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APPEALS - Grounds - Miscarriage of justice

Tuesday, September 10, 2019 @ 6:28 AM  


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Appeal by the accused from convictions for sexual offences against his daughter. He alleged that his trial counsel provided him with ineffective assistance which resulted in a miscarriage of justice. The complainant and the appellant both testified. The trial judge decided this case on credibility. The complainant testified the appellant sexually abused her on two occasions in about 1999 to 2000. The appellant’s defence was denial. The trial judge rejected the appellant’s denial. She found his evidence was not given in a straightforward fashion and that it did not have an air of reality when considered in its entirety. The appellant argued that, but for the ineffectiveness of his trial counsel, there was a reasonable possibility he would have been acquitted. The appellant’s complaints about his trial counsel were focused on counsel’s inexperience and a variety of alleged failures.

HELD: Appeal dismissed. The test to be applied in an appeal based on ineffective assistance of counsel was to be determined on a reasonable probability, not reasonable possibility, standard. The appellant did not demonstrate any prejudice arising from what trial counsel did or did not do. The appellant and his wife were actively involved in preparing for the appellant’s trial. The appellant did have the KGB transcript before his trial. The appellant’s claim that defence counsel did not inform him about the complainant’s videotaped police statement did not withstand scrutiny. It was apparent from his cross-examination of the complainant that defence counsel was familiar with the complainant’s CAS records. While he tried to use them in his cross-examination of her, there was not much the complainant could recall about involvement with CAS 15 years earlier. The appellant failed to identify what defence counsel should have done differently in his cross-examination of the complainant. Counsel did not have material inconsistencies with which to cross-examine the complainant. Her core allegations, the surrounding circumstances, and her memories of her time in Nova Scotia living with the appellant, as she recounted them in her 2014 KGB statement, at the preliminary inquiry, and at trial, remained consistent. The appellant was fully engaged in his defence throughout. He did not establish that defence counsel’s cross-examination of the complainant led to a miscarriage of justice or an unfair trial. There was no merit in the appellant’s complaint that counsel failed to prepare the appellant’s wife or the appellant to give evidence. The appellant did get out his version of events in his direct examination. The appellant knew the case and what he wanted to address in his testimony. The appellant did not show that he was inadequately prepared for the Crown’s cross-examination. He handled himself adequately and did not explain how he could have been better prepared or have made greater headway in responding to the Crown’s case against him. Counsel’s relative inexperience and his less than authoritative grasp of evidence law did not cause his representation of the appellant to fall below the reasonable professional assistance standard. The appellant did not establish that his trial was unfair. Defence counsel assisted him in making a full answer and defence. The trial judge’s rejection of the appellant’s evidence did not constitute unfairness.

R. v. P.C.H., [2019] N.S.J. No. 325, Nova Scotia Court of Appeal, A.S. Derrick, M.J. Hamilton and J.E. Scanlan JJ.A., July 26, 2019. Digest No. TLD-September92019005