R. v. Buckley, 2013 NSCA 73

Nova Scotia Court of Appeal Citation: R. v. Buckley , 2013 NSCA 73 Date: 20130613 Docket: CAC 354572 Registry: Halifax Between: Joseph Patrick Buckley Appellant v. Her Majesty The Queen Respondent Restriction on Publication: Pursuant to s. 486 of the Criminal Code of Canada Judge: The Honourable Justice Linda Lee Oland Appeal Heard: June 4, 2013, in Halifax, Nova Scotia Subject: Criminal Law - Ineffective Assistance of Counsel

Summary: The appellant was convicted by a jury, and sentenced for sexual assaults against two young girls. On his appeal, the appellant argued ineffective assistance of his trial counsel. He made numerous allegations faulting his former lawyer’s preparation for and conduct of the trial. Issues: Whether the appellant had demonstrated that the conduct or omissions amounted to incompetence and that the incompetence had resulted in a miscarriage of justice. Result: Appeal dismissed. Nothing that the appellant complains that his trial counsel did, or did not do, resulted in any prejudice to him.

Nothing in the record suggested that the lawyer’s preparation, or performance, fell outside the range of reasonable, professional conduct. 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 4 pages. Nova Scotia Court of Appeal Citation: R. v. Buckley , 2013 NSCA 73 Date: 20130613 Docket: CAC 354572 Registry: Halifax Between: Joseph Patrick Buckley Appellant v. Her Majesty The Queen Respondent Restriction on Publication: Pursuant to s. 486 of the Criminal Code of Canada

Judges: Oland, Fichaud and Beveridge, JJ.A. Appeal Heard: June 4, 2013, in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of Oland, J.A.; Fichaud and Beveridge, JJ.A concurring Counsel: Joseph Patrick Buckley, Appellant in Person James A. Gumpert, Q.C., for the Respondent Stacey Gerrard for Luke Craggs Order restricting publication – sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a) (

i) to (iii). Reasons for judgment: [ 1 ] Justice Arthur LeBlanc sentenced the appellant, Joseph P. Buckley, to 30 months and a three-year term of probation for two sexual assaults contrary to s. 271(1) (

a) of the Criminal Code following his conviction by a jury. The victims were two young girls. On his appeal against conviction and sentence, Mr. Buckley raises a single ground of appeal, namely, ineffective assistance of counsel. For the reasons which follow, I would dismiss his appeal. [ 2 ] Mr. Buckley represented himself at the hearing of his appeal. He faults his trial counsel, Mr. Luke Craggs, with various failures which he set out in his affidavits dated April 26, 2012 and September 17, 2012. Mr. Craggs filed affidavits dated May 2012 and April 19, 2013.

At the hearing of the appeal, the Crown cross-examined Mr. Buckley, and Mr. Buckley and the Crown cross-examined Mr. Craggs. [ 3 ] The standard of review for a claim of ineffective assistance of counsel is well settled. This court said in R. v.West , 2010

NSCA 16: [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. [4] I have reviewed the record of the trial and the sentencing hearing, the affidavit evidence of Mr. Buckley and Mr. Craggs,their oral evidence, the exhibits entered on appeal, and the submissions of Mr. Buckley and the Crown. [5] Mr. Buckley makes numerous allegations against Mr.

Craggs and the work he performed, or did not perform, as his trialcounsel. Among other things, he alleges that Mr. Craggs spoke to him on only two occasions from his release in July 2010 until his trialcommenced on June 13, 2011 - once a greeting in a chance encounter in a parking garage and the second time on the day before trial;failed to explore or use material provided by Mr. Buckley which he thought would be helpful; failed to question or to cross-examine oncertain matters including the sexual history of one of the young complainants; and, failed to advise him of the right to challenge forcause. Mr.

Buckley also asserted that one of the jurors was nodding off to sleep, and that he should have sat beside his lawyer ratherthan on the prisoner’s bench before the bar in the courtroom. More than once in his submissions, Mr. Buckley expressed his concernthat “everything” he felt was evidence that could help, Mr. Craggs turned down. He submitted that his former lawyer had given him“the skim of his ability,” as opposed to his full knowledge and ability. [6] The cross-examinations of Mr. Buckley and Mr.

Craggs, and exhibits such as the latter’s calendars, made it clear that thelawyer had not conferred with his client only once, on the day before trial, in the period between the appellant’s release and his trial. Rather, there had been two meetings a few weeks apart, and neither was on the eve of trial. Moreover, there had been several earliermeetings while the appellant was incarcerated. Mr. Buckley also testified that the juror appeared to sleep only fleetingly and that, afterhe drew this to Mr. Craggs’ attention, this behaviour had not recurred. He acknowledged that there was then nothing for Mr.

Craggs todo in that regard. [7] At trial, the theory of the defence was that the Crown had failed to prove all or any of the offences; the direct evidence ofthe girls was unreliable; Mr. Buckley had very limited opportunities to commit the alleged crimes; the girls were prone to the power ofsuggestion; the circumstances prevented him from sexual touching without others noticing; and it was unlikely that a parent would allowcontinued visits if the girl had actually made such allegations. In his evidence, Mr.

Craggs explained why he had not pursued certainlines of questioning, or used certain material provided by the appellant, such as information of alleged sexual improprieties of persons notinvolved in the charges, automatically generated as contrasted to personal e-mails from one of the complainants, and allegations of poorparenting or of undue influence or fraud against family members.

In his view, some questions sought by the appellant would havecreated or increased sympathy for the child complainants, and most of the material was irrelevant, inadmissible, easily deniable inanswer, or did not assist the defence theory. He pointed out that challenge for cause was not available where there had been noheightened media coverage or potential for partiality. As to the alleged sleeping juror, Mr. Craggs deposed: … I watched the juror to determine if she was falling asleep and did not see anything to suggest she was falling asleep such as slumpedshoulders or her head tilting downward.

I determined she was somebody who was prone to closing her eyes when she was listening tosomething and made nothing of it. … [8] If he understood and accepted Mr. Craggs’ explanations of his assessment of the materials he provided, and the lawyer’stactical decisions at trial when they conferred before and during his trial, Mr. Buckley now disputes their wisdom. However, I amunable to identify how anything that Mr. Buckley complains that former counsel did or did not do, which includes but is not limited tothe items in my earlier

summary, resulted in any prejudice to him. In particular, Mr. Craggs’ decisions not to use most of the informationor material Mr. Buckley gave him were reasonable and founded on the law or the theory of the defence. Even if it had been admissibleand used at trial, this material could not have affected the jury’s decision to convict. [9] The appellant not having demonstrated prejudice resulting from the alleged ineffective assistance of his former counsel, itis not necessary that I determine whether Mr. Craggs’ conduct as a lawyer amounted to incompetence.

I would add however that I havenot seen anything in my review of the record and other evidence that would suggest that Mr. Craggs’ preparation for, or his performanceat, the jury trial and sentencing hearing fell outside the range of reasonable, professional conduct. Disposition: [10] I would dismiss the appeal against conviction and sentence. Oland, J.A. Concurred in:

Fichaud, J.A. Beveridge, J.A.