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APPEALS - Grounds - Miscarriage of justice

Friday, December 11, 2020 @ 6:55 AM  

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Appeal by the accused, Sauverwald, from convictions for sexual assault and strangling with intent. The complainant testified of the details of an attack by an unknown assailant. The accused testified that he was alone with the complainant on the night of the attack but denied that he was the perpetrator. The theory of the defence was that an earlier visitor returned to the complainant’s residence and perpetrated the attack. The trial judge rejected the theory of the defence and found that the accused was the perpetrator. The accused submitted that the verdict was unreasonable given errors in assessing the reliability of the complainant’s evidence. The accused further submitted that the trial judge erred in declining to declare a mistrial. The request for a mistrial arose after defence counsel was replaced post-conviction and alleged ineffective assistance of prior trial counsel causing a miscarriage of justice. The trial judge rejected the allegation of ineffective assistance and denied a mistrial. The trial judge found that trial counsel’s work did not have a prejudicial impact on the outcome. The accused appealed.

HELD: Appeal allowed. Trial counsel’s ineffectiveness was pervasive in terms of the core theory of the defence, and in the execution of that defence. Confidence in the outcome was undermined by a constellation of failings, concessions and odd positions advanced by trial counsel. Although each area might not have individually sustained a finding of miscarriage of justice, the cumulative effect of those errors undermined confidence in the outcome. Had defence counsel pursued issues related to the presence of DNA evidence of another individual, the toxicological evidence showing no drugging and the reliability of the complainant’s testimony, there was a possibility that different evidence of material significance would have been generated. Defence counsel’s ineffectiveness was manifest in numerous and material ways. The errors at least partially influenced the reasoning in favour of a conviction. Given the possibility that a new trier of fact could be persuaded of the accused’s guilt, the appropriate remedy was to order a new trial.

R. v. Sauverwald, [2020] A.J. No. 1170, Alberta Court of Appeal, P.T. Costigan, J. Watson and F.F. Slatter JJ.A., November 3, 2020. Digest No. TLD-December72020010