R v Owens, 2018 MBCA 94

Citation: R v Owens, 2018 MBCA 94 Date: 20180927 Docket: AR17-30-08739 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Diana M. Cameron Madam Justice Jennifer A. Pfuetzner BETWEEN : HER MAJESTY THE QUEEN ) J. L. Ostapiw ) for the Appellant ) Respondent ) N. M. Cutler ) for the Respondent - and - ) ) Appeal heard: PANDORA NANCY OWENS ) June 5, 2018 ) ) Judgment delivered: (Accused) Appellant ) September 27, 2018 On appeal from 2016 MBQB 18 cameron JA Introduction [ 1 ] The accused appeals her conviction, after trial by judge and jury, for second degree murder.

There is no issue that she caused the death of the deceased. Rather, her defence at trial was that her state of intoxication at the time of the offence was such that it raised a reasonable doubt that she had the requisite intent to commit second degree murder. It is her position that she should have been convicted of manslaughter. [ 2 ] She appeals on the ground that the trial judge erred in denying her motion for the Court to call two witnesses that the Crown refused to call. She also appeals on the ground that she received ineffective assistance of counsel.

She filed a motion to adduce fresh evidence in support of the latter ground. [ 3 ] At the appeal hearing, the accused asked for an adjournment to cross-examine her trial counsel on his affidavit that, for various reasons, he only filed the day before the hearing of this appeal. The adjournment motion was denied for the reasons later explained in this decision. [ 4 ] As well, for the reasons contained herein, I would dismiss the motion to adduce fresh evidence and dismiss the appeal. Facts and Proceedings at Trial [ 5 ] The accused and the deceased were sisters.

On the night of the incident, they were drinking alcohol and smoking marihuana at the accused’s home along with a third woman, Kayla Leveque (Ms Leveque) (the three women). The accused’s two younger sisters were also at the home. One sister was 13 years of age (the 13-year-old sister) and the other was 16 (the 16-year-old sister) (collectively the sisters). [ 6 ] The main Crown witness to the incident was Constable Dauphinee. At the time, he was a member of the Royal Canadian Mounted Police (RCMP) who was stationed in Little Grand Rapids, a remote northern community.

His home, like the RCMP detachment, was near the home of the accused. [ 7 ] Constable Dauphinee was first alerted to a problem when, while asleep in his house, he awoke to the sounds of loud screaming and tires spinning on gravel. He looked out the window and saw the accused’s truck parked in his driveway. He saw the

accused exit the driver’s side of her truck and approach the deceased, who was lying on the ground behind the truck’s rear wheel. Hesaid that the accused kicked and stomped the deceased’s face and head while repeatedly screaming “Fucking bitch.” He saw her returnto the driver’s seat, put the truck in reverse and back up over the deceased. He said that the accused then did a “hundred and eightydegree turn” and “peeled off [while] still yelling”. [8] Constable Dauphinee tried to save the deceased by transporting her to the local nursing station.

Unfortunately, shedied before he was able to obtain treatment for her. [9] Expert evidence established that the accused ran over the deceased twice, once before she would have been observedby Constable Dauphinee, and the second time as she was leaving the scene. [10] At the trial, the Crown refused to call Ms Leveque or either of the sisters as witnesses regarding the events that led up tothe altercation. Thus, defence counsel at trial (trial counsel) made a motion for the Court to call them.

The trial judge determined thatshe would call Ms Leveque as a witness, but not either of the sisters. [11] Ms Leveque testified that, on the night of the incident, she had been drinking and smoking marihuana with the accusedand the deceased at the accused’s home. She stated that both she and the accused were quite drunk, but the accused more so than she.

Due to her degree of intoxication, Ms Leveque said that she could only remember portions of the night. [12] Ms Leveque testified that a physical altercation started between the accused and the deceased outside of the residenceafter the deceased called the accused a “slut”. She said that she, along with the 16-year-old sister, broke up the fight. After thealtercation, she saw the deceased walking toward the RCMP detachment, which was quite close by.

The deceased said to the accused,“I’m going to go tell the cops on you.” Ms Leveque heard the accused respond, “Just wait first, just wait.” After hearing that, MsLeveque left the residence and walked in a different direction. She did not observe the accused get into her truck or any of whathappened after that. [13] The accused testified. She agreed with Ms Leveque that the three women had been drinking and smoking marihuana. She said that her last memory of the evening was sitting in her truck drinking with the two of them and, after that, she blacked-out.

Shetestified that she had no memory of the incident and that she did not want to kill her sister, who lived with her and was her good friend. [14] In cross-examination, the accused said that she did not recall giving a police statement wherein she stated that, justbefore she drove over the deceased, she thought that the deceased was going to the police station to tell them that she was drinking andtrying to drive.

However, she did agree that she remembered that she wanted to drive her truck that night and that the deceased tried tostop her. [15] Trial counsel did not call either of the sisters to testify regarding the accused’s level of intoxication or the altercationthat preceded the incident. [16] In her instructions to the jury, the trial judge addressed the defence of intoxication to the charge of second degreemurder. She also summarized the theory of the defence that the accused did not have the required state of intent for murder as acombined result of her intoxication and the altercation with the deceased.

Having the benefit of the instructions, the jury nonethelessconvicted the accused. The accused does not take issue with the adequacy of the trial judge’s instructions regarding intent. Grounds of Appeal [17] The accused’s first ground of appeal is that the trial judge erred in dismissing her motion for the Court to call the sistersas witnesses in her trial when the Crown refused to present their testimony as part of its case. Next, she alleges that she receivedineffective assistance of counsel when her trial counsel failed to call the sisters after the trial judge refused to do so.

Finally, she arguesthat her trial counsel was ineffective in that he did not properly prepare her to testify at her trial. In support of her allegation ofineffective assistance of counsel, she has brought a motion for fresh evidence. Ground 1—Failure of the Trial Judge to Call the Sisters [18] In her reasons for not calling the sisters to give evidence, the trial judge reviewed the leading case of R v Finta, (SCC), [1994] 1 SCR 701, regarding a trial judge’s discretion to call a witness.

She recognized that such a discretion shouldonly be exercised rarely and with extreme care so that the court does not unduly interfere with the adversarial nature of the proceedings.

She stated that the guiding principle is that the court should only call a witness when it is essential to do justice in the case. [19] She also noted that, in R v Prince, 2007 MBCA 15 at para 75, Freedman JA stated that, before a witness is called by thecourt, the court should be satisfied (at para 15): 1. that the evidence will not otherwise be adduced; 2. that the evidence is admissible; and 3. that the evidence is important, perhaps essential, to a material issue in the case and to ensure that justice is done. [20] In determining that she would call Ms Leveque as a witness, the trial judge stated that she was of the view that theevidence of what occurred between the accused and the deceased right before the death was “essential to do justice because it is such aninseparable part of the conduct of the accused which the jury should consider in deciding whether the Crown has established the mental

element of murder” (at para 19). [21] She stated that, while not a determining factor, the evidence of what happened prior to the observations of ConstableDauphinee was “helpful to the defence to the extent that it may raise the defence of intoxication and provocation” (at para 19). [22] However, the trial judge felt that it was not necessary to hear from all three witnesses regarding the same subjectmatter. Thus, she did not call the sisters, citing credibility and reliability concerns regarding their evidence.

In her view, the evidence ofMs Leveque did not raise the same issues. [23] The decision of a trial judge regarding whether or not to call a witness is discretionary. Therefore, assuming no error onthe law or the facts, such a decision is entitled to significant deference. An appellate court will not intervene unless the decision was soclearly wrong as to amount to an injustice (see R v Regan, 2002 SCC 12 at para 117). [24] In my view, the record demonstrates that there is no question that there were problems with the testimony of each sisterat the preliminary hearing.

In her reasons, the trial judge noted (at para 5): At the preliminary hearing, [the 13-year-old sister] testified that she was angry when she provided her police statement and was nottelling the truth. [The 16-year-old sister] testified at the preliminary hearing that she did not recall aspects of her police statement and didnot remember if she had lied to the police. [25] The accused argues that, in making this statement, the trial judge mischaracterized the evidence of the 13-year-oldsister.

She says that, in cross-examination, the 13-year-old sister agreed that she told the truth in some parts of her police statement,including that the accused was drinking and was involved in a fight with the deceased. She asserts that the above statement by the trialjudge does not acknowledge this fact. [26] The transcript of the preliminary hearing more than supports the statement of the trial judge. The fact that the trialjudge did not mention that the 13-year-old sister changed her testimony while being cross-examined does not amount to amischaracterization of the evidence.

A review of the record shows that the trial judge was well aware of all of the testimony given bythe 13-year-old sister at the preliminary hearing, including the fact that she agreed that she did not lie when she said that the accused wasdrinking and involved in a fight with the deceased in her police statement. In my view, this argument is without merit. [27] Next, the accused argues that the trial judge erred in failing to apply the decision of R v Passley, 2003 MBQB 171. InPassley, the Court called a witness who had been flagged down on the highway by the victim of a sexual assault.

The witness spoke tothe victim about what had happened to her, called police and arranged for the police to meet them. The witness refused to attend court inresponse to a subpoena from the Crown. Therefore, the Crown closed its case without calling him. The trial judge in that case issued awarrant for the witness. When the witness eventually attended court, he was hostile. [28] In determining that she would call the evidence, the trial judge in Passley stated (at para 19): Another basis for the court to exercise its discretion is where the right of cross-examination is important to ensure a fair trial.

In Cook[ (SCC), [1997] 1 SCR 1113], the court noted that there may be cases in which the tactical disadvantage to the defenceof calling a potentially hostile witness would be manifestly unfair. Where this occurs, the trial judge is entitled to consider this factor indeciding whether to call the witness him/herself. In R. v. H.(J.) (1996), 16 O.T.C. 69 (Ont.

Court of Justice), the court concluded thatwhere witnesses material to a charge had previously been found to be unreliable, the defence right of cross-examination was imperative,and for that reason the court exercised its discretion. [29] The trial judge in Passley concluded that the witness’s testimony was relevant and formed part of the essential narrativeof the case.

She also found that, given the hostile manner in which the witness presented before her, it would be manifestly unfair for thedefence to have the tactical disadvantage of calling him. [30] In this case, trial counsel argued that the Court should consider the situation in Passley as analogous. That is, that thesisters should have been considered to be potentially difficult and unpredictable witnesses and therefore they should have been called aswitnesses by the Court. [31] There is no general requirement for the court to call a witness who is potentially difficult and unpredictable.

Thedecision to call a witness is subject to many considerations, dependent on the facts of each case. I agree with the Crown that the Passleydecision is distinguishable on its facts. In that case, absent the testimony of the witness, there would have been a complete lack ofrelevant evidence. In this case, the trial judge called Ms Leveque to provide evidence of the events leading up to the incident. [32] While the trial judge did not mention the Passley case in her decision, her reasons demonstrate that she was well versedin the jurisprudence and considered all of the arguments advanced by trial counsel.

I am not persuaded that she erred in exercising herdiscretion in the manner that she did. [33] Finally, the accused argues that the trial judge erred in considering the reliability and credibility of the sisters inreaching her conclusion. She relies on the appellate-level decision in R v Cook (1996), (NB CA), 107 CCC (3d) 334(NB CA), rev’d (SCC), [1997] 1 SCR 1113, to assert that the reliability and credibility of the sisters were factors to be

considered only by the trier of fact and not for consideration in determining whether to call a witness. [ 34 ] The Cook decision dealt with the requirement for the Crown to call witnesses, not the court. A majority of the New Brunswick Court of Appeal held that the Crown should have called a witness who was the victim of an assault.

In reaching this conclusion, the Court stated that the Crown should not make decisions about a witness’s credibility that would have the effect of depriving the trier of fact of that witness’s evidence. [ 35 ] However, on appeal, the Supreme Court of Canada rejected the above proposition. Writing for a unanimous Court, L’Heureux-Dubé J held that, contrary to the majority of the New Brunswick Court of Appeal, there was no obligation on the Crown to call witnesses.

She stated that, once the requirement of full disclosure has been met, absent improper motives, it is for Crown counsel to choose the witnesses necessary to establish the factual basis for the case (see para 39). [ 36 ] As pointed out by the Crown, since Cook , the Ontario Court of Appeal has also considered and rejected this position. In R v Ryback , 2008 ONCA 354 , the Crown refused to call a witness in a murder trial that it had called at the preliminary hearing. The accused in that case wanted to cross-examine the witness to establish that it was possible that another party had committed the crime.

Watt JA, writing for the Court, held that the consideration by the Crown of the fact that the witness had given inconsistent accounts was relevant to its determination of whether to call a witness.

In doing so, he relied on the following comments of L’Heureux-Dube J in Cook (at para 36): If, for example, the Crown becomes aware that a given witness has made a statement inconsistent with his original one, it is perfectly proper not to call the witness to testify, especially where the Crown feels that the witness is likely to mislead the court. [ 37 ] Regarding a request for the Court to call the witness, he concluded that the reasons advanced by the accused were the same as those offered in support of the application for the Crown to call the witness and were “equally unpersuasive to obtain the alternative remedy” (at para 176). [ 38 ] In this case, trial counsel submitted that, regardless of the problems with the evidence of the sisters, it was for the trier of fact to determine what use to make of it.

The trial judge clearly rejected this submission when she considered that the sisters had credibility and reliability issues. In my view, the accused has not shown that she erred in this regard. Ground 2—Ineffective Assistance of Counsel [ 39 ] The accused has two main complaints regarding her allegation of ineffective assistance of counsel. The first complaint is that, after being unsuccessful in persuading the trial judge to call the sisters as witnesses, trial counsel should have called them as part of the defence case.

The second is that he failed to adequately prepare her to give her testimony. [ 40 ] In support of her allegations, she has filed a motion for fresh evidence. The fresh evidence that she wishes this Court to admit consists of an affidavit sworn by her. She also asks that this Court consider the trial and preliminary hearing transcripts as well as the written materials filed by trial counsel in support of his motion to have the Court call the sisters as witnesses.

By consent, for the purposes of her motion, this Court considered the accused’s affidavit and supporting documents as well as the affidavit filed by trial counsel for this hearing. It also took into consideration all of the transcripts and written materials as requested. [ 41 ] In her affidavit, the accused states that she understood that the sisters would be called as witnesses. She asserts that, based on her conversations with them, she knew that her trial counsel had not spoken with them or subpoenaed them for the trial.

She claims that, when she asked trial counsel about when they would testify, he told her that they would not be needed. [ 42 ] The accused also asserts that trial counsel did not review the statement that she gave to police with her, nor did he properly prepare her to testify. She said that trial counsel did not visit her at the correctional facility where she was detained prior to or during her trial for the purpose of preparing her to testify at her trial. [ 43 ] Trial counsel filed an affidavit wherein he denied many of the allegations made by the accused.

He explained that he did not want to call the sisters to give evidence unless he was in a position to cross-examine them. He said that his decision was also based, in part, on his many years of experience with witnesses from Little Grand Rapids. In his view, they were subject to agreeing with whoever is cross-examining them. He stated that, in his opinion, the risk of having the sisters cross-examined by the Crown was too great. [ 44 ] Trial counsel also asserted that he did prepare the accused to testify and detailed the steps that he took with her.

He said that he did attend the correctional facility where she was being detained to prepare her, as well as to bring her suitable attire for court. [ 45 ] At the commencement of the hearing of this appeal, counsel for the accused asked for an adjournment to enable her to cross-examine trial counsel on the affidavit that he filed. The request was denied. Before considering the reasons for denying the request, it is important to review the legal principles regarding ineffective assistance of counsel as well as motions for fresh evidence where ineffective assistance is asserted.

Legal Principles—Ineffective Assistance of Counsel [ 46 ] The leading Supreme Court of Canada case regarding ineffective assistance of counsel is R v GDB , 2000 SCC 22 . In that case, the Court established that the right of an accused to effective assistance of counsel was 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 ” (at para 24).

[47] Ineffective assistance of counsel may result in an injustice in two ways. The first occurs when prior counsel’s overallperformance was so incompetent that it affected the fairness of the trial. The other is where, even if trial fairness is not affected, theineffective assistance calls into question the reliability of the verdict (see R v Le (TD), 2011 MBCA 83 at para 157).

If either situationexists, a miscarriage of justice has occurred and the appellate court will overturn the conviction and either enter an acquittal or order anew trial (see section 686(1)(a)(iii) of the Criminal Code (the Code)). [48] When claims of ineffective assistance of counsel are made, courts should take a cautious approach and apply deferenceto the review of counsel’s performance. In R v Joanisse (1995), (ON CA), 102 CCC (3d) 35 (Ont CA), Doherty JAcautioned, “Appeals are not intended to be forensic autopsies of counsel’s performance at trial” (at p 58).

There is a strong presumptionin favour of competence of counsel and the burden remains on the appellant to establish ineffective assistance (see Le at para 166). As aresult, such claims should not be made lightly. [49] There are three components that must be established by those seeking to have a conviction quashed on the basis that amiscarriage of justice has occurred as a result of ineffective assistance of counsel. In Le, Scott CJM summarized the analysis to beundertaken as follows (at para 189):

(1) The factual component: an appellant must establish, on a balance of probabilities, the facts on which the claim of incompetency isbased. If that is not established, there is no need to go any further.

(2) The prejudice component: if the factual foundation has been made out, the court will, for the purposes of this component, assumeincompetence on the part of counsel. See Joanisse at p. 62, Doherty J.A. At this stage, an appellant must establish, on a balance ofprobabilities, that the presumed incompetence resulted in a miscarriage of justice. If it did not, there is no need to go any further.

(3) The performance component: if it is determined that the reliability of the verdict was affected by the presumed incompetence, thecourt will then consider whether the actions of counsel were, in fact, incompetent. At this stage of the analysis, the presumption revertsto “a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance” and the onus falls on anappellant to establish that it did not (G.D.B. at para. 27). Again, that analysis is conducted without the benefit of hindsight.

Legal Principles—Motion for Fresh Evidence [50] In motions for fresh evidence in criminal proceedings, courts typically apply the test in Palmer v The Queen, (SCC), [1980] 1 SCR 759 at 775. That is:

i) the evidence should not be admitted if it could have been produced with duediligence (this standard is not strictly applied in criminal appeals); ii) the evidence must be relevant and otherwise admissible; iii) theevidence must be credible; and iv) the evidence must be such that, if believed, it could have effected the result. See for example R vHarry, 2013 MBCA 108 at para 76. [51] In R v DGM, 2018 MBCA 88, Beard JA noted that, where the fresh evidence is directed at the fairness of the trialprocess, the Palmer criteria are not applied.

Rather, “the court must conduct ‘an examination of the grounds of appeal raised, thematerial tendered and the remedy sought’ . . . which may include ‘material extraneous to the trial record’ so long as it is relevant to theissue alleged to have affected the fairness of the trial process” (at para 9).

See also R v Richard (DR) et al, 2013 MBCA 105 at paras202-204. [52] In motions for fresh evidence regarding ineffective assistance of counsel, courts have modified the procedure todetermine the admissibility of that evidence to accommodate for the fact that the appellate court is asked to consider a new issue that wasnot necessarily raised at trial.

Thus, in the interests of justice, the evidence may be received for the limited purpose of assessingallegations of incompetence. [53] In R v Zamrykut, 2017 MBCA 24, this Court adopted the decision-making process set out by the British ColumbiaCourt of Appeal in R v Aulakh, 2012 BCCA 340, for the admission of fresh evidence when determining a claim of ineffective assistanceof counsel. Aulakh describes the test as follows (at para 68): 1. Determine if the fresh evidence is admissible under the rules of evidence (e.g., no hearsay, speculation, opinion or mere argument). 2.

If the fresh evidence complies with the rules of evidence and if it is apparent from the trial record that the fresh evidence could notreasonably have affected the result (assuming the allegations of ineffective representation could be established) there is no miscarriage ofjustice and the application to adduce fresh evidence and the appeal should be dismissed. 3.

If that determination is not apparent and the fresh evidence in support of the allegation of ineffective representation is relevant tothat issue and credible, admit the fresh evidence for the limited purpose of determining the allegation of ineffective representation, anissue that was not adjudicated at trial. At this stage the fresh evidence will not be admissible to determine the substantive issue of

whether a miscarriage of justice has occurred. 4. In considering whether the performance component of the test for ineffective representation has been established, apply the standard of “reasonable professional judgment”, remembering that the appellant must establish the facts underlying the claim of ineffective assistance on a balance of probabilities. 5.

If the performance component of the ineffective assistance of counsel claim is established, consider whether the appellant has established the prejudice component of the test, namely a “reasonable probability” that the outcome of the trial would have been different if the appellant had received the effective assistance of counsel (i.e., if there has there been a miscarriage of justice). If the answer is yes, the fresh evidence application should be granted, the appeal allowed, and a new trial ordered. If the answer is no, the fresh evidence and the appeal should both be dismissed.

The Motion for an Adjournment to Cross-Examine Trial Counsel [ 54 ] The second complaint in regard to the accused’s allegation of ineffective assistance of counsel is that he failed to adequately prepare her to give testimony. In requesting the motion for the adjournment, counsel for the accused indicated that she intended to argue that the accused had established a factual foundation for the Court to receive the further evidence from trial counsel in the form of cross-examination in accordance with this Court’s decision in Le .

She stated that, if she established the factual foundation required for a finding of ineffective assistance of counsel, the Court should adjourn the fresh evidence motion in order for the cross- examination to take place. [ 55 ] In Le , Scott CJM undertook an extensive review of the law relating to ineffective assistance of counsel and the reception of evidence of trial counsel by the court.

After noting the ease with which unhappy clients can make unfounded allegations against previous counsel, he stated (at para 178): To conclude , the extensive case law summarized in this judgment establishes the following principles with respect to establishing the factual foundation of an allegation of incompetent representation:

(1) It is an appellant who bears the onus of submitting evidence to establish the factual foundation underlying the allegation.

(2) Unless the trial transcript (unusually) reveals everything about the allegation, it is expected that appeal counsel will make inquiries of trial counsel and apply to present evidence from trial counsel in response.

(3) Where the trial transcript and circumstances surrounding the allegation raise a concern about incompetent representation, courts are generally willing to order evidence to be taken from trial counsel prior to making a decision respecting the allegation.

(4) However, where the court is satisfied from the trial transcript and other circumstances that no valid concern has been raised, the court will generally determine at this preliminary stage that an appellant has failed to provide the necessary factual foundation.

(5) In more practical terms, just because an appellant has sworn to some facts in an affidavit does not automatically mean that a prima facie case has been raised requiring an answer from trial counsel.

It all depends on the circumstances. [ 56 ] After some discussion, it was counsel’s ultimate position that there would be no point in her obtaining an adjournment if she had not met the factual foundation test in Le and that, if she failed in that regard, her fresh evidence motion would also fail. [ 57 ] After consideration of the issue, the Court allowed counsel to continue with her argument that she had met the factual foundation test in Le .

Because of the similarity of her arguments regarding the factual foundation test and the fresh evidence motion, the Court asked that counsel also address how the fresh evidence could have reasonably affected the result of the trial. [ 58 ] Counsel for the accused provided extensive submissions as to why she should be entitled to cross-examine trial counsel. However, as I next explain, the transcript and the circumstances surrounding the allegations do not raise a concern about ineffective representation. Therefore, the factual foundation supporting the allegation was not proven. The Evidence of the Sisters

[ 59 ] As earlier indicated, the trial judge refused to call the evidence of the sisters based on credibility and reliability concerns and because Ms Leveque could provide the necessary evidence. At the time, the trial judge had before her the video-recorded police statements that the sisters had given, as well as the transcripts of each sister’s testimony at the preliminary hearing. A review of the police statements and the transcripts reveals that the trial judge’s credibility and reliability concerns were grounded in the record. [ 60 ] It must be remembered that the issue in this case was intoxication.

The Crown relied on the deliberate actions of the accused to demonstrate that the accused had the requisite intent to commit murder. [ 61 ] In claiming that trial counsel was incompetent by failing to call the sisters as witnesses, the accused submits that, had the jury heard their evidence regarding her level of intoxication, it may well have found her guilty of manslaughter.

However, a brief examination of the evidence of each sister will demonstrate the relative lack of evidence that they could have given on this issue, as well as concerns regarding their credibility and reliability. [ 62 ] I will first deal with the 16-year-old sister. At the preliminary hearing, the Crown played her video-recorded police statement pursuant to

section 715.1(1) of the Code . In that statement and at the preliminary hearing, she simply confirmed that the accused had been drinking Windsor (which is a brand of whisky) on the evening of the incident. She provided no evidence regarding the accused’s level of intoxication. She also said that the accused was mad at the deceased for not giving her the truck keys. She said that the accused started the argument with the deceased. She said that the accused kicked the truck and that the deceased got out of the truck and said that she was going to the RCMP detachment. She said the accused backed up too fast.

She denied seeing the accused hit the deceased. In direct examination at the preliminary hearing, she confirmed that she did her best to tell the police the truth when she gave her statement. [ 63 ] In cross-examination, trial counsel reviewed portions of her statement with her in an effort to elicit the circumstances of the offence and the fact that the accused’s behaviour occurred in the midst of an argument that she was having with the deceased. However, the 16-year-old sister repeatedly maintained that she did not remember what she told to the police.

Even after re-watching portions of her statement twice, she said that she did not remember the argument between the accused and the deceased. She said that she did not want to watch her statement in court. She gave conflicting testimony as to whether she was trying to tell the police the truth in her statement. In fact, she even said that, in general, she did not remember how well the accused and deceased got along before the time of the incident. Overall, aside from agreeing that the accused had been drinking, this witness could properly be described as being unresponsive to the questions of trial counsel.

In my view, trial counsel can hardly be faulted for not calling her as a witness to simply establish that the accused had been drinking. That fact was not even an issue at the trial. [ 64 ] Regarding the testimony of the 13-year-old sister, in her video-recorded police statement she gave a very detailed description of the fight between the accused and the deceased, including the fact that she broke up the fight. She said that after the fight, the deceased told the accused that she was going to tell the police that the accused was drinking and driving.

After this, she said the accused came into the house, found her truck keys and took off. She also said that she saw the accused run over the deceased with her truck and then return home. She confirmed that the three women were drinking that night and that “they were getting drunk”. [ 65 ] At the preliminary hearing during direct examination, the 13-year-old sister denied that she told the truth to the police. She said that she was mad when she gave her police statement and that all of it was untrue.

In cross-examination, she agreed that the three women were drinking on the night of the incident, that there was an argument between the deceased and the accused and that she broke up a fight between the accused and the deceased. She agreed that the accused and deceased were more drunk when she broke up the fight than they had been earlier in the night. She also agreed that, when she broke up the fight, the deceased was on top of the accused pulling her hair. She said she could not stop the fight so she ran off.

Despite re-watching her video-recorded police statement, she continued to deny significant portions of information that she provided in it, indicating that she had lied to the police. [ 66 ] The accused argues that trial counsel should have called the 13-year-old sister to testify regarding the evidence of the accused’s level of intoxication that she gave at the preliminary hearing.

Further, she argues that the 13-year-old sister’s credibility could have been rehabilitated in direct examination by having her explain that, in all of the circumstances, she lied in portions of her police statement because she was mad at the time that she gave it.

She further argues that, if in direct examination the 13-year-old sister gave evidence contrary to the favourable evidence that she provided, trial counsel could have made an application pursuant to R v Khelawon , 2006 SCC 57 to have her statement and/or preliminary hearing transcripts entered as evidence. [ 67 ] In my view, the arguments put forward by the accused are highly speculative given the evidence. The 13-year-old sister was inconsistent and unreliable.

The fact that trial counsel did not call her as a witness does not demonstrate incompetence of counsel. [ 68 ] In fact, there was significant evidence of the accused’s level of intoxication already before the jury provided by the testimony of Ms Leveque. She said that she, the accused and the deceased shared two twenty-six ounce bottles of Windsor. In Ms Leveque’s view, the accused was the most drunk of the three women. She said that, on a scale of drunkenness between one and ten, that she was an eight and the accused was a ten.

She agreed that the accused was about as drunk as a person could be without passing out. She said that the accused was so drunk that she thought that her boyfriend was at the residence, when he was not. [ 69 ] At the trial, the Crown argued that Ms Leveque was drunk at the time of the incident and therefore her testimony was unreliable. On appeal, the accused argues that, had the sisters been called, they would have been able to give the best evidence of drunkenness based on the fact that they were sober at the time.

For all of the credibility and reliability concerns regarding each of the sisters that I have earlier reviewed, I do not accept the accused’s position. [ 70 ] Before leaving this issue, I would mention that, in trial counsel’s affidavit, he generalized his reason for not calling the sisters as witnesses based, in part, on his experience with witnesses in Little Grand Rapids. In my view, such generalizations are not helpful and should be avoided. Nevertheless, there was ample reason for him not to have called the sisters as witnesses. [ 71 ] In

summary, a review of the transcripts and other circumstances demonstrates that the accused has not proven on a balance of probabilities a factual foundation sufficient to raise a valid concern regarding incompetent representation by failing to call the

sisters as witnesses. Preparation of the Accused to Testify [ 72 ] In her affidavit, the accused states that trial counsel:

i) never met with her to prepare her to testify; ii) never gave her an opportunity to watch her statement or review the transcript of it; and iii) only told her on the day that she testified that the Crown was going to try to trick her and if she did not “know what to say or was confused to just start crying.” [ 73 ] In his affidavit, trial counsel stated that he had met with the accused to discuss her testimony.

He said that he went to the correctional facility where she was being held to meet with her on numerous occasions, including “meetings to review her testimony and prepare her for same.” He stated, “I prepared the questions I would ask and we went through same” and, “We also reviewed this during the trial prior to her testimony.” [ 74 ] He agreed that he did not provide the accused with a copy of her police statement, but said that he did review it with her in preparation for the trial.

He said that he went through the areas of the police statement that he thought the Crown would canvass in cross-examination. [ 75 ] For its part, the Crown submits that, when considering the contents of the accused’s statement to the police, she would have been convicted whether or not she had thoroughly reviewed it before testifying. In her statement, the accused said that she tried to stop the deceased from going to the police station and that she tried stopping the vehicle and then accidentally pressed on the gas and hit her. She stated that she blacked-out after she hit her sister.

When the officer who was interviewing her confronted her with the evidence of Constable Dauphinee, she denied any recall of the incident and told him that she made the story up in order to get out of the interview room. Despite somewhat lengthy and intense questioning by the officer, the accused maintained that she was blacked-out and could not remember any of the incident. [ 76 ] The Crown did not enter the accused’s statement as part of its case.

However, in response to the Crown’s intended application to have it declared admissible for the purpose of cross-examination, trial counsel conceded that it was admissible. Thus, he was well aware that the Crown would be cross-examining the accused regarding this statement. [ 77 ] A review of the transcript evidences the following exchange between trial counsel and the trial judge on the morning that the accused was scheduled to testify: [TRIAL COUNSEL]: My Lady, I’m going to ask -- THE COURT: Yes. [TRIAL COUNSEL]: -- and I’ll explain why for about half an hour before we start. I started preparing Ms.

Owens for testimony last week, went out to the women’s jail, spent a considerable -- THE COURT: Yes. [TRIAL COUNSEL]: -- amount of time -- THE COURT: Yes. [TRIAL COUNSEL]: -- with her, and I’ve also done that twice when she’s been brought in for court -- THE COURT: Right. [TRIAL COUNSEL]: -- in down time, and I did that again yesterday and told her that I was going to meet with her for about half an hour this morning to do one last preparation. I arrived downtown quite early, know the normal arrival time, I was told, is about nine o’clock.

There was some problem at the women’s jail, and she didn’t get here until about 10 to 10:00.

THE COURT: Okay. So how much time are you asking for, [trial counsel]? [TRIAL COUNSEL]: I think if we could say -- [THE COURT]: About a half an hour -- [TRIAL COUNSEL]: -- about half an hour -- THE COURT: -- is that what you said? [TRIAL COUNSEL]: -- if we wanted to start at 20 to or so, that would be 25 to. THE COURT: All right. Well, I, I’m going to accommodate your request. [ 78 ] Despite the above, the accused argues that the transcript of her testimony evidences the fact that she was not properly prepared.

First, she says that lack of preparation was evidenced by the fact that the Crown was able to impeach her. Next, she argues that, had she been better prepared, she would not have committed an apparent lie on the stand by stating that she was blacking-out at the time she gave her statement. [ 79 ] The impeachment to which the accused refers is, in my view, of little import. In her statement to the police when asked how much she had to drink the night of the incident, the accused told the officer that she had two bottles of Windsor.

In cross- examination, she agreed with the Crown’s suggestion that she exaggerated how much she drank because all three women shared the two bottles of Windsor. In my view, this can hardly be characterized as a significant impeachment. I also do not consider it to be the result of lack of preparation by her trial counsel. [ 80 ] The next portion of the transcript that the accused relies on concerns the Crown’s cross-examination of her regarding the fact that, in her statement, she said that she was trying to stop the deceased from going to the police when she ran her down.

In response to being questioned about this statement, the accused said that she did not remember telling that to the police. She said that she must have been blacked-out when she was talking to the police and that she did not even remember giving the police the statement. She said she was still kind of drunk when the police were interviewing her. However, she qualified this statement by saying that, even when she is not drinking, she blacks-out. [ 81 ] Counsel for the accused states that it was obvious that the accused lied when she said that she was blacked-out when she was speaking to the police.

She says that, if the accused had been better prepared, she would not have made this comment. She argues that, in the course of preparation, the accused should have been shown the video recording of her police statement and been confronted with the fact that she was not still partly intoxicated when she gave it.

This argument assumes, of course, that the accused would have made such a statement to trial counsel in preparation for the trial and that it did not just come out as a result of the animation of the trial and the heat of cross-examination. [ 82 ] In my view, the argument that counsel makes is speculative. In addition, the cross-examination of the accused does not evidence a lack of knowledge of the contents of her statement.

Indeed, right after she said that she was blacked-out when speaking to the police, she testified that in her police statement she said that she accidentally stepped on the gas when she ran over her sister. She testified that she lied when she said that. Consistent with the police statement, she said that she only told the police that lie so that they would leave her alone. However, she was also consistent in stating that there were portions of her police statement that she did not recall making. [ 83 ] Furthermore, a review of the testimony that she gave in direct examination shows that she was not unprepared.

The questions asked by trial counsel do not appear in any way to have taken the accused by surprise. The transcript of her direct examination reads as if she had been prepared to testify. Of course, given that the accused could not remember the incident, and could remember very little of the events leading up to the incident, it is not surprising that her evidence was brief. [ 84 ] The accused has simply filed an affidavit stating that trial counsel did not review her statement with her and did not visit her to prepare her at the correctional facility at which she was detained.

In my view, after a review of the trial transcript and other circumstances, she has not met her onus to lay a factual foundation for her claim. That is, no valid concern has been raised regarding her assertion of ineffective assistance of counsel in this regard. I would further add that the evidence of the deliberate nature of the accused’s acts was strong. In my view, the fresh evidence could not have reasonably affected the result, even assuming the allegations of ineffective representation could have been established.

Decision [ 85 ] In the result, for all of the above reasons, I would dismiss the motion to adduce fresh evidence and dismiss the appeal.

JA I agree: JA I agree: JA