R. v. G.D.B., 2000 SCC 22, [2000] 1 SCR 520

R. v. G.D.B., [2000] 1 S.C.R. 520

G.D.B.                                                                                                Appellant

v.

Her Majesty The Queen                                                                   Respondent

Indexed as:  R. v. G.D.B.

Neutral citation:  2000 SCC 22.

File No.:  27240.

2000:  January 28; 2000:  April 27.

Present:  Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for alberta

Criminal law – Fresh evidence – Due Diligence – Competence of trial counsel – General approach to miscarriages of justice based on existence of fresh evidence – Fresh evidence available at trial but not adduced into evidence because of tactical decision of trial counsel – Whether due diligence criterion of test to admit fresh evidence met – Whether trial counsel was incompetent – Whether failure to use fresh evidence at trial resulted in miscarriage of justice.

The accused was charged with three sexual offences.  At trial, the complainant, the accused’s adopted daughter, testified that he began touching her in a sexual manner when she was 12 years old and that the inappropriate conduct culminated in 1984 when he sexually assaulted her by having non‑consensual sexual intercourse.  The complainant left home the day of that incident.  She first complained to the police in 1994.  Because of a tactical decision of defence counsel, an audio-taped conversation between the complainant and her mother, in which the complainant denied that she had been sexually molested by the accused, was not introduced into evidence.  The tape had been surreptitiously recorded by the mother in 1984, a few days after the alleged incident.  In cross-examination, the complainant denied having had any contact with her mother at that time.  In her testimony, the mother contradicted the complainant’s evidence.  The jury convicted the accused of sexual assault and indecent assault but acquitted him of sexual assault with alleged forced sexual intercourse.  On appeal, new counsel sought reversal of the convictions on the grounds that the accused’s trial counsel was incompetent, or that the fresh evidence not used at trial on counsel’s advice impacted on the issue of guilt or innocence, and the failure to use this evidence resulted in a miscarriage of justice.  The Court of Appeal appointed a commissioner to conduct an inquiry concerning whether the fresh evidence relating to guilt or innocence and to the competence of defence counsel was credible.  Informed by the commissioner’s findings, a majority of the Court of Appeal dismissed the accused’s appeal.

Held:  The appeal should be dismissed.

The four criteria applicable to an appeal based upon fresh evidence were stated by this Court in Palmer to be due diligence, relevancy of the evidence, credibility of the evidence and the expectation that it would have affected the result.  The due diligence criterion will be met where the evidence was not led due to the incompetence of counsel.  A finding of incompetence requires the appellant to establish, first, that counsel’s acts or omissions constituted incompetence and, second, that a miscarriage of justice resulted.  Where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis.  Here, defence counsel satisfied the commissioner and all three members of the Court of Appeal that his decision was competent and may have resulted in the accused’s acquittal on the most serious charge.  Defence counsel had feared that the production of the tape would destroy the credibility of his main witness, the accused’s spouse, and the destruction of her credibility would have forced the accused, who counsel considered to be a poor witness, to testify.  Where, in the course of a trial, counsel makes a decision in good faith and in the best interests of his client, a court should not look behind it save only to prevent a miscarriage of justice.  While there are decisions that defence counsel are ethically bound to discuss with the client and regarding which they must obtain instructions, on the facts of this case, counsel had the carriage of the defence and the implied authority to make tactical decisions in the best interests of his client.  In any event, the failure to obtain specific instructions did not affect the outcome of the trial.  In the absence of a miscarriage of justice, the question of the competence of counsel is usually a matter of professional ethics and is not a question for the appellate courts to consider.  Since defence counsel had implied authority to decide not to use the tape, the accused has failed to satisfy the due diligence criterion.

The due diligence criterion, however, is not an essential requirement of the fresh evidence test, particularly in criminal cases, and it must yield in circumstances where its rigid application would result in a miscarriage of justice.  The accused failed to establish that such a danger exists.  Not only were the tapes unlikely to adversely affect the credibility of the complainant but it was reasonable to conclude that using the tape at trial would have undermined the credibility of the accused’s spouse.  The fact that she chose to create the tape in 1984 could be seen as an apprehension that criminal conduct had occurred.  There exists no reasonable possibility that the use of the “fresh” evidence in this case might have affected the two guilty verdicts rendered by the jury.

Cases Cited

Applied:  Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. Warsing, [1998] 3 S.C.R. 579; R. v. M. (P.S.) (1992), 77 C.C.C. (3d) 402; McMartin v. The Queen, [1964] S.C.R. 484; R. v. Price, [1993] 3 S.C.R. 633; referred to:  R. v. Joanisse (1995), 102 C.C.C. (3d) 35; Strickland v. Washington, 466 U.S. 668 (1984).

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 7 , 11 (d).

Criminal Code, R.S.C., 1985, c. C-46, ss. 650(3) , 683(1) (e)(ii).

Authors Cited

Law Society of Alberta.  Alberta Code of Professional Conduct.  Calgary:  Law Society of Alberta, 1995 (loose-leaf).

APPEAL from a judgment of the Alberta Court of Appeal (1999), 133 C.C.C. (3d) 309, 232 A.R. 307, 195 W.A.C. 307, [1999] A.J. No. 342 (QL), dismissing the accused’s appeal from his conviction for sexual assault and indecent assault.  Appeal dismissed.

Ben R. Plumer, for the appellant.

Joshua B. Hawkes, for the respondent.

The judgment of the Court was delivered by

1                                   Major J. – The appellant, G.D.B. was convicted of sexual and indecent assault.  He was sentenced to concurrent terms of 36 and 20 months’ imprisonment.  He was acquitted on a count of sexual assault which alleged forced sexual intercourse.  His appeal was dismissed by a majority of the Alberta Court of Appeal.

2                                   This appeal as of right considers whether a new trial ought to be ordered on the basis of fresh evidence.

3                                   The evidence sought to be admitted was the taped recording of the complainant denying misconduct on the part of the appellant.   This evidence was available at trial but not used because of a tactical decision of trial counsel.

4                                   The appellant now submits that his trial counsel was incompetent and that that incompetency satisfies the need to establish that the evidence could not have been adduced at trial on the exercise of due diligence.

5                                   I conclude, for the reasons that follow, that in the absence of a miscarriage of justice, the question of the competence of counsel is usually a matter of professional ethics and is not a question for the appellate courts to consider.  In the result, the appeal fails.

I.                                   Facts

6                                   J.W., the appellant's adopted daughter and complainant on each count in the indictment testified that the appellant began touching her in a sexual manner when she was 12 years old.  It happened, she said, on numerous occasions when he entered her bedroom, either at night, or at other times and in other locations when they were alone.  She further testified that the inappropriate conduct culminated in June 1984, when the appellant sexually assaulted her by having non-consensual sexual intercourse.  The complainant left home that day.  She first complained to the police about these incidents in 1994, when she was a mature and married woman and had lived away from home for over a decade. 

7                                   The “fresh” evidence to be considered on this appeal is an audio-taped conversation between J.W. and her mother, M.B., in which J.W. denied that she had been sexually molested by the appellant.  The recording was surreptitiously taped by M.B. in 1984, a few days after J.W.’s departure from home.  Ten years later, when the complainant brought her story to the police, M.B. gave the tape to the appellant’s lawyer.  The tape remained in his possession throughout the trial.

8                                   Trial counsel chose not to introduce the tape in evidence.  Instead, he raised questions about the contents of the tape on cross-examination of the complainant who was not aware that the tape existed.  The complainant denied having had any contact with her mother, M.B., until about three months after she had left home permanently.  She had no specific recollection of the detailed conversation which was put to her in cross-examination at the trial. 

9                                   The appellant did not testify.  The appellant's spouse M.B. testified and contradicted the complainant's evidence about the conversation, which she said occurred shortly after the complainant left home.  She said that the complainant came with her boyfriend to collect her clothes and that the conversation occurred at that time.  During the conversation, M.B. attempted to find out why the complainant had left home.  Although at trial M.B. did not give a verbatim report of the questions and answers, she stated that she asked the complainant on several occasions whether the appellant had assaulted or molested her and, each time, the complainant denied having been assaulted in any manner.  According to M.B.'s testimony, the only reason the complainant gave for leaving home was her dislike of the strict rules she was required to follow. 

10                               The complainant's sister, S.B., also testified.  While she did not confirm the discussion about a denial of any sexual impropriety, she confirmed her mother's evidence that the complainant returned home within a few days of leaving, and had a conversation with her mother in which she indicated that her reason for leaving was her dislike of the strict house rules.

11                               The jury acquitted the appellant of the most serious charge, sexual assault, which alleged forced intercourse to have occurred the day the complainant left home, and convicted the appellant of the other two charges. 

II.    Judicial History

12                               On appeal, new counsel sought reversal of the convictions on grounds: (1) the appellant's trial counsel was incompetent, or (2) the fresh evidence not used or called at trial on the advice of counsel, was evidence that impacted on the issue of guilt or innocence, and the failure to use this evidence resulted in a miscarriage of justice.

13                               As the affidavits filed on the fresh evidence application raised issues of credibility and fact which could not be conveniently resolved by the Court of Appeal, the court appointed the Honourable Roger P. Kerans, as a commissioner, pursuant to s. 683(1) (e)(ii) of the Criminal Code, R.S.C., 1985, c. C-46 .  He was to conduct an inquiry on the following questions:

(1)   Is the first kind of fresh evidence that Mr. B. wishes this court to consider, that relating to guilt or innocence, credible in the sense that it is reasonably capable of belief?

(2)   Is the second kind of fresh evidence that Mr. B. wishes this court to consider, that relating to the competence of his trial counsel, credible in the sense that Mr. Kerans believes it? We ask that he make findings of fact in this regard.

((1997), 200 A.R. 184, at p. 187)

Commissioner Kerans held extensive hearings, took evidence from all material parties and filed a detailed report.  He found the following to be an accurate transcription of the relevant portion of the tape:

M.B.:   So what happened?

J.B.:     Well nothing has changed since last time Mom.

M.B.:   J., He hasn't laid a hand on you.  I've hardly ever left you home and he hasn't touched you that way.  Be honest.

J.B.:     I am.

M.B.:   Don't hurt me anymore.  Don't lie to me about that, please.  I mean if you have made up your mind to leave home fine, but don't do that to me.  Dad hasn't laid a hand on you, has he?

J.B.:     Well he still bugs me and stuff.

M.B.:   But he hasn't laid a hand on you, has he?

J.B.:     Well.

M.B.:   Has he?

J.B.:     Well not, he isn't as bad as he was but he still comes up and slaps you and stuff like that.  I tell him to leave me alone and he just says  I'm not hurting you.  But it bugs me.

M.B.:   But he's never molested you, has he?

J.B.:     No.

M.B.:   He's never put his hand sexually on you did he?

J.B.:     No.

M.B.:   So in other words, all he did was tease you a little bit.  Right?

J.B.:     Yes.

There were no other statements inconsistent with the complainant J.B.’s testimony on the tape.   (J.B. is J.W.’s maiden name.)

14                               Informed by the findings of the Commissioner, a majority of the Court of Appeal denied the appellant’s appeal:  (1999), 232 A.R. 307.  In their view, the decision not to use the tape was not incompetence, but was made by defence counsel for sound tactical reasons.  In addition, they concluded that the appellant had not satisfied the criteria for the admission of fresh evidence enunciated by this Court in Palmer v. The Queen, [1980] 1 S.C.R. 759.

15                               In the view of the dissenting justice, although the evidence was available at the trial, and although counsel’s decision not to use the evidence was not incompetence, he stated the evidence of the tape was sufficiently compelling that it might have affected the outcome of the appellant’s trial and would have ordered a new trial.

III.               Analysis

A.                General Approach to Miscarriages of Justice Based on the Existence of Fresh Evidence

16                               This appeal centers on the existence of fresh evidence.  The well-known criteria applicable to this issue were stated in Palmer, supra, and reaffirmed recently in R. v. Warsing, [1998] 3 S.C.R. 579, at para. 50:

(1)   The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases. . . .

(2)   The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3)   The evidence must be credible in the sense that it is reasonably capable of belief, and

(4)   It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

B.                Due Diligence

17                               The “fresh” evidence was in the continuous possession of the appellant’s wife since 1984 and available to him and his lawyer at anytime before or during the trial.  Counsel after taking possession of the tape decided for tactical reasons not to use it.  The Court of Appeal concluded that the appellant failed to satisfy the due diligence requirement of the Palmer analysis.

18                               However, the appellant emphasized that the decision not to use the tape was made unilaterally by his lawyer, and against his express instructions.  Defence counsel, he claims, failed to inform him of his decision and, as a result, the appellant was not aware that the tape would not be used until the completion of the trial.  It was submitted that the appellant, by the incompetence of his counsel was deprived of any opportunity to exercise due diligence in ensuring that the recording would be used at his trial to challenge the credibility of the complainant.

19                               The due diligence criterion exists to ensure finality and order -- values essential to the integrity of the criminal process.  R. v. M. (P.S.) (1992), 77 C.C.C. (3d) 402 (Ont. C.A.), per Doherty J.A., at p. 411:

The interests of justice referred to in s. 683  of the Criminal Code  encompass not only an accused's interest in having his or her guilt determined upon all of the available evidence, but also the integrity of the criminal process. Finality and order are essential to that integrity.  The criminal justice system is arranged so that the trial will provide the opportunity to the parties to present their respective cases and the appeal will provide the opportunity to challenge the correctness of what happened at the trial.  Section 683(1)(d) of the Code recognizes that the appellate function can be expanded in exceptional cases, but it cannot be that the appellate process should be used routinely to augment the trial record.  Were it otherwise, the finality of the trial process would be lost and cases would be retried on appeal whenever more evidence was secured by a party prior to the hearing of the appeal.  For this reason, the exceptional nature of the admission of ''fresh'' evidence on appeal has been stressed: McMartin v. The Queen, supra. . . .

However, jurisprudence pre-dating Palmer has repeatedly recognized that due diligence is not an essential requirement of the fresh evidence test, particularly in criminal cases.   That criterion must yield where its rigid application might lead to a miscarriage of justice.  McMartin v. The Queen, [1964] S.C.R. 484, per Ritchie J. at p. 491:

In all the circumstances, if the evidence is considered to be of sufficient strength that it might reasonably affect the verdict of the jury, I do not think it should be excluded on the ground that reasonable diligence was not exercised to obtain it at or before the  trial.

In R. v. Price, [1993] 3 S.C.R. 633, per Sopinka J. at p. 634:

. . . we agree with the conclusion of the Court of Appeal that the evidence should be admitted as fresh evidence and the conclusion to direct a new trial.  While the exercise of due diligence is one of the significant factors, it is not applied strictly in criminal cases and must be applied in light of the other relevant factors.  The amount of weight to be given to this factor depends on the strength of the other factors, in other words, on the totality of the circumstances.

Also Warsing, supra, at para. 51. The due diligence requirement is one factor to be considered in the “totality of the circumstances”.  The importance of this criterion will vary from case to case.

20                               In determining whether or not the due diligence required by Palmer has been met, an appellate court should determine the reason why the evidence was not available at the trial.  The reason for the evidence not being available at first instance is usually one of fact.  In this appeal the evidence was available.  The reason it was not used, placed in its most favourable light for the appellant, was the unilateral decision of his counsel that the tape would be more prejudicial than helpful in the trial.

21                               It was submitted by the appellant’s new counsel that the decision not to use the tape was incompetent, and that the appellant’s obligation to exercise due diligence was met by this alleged incompetence.  The argument concluded that the test of due diligence was therefore met, the tape as new evidence should be admitted, and a new trial ordered. 

22                               In the absence of a miscarriage of justice, that submission fails.

C.                Effective Assistance of Counsel

(1)   Introduction

23                               While the early history of the common law shows that society had little interest in permitting anyone charged with a felony the assistance of counsel, times have changed. 

24                               Today the right to effective assistance of counsel extends to all accused persons.  In Canada that right is seen as a principle of fundamental justice.  It is derived from the evolution of the common law, s. 650(3)  of the Criminal Code  of Canada and ss. 7  and 11 (d) of the Canadian Charter of Rights and Freedoms .

25                               The value of effective assistance of counsel is apparent, but was fully explained by Doherty J.A. in R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 57:

The importance of effective assistance of counsel at trial is obvious.  We place our trust in the adversarial process to determine the truth of criminal allegations.  The adversarial process operates on the premise that the truth of a criminal allegation is best determined by “partisan advocacy on both sides of the case”:  U.S. v. Cronic, 104 S. Ct. 2039 (1984), per Stevens J. at p. 2045.  Effective representation by counsel makes the product of the adversarial process more reliable by providing an accused with the assistance of a professional trained in the skills needed during the combat of trial.  The skilled advocate can test the case advanced by the prosecution, as well as marshal and advance the case on behalf of the defence.  We further rely on a variety of procedural safeguards to maintain the requisite level of adjudicative fairness in that adversarial process.  Effective assistance by counsel also enhances the adjudicative fairness of the process in that it provides to an accused a champion who has the same skills as the prosecutor and who can use those skills to ensure that the accused receives the full benefit of the panoply of procedural protections available to an accused. 

Where counsel fails to provide effective representation, the fairness of the trial, measured both by reference to the reliability of the verdict and the adjudicative fairness of the process used to arrive at the verdict, suffers.  In some cases the result will be a miscarriage of justice. 

(2)   General Approach to the Issue

26                               The approach to an ineffectiveness claim is explained in Strickland v. Washington, 466 U.S. 668 (1984), per O’Connor J.  The reasons contain a performance component and a prejudice component.  For an appeal to succeed, it must be established, first, that counsel’s acts or omissions constituted incompetence and second, that a miscarriage of justice resulted. 

27                               Incompetence is determined by a reasonableness standard.  The analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.  The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.  The wisdom of hindsight has no place in this assessment.

28                               Miscarriages of justice may take many forms in this context.  In some instances, counsel’s performance may have resulted in procedural unfairness.  In others, the reliability of the trial’s result may have been compromised.

29                               In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis.  The object of an ineffectiveness claim is not to grade counsel’s performance or professional conduct.  The latter is left to the profession’s self-governing body.   If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow (Strickland, supra, at p. 697). 

(3)   Application to the Facts of this Case

30                               Two questions arise.  Did the decision not to use the tape lie exclusively with defence counsel?  If not, what was the consequence of the appellant being excluded from the decision?

31                               The question of whether or not to use the tape was important.  Defence counsel satisfied the Commissioner and all three members of the Court of Appeal that his decision was competent.  In fact, they concluded that it may have resulted in the appellant’s acquittal on the most serious charge of forced sexual intercourse.

32                               The Commissioner concluded that while counsel was evasive in communicating his decision to the appellant, his reasons for not using the tape were sound.  Primarily, he feared that the production of the tape would destroy the credibility of his main witness, the appellant’s spouse M.B.  The leading nature of the questions she asked her daughter and the fact that she felt it necessary to surreptitiously record their conversation revealed that she was more interested in obtaining a taped denial for the purposes of future litigation than in obtaining an accurate account of events.  The destruction of M.B.’s credibility would have forced the appellant, who counsel considered to be a poor witness, to testify.

33                               The appellant submitted that even if counsel’s decision was sound, he was obligated to inform the appellant of this decision and accord him the opportunity to participate in it.  In my opinion, it is for the Law Society of Alberta to consider whether defence counsel’s conduct in the circumstances complied with the standards of the profession in that province.  The issue is dealt with expressly by such guidelines as Rule 12 of Chapter 9 of the Alberta Code of Professional Conduct (loose-leaf).  That question of professional ethics is different from those addressed here.

34                               Where, in the course of a trial, counsel makes a decision in good faith and in the best interests of his client, a court should not look behind it save only to prevent a miscarriage of justice.  While it is not the case that defence lawyers must always obtain express approval for each and every decision made by them in relation to the conduct of the defence, there are decisions such as whether or not to plead guilty, or whether or not to testify that defence counsel are ethically bound to discuss with the client and regarding which they must obtain instructions.  The failure to do so may in some circumstances raise questions of procedural fairness and the reliability of the result leading to a miscarriage of justice.

35                               On the facts of this case, I conclude that counsel had the carriage of the defence and the implied authority to make tactical decisions, as the ones made here, in the best interests of his client.  In any event, the failure to obtain specific instructions did not affect the outcome of the trial.  There was no miscarriage of justice.

(4)   Conclusion                                                                

36                               In light of my conclusion that defence counsel had implied authority to decide not to use the tape, the appellant has failed to satisfy the due diligence requirement of the Palmer analysis.

D.                Was the Reliability of the Trial’s Result Compromised?

37                               As noted above, the due diligence criterion is not essential to a successful appeal based on fresh evidence.  This factor must yield in circumstances where its rigid application would result in a miscarriage of justice.  In my view, the appellant has failed to establish that such a danger exists.

38                               The contents of the recorded conversation were relevant to the central issue at trial, namely the credibility of the complainant.  In response to M.B.’s leading questions, J.W. is heard to deny that the appellant molested her or put his hand on her sexually.

39                               With respect to the credibility of the “fresh” evidence, Commissioner Kerans found that it was of little probative value and would likely have had a prejudicial effect on the credibility of M.B.:

First, the passage in question, along with many similar passages, and the mere fact of recording would lead to serious doubt on the part of a trier about the reliability of the evidence of [M.B.] that she had made a careful and open-minded inquiry into  events in 1984, when she heard, or fancied she heard, a complaint. . . .

Counsel for the accused accepts that [M.B.] “conducted an interview in a ‘say it ain’t so’ manner.” Counsel for the Crown in turn described her as “coercive and emotional” in dealing with a child who is “captive and tricked”.  Suffice it to say that [M.B.] on the tape is, in my respectful opinion, much more anxious to get a denial than she is to let [J.W.] tell her story, and much more anxious to offer reproach than to reach out with compassion.  That is true of the entire tape, where eventually [J.W.] becomes monosyllabic and finally lapses into silence while the mother reproaches her repeatedly for the wrong done the mother by the girl leaving....

I am, moreover, of the view that a trier likely would infer from this that the conversation in 1982 was similar in tone, as indeed [J.W.] testified.  That being the case, a trier likely would accept as credible the evidence of [J.W.] that she would likely never would have told [M.B.] the particulars of a complaint, because her mother had set her mind not to believe it.

Commissioner Kerans expressed doubt as to whether the evidence was in any way helpful to the appellant’s defence against the two charges for which he was convicted:

It is another matter entirely if one considers this tape evidence in terms of the incidents for which the accused has been found guilty, these being the events of 1982 and before.  There is no denial of the truth of that allegation in this recording.  On the contrary, in the passage above [J.W.] repeats that claim:  “Well, nothing has changed since last time Mom”. And she is so understood by her mother: “[J.W.] He hasn’t laid a hand on you.”  In my respectful view, that is reasonably capable of being considered by a trier [of fact] as a repetition of the original complaint.  Moreover, the trier, noting no immediate denial by [M.B.] of the accuracy of that claim, may reasonably infer that she then knew at the very least that it had never been withdrawn, contrary to her trial evidence.

In this light, the evidence in question may be of no use to the defence in respect of counts 2 and 3 but may indeed have been of value to the Crown in that regard.

A review of the transcript of the recorded conversation confirms the good sense of the findings of the Commissioner.  The statements made by the complainant lacked conviction.  They were out-of-court statements made at a time of vulnerability for the complainant.  Most important, the complainant’s statements were in response to leading questions by M.B. who was clearly determined to obtain a taped denial in preference to an accurate account of events.

40                               Not only were the tapes unlikely to adversely affect the credibility of the complainant but it was reasonable to conclude that using the tape at trial would have undermined the credibility of the appellant’s spouse, the main defence witness. The fact that she chose to create the tape in 1984 could be seen as an apprehension that criminal conduct had occurred.  In my view, there exists no reasonable possibility that the use of the “fresh” evidence in this case might have affected the two guilty verdicts rendered by the jury.

41                               Although there is no indication that the appellant expressed a desire to testify at his trial, he submits that defence counsel’s failure to inform him of his decision not to use the tape deprived him of his ability to make an informed decision in this regard.  The Commissioner made the following findings relevant to this submission (as summarized by the Court of Appeal):

a.  Trial Counsel’s opinion, before and during trial, was that the appellant might damage his defence by testifying because he might give inappropriate answers in cross-examination.

                                                                   . . .

c.  Trial counsel believed that the appellant could say little more than to give a blanket denial.  This opinion was born out by the appellant’s testimony in the inquiry.

d.  The appellant knew before trial that his counsel had no intention of calling him to testify.  He agreed with that decision.  There was no misunderstanding between himself and trial counsel.

                                                                   . . .

l.     As to whether trial counsel clearly advised his client before trial that he would not use the tape, trial counsel testified that each time the matter came up he expressed no great enthusiasm for the evidence, but that it may well be that he had, at the opening of the trial, never quite said explicitly that he would not introduce it.

(232 A.R. 307, at pp. 313-14)

Given these findings, I am satisfied that the appellant has failed to establish that the results of his trial might have been different had he been expressly informed of his counsel’s decision not to use the tape.

IV.              Disposition

42                               I would therefore dismiss the appeal. 

Appeal dismissed.

Solicitor for the appellant:  Ben R. Plumer Law Office, Bassano, Alberta.

Solicitor for the respondent:  The Department of Justice, Calgary.