R. v. Ogden, 2013 NSCA 25

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Ogden , 2013 NSCA 25 Date: 20130226 Docket: CAC 346950 Registry: Halifax Between: Thomas Ogden Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Chief Justice Michael MacDonald Appeal Heard: January 15, 2013 Subject: Criminal Law; Change of Plea; Ineffective Counsel Allegation.

Summary: The appellant was sentenced to 10 years ’ incarceration after pleading guilty to two counts of attempted murder, one count of unlawful confinement and one count of uttering threats. His wife was the victim. He now asks this court to set aside his guilty plea, asserting that he was the victim of a miscarriage of justice because his lawyer pressured him into prematurely pleading guilty. He also seeks to revoke the order prohibiting him from contacting his wife. Issue: 1. Was the appellant ’ s counsel ineffective and, if so, did this result in a miscarriage of justice? 2.

In any event, should the no-contact order be revoked? Result: Appeal dismissed. 1. There was no merit to the appellant ’ s assertion of ineffective counsel. Instead he received highly competent and professional representation throughout. The appellant ’ s 10-year sentence stands. 2. However, the no-contact order was varied, under limited circumstances, to allow his wife ’ s request to contact him. This information sheet does not form part of the court ’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 20 pages. NOVA SCOTIA COURT OF APPEAL Citation: R. v.

Ogden , 2013 NSCA 25

Date: 20130226 Docket: CAC 346950 Registry: Halifax Between: Thomas Ogden Appellant v. Her Majesty the Queen Respondent Judges: MacDonald, C.J.N.S.; Saunders and Oland, JJ.A. Appeal Heard: January 15, 2013, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of MacDonald, C.J.N.S.; Saunders and Oland, JJ.A. concurring. Counsel: Maurice Bastarache, for the appellant Mark Scott, for the respondent Reasons for judgment : [ 1 ] In exceptional circumstances, a defence lawyer ’ s incompetence may prompt this Court to set side a conviction as a miscarriage of justice.

The appellant, Thomas Carson Ogden, says that this is such a case. It is not. In fact, the opposite is true. As I will come to explain, Mr. Ogden ’ s trial counsel acted throughout in a highly competent and professional manner. There is no merit to this appeal. BACKGROUND [ 2 ] In early 2011, Mr. Ogden pleaded guilty to two counts of attempted murder, one count of unlawful confinement and one

count of uttering threats. His admissions involved two incidents where his wife was the victim. Provincial Court Judge Castor H. Williams accepted the pleas along with a joint recommendation totalling 10 years ’ incarceration. The judge ’ s order also included a direction that Mr. Ogden have no contact with his wife, Ms. Anne M. Warner. Mr. Ogden ’ s lawyer at the time was Mr. Darren MacLeod of Nova Scotia Legal Aid. [ 3 ] The admissions depicted horrible examples of spousal abuse, as the Crown summarized in its factum: B. Facts Giving Rise to Conviction and Sentence (

i) December 23, 2010 14. At approximately 5:45 p.m., the RCMP, Digby Detachment, received a 911 call from Anne Warner. She stated that the Appellant was going to kill her with a 12-gauge shotgun in the trunk of his car. She advised the police that she was at a store in Brighton and had just jumped out of his car as it slowed along the highway. 15. Two minutes later, a second 911 call was received by the RCMP. A passerby reported that a female [Anne Warner] had approached her vehicle indicating that her husband was going to shoot her. 16.

At the time, the Appellant was on a Probation Order to have no contact with Ms. Warner. She had recently left Juniper House, a women’s shelter in Digby County, and returned home. The Appellant contacted her, indicating that it was their anniversary, that he was dying of prostate cancer, and that he wanted to take her for a Christmas supper. The Appellant persisted until Ms. Warner agreed. 17. On the way to supper, the Appellant became agitated. Ms. Warner managed to calm him down at one point; however, the agitation resurfaced.

The Appellant began to question her about her relationship between herself and her neighbour, John McMullin. Ms. Warner became worried. The Appellant headed in a random direction, and travelled at high rates of speed. He said such things as he was dying and he didn’t care. Ms. Warner pleaded with the Appellant several times to stop the car and let her out. The Appellant refused. At one point, the Appellant stopped the car in the middle of a crossroad. He said that he had a 12-gauge shotgun in the trunk and was going to shoot John McMullin. 18. Eventually, the Appellant slowed down and Ms.

Warner was able to open the car door and run. The Appellant chased and tried to pull her back. He let go following her screams for help. She thought he was going to get his gun. He drove away. (ii) 2 January, 2011 19. On this date the RCMP responded to another call from Ms. Warner, stating that the Appellant had arrived at her residence with a shotgun and tried to kill her. When the RCMP attended the residence, the Appellant was lying on the floor in the kitchen area, unconscious. 20. Ms. Warner had returned to her residence to do laundry.

While doing laundry, she heard the front door rattle and someone come in the back door. She shouted but there was no response. She thought it was John McMullin. 21. Ms. Warner proceeded downstairs and saw the Appellant walking from the kitchen to the hallway with a gun under his shoulder. She shouted at him and grabbed the barrel of the gun. A struggle ensued and a fight began. The Appellant forced Ms. Warner onto the floor in the kitchen, stepped on her throat, punched her, and kicked her in the face. He then tried to put the shotgun in her mouth. Ms.

Warner struggled and was able to push the barrel of the gun to the side of her head just before the gun went off. The discharge put a hole through the floor right next to her ear, causing some hearing loss.

22. The struggle continued and the Appellant pointed the shotgun at her again. Ms. Warner was able to push the barrel away, avoiding a second shot which discharged into the kitchen cupboards. 23. John McMullin noticed the strange vehicle in Ms. Warner’s driveway. He decided to walk over to check on her. When he entered the house the Appellant was standing over Ms. Warner with the shotgun. Mr. McMullin began wrestling with the Appellant, which enabled Ms. Warner to flee next door and call the police. 24. The Appellant tried to point the gun at McMullin. Mr.

McMullin was able to redirect the muzzle of the gun, causing a third shot to fire into the wall of the kitchen. Mr. McMullin ended the struggle by striking the Appellant over the head with a marble cutting board. This rendered the Appellant unconscious. The police arrived shortly thereafter. [ 4 ] Now Mr. Ogden asks this Court to set aside these guilty pleas. Essentially, he accuses Mr. MacLeod of arranging a plea deal behind his back and then coercing him into accepting it.

As a separate ground of appeal, he also seeks to revoke the order preventing him from contacting his wife. [ 5 ] In his affidavit supporting his motion to introduce fresh evidence on appeal, Mr. Ogden explains his version of the circumstances leading up to his guilty plea: 10. I verily believe that I did speak to solicitor Darren McLeod at the Yarmouth Jail around late January 2011. The conversation lasted approximately fifteen to twenty minutes. During that conversation, he told me the police had “all the evidence”, and that it “looked very bad”. On that date, I asked him for a copy of the file.

In fact, I distinctly remember that Mr. McLeod did not seem to have the file with him at that meeting and simply had a notepad. I believe that he took notes; 11. I verily believe that I appeared in court the next time in Digby, Nova Scotia, on February 1, 2011. I did that morning have a very brief conversation with Mr. McLeod. Again, he told me that it looked very bad and that I should consider pleading guilty to the charges. At that point I had not seen disclosure nor have I ever seen disclosure of the crown’s case against me; 12.

My next conversation with solicitor Darren McLeod was at cells at the courthouse in Digby, Nova Scotia, on February 17, 2011. On that date, he strongly suggested that I change my plea to guilty and that if I did not plead guilty the judge might give me a more severe sentence. I did at that point tell Mr. McLeod to look into a possible plea deal although I was unsure as to what was the nature of the charges against myself as Mr. McLeod had never explained this to me in detail and I had never received disclosure; 13. On February 17, 2011, Mr.

McLeod did specifically tell me that “If you don’t plead guilty today, the crown will up it to fifteen years”. I was very upset and very confused and did not understand what was going on at that point in time. He also advised me that “If you plead guilty, you will get a better deal”. Therefore I did authorize him to speak to the crown; 14. Also on February 17, 2011, I verily believe that solicitor McLeod did appear in court in my absence with crown prosecutor Rosalind Michie, and advised the court that I wished to change my plea to guilty. I never instructed solicitor McLeod to do this; 15.

I did appear in front of Judge Castor H. Williams on February 21, 2011, at 12:01 PM. I was told beforehand by solicitor McLeod that I should plead guilty and that I would be getting ten years incarceration and that that was a good deal. At that point I was very confused and felt rushed. When I appeared in front of Castor H. Williams, I do remember that he read off the charges. Because I was tired, confused and had no legal training, I did agree to plead guilty and confirmed this in court in front of Judge Castor H. Williams; 16.

I verily believe that on February 21, 2011, I entered court at 12:01 PM and sentencing was concluded around 12:15 PM. In fact, I distinctly remember on that date Darren McLeod telling me that the charges against me were “pretty bad” and that he was in a rush. I also specifically remember that Judge Castor H. Williams was also in a rush; Mr. Ogden then summarized his allegations:

26. I feel that I was not properly represented by solicitor Darren McLeod. In

summary, I would argue that Mr.

McLeod did not adequately represent me and that he: • did not provide me with disclosure even though I requested same; • never properly explained the nature of the charges and the evidence against myself; • never sent me for a psychiatric assessment at the East Coast Forensic Center even though I made the request; • induce[d] pressure on myself to plead guilty very quickly even though I did not understand the nature of the allegations against myself; • advise the Crown Prosecutor in this matter and the court that I had agreed to plead guilty to the charges even though I had never instructed him to do so; • he did not take into consideration my fragile emotional and physical state, and did not take reasonable steps to inquire as to same; • did not seem to be adequately prepared when he was in court to adequately respond to the allegations against myself. [ 6 ] Obviously by raising these allegations, Mr.

Ogden waived his solicitor-client privilege. This was confirmed on the record before us, thereby allowing Mr. MacLeod the opportunity to explain his version of events. He did so by way of a comprehensive affidavit whereby he denied Mr. Ogden ’ s allegations, maintaining that it was Mr. Ogden who, contrary to Mr. MacLeod ’ s advice, insisted upon pleading guilty. Specifically, Mr. MacLeod offers this history. After a brief initial appearance on January 4, 2011, the matter was put over a couple of weeks to January 20th for election. Meanwhile, on January 18th, Mr.

MacLeod drove to the prison and had a lengthy meeting with Mr. Ogden. There, he took instructions to proceed to a preliminary inquiry. Accordingly, on January 20th, Mr. Ogden elected trial by judge and jury. The matter was adjourned to February 1st to set a date for a preliminary inquiry. However, on January 31st, Mr. Ogden phoned Mr. MacLeod to tell him that he had changed his mind and wanted to negotiate a plea agreement; something Mr. MacLeod was concerned about. Mr. MacLeod explains in his affidavit: 16. On January 31, 2011 the Appellant contacted me by telephone.

He instructed me to try to negotiate with the Crown. He instructed me that he wanted to plead guilty to, “get it over with”. I did not agree with this and certainly did not advise the Appellant that this was an appropriate course of action especially at this early stage of the proceedings. Attached as Exhibit “L” are my brief January 31, 2011 notes of this conversation. [ 7 ] So on February 1st, Mr. MacLeod met with his client in the courthouse cells where his instructions to enter plea negotiations were confirmed. Given this turn of events, the matter was put off to February 17th. Mr. MacLeod explains: 17.

The Appellant again attended Court on February 1, 2011. Attached to this Affidavit as Exhibit “M” is my time sheet for that date. Again the Appellant and I would have met while he was in custody and my time sheet for February 1, 2011 would indicate 1.5 hours preparation time. Again I believe the majority of this time would have been the Appellant and I discussing his matter in detail although I spoke with the Crown as well for a period of time. Because I did not agree with the Appellant’s instructions and wished to discuss this matter further, his matter was adjourned to February 17, 2011. 18.

The Appellant did not appear in Court on February 1, 2011 and attached hereto as Exhibit “N” is a transcript of those proceedings. The Appellant did not wish to appear in Court as his matter was being adjourned to February 17, 2011. I did indicate to the Court on that date that the Crown and I had been talking (over the course of January 31 and February 1, 2011) regarding a resolution of the charges. This was pursuant to the instructions of the Appellant, and was not my advice.

19. Pursuant to the Appellant’s instructions I discussed this matter with the Crown on February 1, 2011 and forwarded her correspondence on February 3, 2011 on a without prejudice basis attached hereto as Exhibit “O”. [ 8 ] On February 17th, Mr. MacLeod confirmed that his client intended to plead guilty but requested that the matter be put over a few days to allow Mr. Ogden time to make sure that this is what he wanted to do. In fact, somewhat prophetically, Mr. MacLeod put his concerns about Mr. Ogden ’ s decision on the record. Therefore, at Mr.

MacLeod ’ s request, the matter was adjourned to February 21st where the pleas were entered and the 10-year sentence was imposed. He explains: 22. On February 17, 2011 we again appeared in Nova Scotia Provincial Court began at 10:50 a.m. My time sheet for February 17, 2011 attached as Exhibit “P” indicates significant preparation time on the Ogden matter. This involved significant discussions regarding the course of action he was insisting upon. 23. Attached to this my Affidavit as Exhibit “Q” is a transcript of the February 17, 2011 Court appearance. After some initial discussions at 10:50 a.m.

Court recessed at 10:52 a.m. On page 4 of that transcript I indicated ... “I won’t say too much without him here”. Court recessed at 10:52 a.m. and the Appellant was brought into the Court room. On February 17, 2011, I attempted to lay out everything in the Appellant’s presence and “on record”. As indicated in the transcript I wanted to have the Appellant think further about what he was wanting to do. 24. The matter was adjourned to February 21, 2011 at which time it was concluded.

Attached as Exhibits “R” and “S” are my February 21, 2011 correspondence to the Appellant and my Memo to File of that same date. [ 9 ] Thus, Mr. MacLeod ’ s response to each of Mr. Ogden ’ s allegations is as follows: 25. At paragraph 26 of the Appellant’s Affidavit he lists seven ways in which he believes I did not adequately represent him. I will address each of these in turn. - I do not recall whether I provided the Appellant with disclosure.

My recollection (although I do not have notes or correspondence to this effect), is that because of the nature of the charges he did not want to have possession of the disclosure at a Correctional Facility. My usual practice is to provide full disclosure upon the request from a client.

The disclosure was reviewed with the Appellant in detail on several occasions. - The charges, the nature of the charges, the evidence against the Appellant and what the Crown had to prove beyond a reasonable doubt was explained and discussed with the client in detail on several occasions. - The issue of a s.672.11 [psychiatric assessment] application was discussed several times and I was prepared to make the application when appropriate. There were no concerns whatsoever regarding the Appellant’s fitness to stand trial.

The only issue was whether or not he was “criminally responsible”. - I never pressured the Appellant to plead guilty quickly. On the contrary, I never advised the Appellant to plead guilty at any time. If any pressure was applied it would have been to have the Appellant change his mind regarding the guilty plea and proceed to Preliminary Inquiry and Trial (depending on complete disclosure and evidence at the Preliminary). It is not my practice to pressure anyone to plead guilty and this is especially so at such an early stage in a proceeding on such serious matters.

I never advised the Crown and the Court that Mr. Ogden had agreed to plead guilty and certainly not in his absence. I believe the only time that Mr. Ogden was not present in Court was February 1, 2012 and for two minutes on February 17, 2011 and transcripts have been provided. On February 1, 2011 I simply said the Crown and Defence were discussing resolutions. On February 17, 2011 Mr. Ogden was in Court when my concerns were indicated on the record. - I did take into consideration the Appellant’s emotional and physical state, thus the advice not to plead guilty, at the early stage of the proceedings.

Attached as Exhibit “T” is a letter to the Crown dated January 19, 2011 requesting disclosure and photographs.

- I was more than adequately prepared when in Court and otherwise for the Appellant’s matter. I submit that the February 17,2011 transcript would show that I was alive to all of the issues despite only having the file in my possession since January 4, 2011. [10] Before us, both men were cross-examined on their respective affidavits (Mr. Ogden by Crown counsel and Mr. MacLeod byMr. Ogden’s appellate counsel). Mr. Ogden’s wife also filed an affidavit supporting Mr. Ogden’s appeal generally and specifically hisrequest to vary the no-contact order.

Despite what she has been through, she still wants to make her marriage work. [11] At the hearing of this appeal, we followed our custom of receiving Mr. Ogden’s proposed fresh evidence provisionally (alongwith Mr. MacLeod’s evidence in reply) and then hearing the parties’ submissions on the merits. We then reserved judgement on both thefresh evidence application and the appeal on its merits. ANALYSIS [12] I will first review the law surrounding allegations of ineffective counsel. I will then consider the merits of Mr. Ogden’sallegations followed by his request to vary the no-contact order involving his wife.

The Law [13] In exceptional circumstances, a defence counsel’s incompetence at trial can lead to a miscarriage of justice commanding a newtrial. See R. v. Fraser, 2011 NSCA 70. This can include a request to set aside guilty pleas. See R. v. Messervey, 2010 NSCA 55. [14] In R. v. Gogan, 2011 NSCA 105, this Court described the burden Mr. Ogden faces: [29] Mr. Gogan bears the burden of demonstrating that his lawyer’s acts or omissions amounted to incompetence. Incompetence ismeasured against a reasonableness standard.

The appellant must demonstrate that counsel’s ineffective representation caused amiscarriage of justice. A miscarriage of justice occurs if we are satisfied that counsel’s ineffective representation undermined trialfairness, or the reliability of the verdict. R. v. Fraser, 2011 NSCA 70. On the facts of this case, Mr. Gogan bears the onus ofdemonstrating that his trial counsel acted independently of, and contrary to, his instructions in order to displace the strong presumption ofcompetence in favour of counsel. [15] As this Court noted in R. v.

West, 2010 NSCA 16, our analysis involves a two-step approach, first whether counsel wasincompetent and second whether that incompetence led to a miscarriage of justice: [268] The principles to be applied when considering a complaint of ineffective assistance of counsel, are well known. Absent amiscarriage of justice, the question of counsel’s competence is a matter of professional ethics and is not normally something to beconsidered by the courts. Incompetence is measured by applying a reasonableness standard.

There is a strong presumption thatcounsel’s conduct falls within a wide range of reasonable, professional assistance. There is a heavy burden upon the appellant to showthat counsel’s acts or omissions did not meet a standard of reasonable, professional judgment. Claims of ineffective representation areapproached with caution by appellate courts. Appeals are not intended to serve as a kind of forensic autopsy of defence counsel’sperformance at trial. See for example, B.(G.D.), supra; R. v. Joanisse (1995), (ON CA), 102 C.C.C. (3d) 35 (Ont.C.A.), leave to appeal ref’d [1996] S.C.C.A. No. 347; and R. v.

M.B., 2009 ONCA 524. [269] One takes a two-step approach when assessing trial counsel’s competence: first, the appellant must demonstrate that the conductor omissions amount to incompetence, and second, that the incompetence resulted in a miscarriage of justice. As Major J., observed inB.(G.D.), supra, at ¶ 26-29, in most cases it is best to begin with an inquiry into the prejudice component. If the appellant cannotdemonstrate prejudice resulting from the alleged ineffective assistance of counsel, it will be unnecessary to address the issue of thecompetence.

[16] Here Mr. Ogden attempts to establish his counsel’s incompetence by introducing fresh evidence by way of affidavit. In Fraser,supra, Saunders J.A. described the process involved, including the requirement that Mr. Ogden’s affidavit be reasonably capable ofbelief: [34] The law governing the admission of fresh evidence on appeal is well settled and has been extensively considered by this Court inrecent cases. See, for example, R. v. West, 2010 NSCA 16; R. v. Hobbs, 2010 NSCA 53; and R. v. Messervey, 2010 NSCA 55.

Section 683(1) of the Criminal Code permits the Court of Appeal to allow the introduction of fresh evidence “where it considers it inthe interests of justice”. In R. v. Palmer, (SCC), [1980] 1 S.C.R. 759, at p. 775, the Supreme Court said the “interests ofjustice” in s. 683(1)(

d) are governed by four factors:

(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. [Emphasis added] [17] I now turn to Mr. Ogden’s allegations. Mr. Ogden’s Allegations [18] This appeal really boils down to whether Mr. Ogden’s allegations against Mr. MacLeod have any merit. In my view, they donot. I say this essentially for three reasons. Firstly, his version of events runs contrary to the record. Secondly, his story defies logic.Thirdly, his cross-examination completed eroded his credibility. I will now briefly elaborate on each of these reasons.

The Record [19] Contrary to Mr. Ogden’s assertions, the record clearly reveals that Mr. MacLeod was concerned about Mr. Ogden pleadingguilty to these very serious charges. On February 17th, in Mr. Ogden’s presence, we see this exchange between Mr. MacLeod and thejudge (just after Mr. Ogden entered the courtroom): MR. MACLEOD: ...the last I believe, and that would be the Thomas Ogden matter, and the matter is probably being adjourned overuntil late morning or early afternoon on Monday.

However, just to give Your Honour a heads-up where it is a very serious matter involving two separate incidents, just so that counselknow where they’re coming from in the matter, but to give Mr. Ogden the time to reflect over the weekend, Your Honour, as well. Mr. Ogden . . . the matter was on the docket today to set a date for Preliminary Inquiry. Mr. Ogden has provided me with instructions tore-elect trial in Provincial Court, whether we do that today or Monday.

And he’s provided me with instructions to advise the Court thaton Monday he will be pleading guilty to two counts of attempted murder, a count of unlawful confinement, and a count of utteringthreats. We don’t need to specify what Informations and what dates. We can do that Monday.

THE COURT : Yeah. MR. MACLEOD : I had some conversations regarding that, and we’ve been talking about it for a week. I’ve explained in detail to Mr. Ogden that attempted murder basically requires admission of a specific intent to kill, and the mens rea for attempted murder is actually somewhat higher than it is for an actual murder in that an actual murder can be intent to cause bodily harm, likely to cause death where the attempted murder includes the specific intent to kill. There’s been discussion with Ms. Michie, her regional Crown, and some of the provincial people.

There will be a joint recommendation put forth on Monday. Mr. Ogden is well aware the Crown will be looking . . . there’ll be a joint recommendation put forward for a ten- year period of incarceration with the ancillary orders. He’s well aware that Your Honour is not bound by any recommendation made by counsel and can impose whatever sentence you see fit. He’s well aware that our Court of appeal in R. v. Bryan has said that an attempted murder charge in a domestic situation absent exceptional circumstances has a range beginning at eight years. He’s well aware of that.

And he’s well aware of the Adams case, too, which basically imposed some consecutive sentence and reduced them on a totality basis. So he’s aware of that, and that the ten-year recommended sentence will be within the range, however that the final say is Your Honour’s. So I just wanted . . . he is fully apprised of what the Crown has to prove in these types of situations. He’s fully aware that I’m prepared to proceed to Preliminary Inquiry and trial if requested to do so.

And he fully understands, I guess, that these are his instructions after some thoughtful reflection, and that he wants to accept responsibility for his actions, and that he’s provided me with these instructions. I’m not necessarily advising him to proceed in this manner. But the call, it is his, and I’m willing to represent him at the change of plea and sentencing. I just want to be clear on the record that we were fully prepared to continue to contest these matters as well. So with that on the record, Your Honour, I guess it’s understood that we will be setting the matters over to Monday at perhaps 11 a.m., Ms.

LeBlanc? It looks like a relatively short docket day on Monday, does it? . . . So I guess I wanted to fully apprise . . . even though we’re dealing with it on Monday, I wanted to take five or ten minutes and just tell Your Honour where we were coming from. I wanted to get that on the record. I wanted Mr. Ogden present. And that’s the manner in which he wishes to proceed. [ 20 ] Then in the teeth of significant resistance by the Court, Mr. MacLeod, again in Mr.

Ogden ’ s presence, persisted by insisting (quite properly in my view) that he be permitted to place the matter and the context of his concerns squarely on the record: THE COURT : You do realize that all you have said means nothing until Monday, I mean, when the actual facts and situation are before me . . . MR. MACLEOD : Oh. THE COURT : . . . and the deed is done. So even if you set the stage, it doesn’t mean anything. MR. MACLEOD : No, no, no. I mean, Your honour, I was clear in saying the final say is up to the judge. I’m not setting the stage . .

. THE COURT : No, no, no, not the final say is up to me, but all you have said before me is presenting me with a hypothetical situation of something that may occur. You know, I’m not concerned with what may occur. On Monday if and when what you predict will happen, then we’ll take some cognizance of it. MR. MACLEOD : Uh-huh. THE COURT : But I fail to see why you’re trying to do this on the record even now. MR. MACLEOD : I’ll do it . . . I will do it Monday again, Your Honour. THE COURT : Yeah. MR. MACLEOD : And I will cut my comments short but . . .

THE COURT : Yeah, because as I said, you know what I mean, all you’re telling me a story, you know what I mean. I have to wait and see what takes place. MR. MACLEOD : Well . . . and I apologize. I don’t mean to be telling you a story as much as having Mr. Ogden listen to my story so he considers things seriously over the weekend. THE COURT : So what’s the point? You know what I mean, you’re his lawyer. You know what I mean, whatever you discuss with him is privileged until you decide to put it on the record on the day when the thing is going to happen.

It’s kind of unusual that you’re telling me in advance what you’re going to do and set it down for another day to do it. MR. MACLEOD : Well, certainly we’ve discussed it. I wanted it on the record. And if it was a waste of time, I apologize. THE COURT : Well, I won’t say it’s a waste of time. I just say it served no real purpose. It’s just letting your client hear what you’re going to say. But you’ve got to say it again, you know what I mean, because . . . MR. MACLEOD : I will say it again. I’m happy to have it on the record twice. THE COURT : All right, good show.

You know what I mean, I just want to make everybody know that what you said, though, really doesn’t mean anything right now. MR. MACLEOD : Except to me, yes, okay. THE COURT : Well, if you get it off your chest, that’s good for you. MR. MACLEOD : Uh-huh.

THE COURT : But until the matter is going to be done. And I don’t mean to be facetious by saying that, you know. I mean, until the matter is going to be done . . . I can understand maybe you may have some difficulties or have some issues and that you want to be sure that your client knows what the actual situation is so that you’ve put it on the record so that he knows and everybody who is listening would hear what is happening. But as far as the Court is concerned, this is just an exercise for you to get it off your chest. MR. MACLEOD : I disagree but . . . THE COURT : Well, what I say counts. MR.

MACLEOD : I think . . . well, I guess we don’t want to waste a lot of time with this, I guess. I . . . THE COURT : But the point is, though, Mr. MacLeod, until the matter is going to be done, right, there’s no sense clogging the record because the record is an official recording of what is occurring . . . MR. MACLEOD : Uh-huh. THE COURT : . . . and not to be used for something that may happen. MR. MACLEOD : Uh-huh. Fair enough, then. THE COURT : So the record should really reflect what actually is taking place. MR. MACLEOD : Uh-huh. THE COURT : And I mean, not some future event that may or may not occur.

What happens between now and Monday, who knows? You know, you said it’s for him to reflect upon it. You know what I mean, maybe Monday he changes his mind. MR. MACLEOD : He could, yes. THE COURT : Exactly. So that’s what I’m saying. Why have the record reflecting this when it’s not really something that is going to be done or something that has happened. MR. MACLEOD : Or it will be done in the future, I guess. THE COURT : Exactly. MR. MACLEOD : Yeah. And I was hoping that perhaps a little notice to Your Honour just on where we’re coming from, the range we’re in, rather than . . . THE COURT : Yeah.

You could have done that to me rather than put it on the record. You could have relayed that to the Clerk or something. I mean . . .

MR. MACLEOD : Okay. No, I would have done that. THE COURT : Yeah, to tell me . . . MR. MACLEOD : And that was another part of it. I was trying to provide you with some notice rather than spring . . . THE COURT : Yeah, to tell me what was going to happen, you know what I mean, because . . . MR. MACLEOD : . . . rather than springing all this on Monday. THE COURT : I don’t like the official record showing something that is not really occurring. That’s my point. MR. MACLEOD : Uh-huh. THE COURT : Okay. Anything else, off the record? MR. MACLEOD : Nothing else. MS. MICHIE : No. THE COURT : Okay.

All right, then, we will adjourn until Monday. He will be remanded until Monday. I take it he’s in custody on this matter. [ 21 ] This record belies Mr. Ogden ’ s suggestion that Mr. MacLeod persuaded him to plead guilty. In fact, it establishes the opposite. Common Sense [ 22 ] Even without this record, many aspects of Mr. Ogden ’ s version of events defy common sense. For example, had Mr. MacLeod persuaded Mr. Ogden to plead guilty would one expect him to then take the unusual step of expressing concerns about this decision on the record? In other words, Mr. Ogden is in effect not just accusing Mr.

MacLeod of talking him into something. He would also have us believe that MacLeod then took the additional bold step of misleading the Court about this. This, in my view, defies logic. [ 23 ] By way of further example, Mr. Ogden stated, in cross-examination before us, that Mr. MacLeod introduced the subject of a plea agreement on February 17th by suggesting a total term of five years but that when it came to his sentencing day on February 21st, without any warning, it had increased to ten years. This was put to Mr.

MacLeod on cross-examination, who flatly denied it, insisting that a five-year agreement would never have been discussed because the case law simply would not justify it. In fact, Mr. Ogden ’ s appellate counsel conceded that a five- year term would have been out of the question. It therefore would make no sense for Mr. MacLeod to suggest five years as Mr. Ogden alleges. Cross-Examination [ 24 ] Mr. Ogden was cross-examined about the many inconsistencies with his version of events, including those described above. In

the process, his credibility was, in my view, completely eroded. For example, he denied ever electing to be tried before a Supreme Court judge and jury. Yet the record confirms that this took place on January 20th. Then he volunteered that he was not even in court on February 17th when the plea arrangement was discussed. Then, when confronted with the transcript proving his attendance, he denied that the plea arrangement was discussed. Then when confronted with the transcript, where Mr.

MacLeod expressed his concerns about the proposed guilty plea, he said that he could not hear the proceedings (despite making no reference to this in his affidavit). Yet he later acknowledged that he could hear some of what occurred that day – i.e., being remanded – but he insists that he did not hear his own lawyer. While I accept that Mr. Ogden may have difficulty hearing, his professed hearing loss on that day was selective. In my view, he knew full well that a plea arrangement was discussed with the court and that his lawyer had concerns about it. [ 25 ] Now Mr.

Ogden ’ s appellate counsel urges that even if we reject Mr. Ogden ’ s version of events, Mr. MacLeod was nonetheless incompetent by not arranging for a psychiatric assessment (pursuant to s. 672.11 of the Criminal Code ) before pleading guilty. In response, Mr. MacLeod, in his affidavit, explained his reservations for doing so at this early stage of the process: 11. Attached to this Affidavit as Exhibit “I” is my correspondence to the Appellant dated January 21, 2011.

To the best of my recollection it was on January 20, 2011 after I had initially spoken with the Appellant’s sister, and when I was speaking with the Appellant again that he first raised the issue of an application under

section 672.11 of the Criminal Code . At that time I did not wish to make the application on his behalf. Given that the Appellant had relayed two drastically different versions of events to me (detailed facts and later no recollection), I was somewhat concerned about what he would relay to the attending professional if an assessment was ordered. I wished to conduct further research into what use could be made of a “protected statement” in cross examination under 672.21(3)(

f) of the Criminal Code. In addition, I did not think that we had sufficient evidence to put before the Court at that time in support of the application. [ 26 ] I accept Mr. MacLeod ’ s explanation as being reasonable in the circumstances. Furthermore, respectfully, Mr. Ogden ’ s submission misses the mark. At no time did Mr. MacLeod rule out such an application. He was still considering this option when, on January 31st, he received his instructions to negotiate a plea arrangement. He was therefore justified in abandoning this option at that stage. [ 27 ] In short, Mr.

Ogden ’ s version of events completely lacks credibility. Instead, in my view, Mr. MacLeod provided diligent and highly professional service to his client. His evidence was clear, cohesive and backed up by a well-documented file. In fact, we have many highly competent and dedicated legal aid lawyers in Nova Scotia. By this record, it appears that Mr. MacLeod is one of them. [ 28 ] In

summary, Mr. Ogden ’ s proposed fresh evidence is not “ reasonably capable of belief ” and I would reject it. Therefore, with no credible evidence supporting his allegations, this aspect of the appeal must fail. The No-Contact Order [ 29 ] The judge ordered Mr. Ogden to have no contact with his wife. He did so without any analysis. However, given Mr. Ogden ’ s violence towards his wife, it would appear to have been the prudent thing to do. [ 30 ] Yet before us, Ms. Warner made it clear that she wants to have contact with her husband. It is tempting to deny her request given Mr.

Ogden ’ s long history of violence towards her. But she is an adult and appears fully capable of making that decision for herself. I will respect that autonomy and grant that request but on a restricted basis. Specifically, I adopt the approach taken by the Ontario Court of Appeal in R. v. Lalumiere , 2011 ONCA 826 , where, in similar circumstances the court directed: 39 The appellant asked that we vary the terms of the ancillary order made by the trial judge under s. 743.21 of the Criminal Code prohibiting him from communicating either directly or indirectly with his children.

Fresh evidence materials filed by the appellant indicate that his adult daughter, C.A., has made efforts to contact her father. The appellant asks for a variation of the ancillary order so that it permits contact between him and his adult children on their filing a written but revocable consent with the appropriate authorities. 40 Given that there is some evidence that the appellant’s daughter may wish to be in touch with her father, I would vary the ancillary order so that it prohibits the appellant from communicating with his daughter directly or indirectly subject to the following exception: in

the event the appellant ’s daughter files a written consent with the appropriate authorities the appellant may respond to communications initiated by his daughter so long as her consent remains in full force and effect. I would allow the appellant ’s daughter to revoke her written consent in writing at any time. I would direct that all other terms of the trial judge ’s order made under s. 743.21 of the Criminal Code remain in full force and effect . [Emphasis added] [ 31 ] I would therefore accept Ms. Warner ’ s fresh evidence on this issue and would vary the order so that it prohibits Mr.

Ogden from communicating with Ms. Warner directly or indirectly subject to the following exception: in the event Ms. Warner files a written consent with the appropriate authorities, the appellant may respond to communications initiated by Ms. Warner so long as her consent remains in full force and effect. I would allow Ms. Warner to revoke her written consent in writing at any time. I would direct that all other terms of the trial judge ’ s order made under s. 743.21 of the Criminal Code remain in full force and effect.

CONCLUSION [ 32 ] I would dismiss the appeal except to vary the order preventing the Appellant from having contact with his wife. MacDonald, C.J.N.S. Concurred in: Saunders, J.A. Oland, J.A.