Nova Scotia Court of Appeal cites lack of fulsome disclosure by Crown

By John L.Hill

Law360 Canada (April 13, 2023, 12:36 PM EDT) --
John L. Hill
John L. Hill
Sometimes the client can be the lawyer’s worst enemy. That seemed to be the case in R. v. Ross 2023 NSCA 13. Richard Allen Ross hired Nova Scotia lawyer Carbo Kwan to defend him after he was charged with intimidation of a justice system participant, a criminal defence counsel who had her tires slashed.

As well, convictions were recorded for the actual slashing of the lawyer’s tires and those of the lawyer’s wife. The purpose of the Criminal Code section setting out this offence (s. 423.1(1)(b)) is to preserve the integrity of the justice system and ensure that those involved are protected from outside threats and pressures. When Ross failed at trial to avoid convictions, he turned on his own lawyer, Kwan, arguing that he had ineffective representation by counsel.

It was later discovered that Ross’ real target was his brother-in-law who Ross was accusing of defrauding the government of Canada in claiming military benefits that Ross felt were underserved. Besides making an anonymous complaint against the brother-in-law, Ross had threatening emails sent and also targeted the brother-in-law’s tenants, the lawyer and his spouse.

Police investigated the threats and mischief that occurred and eventually laid the charges upon which the convictions were based. In advance of trial, the Crown counsel revealed that a search of Ross’ computers showed he was responsible for sending the threatening emails but was unable to produce the incriminating material until the trial commenced. Upon discovering that material did exist, Kwan urged the client not to call evidence. To do so would be unethical as it would be condoning the giving of false evidence to the court.

Kwan had earlier been instructed not to worry since Ross asserted that no such material existed. Accepting that her client was giving accurate information, Kwan was perhaps less forceful in making her disclosure demands than she might otherwise have been. When expert evidence was called and the offensive material produced, it was too late for Ross.

True to form, he appealed the convictions blaming everyone but himself. The Crown was irresponsible for not providing disclosure in an accessible manner in a timely fashion. Kwan was responsible for her failure to make a more forceful demand for disclosure material. As a result, Ross sought an acquittal for the miscarriage of justice.

In his appeal, Ross sought to introduce fresh evidence, not to challenge the reliability of the trial decision, but to show that the injustice was done due to his defence counsel’s incompetence and the failure of the Crown to discharge its disclosure obligations in a timely manner. In this respect, Ross was successful. The Appeal Court provisionally admitted evidence allowing it to assess whether trial counsel was ineffective and whether the Crown discharged its disclosure responsibility. The court relied on a number of cases in so doing: R. v. West 2010 NSCA 16, R. v. Wolkins 2005 NSCA 2, R. v. Fraser 2011 NSCA 70, Re Truscott 2007 ONCA 575, R. v. G.K.N. 2016 NSCA 29 and R. v. Aulakh 2012 BCCA 340.

The Appeal Court concluded that the Crown had been lax in providing fulsome disclosure. Despite repeated attempts by Kwan to obtain electronic disclosure, her efforts to obtain crucial evidence went ignored. The court rightly chastised the Crown, “Such behaviour is the antithesis of appropriate Crown norms.” Yet when failure to disclose is raised on appeal, it is the responsibility of the appellant to show that there was a reasonable possibility the non-disclosure affected the outcome of the trial or its overall fairness (R. v. Dixon [1998] 1 S.C.R. 244). There was no reason to doubt the outcome of the case even though the conduct of the Crown was open to criticism.

As to the claim of ineffective assistance by counsel, the court looked to R. v. G.D.B. 2000 SCC 22 that established the elements necessary to succeed on such a claim: (1) that the acts or omissions of counsel constituted incompetence, and (2) a miscarriage of justice resulted. After reviewing the case as a whole, the court was unable to conclude that counsel’s conduct resulted in unfairness or that a miscarriage of justice occurred.

On review of these items the provisional acceptance of fresh evidence was denied and the appeal denied. There is an obligation upon the Crown to provide full and complete disclosure; there is an obligation on defence counsel to press for complete disclosure; but, most of all, there is an obligation on a client to be truthful with his or her counsel. In this case, both the Crown and defence counsel suffered judicial criticism that could have been avoided by an honest client description in his role in the offence.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at johnlornehill@hotmail.com.

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