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APPEALS - Grounds - Miscarriage of justice

Wednesday, August 04, 2021 @ 5:05 AM  


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Appeal by the accused from conviction for first degree murder. The appellant admitted feeding her infant daughter a lethal quantity of sleeping pills. The appellant also took a potentially fatal dose of sleeping pills in a failed suicide attempt. The offence occurred in the context of an acrimonious marital breakdown. The theory of the Crown was that the appellant killed the child to prevent the father and his family from having custody of and access to her. The defence claimed the appellant committed the act while in a profoundly disordered mental state. The psychiatrists testified the appellant was suffering from a mental disorder that significantly compromised her mental state and impaired her ability to think in a rational way at the time. The jury found the appellant criminally responsible. The appellant alleged a miscarriage of justice resulted because trial counsel provided ineffective legal assistance and the in-court conduct of one juror, who, on more than one occasion, gestured to spectators sitting in the gallery in proximity to the father of the deceased infant and his family, gave rise to a reasonable apprehension of bias on the part of the juror.

HELD: Appeal allowed. New trial ordered. The appellant was entitled to reasonable professional assistance sufficient to enable her to make an informed decision about whether to admit liability for manslaughter. Counsel did not know the legal effect of making this admission on the appellant’s behalf. The appellant thus could not have made an informed decision on the point. This contributed to a proceeding that was procedurally unfair and undermined the fairness of the trial and the appearance of trial fairness. The appellant received no advice on whether to testify at the second stage of the trial dealing with the defence of not criminally responsible. At best, she was deprived of any ability to make an informed choice about whether to testify in support of the defence. The opening and closing address of counsel reflected a prejudicial failure of advocacy. Counsel’s failure to raise with the judge his knowledge of the in-court conduct of the juror led to a proceeding that was unfair in appearance. The cumulative effect of these acts and omissions gave rise to a proceeding that was procedurally unfair. Counsel’s failure to provide reasonable professional assistance undermined the reliability of the verdict. Had reasonable professional service been provided, there was a reasonable probability that the outcome would have been different. The appellant had, in the unusual circumstances of this case, met her heavy onus of establishing that a reasonable and informed person would reasonably apprehend there was a real likelihood the juror was not impartial, did not commence deliberations with an open mind, and would not decide the case fairly. There was a failure of the appearance of justice. The hand and facial gestures made by the juror towards the father’s family continued throughout the trial. A reasonable and informed person would not conclude that repeatedly making the hand gesture when it was made and from where it was made was a mere expression of sympathy but would reasonably apprehend that repeatedly making this gesture was an expression of support for and solidarity with the father’s family. The juror’s conduct, taken as a whole, gave rise to reasonable apprehension of bias and would reasonably be regarded as being reflective of an underlying attitude inconsistent with the existence of an impartial state of mind open to persuasion. The appearance of trial fairness was undermined by the juror’s conduct resulting in a miscarriage of justice necessitating appellate intervention.

R. v. Mehl, [2021] B.C.J. No. 1413, British Columbia Court of Appeal, G.J. Fitch, G.B. Butler and P. Abrioux JJ.A., June 30, 2021. Digest No. TLD-August22021003