial so that Ciara Paris would be available. He simply states that he instructed Mr. Lloy to call her as a witness. [21] Without affidavits from any other proposed witnesses or copies of the third party records I am not satisfied that Mr. Paris has met the burden of showing that a miscarriage of justice has occurred. There is no basis on which the Court could conclude that the outcome would have been different had those witnesses been called or the evidence tendered. To the extent that there is information to suggest what they might have said it does not demonstrate significant discrepancies with Ms. Paris’ version of events. I am not satisfied that there is a reasonable probability that the result at trial would have been any different. [22] With respect to the conflict of interest Mr. Paris’ affidavit indicates that Mr. McNeill had represented him 10 years earlier with respect to unrelated charges. In this circumstance there is no automatic disqualification of counsel and it is necessary to consider whether Mr. McNeill received confidential information which could have been used to the prejudice of Mr. Paris (see R. v. Fleming 2000 CanLII 28349 (NLSCTD)). If there had been such confidential information provided to Mr. McNeill, Mr. Paris should have said so in his affidavit. Without such evidence there is no basis on which I could conclude that the conflict issue would have resulted in Mr. McNeill’s removal had the issue been pressed at trial. The absence of such evidence means that I am unable to conclude that there is a reasonable probability that the outcome at trial would have been any different. Conclusion [23] Since I have found that the fresh evidence filed by Mr. Paris does not establish that a miscarriage of justice took place I must dismiss his appeal. It is not necessary for me to review or comment on Mr. Lloy’s representation of Mr. Paris or the decisions which he made concerning trial strategy. Wood, J.