2014 NBCA 1, 2014 NBCA 1

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 44-12-CA MARTIN JEAN-GUY ROBICHAUD APPELLANT MARTIN JEAN-GUY ROBICHAUD APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Robichaud v. R., 2014 NBCA 1 Robichaud c.

R., 2014 NBCA 1 CORAM: The Honourable Justice Larlee The Honourable Justice Deschênes The Honourable Justice Quigg CORAM : l’honorable juge Larlee l’honorable juge Deschênes l’honorable juge Quigg Appeal from a decision of the Provincial Court: February 2, 2011 Appel d’une décision de la Cour provinciale : le 2 février 2011 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: October 10, 2013 Appel entendu : le 10 octobre 2013 Judgment rendered: January 9, 2014 Jugement rendu : le 9 janvier 2014

Reasons for judgment by: The Honourable Justice Larlee Motifs de jugement : l’honorable juge Larlee Concurred in by: The Honourable Justice Deschênes The Honourable Justice Quigg Souscrivent aux motifs : l’honorable juge Deschênes l’honorable juge Quigg Counsel at hearing: For the appellant: Martin A. Goguen For the respondent: Rémi J. Allard Avocats à l’audience : Pour l’appelant : Martin A. Goguen Pour l’intimée : Rémi J. Allard THE COURT The appeal against conviction is dismissed. LA COUR L’appel de la déclaration de culpabilité est rejeté. The judgment of the Court was delivered by LARLEE, J.A. I.

Introduction [1] On February 2, 2011, a judge of the Provincial Court convicted Martin Jean-Guy Robichaud ofone count of sexual assault and one count of anal intercourse (ss. 271(1)(

a) and 159(1) of the Criminal Code, R.S.C. 1985, c. C-46). Thejudge sentenced Mr. Robichaud to incarceration for 18 months on each count to be served concurrently. [2] The Crown conceded at the appeal hearing that we should enter an acquittal on the chargeunder s. 159(1) of the Code because the constitutionality of the

section is in question. While several Courts of Appeal across Canadahave ruled that the

section is unconstitutional, neither this Court nor the Supreme Court of Canada has had the occasion to do so (see R.v. C.M., (ON CA), [1995] O.J. No. 1432 (C.A.) (QL); R. v. Roy, [1998] J.Q. No. 935 (C.A.) (QL); R. v. Allen DavidHein, July 3, 2012, No. 3044701 (N.B. Prov. Ct.) per A.C.J. Arsenault). The question of the constitutionality of the

section was notproperly before us in this case. However, without making any comment on the constitutional question, I have been persuaded that weshould enter an acquittal in accordance with our powers under s. 686(2)(

a) of the Code. [3] Mr. Robichaud, therefore, appeals his conviction on the count of sexual assault under s.271(1)(

a) of the Code. For the reasons set out below, I would dismiss the appeal against conviction. II. The Context

[4] Mr. Robichaud and the complainant were dating at the time of the assault. On April 18, 2009,they spent the evening at the Office Lounge, a Moncton Pub: Mr. Robichaud and a male friend were drinking at the bar while thecomplainant worked as a barmaid. After closing time, the complainant drove to Dieppe to drop off Mr. Robichaud and his friend at theirhouse. Mr. Robichaud, refusing to stay at his place, insisted on accompanying the complainant to her house. According to thecomplainant, she agreed to it, but only for the purpose of sleeping next to each other. Once they arrived, Mr.

Robichaud insisted onhaving sexual intercourse. The complainant refused a few times, but then consented to one instance of sexual intercourse. According tothe evidence, they had intercourse four times. According to the complainant, she only consented once. Mr. Robichaud’s version is thatthe complainant initiated the sex and he stopped when she told him she needed to sleep. The trial judge found Mr. Robichaud guilty. [5] Mr. Robichaud raises a number of grounds of appeal:

(1) The trial judge committed palpable and overriding error (in making findings in the complete absence of evidence, in makingfindings in conflict with the accepted evidence, or in making findings based on a misapprehension of evidence) when accepting thecomplainant’s explanation as to why she typed a computer note following the alleged sexual assault;

(2) The appellant was prejudiced by ineffective assistance of counsel, occasioning a miscarriage of justice;

(3) The conviction constitutes a miscarriage of justice. III. Analysis and Decision A. Motions for fresh evidence [6] Pursuant to s. 683(1) of the Code, and by consent of the parties the Court accepted an affidavitof defence counsel, not counsel on appeal, dealing with the second ground of appeal. [7] Mr. Robichaud also brought a motion to adduce fresh evidence consisting of personalhandwritten notes that Mr. Robichaud and the complainant wrote to each other while waiting in line for fast food at a drive-thru theevening prior to the sexual assault and text messages the complainant and Mr.

Robichaud exchanged in the days subsequent to theassault. We reserved our decision on the motion at the hearing. [8] With respect to the latter request, the text messages are not available. After we signed aproduction order directed to Bell Canada and PC Mobile Services, we were informed by affidavit by Cst. Marie-Noëlle Beaulieu, a peaceofficer with the Codiac RCMP detachment, that Call Detail Records for prepaid service phones are stored for only 18 months. Therecords in question were therefore no longer available. As a result, Mr.

Robichaud abandoned that part of his motion. [9] The essence of the personal handwritten notes, written to one another in the car while waitingfor fast food because other women (friends or co-workers of the complainant) were in the car, succinctly put, described graphically aninvitation by the complainant to engage in sexual activity with Mr. Robichaud and his eagerness to participate. In order to be admittedinto evidence they must satisfy the test in Palmer v. The Queen (1979), (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No.126 (QL), iterated in R. v.

Hurley, 2010 SCC 18, [2010] 1 S.C.R. 637, from which certain principles have emerged:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple 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 haveaffected the result. [page 775]

See R. v. McLaughlin, 2013 NBCA 28, 403 N.B.R. (2d) 358, Chen v. R., 2013 NBCA 7, 398 N.B.R. (2d) 240; M.K. v. R., 2010 NBCA71, 364 N.B.R. (2d) 166; and R. v. Goulette, 2009 NBCA 49, [2009] N.B.J. No. 367 (QL). [10] We know from R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, that the first criteria, duediligence, is not an essential requirement, particularly in criminal cases, and it must yield in circumstances where its rigid applicationwould result in a miscarriage of justice. The evidence sought to be admitted in G.D.B. was the taped recording of the complainantdenying misconduct on the part of the appellant.

This evidence was available at trial but not used because of a tactical decision ofdefence counsel. A majority of the Court of Appeal of Alberta concluded the decision not to use the tape was not incompetence, but wasmade by defence counsel for sound tactical reasons. They also concluded that the appellant had not satisfied the criteria for theadmission of fresh evidence enunciated in Palmer.

At the Supreme Court of Canada, the appellant submitted that his trial counsel wasincompetent and that his incompetency satisfied the need to establish that the evidence could not have been adduced at trial on theexercise of due diligence. Major J. concluded there existed no reasonable possibility that the use of the fresh evidence might haveaffected the two guilty verdicts rendered by the jury. [11] Although I will say more about the issue of incompetent representation under the specificground of appeal, in my view the non-production of these notes was not as a result of incompetence.

In his affidavit, counsel at trialadmitted he was aware of the notes but made a judgment call that they were of no probative value. While the notes themselves could becategorized as fresh evidence because they were not produced at trial, the trial judge was made aware of the contents of the notesthrough Mr. Robichaud’s testimony in both direct and cross examination. In the transcript, when Mr.

Robichaud is asked if he has thenotes the response is “inaudible”; but nobody, neither counsel nor the judge, saw fit to follow up on that response. [12] The notes dealt with the pre-assault conduct of the complainant and Mr. Robichaud and,without implicitly saying so, the trial judge obviously considered this evidence to be irrelevant.

He made no mention of the content of thenotes in his decision and in fact for all intents and purposes considered this to be a case of the complainant “changing her mind”: thus,pre-offence conduct had no relevance to the issue of consent. [13] In my view, the handwritten notes do not meet the criteria of the test enunciated in Palmer. Theywere available at the time of trial, and their content was disclosed through oral testimony. More importantly the notes, if believed, couldnot reasonably, taken with the evidence adduced at trial, be expected to have affected the result.

They, therefore, should not be acceptedand the motion for fresh evidence should be dismissed (see R. v. Chappell, 2012 PECA 10, [2012] P.E.I.J. No. 18 (QL)). B. Credibility of the complainant [14] The first ground of appeal Mr. Robichaud raises is that the trial judge erred in finding thecomplainant credible. In particular, Mr. Robichaud argues the trial judge erred when he accepted the complainant’s explanation as towhy she typed a computer note to a friend following the alleged sexual assault.

According to him, that note should have left thecomplainant’s credibility in doubt. [15] It would be a rare case in which we would interfere with a trial judge’s finding of credibility:absent palpable and overriding error, findings of fact and credibility deserve deference (see R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6,para. 9; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, para. 10; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, paras. 48-51). Indeed,both counsel rely on a recent case of this Court R. v.

R.D.H., 2009 NBCA 28, 360 N.B.R. (2d) 1, in which Bell J.A. explains when anappellate court will interfere: In R. v. R.(D.), (SCC), [1996] 2 S.C.R. 291, [1996] S.C.J. No. 8 (QL), Major J., for the majority addressed the issue ofsufficiency of reasons of the trial judge: [...] Where the reasons demonstrate that the trial judge has considered the important issues in a case, or where the record clearly revealsthe trial judge’s reasons, or where the evidence is such that no reasons are necessary, appellate courts will not interfere. [...] [para. 55] More recently, in R. v. Sheppard, [2002] 1 S.C.R. 869, [2002] S.C.J.

No. 30 (QL), 2002 SCC 26, the Court again addresses the issue ofthe sufficiency of reasons. Binnie J., writing the judgment of the Court, states that “[t]he appellate court is not given the power tointervene simply because it thinks the trial court did a poor job of expressing itself” (para. 26). Binnie, J. further states that the duty togive reasons “should be given a functional and purposeful

interpretation” (para. 53) and failure of this duty does not provide a “[...] free-

standing right of appeal and [...] entitlement to appellate intervention” (para. 53). Essentially, Sheppard holds that appellate courts should ask whether the reasons respond to the case’s issues, having regard to the evidence as a whole and the submissions of counsel. An appeal based upon insufficient reasons will only be allowed when the trial judge’s reasons are so deficient that they foreclose meaningful appellate review ( see also, R. v. Walker , [2008] 2 S.C.R. 245 , [2008] S.C.J.

No. 34 (QL) , 2008 SCC 34 , where Binnie J. concludes that the duty to give adequate reasons is founded upon the need for trial judges to justify and explain the result; to tell the losing party why he or she lost; to provide for informed consideration of the grounds of appeal; and to satisfy the public that justice has been done). [para. 7] Although the ground of appeal in this case does not specifically attack the sufficiency of reasons, the question of whether the trial judge adequately assessed the complainant’s credibility in light of the pre- and post-assault conduct (specifically referring to the notes) is in issue.

Mr. Robichaud argues that the notes written before the assault, and the computer note written after, give a context to the assault that impairs the complainant’s credibility and supports Mr. Robichaud’s theory that the intercourse was consensual. [ 16 ] In R. v. Vuradin , 2013 SCC 38 , [2013] S.C.J. No. 38 (QL) the Supreme Court dismissed an appeal based on a ground of insufficient reasons because the trial judge’s reasons were not so deficient that they foreclosed meaningful appellate review.

Karakatsanis J. held that the reasons were sufficient: they allowed for meaningful appellate review because they told the accused why the trial judge decided as he did. Referring to R.E.M. she states: In R.E.M. , this Court also explained that a trial judge’s failure to explain why he rejected an accused’s plausible denial of the charges does not mean the reasons are deficient as long as the reasons generally demonstrate that, where the complainant’s evidence and the accused’s evidence conflicted, the trial judge accepted the complainant’s evidence.

No further explanation for rejecting the accused’s evidence is required as the convictions themselves raise a reasonable inference that the accused’s denial failed to raise a reasonable doubt […] [para. 13] [ 17 ] This Court has recently dealt with a number of cases in which credibility of the complaint and the accused is in issue. In R. v. E.K.M ., 2012 NBCA 64 , 391 N.B.R. (2d) 130 , Drapeau C.J.N.B. deals with the issue of credibility and the appropriate methodology for its determination (paras. 20-25).

In two other recent cases this Court, in applying Vuradin , interfered with the trial judges’ findings on credibility. In Wilson v. R ., 2013 NBCA 38 , [2013] N.B.J. No. 304 (QL) the Court found that the judge’s reasons demonstrated a flawed reasoning process, pursuant to which it was obvious Mr. Wilson’s testimony had never been properly subjected to the reasonable doubt standard, therefore they betrayed an error in the misapplication of the proper standard of proof. In J.N.C. v. R ., 2013 NBCA 59 , [2013] N.B.J.

No. 315 (QL) , the Court found that the trial judge’s assessment of credibility findings was based on palpable and overriding error. [ 18 ] In Wilson this Court explains the scope and effect of Vuradin : […] the decision [in Vuradin ] is reached by the application of established principles, and not by the creation of new ones. It therefore would have had no effect on our judgment in the present case. The case does illustrate how many of the principles should be applied in an appeal where the grounds allege insufficiency of reasons and the failure to properly apply the burden of proof in a criminal case.

Vuradin was a sexual assault case tried before a judge alone. The trial resulted in a conviction but the reasons for decision were “sparse and [did] not directly address the appellant’s evidence” (para. 4). Regarding the accused’s evidence, the judge simply said that “notwithstanding […] the denial, [he] had no reasonable doubt that the [accused] did commit the acts which [the complainant] described” (para. 6). A majority of the Court of Appeal for Alberta concluded that the Sheppard requirement had been met and that the judge had applied the proper burden of proof.

One judge dissented; hence, the appeal as of right to the Supreme Court. Dismissing the appeal, Karakatsanis J. first concluded the reasons were sufficient because they told the appellant why the trial judge had decided as he had.

In doing so, Karakatsanis J. particularly relied on R.E.M. , pointing out that “a trial judge’s failure to explain why he rejected an accused’s plausible denial of the charges does not mean the reasons are deficient as long as the reasons generally demonstrate that, where the complainant’s evidence and the accused’s evidence conflicted, the trial judge accepted the complainant’s evidence” (para. 13).

She also points out that in those situations, “[n]o further explanation for rejecting the accused’s evidence is required as the convictions themselves raise a reasonable inference that the accused’s denial failed to raise a reasonable doubt” (para. 13). The judge “was not obliged to discuss all of the evidence on any given point and answer each and every argument of counsel” (para. 17).

With respect to the application of the burden of proof, Karakatsanis J. noted that “[t]he order in which a trial judge makes credibility findings of witnesses is inconsequential as long as the principle of reasonable doubt remains the central consideration” (para. 21). In that particular case, the trial judge had adverted to the principles of W.(D.) in his reasons and had immediately proceeded to assess the complainant’s credibility. The reasons as a whole revealed the judge had properly applied the burden of proof and was not simply

comparing stories and shifting the onus on the accused. The rejection of the accused’s testimony raises a “reasonable inference that theaccused’s denial of the charges failed to raise a reasonable doubt” (paras. 13 and 27, referring to R.E.M., at para. 66). In my view, the message is clear. Successful appeals from a trial judge’s verdict in a criminal law case, on the grounds the judge did notprovide sufficient reasons for a credibility assessment or that the judge did not properly apply the burden of proof, should be rare.

Trialjudges are presumed to know the law regarding the burden and standard of proof in a criminal case and are presumed to know how toapply it to the facts of a case. Deference is owed given their unique position to see and hear witnesses. Appellate courts are not allowedto substitute their own assessment of credibility for that of the trial judge and must not impugn the reasons for judgment as a means ofaccomplishing that goal (See R.E.M., at para. 28 referring to Gagnon). Appellate courts must neither focus on omitted detail nor proceed“from a sceptical perspective” […].

They must not proceed from the perspective that the accused’s denial is plausible and then see if thejudge had dispelled reasonable doubt in giving his or her reasons: R.E.M., at para. 68. [paras. 37-41] [19] In the case at bar, the Court below reopened the case for Mr. Robichaud to argue whetherfurther evidence could be admitted before the final decision was rendered. The evidence was the computer note left by the complainanton a friend’s computer less than 24 hours after the assault. It read: From [MD] for Chrissy!!!! Read this Saturday morning!!!!

Marty takes such good care of me like wow!!!!!!! [20] The complainant testified and explained why she wrote the note. The trial judge accepted thiscomputer note into evidence and accepted the complainant’s explanation. Mr. Robichaud argues the trial judge subsequentlymisinterpreted the meaning of the note and did not make the proper finding with respect to the complainant’s credibility. [21] After hearing the original evidence the trial judge comments: [TRANSLATION] All right.

It is true that all of the evidence I heard today, it’s fresh in my mind, but I must still review all of it if – if Iwant to conduct a W. (D.) analysis and the other comments made by the Crown and in light, of course, of the – of all of the evidence.[Transcript Dec. 17, 2010, page 165, lines 12-17] Because of his reference to the case R. v. W.( D.), (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26 (QL), we know thetrial judge was alive to the issue of how to analyse the evidence of Mr.

Robichaud and the complainant in a “she said – he said” situation. [22] He continues: [TRANSLATION] After having heard all of it, analyzed all of that evidence, I have come to believe the following version, I believe Ms.[D-S] when she says, during the night of Thursday to Friday, after the – the – after the – the – when they arrived at the apartment, thatMr. [M-R] wanted to have intercourse that was not – given his condition was – he had drunk so much during the evening that hecompletely disregarded the agreement that they had made a few weeks prior. [Transcript: February 2, 2011, page 11-12] [23] And further : [TRANSLATION] So, it is a question maybe – it is a question of credibility.

I – I did not believe Mr. Robichaud on the salient pointsgiven that, essentially, the remainder, that is – all of the evidence, that is – it is similar, but with regard to the salient points of – theintercourse, I did not believe – there are – there are instances where Mr.

Robichaud mentioned – in his – his testimony that – that couldbe true but it does not pertain to this – the essential element. [Transcript: February 2, 2011, page 11, lines 12-21] [24] Then after hearing and receiving the additional evidence concerning the computer note from thecomplainant to the friend, the trial judge analyses the evidence again and comes to the same conclusion: [TRANSLATION] So, all this to say that I haven’t changed my mind. That message, which was sent after the incident – did not raise a

reasonable doubt in my mind as to his guilt. And so, he is still, in my opinion, guilty on the two – two counts. Ultimately, if we – we conduct the W. (D.) analysis, it is what I have – still accepted his explanation as credible also with regard to, as I mentioned, the circumstances in which this was written and it is – when we talk about her judgment in – or the way she chose to write this – O.K. [ Transcript: April 9, 2012, page 13, lines 6-18] [ 25 ] In this case I am of the view there is no merit to the appellant’s objections to the findings of credibility made in the court below.

The trial judge accepted part of Mr. Robichaud’s evidence but did not accept it on the salient points. He cannot be faulted for doing that: it is the responsibility of a trier of fact to make such an evaluation. Despite the evidence of notes written pre- and post-assault, the issue the trial judge decided in this case boiled down to whether the complainant changed her mind. The judge did not simply accept the complainant’s testimony; he also assessed the testimony of the accused, and expressly found the offence had been proven beyond a reasonable doubt. Therefore, those findings must stand (see R. v.

R.P. , 2012 SCC 22 , [2012] 1 S.C.R. 746 , at paras. 10-12 ). C. Ineffective representation [ 26 ] The New Brunswick Court of Appeal has adopted a Protocol for Appeal Proceedings Involving Allegations of Ineffective Counsel in First Instance. The

Preamble of that Protocol reads as follows: In criminal appeals from conviction and or sentence, the appellant may raise grounds of appeal suggesting that his or her counsel was ineffective or otherwise contributed to a miscarriage of justice in first instance. In such cases, the appellant will often want to provide the Court with information concerning instructions to and conduct of counsel. This information will typically come before the Court by way of a motion for leave to file fresh evidence. Any response to such evidence will usually come from counsel in first instance.

The response could consist of affidavits to be considered by the Court on the fresh evidence motion. A useful discussion of the issues raised in appeals involving allegations of ineffective trial counsel can be found in the Supreme Court of Canada decision in R. v. G.D.B. , 2000 SCC 22 , [2000] 1 S.C.R. 520 . That case has been cited and applied by the New Brunswick Court of Appeal on numerous occasions (see H.S.L. Sr. v. R. , 2000 NBCA 54 , 231 N.B.R. (2d) 358 ; A.S. v. R. , 2006 NBCA 5 , 296 N.B.R. (2d) 363 ; Tanasichuk v. R. , 2007 NBCA 76 , 321 N.B.R. (2d) 44 ; Lavoie v.

R. , 2010 NBCA 52 , 363 N.B.R. (2d) 55 ; Price v. R. , 2010 NBCA 84 , 366 N.B.R. (2d) 324 ; and Gardiner v. R. , 2010 NBCA 46 , 362 N.B.R. (2d) 179 ). Recently in R. v. E.K.M . , 2012 NBCA 64 , 391 N.B.R. (2d) 130 , Drapeau C.J.N.B. registered his full agreement with the observations of Richard, J.A., for a unanimous panel, in R. v. Gardiner ; Bell J.A. applied the analytical framework from G.D.B. in R. v. Cormier , 2012 NBCA 76 , 393 N.B.R. (2d) 118 . [ 27 ] R. v. G.D.B sets out a two-step process to be followed in an ineffectiveness claim: there is a performance component and a prejudice component.

For an appeal to succeed, it must be established: (1) counsel’s conduct or omissions amounted to incompetence; and (2) the incompetence resulted in a miscarriage of justice (para. 26). In R. v. Gardiner , 2010 NBCA 46 , 362 N.B.R. (2d) 179 , this Court found counsel ineffectively defended Mr. Gardiner, not because of tactical decisions, but because he incompetently dealt with the rule in Browne v. Dunn , and that was a sufficient basis to allow the appeal.

Richard, J.A., for a unanimous panel, summarizes the law : It is incontestable that, in the modern Canadian criminal justice system, a person who chooses to be represented by a lawyer has the right to the “effective assistance” of that counsel. This proposition goes to the very heart of the adversarial system upon which our criminal justice system is founded. It is a principle the Supreme Court of Canada recognized in R. v.

G.D.B. , 2000 SCC 22 , [2000] 1 S.C.R. 520 , as a principle of fundamental justice that 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 ” (para. 24). It follows, therefore, that in some circumstances, the ineffective assistance of counsel at trial may form the basis for appellate intervention. However, the standard is high. To be successful in an appeal based on an ineffectiveness claim, an appellant must establish that his counsel’s “acts or omissions constituted incompetence” (the performance component) and that “a miscarriage of justice resulted” (the prejudice component). Appellate interference is only justified when both components have been established. […] [...]

[...] [I]n the course of a trial, defence counsel is called upon to make a number of strategic judgment calls, and judges should not lightly “second guess the tactical decisions of counsel” (see R. v. S.G.T. , 2010 SCC 20 , [2010] S.C.J. No. 20 (QL) , at para. 37 ). As the Supreme Court said, “[i]n an adversarial system of criminal trials, trial judges must, barring exceptional circumstances, defer to the tactical decisions of counsel” and there is “a ‘strong presumption’ that defence counsel are competent in advancing the interests of their clients” (para. 36).

Appellate judges are likewise duty bound to apply that deferential approach. [paras. 1, 2 and 10] In approving this statement of the law, Drapeau, C.J.N.B. in E.K.M . underscores “[t]he law in its wisdom presumes competence on the part of defence counsel, and an appellate judge would be foolhardy indeed to second-guess trial strategy in the absence of compelling evidence of malpractice” (para. 31). [ 28 ] In Cormier , Bell J.A. sets out the analytical framework from G.D.B ., by which a claim of incompetence must be assessed: (

i) Incompetence is determined by a reasonableness standard (para. 27); (ii) The analysis proceeds on a strong presumption that counsel’s conduct fell within a wide range of reasonable professional conduct (para. 27); (iii) The onus is on the appellant to establish the acts or omissions of counsel that he or she contends are not consistent with reasonable professional judgment (para. 27); (iv) A miscarriage of justice may be established if counsel’s conduct resulted in procedural unfairness or if the reliability of the trial’s result may have been compromised (para. 28); and (

v) In the event it is apparent that no miscarriage of justice has resulted, it is normally unnecessary for an appellate court to consider the performance component of the analysis (para. 29). [para. 5] See also Smith v. R ., 2012 NBCA 99 , 396 N.B.R. (2d) 367 , para. 24 . [ 29 ] In light of our protocol, the Court solicited and received an affidavit of original counsel. The pertinent paragraphs of his affidavit read as follows: 3.

The Appellant spoke to me about text messages, letters and in particular about a hand-written note that the Appellant now relies on to support his point of appeal that he had ineffective counsel. Other than the message left on a third party’s computer which was introduced at trial, the Appellant made no mention of any messages, notes or text messages that would have been relevant and admissible. 4. At trial the complainant never denied the existence of the said texts, letters and the hand-written note nor did she deny that they contained her expression of feelings of affection for the Appellant. 12.

I explained to the Appellant that introduction of any form of correspondence between he and the complainant that pre-dated the offense would be of no probative value because the complainant’s feelings can change at any point. I also explained that according to her statement and subsequent testimony in fact she did withdraw her consent and he continued in the sexual act. In these circumstances, I explained that it would be possible for a court to accept her version of the facts rather than his that an offense had been committed. 13.

As a result, the introduction of evidence of positive feelings expressed by the complainant to the Appellant prior to the date of the offense would lack relevance and probative value. 14. I clearly explained to the Appellant that evidence of the complainant’s interaction with him in the days that followed the alleged

incident as it appeared in the disclosure and which she reiterated at trial supported the position put forward by the Appellant. Moreover, the testimony of two independent witnesses who testified at trial that they spent time with the complainant and the Appellant on the weekend that followed the alleged incident and that they appeared and acted like two people who were happy to be a couple was of far greater probative value than texts that might or might not survive a voir-dire. 15.

I told the Appellant that the complainant’s conduct in the days that followed the events of the early morning of April 19th would be more important than her pre-offense words and conduct. 16.

It was my opinion then and continues to be my opinion to this day that all communications of affection expressed by the complainant towards the Appellant in advance of the date of the offense would have been of no probative value and found to be irrelevant by the trial judge. [ 30 ] From this uncontested evidence it is reasonable to conclude defence counsel at the trial assessed the pre-assault conduct of the parties and concluded the messages had no probative value and were irrelevant to the issue of consent. Independent witness testimony described the relationship between the complainant and Mr.

Robichaud and this was the best evidence. [ 31 ] Recent jurisprudence from the Atlantic Provinces demonstrates that a wide range of examples of ineffective counsel have been considered. Appeals have been dismissed because the case for ineffective representation was not made out: failure to apply a legally correct framework ( E.K.M .); failure to call a material witness ( R. v. Smith , R. v. O’Keefe , 2012 NLCA 25 , [2012] N.J. No 167 (QL) and R. v. Chappell ; flaws or weaknesses in defence counsel’s cross-examination or lack of aggressiveness ( R. v.

Banks , 2012 NBCA 80 , 396 N.B.R. (2d) 325 ); failure to put apparent inconsistencies between the victim’s statement to the police and her testimony in court to the victim, decision not to call an officer to testify ( (R. v. Dugas, 2012 NSCA 102 , [2012] N.S.J. No. 507 (QL) ; pressured into prematurely pleading guilty ( R. v. Ogden , 2013 NSCA 25 , [2013] N.S.J. No. 95 (QL) ; counsel did not consult accused before agreeing to federal incarceration on his behalf ( R. v. Gogan , 2011 NSCA 105 , [2011] N.S.J. No. 637 (QL) ); and faults in counsel’s preparation for and conduct of trial ( R. v.

Buckley , 2013 NSCA 73 , [2013] N.S.J. No. 293 (QL) ). Appeals have been successful where: counsel failed to adhere to the rule in Browne v. Dunn ( R. v. Gardiner ); failure to obtain telephone records that would have challenged important aspects of the complainant’s testimony ( R. v. Lakas , 2011 NBCA 67 , [2011] N.B.J. No. 249 (QL) ); counsel’s errors and omissions prevented making full answer and defence to the Crown’s case: verdict doubted, process unfair ( R v. Ross , 2012 NSCA 56 , [2012] N.S.J. No. 283 (QL) ). [ 32 ] In R. v. G.M ., 2012 NLCA 47 , [2012] N.J.

No. 243 (QL) , a case more similar to the one at bar, the majority of the Court of Appeal allowed an appeal and ordered a new trial in a sexual assault case on the basis that trial counsel’s decisions and omissions had the effect of undermining the reliability of the trial judge’s conviction such that the respondent suffered a miscarriage of justice. G.M.’s particular complaint was defence counsel provided ineffective assistance on the basis that evidence relevant to challenging the complainant’s credibility was omitted.

According to the majority, evidence of three potential witnesses provided a context for the complainant’s evidence which could have undermined her credibility and raised a reasonable doubt as to the accused’s guilt. Hoegg J.A., dissenting, would have dismissed the appeal because, in her view, the majority decision set an unacceptably low standard for an appellate court to interfere with a properly-rendered trial decision. In her reasons she adopted the reasoning of Iacobucci J. in R. v.

A.G ., 2000 SCC 17 , [2000] 1 S.C.R. 439 : In his submissions before us, counsel for the appellant conceded that if the test applied by the majority of the Court of Appeal to determine the reasonableness of the conviction was the correct one, he could not succeed. The appellant urged us to effect an “incremental” change in the law by endorsing a “broader” standard of appellate review, and enabling appellate courts to overturn conviction when they are left with a lurking doubt as to guilt.

I can only repeat here what I said in Biniaris on that issue, at para. 38: It is insufficient for the court of appeal to refer to a vague unease, or a lingering or lurking doubt based on its own review of the evidence. This “lurking doubt” may be a powerful trigger for thorough appellate scrutiny of the evidence, but it is not, without further articulation of the basis for such doubt, a proper basis upon which to interfere with the findings of a jury.

In other words, if, after reviewing the evidence at the end of an error-free trial which led to a conviction, the appeal court judge is left with a lurking doubt or feeling of unease, that doubt, which is not in itself sufficient to justify interfering with the conviction, may be a useful signal that the verdict was indeed reached in a non-judicial manner. In that case, the court of appeal must proceed further with its analysis. [para. 28] On appeal to the Supreme Court the appeal was allowed ( 2013 SCC 24 , [2013] S.C.J.

No. 24 (QL) ), “for the reasons of Hoegg J.A.”. [ 33 ] In this case the allegation of ineffective counsel is based on what one might call a tactical decision, a strategic judgment call, or trial strategy: the lawyer decided not to introduce the pre-offence conduct notes into evidence. To iterate the words of Drapeau C.J.N.B. in E.K.M. , it would be foolhardy to second guess the trial strategy of defence counsel in the absence of compelling evidence of malpractice. In my view, Mr. Robichaud has not been able to prove he was prejudiced by that decision

or that he has suffered any other prejudice resulting from the assistance of his former counsel. I would add, however, that I have not seen anything in my review of the record and other evidence that would suggest trial counsel’s preparation for, or his performance at, trial fell outside the range of reasonable, professional conduct ( See R. v. Buckley , para. 9 ). Put another way, defence counsel’s conduct more than met the standard of reasonableness. His conduct did not result in procedural unfairness and the reliability of the trial’s result has not been compromised.

It is apparent that no miscarriage of justice has resulted. VI. Disposition [ 34 ] For the reasons set out above, I would dismiss the appeal against conviction. ____________________________________ M.E.L. LARLEE, J.A. WE CONCUR: __________________________________ ALEXANDRE DESCHÊNES, J.A. ___________________________________ KATHLEEN A. QUIGG, J.A.