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APPEALS - Grounds - Miscarriage of justice - Powers of appellate court - New trial

Thursday, April 05, 2018 @ 10:26 AM  


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Appeal by the accused from conviction for sexual assault on the basis that his defence lawyer did not provide him with effective representation. A provincial court judge had convicted the accused of having sexual intercourse with the complainant without her consent. The trial judge had found the complainant’s evidence highly credible and accepted her testimony and rejected that of the accused. On appeal, the accused argued he did not receive a fair trial as a result of ineffective representation. The Crown had conceded the appeal on the basis the ineffective assistance of counsel compromised trial fairness, resulting in an unfair process. The dispositive issue on appeal was the accused’s counsel’s trial preparation of the accused and how it fell short of the standard for trial fairness.

HELD: Appeal allowed. A feature of effective representation that gave a trial the appearance of fairness – a thorough and rigorous preparation timed to reasonably coincide with when an accused actually testified – did not occur in this case. An accused’s entitlement to a fair trial included the right to be properly prepared to testify in his own defence. A failure by trial counsel to discharge this fundamental obligation to a client could be enough to undermine the integrity of the trial process and the appearance of trial fairness, constituting a miscarriage of justice.

R. v. Simpson, [2018] N.S.J. No. 87, Nova Scotia Court of Appeal, D.R. Beveridge, E. Van den Eynden and A.S. Derrick JJ.A., March 16, 2018. Digest No. TLD-April22018007