2012 NBCA 99, 2012 NBCA 99

COURT OF APPEAL OF NEW BRUNSWICK 20-12-CA CLAYTON JEFFREY SMITH APPELLANT CLAYTON JEFFREY SMITH APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Smith v. R., 2012 NBCA 99 Smith c.

R., 2012 NBCA 99 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Robertson The Honourable Justice Green CORAM : L’honorable juge en chef Drapeau L’honorable juge Robertson L’honorable juge Green Appeal from a decision of the Provincial Court: August 5, 2011 (conviction) January 20, 2012 (sentence) Appel d’une décision de la Cour provinciale : Le 5 août 2011 (déclaration de culpabilité) Le 20 janvier 2012 (détermination de la peine) 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: September 12, 2012 and October 15, 2012 Appel entendu : Les 12 septembre et 15 octobre 2012 Judgment rendered: November 29, 2012 Jugement rendu : Le 29 novembre 2012

Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : L’honorable juge en chef Drapeau Concurred in by: The Honourable Justice Robertson The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Robertson L’honorable juge Green Counsel at hearing: Clayton Jeffrey Smith appeared in person For the respondent: Nicole Poirier Avocats à l’audience : Pour l’appelant : Clayton Jeffrey Smith a comparu en personne Pour l’intimée : Nicole Poirier 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 DRAPEAU, C.J.N.B. I. Introduction [ 1 ] The appellant and his long-time friend Elizabeth Wilson faced a number of charges under the Controlled Drugs and Substances Act , S.C. 1996, c. 19 ( CDSA ) following a police search of her apartment. While Ms.

Wilson pled guilty to possession of marihuana and oxycodone, the appellant stood trial in Provincial Court where, after testifying in his own defence, he was convicted on four counts of possession for the purpose of trafficking in various controlled substances, namely cocaine, cannabis marihuana, oxycodone and methamphetamine ( s. 5(2) of the CDSA ). The appellant, who is now self-represented, appeals, arguing lack of evidence and ineffective assistance of counsel. For the reasons that follow, I would dismiss the appeal and uphold the contested verdicts. II.

Background [ 2 ] The appellant had been the subject of police surveillance for several months when, on August 5, 2011, R.C.M.P. officers obtained and executed a search warrant for Ms. Wilson’s apartment unit on Green Valley Drive in Sussex Corner, New Brunswick. Officers seized from the apartment approximately $5,000 worth of illegal drugs, consisting of 174 grams of marihuana, 34 grams of cocaine, five 20 milligram pills and twenty-two 10 milligram pills of oxycodone as well as 79 pills containing methamphetamine.

In addition, officers found: two scales, one covered in a white powdery residue, the other with green leafy material; four cell phones; a calendar with lists of names and amounts (which appeared to function as a “score sheet”) located next to the supply of drugs; and unused baggies. On the basis of those seizures and late night visits by potential customers, a Crown witness, qualified to give opinion evidence on point, testified the apartment was the site of a street level drug trafficking operation. Issue is not taken with the

admissibility and cogency of this expert’s testimony. [3] The appellant claimed in his testimony at trial that, while visiting another friend in the samebuilding, he received a text message from Ms. Wilson, asking him to join her, which he did. The pair had just begun to smoke a jointwhen officers arrived and arrested them both.

A search of the appellant’s person yielded $280 in cash and a small rock of cocaine. [4] Officers testified the appellant, who has a significant history with illegal drugs, told them “Isaw this coming”, “I’m stupid” and “I will get 10 years for this”, statements which they interpreted as self-incriminating. Officers alsotestified the appellant subsequently directed them to a supply of drugs in a small closet next to the kitchen.

However, in his testimony,the appellant sought to put an innocent or neutral spin on his utterances, maintaining he had simply said he “would have to be stupid” todeal in drugs with his existing record. He further denied having pointed out where the drugs were stored and insisted the sale of drugsfrom the apartment was Ms. Wilson’s exclusive venture.

Neither the Crown nor the defence called her as a witness at trial. [5] After hearing the officers who executed the warrant, the expert witness mentioned above andthe appellant, and reviewing photographs of the apartment taken the night of the search and seizure, the trial judge determined theappellant was in constructive possession of the controlled substances found in Ms. Wilson’s apartment and that his guilt had beenestablished beyond a reasonable doubt on each of the four counts described above.

The trial judge went on to dismiss a fifth countpertaining to contraband cigarettes under the Excise Act, R.S.C. 1985, c. E-14, finding evidence of guilt fell short of the mark. III. Grounds of Appeal [6] The appellant contends his convictions cannot stand because of a “lack of physical evidence”linking him to the offences under the CDSA, a state of affairs which, he argues, spawned “more speculation […] than proof”. Moregenerally, he takes issue with the reasonableness of the verdicts rendered at trial.

In that regard, the appellant states in his writtensubmission on appeal: “all I was guilty of was being in the wrong place at the wrong time”. He further claims defence counsel providedineffective representation by failing to “bring forth witnesses or gather information” to prove his innocence or, at the very least, raise areasonable doubt on point.

Before dealing with those grounds, and because the appellant requested the Court assign counsel to act on hisbehalf, a few observations regarding s. 684 of the Criminal Code are warranted. [7] The Court’s power under s. 684 is contingent upon it appearing desirable in the interests ofjustice that an appellant, whose indigence has been established, should have legal assistance.

As a general rule, that will be so only ininstances where the appeal’s complexity, whether factual or legal, causes the Court or one of its judges to conclude: (1) it is unlikely theappellant will be able to make the case for intervention; and (2) the assistance of counsel is required for the panel to properly exercise itsreviewing function. It should go without saying, but there is merit in underscoring the obvious: taxpayers foot the bill for any assignmentof counsel under s. 684.

That consideration coupled with the nature of the proceedings, the fairness obligations of Crown counsel and thepanel members’ impartiality, knowledge of the law and experience goes a long way in explaining and justifying the exceptionality of s.684 orders. [8] No aspect of the present appeal is complex. None of the issues raised is beyond the appellant’sgrasp and the Court does not need the assistance of counsel to pass judgment. It follows that the case for the exercise of our discretionunder s. 684 in a manner favorable to the appellant has not been made. IV.

Analysis of the Grounds of Appeal and Decision [9] I begin by summarily rejecting the ground of appeal founded upon the absence of “physical”evidence linking the appellant to the crimes particularized in the 4-count Information. Evans v. R., 2005 NBCA 22, 291 N.B.R. (2d) 397is on point. In that case, the appellant contended “there was no direct evidence relating to identification, forensic or physical, justcircumstantial evidence”.

In rejecting that contention, the Court stated: Neither direct evidence pertaining to identification, nor incriminating forensic and physical evidence are required for a proper finding ofguilt. Adequately cogent circumstantial evidence is sufficient: R. v. Charemski, (SCC), [1998] 1 S.C.R. 679, perBastarache J., for the majority. [para. 5] [Emphasis added.] A. Verdict Unreasonableness

(1) The key question and the applicable standard of review [10] The trial judge rendered the impugned verdicts after finding the Crown had established beyonda reasonable doubt the appellant was in constructive possession of the controlled substances seized at Ms. Wilson’s apartment. Section686(1)(a)(

i) of the Criminal Code provides an appeal against conviction may be allowed where the court of appeal concludes the verdictis “unreasonable or cannot be supported by the evidence”. As is well known, that conclusion is unwarranted if the trier of fact, actingjudicially, could reasonably have rendered the verdict in question (see Mowry v. R., 2006 NBCA 18, 297 N.B.R. (2d) 16, at para. 1). Ofnecessity, the application of that test requires the court of appeal to re-examine and to some extent reweigh and consider the effect of theevidence produced at trial (see R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, [1987] S.C.J.

No. 51 (QL)). Nonetheless, asBell J.A., writing for the Court, underscored in Hubbard v. R., 2009 NBCA 28, 360 N.B.R. (2d) 1, at para. 11, “the function of this courtis not to substitute itself” for the trier of fact and in discharging its responsibilities pursuant to s. 686(1)(a)(i), the Court must be “mindfulof the advantageous position of the trial judge in assessing the credibility of the witnesses, including the accused” (see R. v. A.G., 2000SCC 17, [2000] 1 S.C.R. 439).

The key question is therefore whether, on the evidence, it was reasonably open to the trial judge to findthe appellant was in constructive possession of the controlled substances seized at Ms. Wilson’s apartment.

(2) Constructive possession [11] Section 2(1) of the CDSA provides “possession” means possession as defined under s. 4(3) ofthe Criminal Code, which reads as follows: (

a) a person has anything in possession whenhe has it in his personal possession orknowingly (

i) has it in the actual possession or custody ofanother person, or (ii) has it in any place, whether or not thatplace belongs to or is occupied by him, forthe use or benefit of himself or of anotherperson; and (

b) where one of two or more persons, withthe knowledge and consent of the rest, hasanything in his custody or possession, it shallbe deemed to be in the custody andpossession of each and all of them. [Emphasis added.]

a) une personne est en possession d’une choselorsqu’elle l’a en sa possession personnelle ouque, sciemment : (

i) ou bien elle l’a en la possession ou garderéelle d’une autre personne, (ii) ou bien elle l’a en un lieu qui luiappartient ou non ou qu’elle occupe ou non,pour son propre usage ou avantage ou celuid’une autre personne;

b) lorsqu’une de deux ou plusieurs personnes,au su et avec le consentement de l’autre oudes autres, a une chose en sa garde oupossession, cette chose est censée en la gardeet possession de toutes ces personnes et dechacune d’elles. [Je souligne.] [12] The appellant was found guilty on the basis that s. 4(3)(a)(ii)’s requirements were met. Thelatest authoritative pronouncement on constructive possession is found in R. v.

Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253: Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "in theactual possession or custody of another person" or "in any place, whether or not that place belongs to or is occupied by him, for the useor benefit of himself or of another person." (Criminal Code, s. 4(3)(a)).

Constructive possession is thus complete where the accused: (1)has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that placebelongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person. [para. 17]

[13] The trial judge relied on R. v. Jenner, 2005 MBCA 44, [2005] M.J. No. 95 (QL) for theelementary proposition that both knowledge and control can be established on the basis of circumstantial evidence. He also madereference to R. v. Fisher, 2005 BCCA 444, [2005] B.C.J. No. 1955, and its application of the rule in Hodge's Case (1838), 1838 CanLII1 (FOREP), 2 Lewin 227 at 228, 168 E.R. 1136, which states an accused may be convicted solely on the basis of circumstantialevidence, provided the evidence is consistent with the accused having committed the act and is "inconsistent with any other rationalconclusion".

The trial judge further made it clear that any such conclusion must be grounded in available evidence and not merespeculation. In my view, that understanding of the law is beyond reproach. (

a) Knowledge [14] As the trial judge recognized in his reasons for decision, the appellant’s knowledge of the drugtrafficking operation in Ms. Wilson’s apartment was not seriously contested by the defence.

Nonetheless, the judge canvassed thecircumstances whose cumulative effect, in his view, established that fact apodictically: (1) the appellant had been observed on thebalcony of the apartment on a previous occasion; (2) he was present when the search party arrived; (3) he indicated where the drugswere located in the apartment; (4) he was familiar with the drug trade; (5) he conceded his roommates in another apartment had beendealing drugs in the months prior to his arrest; and (6) he admitted knowing Ms.

Wilson was selling drugs from the apartment (heacknowledged purchasing marihuana from her on previous occasions). Clearly, the record reveals more than enough evidence for thetrial judge’s finding that the appellant knew the controlled substances referenced in the Information were in Ms. Wilson’s apartment forthe purpose of trafficking. (

b) Control [15] In R. v. Wu, 2010 BCCA 589, [2010] B.C.J. No. 2585 (QL), to which the trial judge adverted inhis reasons for decision, Frankel J.A. describes control in the following terms: The law with respect to control in the context of constructive possession is well known. What the Crown must prove is that an accusedhad the ability to exercise some power (i.e., some measure of control) over the item in issue. It is not necessary for the Crown to provethat such power was in fact exercised: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at 15-17, 137, 138; R. v.

Webster, 2008 BCCA458, 238 C.C.C. (3d) 270 at paras. 42-44. [para. 20] At this level, the issue is whether, on the evidence, the trial judge could reasonably find the appellant was in a position to exercisecontrol over the controlled substances in Ms. Wilson’s apartment. [16] Whether the requisite degree of control exists is a question of fact, which stands to bedetermined in the light of the particular circumstances of each case. In Drug Offences in Canada, 3d ed. looseleaf (Aurora, Ont.: CanadaLaw Book Inc., 2012), the authors, Bruce A. MacFarlane, Robert J.

Frater & Chantal Proulx, provide, at paras. 4.1280-4.1296, thefollowing insights regarding evidence of control in residential cases: In residential cases of constructive possession, it should also be noted that where a person occupies a room, such occupation constitutessome evidence from which an inference may be drawn that the person was aware of the presence and had control of a drug found withinthe room: see R. v. Chambers (1985), (ON CA), 20 C.C.C. (3d) 440 (Ont.C.A.); R. v. Fairgrieve (1996), (BC CA), 136 W.A.C. 219 (B.C.C.A.); R. v. Tran (2000), 45 W.C.B. (2d) 531 (B.C.S.C.); R v.

Pearson, 2000 BCCA 216; see alsoCarnes v. State, 480 N.E. 2d 581 (Ind. App. 2 Dist. 1985); and R. v. Papaluca (2001), 123 A. Crim. R. 322 (C.C.A.W.A.); R. v. Peterson(2002), 289 W.A.C. 313 (B.C.C.A.); U.S. v. Paulino (unreported, March 29, 2006, U.S. Court of Appeals, 2d Cir., docket no. 04-2553-cr). However, a rebuttable presumption of possession because of tenancy or occupancy does not exist at common law or under theControlled Drugs and Substances Act, and a decision by a trial judge to analyze the evidence on a presumptive basis constitutes areversible error: R. v.

Watson (2011), 2011 ONCA 437 , 94 W.C.B. (2d) 733 (Ont.C.A.), at para. 13. Whether and to what extent any particular accused can be tied to drugs found in residential premises will depend on a range of factors,including: whether the accused lived there or regularly stayed over; whether others lived there or stayed over, and the frequency;clothing and other indicia of living arrangements; who paid the rent or mortgage; in whose name are the various utility accounts;frequency of attendance based on surveillance; and relationship between individuals appearing to live in the premises.

This is not, ofcourse, an exhaustive list. For example, knowledge and control over openly visible drugs can and often will be inferred where theaccused are the only ones living in the premises: R. v. Vu (2004), 2004 BCCA 381 , 328 W.A.C. 293 (B.C.C.A.), at para. 33; R.v. Wu (2010), 2010 BCCA 589 , 92 W.C.B. (2d) 9 (B.C.C.A.); R. v. Callejas (2011), 94 W.C.B. (2d) 498 (Ont.C.A.), at para. 8.

On the other hand, where the accused simply visited the premises from time to time and had a key to the door, but there was no otherevidence connecting the accused to the drugs and the other persons frequented the premises, an inference of knowledge and control usually will not be drawn: R. v. Grey (1996), (ON CA), 47 C.R. (4th) 40 sub nom. R. v. Escoffery (Ont.C.A.), at pp. 41-3;R. v. Do (2003), (ON CA), 175 C.C.C. (3d) 176 (Ont.C.A.), at paras. 23-26.

Indeed, where the evidence adduced bythe Crown is entirely circumstantial, and razor thin, a trial judge is entitled to enter a directed verdict where the evidence does not meetthe standard established by the Supreme Court in USA v. Shepard: R. v. Beals (2011), 2011 NSCA 42 , 302 N.S.R. (2d) 358(C.A.). Often, documentary evidence found within the premises will be probative of the issue: R. v. Emes (2001), (ON CA),157 C.C.C. (3d) 124 (Ont. C.A.).

The presence of a “score sheet”, for instance, can form a part of a circumstantial web implicating thosepresent in the premises – in this case, in relation to a charge of possession of the proceeds of crime: R. v. Castillo (2005), 2005 MBCA 28, 340 W.A.C. 161 (Man. C.A.). For a discussion of constructive possession, in particular the inferences that may arise where spouses are living together, see R. v.Mihalkov (2009), 2009 ONCA 154 , 243 C.C.C. (3d) 173 (Ont. C.A.); R. v. Wu, supra. In R. v.

Medina (2010), 2010 ONCA 261, 88 W.C.B. (2d) 46, the Ontario Court of Appeal considered whether constructive possession could be found where a largequantity of marihuana was found in an apartment that had been subleased. Neither the actual tenant nor the superintendant of the buildingcould identify the accused as the sub-tenant, but the court nonetheless found the accused guilty of possession based on circumstantialevidence located in and around the apartment.

In the course of his reasons, the trial judge set out the constellation of circumstances whose cumulative effect led him to conclude theCrown had satisfactorily established the appellant’s ability to exercise some power over the drugs in Ms. Wilson’s apartment. [17] First, after a voir dire, the trial judge admitted in evidence the appellant’s utterances at the timeof his arrest.

He then rejected the innocent or neutral gloss proposed by the appellant in his testimony, choosing instead the incriminatingunderstanding urged by the Crown and the officers at the scene. [18] Second, the appellant, while not formally a tenant, occasionally stayed at the apartment. Thetrial judge observed the male clothing in the apartment was “consistent with a male presence”. That said, photographs of the apartmentand testimony regarding its contents persuaded the judge that it was not the appellant’s primary residence.

He went on to find thepremises, as depicted in the testimonial and pictorial evidence, “was used for nothing other than selling drugs”. [19] Third, the appellant’s truck keys were found near a bag of marihuana in the pantry. Although itremains a mystery why the keys were put there, their proximity to the drugs undermined the appellant’s suggestion that his presence inthe apartment was entirely innocent. [20] Fourth, three of the appellant’s bronchial inhalers were found inside a kitchen cupboard. Theyhad been prescribed a month earlier.

The trial judge attached significance to this state of affairs for the following reasons: The police entered the place on the day alleged in the information and the medication is still there and he is still there. And he says hesimply forgot it back in July. Well this is not take it or leave it medication. It’s not like Advil or Tylenol for a headache. It’s respiratorymedication and it was dispensed that day and it requires the use four times a day.

Now I appreciate maybe not every day but the fact ofthe matter is, you would – I cannot conclude that somebody who has a condition that requires that medication simply leaves theirmedication somewhere for a month. The fact that it was there again is supportive of control of the apartment and what’s containedtherein.

And I don’t accept that someone who got their medication one day would simply drop it off and then go to Hampton where theysay they live and then decide they might need a respiratory puff on their – because their bronchitis or asthmatic condition is acting up andthen hope that somebody is home on Green Valley Drive so they can get a ride up there and get their medication and maybe get into theapartment.

Again this is strong evidence of control of that apartment. [pp. 261-262] [Emphasis added.] Although there was a dearth of evidence regarding the appellant’s medical needs, he testified to carrying an inhaler, which lasted no morethan a month. In the circumstances, the 3-month supply found in one of the closets of Ms. Wilson’s apartment reflected an associationwith the premises that went beyond the odd brief social call and suggested the appellant was confident in his ability to come, stay and goas he pleased.

[21] Fifth and finally, sometime after midnight and while police officers were still at the apartment,two individuals arrived at separate times, each asking for the appellant.

While readily accepting these visits would not be telling on theirown, the judge found there was no other rational explanation for their occurrence but that the visitors were looking for something fromthe appellant and that “to put it [bluntly] there wasn’t much in the apartment except for drugs”. [22] On the basis of those items of circumstantial evidence, considered and assessed collectively, thetrial judge concluded the appellant was in constructive possession of the controlled substances seized from Ms. Wilson’s apartment andthat his guilt had been established beyond a reasonable doubt.

Upon careful consideration of the record, I am satisfied that conclusionreflects an unimpeachable understanding and application of the law to findings of fact and credibility that the trial judge couldreasonably make. As a result, the case for verdict unreasonableness has not been made and this Court is not at liberty to intervene underthe authority of s. 686(1)(a)(i). B. Effective assistance of counsel [23] In R. v.

Gardiner, 2010 NBCA 46, 362 N.B.R. (2d) 179, Richard J.A., writing for the court,summarized the law on point: It is incontestable that, in the modern Canadian criminal justice system, a person who chooses to be represented by a lawyer has the rightto the “effective assistance” of that counsel. This proposition goes to the very heart of the adversarial system upon which our criminaljustice 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, theineffective 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 omissionsconstituted 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 SupremeCourt said, “[i]n an adversarial system of criminal trials, trial judges must, barring exceptional circumstances, defer to the tacticaldecisions 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] [24] As explained in R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, this “strong presumption” ofcompetence places the onus on the appellant to establish acts or omissions of counsel that evince sub-par performance.

In Cormier v. R.,2012 NBCA 76, [2012] N.B.J. No. 320 (QL), the Court had occasion to discuss the importance of substantiating evidence: In R. v. Lavoie, 2010 NBCA 52, 363 N.B.R. (2d) 55, this Court observed that the onus is on the appellant to establish counsel’s acts oromissions constituted incompetence and that a miscarriage of justice resulted from those acts or omissions. It is not the function of anappellate court “[…] to second guess or perform a retrospective analysis of trial tactics, strategy or the judgment exercised by trialcounsel.

Considerable deference is owed to counsel’s decisions made during the trial” (Lavoie, para. 7). Courts normally require proof that the appellant has provided trial counsel with notice of the alleged incompetence, and that he or shehas been provided with notice of the date and time when the appeal will be heard. See R. v. Michaud, 2011 NBCA 74, 376 N.B.R. (2d)170; R. v. C. (L.S.), 2003 ABCA 105, [2003] A.J. No. 388 (QL); R. v. Elliott, (ON CA), [1975] O.J. No. 1185 (C.A.)(QL).

Given the seriousness of a finding that a lawyer failed to competently perform his or her work, it is only fitting that he or she hasthe opportunity to respond to the allegations. […]

Another feature often present in appeals based upon an allegation of incompetence is an application to adduce fresh evidence ( see R. v. Brooks , 2008 NBCA 49 , 331 N.B.R. (2d) 268 ). The fresh evidence sometimes takes the form of an affidavit from another lawyer in which he or she outlines the minimal standards of competence in relation to the impugned subject matter. Mr. Cormier brings no application for the admission of fresh evidence.

As a result, it is left to this Court to review the transcripts in order to determine whether there is any merit to this ground of appeal. [paras. 6-8] [ 25 ] Where it is clear the defence was not prejudiced by counsel’s services, it is generally preferable that any claim of ineffective legal assistance be determined without considering the performance component of the analysis ( see R. v. G.D.B. , at para. 29 ). The wisdom of that direction is readily apparent where grading counsel’s performance is difficult and a complaint on point has been filed with the Law Society.

However, where, as here, no such difficulty exists and there is no indication that the Law Society is in the mix, fairness dictates the Court address the complaint of sub-par professional services. That is so quite simply because the reputation of defence counsel - often easily identifiable members of the Province’s relatively small legal aid staff - is always in jeopardy when allegations of prejudicial professional incompetence are advanced on appeal and detailed in the Court’s reasons for decision.

If the pertinent grounds of appeal are dismissed solely on the basis of no prejudice, the claim of deficient performance stands unresolved and doubts, perhaps wholly unjustified, about counsel’s competence may linger and cause undeserved grief. [ 26 ] As was the case in Cormier , the record does not show defence counsel has been notified of the appellant’s allegations of incompetence. Nor has there been an application to adduce substantiating expert or other evidence.

Recall that the claim of prejudicial incompetence is founded upon defence counsel’s failure “to bring forth witnesses or gather information to prove […] innocence”. There is no evidence to suggest available exculpatory information did not find its way into the record. It follows the kernel of the complaint is simply that defence counsel should have called Ms. Wilson to the witness stand. [ 27 ] However, there is no evidence that Ms. Wilson’s testimony would have helped the defence. I note it is acknowledged defence counsel opted against calling Ms. Wilson after she told him she “would not lie” for the appellant.

Like defence counsel, I would have distilled from this statement that Ms. Wilson’s testimony would, in all likelihood, be unhelpful. Moreover, a careful review of the transcript of proceedings in first instance leads me to conclude counsel was thorough and optimally effective in cross-examining Crown witnesses and in his direct examination of the appellant. Moreover, counsel’s submissions reflected a satisfactory understanding of the law and the record. In my view, the appellant has not come close to establishing his counsel’s performance at trial did not measure up to an acceptable standard. V.

Conclusion and Disposition [ 28 ] For the reasons outlined above, I am satisfied the grounds of appeal against conviction are devoid of merit. That being so, I am duty bound to dismiss the appeal. ____________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK WE CONCUR: ______________________________________

J.T. ROBERTSON, J.A. ________________________________________ BRADLEY V. GREEN, J.A.