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CRIMINAL LAW - Defence counsel

Friday, June 14, 2019 @ 6:37 AM  

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Appeal by CB from his conviction for sexual assault and sexual interference with his stepdaughter, ES. The short trial consisted of the testimony of ES for the Crown, the testimony of CB for the Defence, and, in a permitted rebuttal for the Crown, the testimony of JS, the mother of ES. CB’s counsel on appeal submitted that the position of CB’s trial counsel on rebuttal exemplified the ineffectiveness of the Defence position at trial. The Defence position largely focused on CB’s evidence that he had a good relationship with ES. Defence counsel did not follow up his own line of questioning on that point. The real issue on reliability was whether the young child could have been influenced by her mother, JS, to make accusations against CB.

HELD: Appeal allowed. Although CB’s counsel made passing reference to the timing of events related to the disclosure to the police, and although the trial judge appeared to have recognized that there was a concern about influence by JS, the record showed that CB’s trial counsel’s efforts in both leading evidence or making submissions on that topic was wanting, and that his failure to do so operated to the prejudice of CB’s position. The trial judge was not persuaded that there was any indication of the mother having affected the testimony of ES. However, Defence counsel did not provide the trial judge with a full evidentiary basis on which to reach a conclusion on that possibility. The Defence presentation in the trial amounted to ineffectiveness of representation. As a result, a new trial was ordered.

R. v. C.B., [2019] A.J. No. 528, Alberta Court of Appeal, J. Watson, F.F. Slatter and S.J. Greckol JJ.A., May 2, 2019. Digest No. TLD-June102019010