R. v. Dugas, 2012 NSCA 27

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Dugas , 2012 NSCA 27 Date: 20120309 Docket: CAC 362840 Registry: Halifax Between: Luke Earl Dugas Appellant (Applicant) v. Her Majesty The Queen Respondent Judge: The Honourable Justice Joel E. Fichaud Appeal Heard: March 8, 2012, in Halifax, Nova Scotia, in Chambers Held: Directions given on the dates and process leading to the hearing of the appeal. Counsel: Melissa P. MacAdam for the appellant Mr. Dugas Mark Scott for the respondent Her Majesty the Queen Stacey Gerrard for Alex Pink Reasons for judgment : [ 1 ] On July 27, 2011, Mr.

Dugas was convicted in the Provincial Court of break and enter with intent to commit an indictable offence contrary to s. 348(1) (

a) of the Criminal Code . On November 1, 2011, he was sentenced to 33 months incarceration. [ 2 ] By a Notice of Appeal dated November 16, 2011, Mr. Dugas appealed his conviction and sentence to the Court of Appeal. On November 24, 2011, Justice Oland in chambers scheduled the dates for filing the Appeal Book and factums. The Appeal Book was filed on January 12, 2012. The Appellant’s factum was to be filed later in January and the Respondent’s factum was to be filed in February.

[ 3 ] On January 20, 2012, after obtaining permission of a chambers justice, Mr. Dugas amended his Notice of Appeal. His Amended Notice adds a ground of appeal that Mr. Dugas received ineffective counsel at his trial. Mr. Dugas’ trial counsel was Mr. Alexander Pink. Mr. Pink has received notice of that ground of appeal further to the Court of Appeal’s published protocol that governs allegations of ineffective trial counsel. [ 4 ] The hearing of the appeal is scheduled for a full day on May 14, 2012. [ 5 ] On March 8, 2012, Mr.

Dugas moved in chambers for directions respecting his application to add fresh evidence and the other procedural matters related to his ground of appeal that he received ineffective counsel at trial. On March 8, I gave oral directions, and said I would elaborate in writing. These are the directions. [ 6 ] By March 15, 2012, Mr. Dugas will: (1) serve counsel for the Crown and counsel for Mr. Pink with a copy of the evidence, in admissible form, that Mr.

Dugas proposes to submit as fresh evidence on this appeal respecting his allegation of ineffective trial counsel; (2) notify counsel for the Crown and counsel for Mr. Pink of Mr. Dugas’ position respecting any waiver of solicitor-client privilege on the matters that relate to his ground of appeal respecting ineffective counsel; and (3) file and serve his factum that addresses both whether the fresh evidence should be admitted and the merits of his appeal, including the issue of ineffective trial counsel. [ 7 ] By March 22, 2012, Mr.

Pink will have decided whether he wishes to apply to intervene in the appeal, or provide evidence to the Crown, for the Crown’s submission to the Court of Appeal. I refer to my decision in R. v. Ross , 2012 NSCA 8 , that discusses the factors relevant to an intervention by trial counsel on an appeal that alleges ineffective trial representation. If Mr. Pink decides to seek intervention, by March 22, 2012 he will file, and serve counsel for Mr. Dugas and the Crown, with the documents for his motion to intervene. That motion will be for a hearing in chambers on Thursday, March 29, 2012. [ 8 ] If the Crown or Mr.

Pink is dissatisfied with the extent of any waiver of solicitor client privilege by Mr. Dugas, and if the Crown or Mr. Pink wish to apply to court for a declaration that solicitor client privilege has been waived to a greater extent, then, by March 29, 2012, the Crown or Mr. Pink are to file with the Court of Appeal and serve counsel for Mr. Dugas with their documents for that application. That application is for the decision of a panel of this Court, and is not within the power of a chambers judge: R. v. West , 2009 NSCA 63 and R. v. West , 2009 NSCA 94 .

If such an application is made, then the hearing date of May 14, 2012 will be dedicated to the issues of whether or the extent to which the Court should declare that solicitor client privilege is waived, and the hearing of the appeal proper will be rescheduled to a later date. The applicant for the declaration that solicitor client privilege has been waived is to file and serve a factum on the privilege issues by March 29, 2012, and the other parties are to file and serve their factums on the privilege issues by April 12, 2012. [ 9 ] If the Crown and Mr.

Pink are satisfied with the extent of any waiver of solicitor client privilege by Mr. Dugas, and there is no application for a declaration that solicitor client privilege is waived, then by April 12, 2012: (1) the Crown and Mr. Pink are to finalize any evidence, in admissible form, on the issue of ineffective trial counsel that replies to the fresh evidence that was submitted by Mr. Dugas; (2) the Crown will file with the Court of Appeal five copies, and serve counsel for Mr. Dugas and for Mr. Pink with one copy each, of a Supplementary Appeal Book that contains both the fresh evidence tendered by Mr.

Dugas and the reply fresh evidence tendered by the Crown or Mr. Pink; (3) the Crown will file and serve its factum on whether the fresh evidence should be admitted and on the merits of the appeal; and (4) if Mr. Pink has intervened, Mr.

Pink will file and serve his factum on those issues that are permitted by the intervention order of the chambers judge from the chambers hearing of March 29, 2012. [ 10 ] The procedure at the hearing before the panel of the Court of Appeal on May 14, 2012, including any cross-examination on tendered fresh evidence or reply evidence and the handling of the fresh evidence motion, will be for that panel to determine. Fichaud, J.A.