S.C.C. No. 02343 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Macdonald, Hallett and Matthews, JJ.A. and HER MAJESTY THE QUEEN Respondent Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on July 10, 2008. The Appellant in person Kenneth W. F. Fiske for the Respondent Appeal Heard: March 21, 1991 Judgment Delivered: June 10, 1991 THE COURT: Appeal from conviction dismissed, application for leave to appeal against sentence granted, appeal dismissed, and firearms prohibition order made by Mr. Justice Tidman to remain in full force and effect, per reasons for judgment of Macdonald, J.A.; Hallett and Matthews, JJ.A. concurring. Publishers of this case please take note that Section 486(3) of the Criminal Code applies and may require editing of this judgment or its heading before publication. The subsection provides: (3) Subject to subsection (3.1), where an accused is charged with an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 271, 272, 273, 346 or 347, the presiding judge or justice may make an order directing that the identity of the complainant or of witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way. MACDONALD, J.A.: The appellant, P.W.B., was convicted after trial before Mr. Justice Tidman, sitting without a jury, on a bill of indictment which alleges that he:"... at or near [...] in the County of Halifax, Nova Scotia, on or about the 13th day of December 1987, did unlawfully use a weapon, to wit: a knife in committing a sexual assault upon the person of [the complainant], contrary to Section 246.2 of the Criminal Code." For such offence, the appellant was sentenced to eight years imprisonment. He now applies for leave to appeal and, if leave is granted, appeals against both conviction and sentence. The material facts are as follows. The complainant is the divorced mother of two teenage children with whom she resided at all material times in an apartment in the [name of location changed] area. One of her favourite pastimes is playing darts. On the afternoon of Saturday, December 12, 1987, the complainant and girlfriend, S.O., went to the [name of place changed], which is located on [name of street changed], to play darts. The complainant's former boyfriend remained in her apartment to babysit her children. The complainant remained in the [name of place changed] playing darts until approximately 7:00 o'clock in the evening. During that time she testified that she drank approximately eight glasses of draft beer. She left the club with the intention of returning home. She accepted drive from friends who were going to the [name of place changed], located on [name of street changed]. That particular branch of the [name of place changed] was about one‑half mile from the complainant's residence. The complainant changed her mind about going home and decided to go to the [name of place changed] to have beer. She remained there until closing time. During the evening dance was held in the [name of place changed] Hall. During the course of the evening the complainant met the appellant with whom she was not previously acquainted. They talked and danced. The complainant testified that when the dance was over P.W.B. offered to drive her home but she said she would take cab. She said that she twice called for cab but was told on both occasions it would be at least one‑half hour before one could be sent for her. She testified that girlfriend who appeared to know the accused suggested that she would be all right with him. She therefore accepted his offer of drive home. They proceeded to the [name of place changed] parking lot and entered the appellant's vehicle. The complainant at the time had with her pint bottle of beer that she had taken from the [name of place changed]. The complainant gave the appellant directions to her home but testified that P.W.B. drove past her home and proceeded to the rear of the [name of place changed], which is located in rather isolated area off [name of street changed]. The complainant testified that after the accused parked the car he picked up knife from the front seat area of the car floor to the left of the driver's seat. The complainant then said that the accused placed the unsheathed knife about quarter of an inch from her face and said, "You don't want me to have to use this." To this she replied, "No, you don't have to use it." She testified that at this time she was terrified. She said that because she feared that he would harm her she consented to have intercourse with P.W.B... Both undressed. The intercourse occurred on the front seat of the car after which, on the appellant's instructions, she performed fellatio on him. After that sexual intercourse again took place. The sexual activities concluded at approximately 4:00 o'clock on the morning of Sunday, December 18. The complainant then dressed and left the vehicle to urinate. She said she was afraid to run for fear that the appellant would either run after her and catch her or follow her with the car. The complainant, therefore, got back into the vehicle after which the appellant, naked except for pair of running shoes, got out of the car also to urinate. The motor of the vehicle was running at this time. After P.W.B. left the car, the complainant locked the doors and proceeded to drive away. P.W.B.. jumped on the hood of the vehicle. The complainant then drove at slow rate of speed down [name of street changed], sounding the car horn all the while. Because of the hour traffic on the street was all but non‑existent. At the intersection of [name of street changed] and [name of street changed] she brought the vehicle to stop. The sounding of the car horn and the sight of naked man on the hood of the vehicle had attracted the attention of police officers who were at stakeout in relation to an unrelated matter. The appellant was immediately taken into custody by the police and the complainant was taken to local hospital for medical examination. The examination was conducted by Dr. Plaxton, who found that the labia was inflamed and tender to the touch, consistent with prolonged sexual intercourse. The doctor also examined the complainant's vagina and found it was dry and consistent with woman who had not been recently sexually aroused. The police searched the appellant's vehicle and, amongst other items, seized hunting knife, which was located beneath the brake pedal, knife sheath, bra, the appellant's clothing and an empty beer bottle. Constables Trider and Higgins of the Halifax Police Department testified that they saw the knife below the brake pedal on the floor shortly after the vehicle was stopped at the intersection of [name of street changed] and [name of street changed]. Constable Trider described the complainant as being hysterical at the time. He said she was sobbing, crying and her eyes were bloodshot. He stated she appeared to have been crying for some time. Constable Higgins testified that he saw both the knife and the sheath. He said the latter was on the carpeted section of the front floor of the driver's side of the car. The appellant testified at his trial. He said that on December 12, 1987, he had two draft beers with his lunch and about three pints of beer during the afternoon. He said he went to the [name of place changed] around 10:00 p.m., where he had two pints of beer. He testified that he met the complainant and had few dances with her. When the dance finished around 1:00 a.m. he said she accepted his offer of drive home. He went on to state that she directed him to the alcove behind the school. There they drank the open bottle of beer that she had taken from the [name of place changed]. He then said that consensual intercourse took place and that they performed oral sex upon each other. He testified that when he got out of the car to urinate, the complainant locked the car doors and drove away but that he managed to jump on the hood of the vehicle. P.W.B. said that the hunting knife and the sheath were his, but he denied handling the knife in the manner described by the complainant and denied threatening her in any way. In short, the appellant's defence was that although he had intercourse with the complainant, such was with her consent. The sole ground of appeal set forth in the appellant\'s inmate notice of appeal is:"My counsel at trial refused to call a witness that was present in the courthouse to prove my allegations against the complainant. My basic case was based on the fact of why the complainant in the case would say she was victim of sexual assault. By not bringing this very important witness forward was not able to show the Judge the reasons behind the allegations. instructed my lawyer on four (4) separate meetings to file an appeal. He told me at the time he would do so. was under the impression that this was done until receiving letter in July that he had not done so. There is an investigation by the Barristers' Society into the lawyer's conduct at this present date." Since the appellant represented himself on the hearing of this appeal, the Court felt obligated to ascertain from him some details with respect to this ground of appeal. P.W.B. advised the Court that the witness he wished called to testify was R.B., the sometime boyfriend of the complainant. The evidence the appellant hoped to elicit from R.B. was that the latter had physically assaulted the complainant on more than one occasion. This evidence he contended was relevant as going to the complainant's credibility. The complainant, however, admitted on cross‑examination that R.B. had hit her and that, as result, the police were called, charges were laid, but later withdrawn by her. P.W.B. was represented on his trial by Mr. Mark Knox. The appellant candidly admitted that R.B. had refused to give a statement to Mr. Knox: P.W.B. also said that he did not know for certain what evidence R.B. would give and was not at all sure that the latter would say that he had assaulted the complainant on more than one occasion. R.B. was in the courthouse during the trial under a defence subpoena. The appellant has failed to show any reason why this Court should now admit the evidence of R.B. He was present during the trial and there is nothing, either by affidavit evidence or otherwise, to show that he would give relevant evidence bearing on a decisive or potentially decisive issue on the trial. The burden on the appellant is to demonstrate that R.B.\'s evidence would be reasonably capable of belief and, in addition, that his evidence, if believed, could reasonably be expected to affect the result of the trial when considered together with all the other evidence. This P.W.B. has failed to do. See Palmer and Palmer v. The Queen. 1979 CanLII (SCC), [1980] S.C.R. 759, 50 C.C.C. (2d) 193 at p. 205. In this ground of appeal, the appellant criticizes the conduct of Mr. Knox. Since, in my opinion, such criticism is totally unfounded consider it necessary to make the following observations. It is an accepted constitutional principle in the United States that the right of an accused to "have the assistance of counsel for his defence" guaranteed by the Sixth Amendment, is to have the effective assistance of counsel. Where, however, the defendant alleges that the incompetence of counsel deprived him of the effective assistance of counsel, the defendant must show, in addition to the lack of competence on the part of defence counsel, that there is reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Since there is no suggestion that that is the case here, do not consider that this appeal calls for determination whether ss. 7, 10(b) and 11(b) of the Charter of Rights and Freedoms guarantees to an accused right to effective assistance of counsel. For the purposes of this appeal, am however prepared to assume that an accused has constitutional right to the effective assistance of counsel. In Strickland v. Washington, 104 S.Ct. 2052 (1984) Justice O'Connor, speaking for the Court, said in part (p. 2068): "... The defendant must show that there is reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. reasonable probability is probability sufficient to undermine confidence in the outcome." In R. v. Garofoli (1988), 1988 CanLII 3270 (ON CA), 41 C.C.C. (3d) 97 (Ont.C.A.), Martin J.A., after stating the American position to which have referred and after referring to Strickland v. Washington, supra, said (p. 152): The principle set forth in Strickland v. Washington, supra, can usefully be applied in this jurisdiction. am far from satisfied that it has been shown that Scibetta's counsel at the trial lacked professional competence. Furthermore, it has not been shown that the alleged errors of defence counsel prejudiced the appellant's right to fair trial. should add that, apart altogether from constitutional considerations, if, in any case, the court considered that there was real possibility that miscarriage of justice had occurred. due to the flagrant incompetency of counsel we would be entitled to intervene under s. 613(l)(a)(ii) of the Code: see R. v. Swain, [1988] Crim. L.R. 109n." That, of course, is not the case here. Defence counsel assumes great deal of responsibility in the conduct of criminal case. He is called upon to make tactical decisions which he and his client must live with. It is not the function of this Court to second‑guess trial tactics employed by counsel. In the present case, would but say that in my opinion Mr. Knox's decision not to call R.B. as witness cannot be criticized. R.B. would not give Mr. Knox a statement ‑ he appears to have been hostile ‑ Mr. Knox, like P.W.B. had therefore no idea what R.B. would say on the witness stand. Under those circumstances it is my opinion that Mr. Knox's decision not to call R.B. as witness cannot and should not be criticized. Indeed, under the circumstances, it appears to have been the correct decision. It follows that however this ground of appeal is viewed, my opinion is that there is absolutely no merit in it. Although the appellant recites but one ground in his notice of appeal against conviction, he did raise numerous additional matters on the hearing of the appeal of factual nature. have considered them all in light of the record and have concluded that there is no merit in any of them. do, however, consider that some comment should be made as to the circumstances under which P.W.B. lost his right to jury trial. Upon being arraigned on the charge set forth in the information, the appellant elected to be tried by court composed of judge and jury. Following preliminary hearing on March 10, 1988, he was committed to stand trial. He was subsequently tried by judge and jury in the latter part of 1988. The jury were unable to reach verdict and were discharged. new bill of indictment was prepared on December 13, 1988. pretrial conference was held on April 11, 1989 at which P.W.B. was personally present. On that date his new trial date was set for May 16, 1989 with jury. He failed to appear on that date and bench warrant for his arrest was issued. He was apprehended. On June 9, 1989, the Crown prosecutor applied, on notice, to Chief Justice Glube for an order that P.W.B. was no longer entitled to jury trial. P.W.B.. was present together with his counsel on the hearing of such application. The following notation appears on the court record relating to that application: "Court opened. Court to counsel (Mr. McCarroll) (Mr. Knox) Accused agrees to forfeit right to Jury Trial. To return on 13th June 1989 to set down trial date. Mr. Knox to Court not ready to proceed on bail application today. No known date for hearing adjourned without day. Counsel will endeavour to get early date if Judge becomes available. Court closed." Section 598(1)(a) of the Code reads as follows: 598.[526.1] (1) Notwithstanding anything in this Act, where person to whom subsection 597(1) applies has elected or is deemed to have elected to be tried by court composed of judge and jury and, at the time he failed to appear or to remain in attendance for his trial, he had not re‑elected to be tried by court composed of judge without jury or provincial court judge without jury, he shall not be tried by court composed of judge and jury unless (a) he establishes to the satisfaction of judge of the court in which he is indicted that there was legitimate excuse for his failure to appear or remain in attendance for his trial; ... In R. v. Lee, 1989 CanLII 21 (SCC), 1989] 73 C.R. (3d) 257, 52 C.C.C. (3d) 289, the Supreme Court of Canada held that although s. 598 of the Code restricts the right to trial by jury and is, therefore, contrary to s. 11(f) of the Charter of Rights and Freedoms, it constitutes reasonable limit under s. of the Charter in that protection of the administration of justice is valid legislative purpose of sufficient importance to override the right to jury trial. P.W.B. now states that both Mr. Knox and the Crown prosecutor, Mr. McCarroll, advised him that he had absolutely lost his right to jury trial by failing to appear for his trial in May. The appellant submitted before us that he was not told by his counsel of the provisions of Code s. 598(1)(a), namely that he could avoid losing trial by jury if he had legitimate excuse for failing to appear for his trial in May. Again, since the appellant was not represented by counsel on this appeal he was asked by the Court what his excuse was. He said it was because he did not have lawyer. Instead of coming to court on May 16, 1989, and raising lack of counsel as possible ground for an adjournment, he elected to stay away. I would say in passing that it appears extremely doubtful to me that the reason given by P.W.B. for his non‑attendance at his trial in May could amount to a legitimate excuse within the meaning of s. 598 of the Code; More importantly, however, the appellant only raised this issue during the course of his oral submissions. He gave no notice to the Crown or to Mr. Knox as to the allegations he intended to make as to what he was told by Mr. McCarroll and Mr. Knox. In addition, he filed no material in support of this submission such as his affidavit or the affidavit of others. This to me is simply another uncalled for, unsupported and unjustified criticism of counsel by P.W.B.. The court record speaks for itself. The appellant agreed before Chief Justice Glube to forfeit his right to a jury trial. That, as far as am concerned, ends the matter. Mr. Justice Tidman, after reviewing the evidence in some detail, concluded his decision by saying: accept the evidence of the complainant that the accused led her to believe, and she did believe, that if she refused to engage him in sexual conduct he would harm her with hunting knife which he held to her face when threatening her. accept also the evidence of the complainant that she consented to and did have sexual intercourse with and performed fellatio upon the accused at the time and place alleged. find, however, that the consent of the complainant to the sexual acts was not freely given but given because of the threat of bodily harm to her from the accused and, therefore, was not valid consent. Upon all of the evidence considered as whole am satisfied beyond reasonable doubt that the accused committed the offence of sexual assault with weapon upon the complainant and find the accused guilty as charged." In accordance with the direction given in Yebes v. The Queen, 1987 CanLII 17 (SCC), [1987] S.C.R. 168, 36 C.C.C. (3d) 417, have carefully reviewed, considered, examined and, to some extent, reweighed the evidence. After so doing am of the opinion that it was open to the trial judge on the evidence before him to come to the conclusions he did. He accepted the evidence of the complainant and rejected that of the appellant. Then on an overview of all the evidence, he was satisfied that the guilt of the accused had been established beyond reasonable doubt. His approach and conclusion to my mind are unchallengeable. turn now to consideration of the appellant's application for leave to appeal against the sentence of eight years imprisonment. The appellant is now 37 years of age. He had been married but is now divorced and at the time of this offence had relationship with Miss W. He has Grade 12 education. He graduated from the [name of school changed] in 1973 after four year course as journeyman electrician. He worked for the N.... from 1971 to 1977 as an apprentice. For one year period, 1979‑80, he was employed as truck driver for H..... From 1982 until 1986 he resided in [...], Saskatchewan, where he was the owner/operator of satellite dish company. From November 1988 until May of 1989 he was employed with U.... in [...] as warehouse manager. The appellant does have prior criminal record, the details of which are as follows: 1) 1970 theft over fifty dollars [...], Nova Scotia; 2) 1982 driving with blood alcohol level in excess of .08 [...], Saskatchewan; 3) 1983 failing to remain at the scene of an accident [...], Saskatchewan. In imposing sentence Mr. Justice Tidman said: The courts in this province have been increasing the length of sentences for crimes of violence, particularly of violence against women. support this trend because it reflects society's growing abhorrence of this longstanding social problem. In keeping with that trend, sentence you to term of imprisonment of eight (8) years. In so doing, have also taken into consideration that you have been in custody for approximately ten (10) months, as your counsel points out, may, under the provisions of s. 221(b) of the Criminal Code." The predominant consideration in sentencing for sexual assault must, of course, be deterrence, the object being to deter the accused and others from emulating such conduct. I have considered the circumstances of the offence, the previous record of the accused and the remarks of the learned trial judge. Although the sentence can be considered as being at the high end of the range of sentencing for sexual assault, it is not manifestly excessive. It cannot be said that the eight years imprisonment was not a fit sentence in this case. In result, I would dismiss the appeal from conviction. I would grant the application for leave to appeal against sentence, but dismiss the appeal. The firearms prohibition order made by Mr. Justice Tidman under s. 100(1) of the Code will, of course, remain in full force and effect. J.A. Concurred in: Hallett, J.A. CANADA PROVINCE OF NOVA SCOTIA 1990 C.R. 10540 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from the SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION HER MAJESTY THE QUEEN P.W.B.. HEARD BEFORE: The Honourable Mr. Justice G. A. Tidman PLACE HEARD: Halifax, Nova Scotia DATES HEARD: January 26, 29, 30 and 31st, 1990 COUNSEL: Robert McCarroll, Esq., for the Prosecution Mark Knox, Esq., for the Defence S.C.C. No. 02343 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: MACDONALD, J.A.
The appellant appealed his conviction for sexual assault using a weapon and his sentence of eight years. The appellant contended that his counsel had failed to call the complainant's boyfriend as a witness even though he was in the courthouse under a defence subpoena. The appellant also raised on appeal the fact that he had lost his right to a jury trial. He had failed to appear at the jury trial scheduled and a bench warrant had been issued. The Crown had then applied for an order that the appellant was no longer entitled to a jury trial and the record showed that his counsel had agreed to forfeit the right to a jury trial. The appellant contended that his counsel and the Crown both advised him he had lost his right by failing to appear and that he was not told that he could avoid losing his right if he had a legitimate excuse for failing to appear. He put forth the excuse of having had no counsel at the time of the trial. Dismissing the appeal, (1) that there was nothing to show that the witness would have given relevant evidence bearing on a decisive issue in the trial and the appellant failed to meet the burden of showing that the evidence, if believed, could reasonably have been expected to affect the result of the trial when considered with all the other evidence; counsel's decision not to call the witness where the witness was hostile and counsel did not know what he would say was not inappropriate, and, the court noted, in the circumstances, seemed to have been the right decision; (2) the excuse of failing to appear because he did not have counsel was not a legitimate excuse within the meaning of s. 598(1)(a) of the Criminal Code; moreover, the appellant only raised this issue in his oral submissions and gave no notice to the Crown respecting this issue nor did he provide any supporting evidence by way of affidavit; it was seen by the Court as another unsupported and unjustified criticism of counsel and the Court concluded that the record showed that the appellant had agreed to forfeit his right to a jury trial; and (3) that an eight year sentence, although at the high end of the scale for sexual assault, was not manifestly excessive, having regard to deterrence, the circumstances of the offence, and the appellant's record which included three minor offences.