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APPEALS - Grounds - Miscarriage of justice

Monday, December 21, 2020 @ 7:01 AM  


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Appeal by the accused from conviction for assault causing bodily harm. The appellant and complainant were involved in a physical altercation. Both men claimed to have been attacked by the other and to have then engaged in the altercation in self-defence. There were no witnesses other than the appellant and the complainant to the altercation. The trial judge rejected the appellant’s evidence. He did not accept all of the complainant’s evidence but found that his evidence as to the sequence of events in the fight was supported by the evidence of his injuries which were more severe than those of the appellant and corroborated by the evidence of witnesses to the aftermath of the fight. The appellant raised numerous grounds of appeal, contending that their cumulative effect resulted in a miscarriage of justice.

HELD: Appeal dismissed. There were some errors made by the trial judge and some irregularities in the trial process, but none of these errors or irregularities was sufficient to justify intervention from this court. The Crown’s failure to disclose the complainant’s prior record limited a line of inquiry related to the complainant’s credibility and insulated him from scrutiny to some extent but did not deprive the defence from garnering additional evidence that would ultimately have affected the trial judge’s material findings. While the fact of the complainant’s criminal record was relevant to his credibility generally, given the content of the record, there was no reasonable possibility that cross-examination on that record would have had an impact on the decision to convict. The non-disclosure did not deprive the appellant of realistic opportunities to explore possible uses of the record for purposes of investigation and gathering evidence. The trial judge’s finding that the appellant had an animus against the complainant was supported by the evidence. The evidence of the conflict between the appellant and the complainant following a 2013 incident was relevant to motive in respect of both men, and the judge found that each held a grudge against the other. The trial judge’s rejection of the appellant’s submission and his finding that the appellant held a grudge was supported by the evidence, including the appellant’s own evidence that he perceived the complainant’s text messages to him at the time as a threat to his safety. While the hearsay evidence of R as to what witness L said, when considered in the context of L’s evidence, ought not to have been considered by the judge, this formed a small part of the judge’s assessment of L’s testimony. The trial judge saw and heard the witnesses and was in the best position to assess the credibility and reliability of L’s evidence. The judge did not err in his assessment of credibility and correctly applied WD. He clearly recognized that an acquittal was required if he believed the appellant, was unable to decide whom to believe, or was left in reasonable doubt by the appellant’s evidence. This was not a case where the judge failed to consider all the evidence in determining his verdict. He explained why he accepted the complainant’s account of the fight and there was evidence to support his finding. The appellant did not establish ineffective assistance by trial counsel. All of his complaints essentially second-guessed trial counsel’s approach to the case with the benefit of hindsight, and his evidence that he did not recall his counsel seeking his instructions or advising him provided only a vague allegation that was wholly contradicted by his trial counsel. Trial counsel’s responsive affidavits established that he acted consistently with the instructions he was given and consulted with the appellant about strategic decisions during the trial where possible. There was no merit to all but a few of the appellant’s complaints, and those that had some merit did not fall below the requisite standard or resulted in a miscarriage of justice.

R. v. Frigon, [2020] B.C.J. No. 1849, British Columbia Court of Appeal, H. Groberman, R. Goepel and B. Fisher JJ.A., November 19, 2020. Digest No. TLD-December212020001