Docket: CACR1941 Harold John Dreaver Appellant - v. -, 2014 SKCA 133

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 133 Date: 2014-12-18 Between: Docket: CACR1941 Harold John Dreaver Appellant - and - Her Majesty the Queen Respondent Coram: Richards C.J.S., Lane and Jackson JJ.A. Counsel: Dhugal Whitbread for the appellant Andrew Davis for the respondent Timothy Brown for Saskatchewan Lawyers’ Insurance Association Appeal: From: Provincial Court Heard: November 28, 2014

Disposition: Appeal dismissed Written Reasons: December 18, 2014 By: The Honourable Chief Justice Richards In Concurrence: The Honourable Mr. Justice Lane The Honourable Madam Justice Jackson Richards C.J.S. I. introduction [ 1 ] The appellant, Harold Dreaver, was tried in Provincial Court and found guilty of aggravated assault and uttering a threat to cause death. He was declared to be a long-term offender and given a sentence of 50 months in custody to be followed by a six-year community supervision order. [ 2 ] Mr. Dreaver appeals his conviction for aggravated assault. He advances two main lines of argument.

First, he contends the trial judge misdirected himself with respect to the law of self-defence. Second, he submits he was not effectively represented by his trial counsel. [ 3 ] In aid of his argument concerning the competence of counsel, Mr. Dreaver has brought an application to adduce fresh evidence. [ 4 ] I find myself unpersuaded by Mr. Dreaver’s submissions. I would dismiss both his fresh evidence application and his appeal. II. background facts [ 5 ] Verna Merasty was in her apartment with two friends. The friends had brought Mr. Dreaver along with them. Everyone was drinking. [ 6 ] Ms.

Merasty had not met Mr. Dreaver before. She testified that the two of them talked about their children and worked on some art together. At one point, Mr. Dreaver asked if he could kiss her and she refused his advance, explaining that she was pregnant and respected the father of the unborn child. [ 7 ] According to Ms. Merasty, the group went to the next-door apartment of a friend and continued drinking. The friend said she did not want Mr. Dreaver there and so Ms. Merasty and Mr. Dreaver went back to Ms. Merasty’s apartment. [ 8 ] Ms. Merasty’s evidence is that, as she entered her apartment, Mr.

Dreaver pushed her hard from behind. He then threw her to the floor of the apartment, sat on top of her and choked her. Ms. Merasty testified that he said, “I’m going to fucking kill you.” She said that she could not breathe, was gasping for air and thought she was going to die. [ 9 ] Ms. Merasty testified further that she cried, “Get off me. I’m pregnant” whereupon Mr. Dreaver grabbed something (she thought it felt like a bottle) and smashed it in her face saying, “Your face isn’t”. Ms. Merasty indicated that she was on the floor, helpless, while Mr. Dreaver continued to hit her. Mr.

Dreaver then pulled her up and told her to wash up. At this point, she was able to escape from the apartment and seek help. [ 10 ] The police were called. They found Ms. Merasty in the hallway of her apartment building. Her face was covered in blood. Her injuries required numerous internal stitches to her face as well as 24 external stitches. Her skull was fractured around one eye. [ 11 ] Mr. Dreaver also testified. He gave a very different account of the incident. [ 12 ] Mr. Dreaver said he remembered drinking at Ms.

Merasty’s apartment and recalled the two of them doing artwork and her trying to tell his fortune with tarot cards. The next thing Mr. Dreaver remembered was being on the floor with Ms. Merasty hitting him hard on the head and face with an object like a fireplace poker. He said that he looked up as he awoke or gained consciousness, saw the object coming down and grabbed it away from Ms. Merasty. He described blacking out at that point and said he had no recollection of hitting Ms. Merasty. [ 13 ] The police searched Ms. Merasty’s apartment shortly after the assault.

They found no fireplace poker or similar object but did find a broken mug on the floor. Neither of the two officers involved in arresting Mr. Dreaver not long after the assault saw any cuts or bruises on his face or head. III. the decision of the trial judge

[ 14 ] At trial, Mr. Dreaver acknowledged that he was responsible for Ms. Merasty’s injuries but argued he had acted in self-defence. [ 15 ] The trial judge found Ms. Merasty to be a “good, honest and credible” witness and did not believe Mr. Dreaver’s testimony. He concluded there was no evidence to support the idea that Mr. Dreaver had been attacked with a fireplace poker or pipe: There is no support, any evidence before this court for any physical attack on the accused by Ms. Merasty, in my view.

The blows to his head and face, which he says were inflicted by Merasty would have left marks and swelling and bruises and perhaps lacerations and certainly blood. This would particularly be the case if he had indeed been whacked on the side of the face with an iron or a metal pipe causing his tooth to crack. … I do not believe the officers who arrested him would have ignored the obvious signs of the severe beating that he said he got from her, … [ 16 ] The trial judge went on to observe that, even if Mr. Dreaver had been assaulted as he had described, his actions after he wrested the poker away from Ms.

Merasty would have been unjustified. In this regard, he explained as follows: … but assuming for the moment that the accused was viciously attacked with an iron or metal pipe, his evidence is that he took the pipe away from her, and upon doing that he was no longer, in my view, in any danger, no longer needed to defend himself from Ms. Merasty. His subsequent actions toward her, of what he does not remember, would therefore be unjustified and were, in fact, unjustified. [ 17 ] In the end, the trial judge found that neither Mr.

Dreaver’s testimony nor the evidence as a whole raised a reasonable doubt about his guilt. [ 18 ] The trial judge ultimately found Mr. Dreaver to be a long-term offender. He sentenced him to 72 months of incarceration on the aggravated assault and 12 months concurrent on the threat to cause death. Mr. Dreaver was given credit for 22 months that he had spent in custody, leaving a total of 50 months to serve in jail. The judge also imposed a six-year community supervision order. IV. analysis [ 19 ] Mr.

Dreaver advanced four lines of argument in his factum in an effort to overturn the conviction for aggravated assault. He contended: (

a) the trial judge had misdirected himself with respect to self-defence, (

b) his trial counsel had not represented him effectively, (

c) the Crown had failed to preserve and disclose certain evidence and thereby denied his Charter rights, and (

d) his right to be tried within a reasonable time had been violated. [ 20 ] On the argument of the appeal, counsel advised that, although he had no instructions to abandon arguments (

c) and (d), he appreciated their frailties and would be making no submissions in relation to them. We agree with counsel’s assessment of this aspect of the appeal and see no merit in these two arguments. As a result, it is necessary to consider in depth only the issues of self-defence and the effectiveness of trial counsel. I will deal with each of those two matters in turn. A. Did the trial judge misdirect himself on self-defence? [ 21 ] The offence in issue took place in 2009. Accordingly, the relevant version of the self-defence provisions of the Criminal Code are as follows: 34.

(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if (

a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and (

b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. [ 22 ] Mr. Dreaver submits that s. 34(2) is applicable here. He says that he awoke, or regained consciousness, with Ms. Merasty striking him with a fireplace poker or similar object and that he responded by injuring her while under the apprehension of death or grievous bodily harm. He submits s. 34(2) does not require that the force he used was reasonable.

In his view, the trial judge erred by failing to give express consideration to s. 34(2) and by failing to find that he had acted in self-defence. [ 23 ] In my respectful view, this submission cannot succeed for a very simple reason. It is predicated on the notion that Mr. Dreaver was, in fact, unlawfully assaulted by Ms. Merasty. But, as the trial judge found, there is no evidence beyond Mr. Dreaver’s own testimony to substantiate this contention. [ 24 ] Mr. Dreaver testified that Ms. Merasty hit him “hard” and “quite a few” times on the head and face with something like a fireplace poker.

He said that, as a result of this attack, he was cut on his face and was bleeding, had two black eyes and had lost a tooth. However, as noted above, neither of the arresting officers noticed any marks on Mr. Dreaver’s face when he was taken into custody not long after they had attended at Ms. Merasty’s apartment building. Constable Bear testified that he observed Mr. Dreaver at arm’s length and in

good lighting and that “… there was no injury to him at all.” Constable Mitchell saw Mr. Dreaver in similar conditions. He observed that“… his face was fine. I didn’t see any bruising or any blood on his face at all.” Further, on searching Ms. Merasty’s apartment, the policefound nothing in the nature of a fireplace poker or pipe. In light of this evidence, the trial judge was fully entitled to conclude thatMr. Dreaver had not been assaulted. There is no basis for taking issue with that finding in this Court. [25] Accordingly, Mr.

Dreaver cannot get himself past the threshold requirement of s. 34(2), i.e., the requirement that he wasunlawfully assaulted. [26] In any event, s. 34(2) does not give a carte blanche for violence to a person who is under attack. It requires that the person believe,on reasonable grounds, that he or she cannot preserve himself from death or grievous bodily harm other than by the force used. See: R vLavallee, (SCC), [1990] 1 SCR 852 at 873-874. Therefore, even if Mr. Dreaver had been attacked by Ms. Merasty, hisown evidence would make s. 34(2) inapplicable. This is because he says he took the poker away from Ms.

Merasty and then inflicted theinjuries in question. There is no evidentiary basis for concluding he could have reasonably believed that, having disarmed Ms. Merasty,he was unable to protect himself other than by application of the force which caused the injuries in issue here. [27] In the end, I am not convinced by Mr. Dreaver’s arguments with respect to self-defence. The trial judge made no error in thisregard. B. Did the ineffectiveness of counsel result in a miscarriage of justice? [28] Mr.

Dreaver’s next line of argument is that his trial counsel was not effective and that counsel’s conduct resulted in a miscarriageof justice. The Governing Principles [29] Before examining the specifics of Mr. Dreaver’s submission, it is useful to consider the principles which govern the adjudicationof a claim of ineffective counsel. The basic framework is straightforward. In order to succeed with an argument of this sort, an offendermust establish both that his or her trial lawyer was incompetent and that the incompetence caused a miscarriage of justice.

If a claim ofineffectiveness can be resolved on the basis that there was no miscarriage of justice, then it should be disposed of on that basis alone. [30] Major J. concisely summarized the proper approach in R v B.(G.D.), 2000 SCC 22, [2000] 1 SCR 520: 26 The approach to an ineffectiveness claim is explained in Strickland v. Washington, 466 U.S. 668 (1984), per O’Connor J. Thereasons contain a performance component and a prejudice component.

For an appeal to succeed, it must be established, first, thatcounsel’s acts or omissions constituted incompetence and second, that a miscarriage of justice resulted. 27 Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel’s conductfell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counselthat are alleged not to have been the result of reasonable professional judgment.

The wisdom of hindsight has no place in this assessment. 28 Miscarriages of justice may take many forms in this context. In some instances, counsel’s performance may have resulted inprocedural unfairness. In others, the reliability of the trial’s result may have been compromised. 29 In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider theperformance component of the analysis. The object of an ineffectiveness claim is not to grade counsel’s performance or professionalconduct. The latter is left to the profession’s self-governing body.

If it is appropriate to dispose of an ineffectiveness claim on the groundof no prejudice having occurred, that is the course to follow (Strickland, supra, at p. 697). [emphasis added] [31] In connection with his argument on this front, Mr. Dreaver’s factum identified a number of alleged deficiencies in trial counsel’sconduct of the proceedings. However, as refined and narrowed in oral argument, his submission was reduced to concerns that trialcounsel (

a) agreed to having his full criminal record put in evidence, and (

b) did not put Ms. Merasty’s criminal record before the trialjudge and did not cross-examine her as aggressively as was appropriate on her record and her criminal history. As explained below, thesearguments can be disposed of by examining the issue of whether any prejudice occurred here. Consequently, it is not necessary todetermine whether trial counsel was, in fact, ineffective. The Fresh Evidence Application [32] Mr. Dreaver seeks leave to file an affidavit in support of his argument that his trial counsel was ineffective. The affidavit, sworn byMr.

Dreaver, is 37 paragraphs long and includes 11 exhibits. [33] As is obvious, this evidence is not being put forward as a basis for reviewing the decision of the trial judge. Rather, Mr. Dreaver’ssubmission on this wing of his appeal is about whether the trial process itself involved a miscarriage of justice. The test for determiningwhether fresh evidence of this kind should be admitted is not the familiar one set out in R v Palmer, (SCC), [1980] 1 SCR759. Rather, the governing authorities indicate that evidence of the sort in issue here should be admitted if it is (

a) relevant to an issuebefore the Court, (

b) credible, and (

c) sufficient (if uncontradicted) to warrant the making of the order sought. See: United States of

America v Shulman , 2001 SCC 21 at para 45 , [2001] 1 SCR 616; R v S.G.T. , 2011 SKCA 4 at paras 39-40 , 265 CCC (3d) 550. [ 34 ] In light of how the focus of this appeal was narrowed during oral argument, there are only a few paragraphs in Mr. Dreaver’s affidavit which warrant consideration in the context of his application to admit fresh evidence. After editing out the paragraphs which are purely introductory, repeat evidence given at trial, relate to remedies and arguments no longer being pursued and which describe what happened after the trial, the only relevant aspects of the affidavit remaining are as follows: (

a) Paragraphs 20 and 23—wherein Mr. Dreaver explains that he is not satisfied with trial counsel’s cross-examination of Ms. Merasty; (

b) Paragraph 21—wherein Mr. Dreaver refers to Ms. Merasty’s criminal record and exhibits the record; (

c) Paragraph 25—wherein Mr. Dreaver objects to the fact his trial counsel consented to the prosecutor filing his full criminal record with the trial judge. [ 35 ] In my view, the proposed fresh evidence does not meet the test for admission. More specifically, it fails the test because it is not sufficient to warrant the relief sought by Mr. Dreaver, i.e. it does not establish that Mr. Dreaver was prejudiced by the alleged ineffectiveness of counsel and thus does not lead to a conclusion that his conviction should be set aside and a new trial ordered.

This means the application must be dismissed. [ 36 ] All of this is by way of overview. A more detailed assessment of the significance of the fresh evidence is best conducted, not here, but in the context of the specific issues Mr. Dreaver has raised about the effectiveness of his trial counsel. Accordingly, I will come back to the particulars of the fresh evidence in the analysis which follows. [ 37 ] There is one other matter which needs to be addressed at this point. The Crown filed its own fresh evidence application in response to Mr.

Dreaver’s application and sought to introduce an affidavit sworn by trial counsel. In light of my decision about Mr. Dreaver’s application, there is no need to consider the Crown’s material and I would therefore dismiss its application as well. Mr. Dreaver’s Record [ 38 ] As noted, Mr. Dreaver’s first concern is that his trial counsel agreed to the prosecutor filing his criminal record with the trial judge. [ 39 ] The relevant circumstances are that, in the course of cross-examining Mr. Dreaver, the prosecutor advised the judge that he proposed to “put the record” to Mr. Dreaver. He then began to go through Mr.

Dreaver’s convictions one-by-one. He asked Mr. Dreaver about two convictions for obstruction and Mr. Dreaver acknowledged them. That was followed by this exchange: Q Okay. And if I show this to you, would you be able to tell me if this is your criminal record? A This 1997 one. Q Pardon me? A I don’t think this one is properly written. Q Improper? A Yeah. Q What was it? A That’s aggravating assault. Q Okay. What was it if it wasn’t aggravated assault? A I don’t think it was an aggravated. I think that’s when I got in a fight with my brother that time.

MR. SYRNICK: Yeah. Your Honour, I’m not going to read the whole thing. I’m just going to file the record as P-6, I guess. I’m notgoing to read the whole thing in. THE COURT: Any objection? [Trial counsel]: No, Your Honour, thank you. [emphasis added] [40] In this Court, Mr. Dreaver argues his trial counsel should not have agreed to his record going into evidence in this way. As Iunderstand this submission, he contends the full record of an accused person can never be placed before a trial court.

Relatedly, he seemsto suggest that the judge should have been apprised only of convictions involving dishonesty, such as fraud or perjury, which by theirnature would have put Mr. Dreaver’s credibility in question. [41] There are significant problems with this submission. Most fundamentally, it is based on a misapprehension of the governing law.Section 12 of the Canada Evidence Act, RSC 1985, c C-5 reads as follows: 12.

(1) A witness may be questioned as to whether the witness has been convicted of any offence, excluding any offence designated as acontravention under the Contraventions Act, but including such an offence where the conviction was entered after a trial on anindictment.

(1.1) If the witness either denies the fact or refuses to answer, the opposite party may prove the conviction. … [42] The Canada Evidence Act thereby makes the prior convictions of any witness—including an accused person—presumptivelyadmissible. However, cross-examination of an accused pursuant to s. 12 is limited to questions regarding the nature of the offence, thedate and place of the conviction and the sentence imposed. See: S. Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams’Canadian Criminal Evidence, loose-leaf (2014-Rel 3) 5th ed, vol 1 (Toronto: Canada Law Book, 2014) at 9:30.20.20.20.

In addition,evidence of prior convictions may only be used to assess the credibility of an accused person. It cannot be considered for the purpose ofestablishing that he or she had a propensity to commit crime or the crime in question. See: R v Corbett, (SCC), [1988] 1SCR 670 at 696-697 [Corbett]. [43] I note as well that there is no unqualified right to cross-examine an accused person on his or her record. Since Corbett, it has beenclear that a trial judge has a discretion to exclude evidence of prior convictions in an appropriate case. But, this is not the nature of Mr.Dreaver’s line of attack.

He does not contend that trial counsel should have applied to have some or all of his record excluded from theevidence. His argument is much more categorical. [44] As I take it, Mr. Dreaver asks the Court to endorse a blanket rule to the effect that the only convictions on which an accused canever be cross-examined are those which, in and of themselves, speak to the accused’s credibility. The only authority he cites in support ofthis proposition is Corbett. But, as just indicated, Corbett does not assist him.

In that case, Justice La Forest (with whom the majorityagreed in this respect) did no more than set out a non-exhaustive list of factors to be considered by a trial judge in the exercise of his orher discretionary power to exclude prejudicial evidence. He prescribed no bright-line rule of the sort advocated by Mr. Dreaver. [45] Thus, by way of conclusion, I see no demonstrated prejudice flowing from trial counsel’s decision to short circuit an item-by-itemreview of Mr. Dreaver’s offending history by allowing the prosecutor to file his record.

Putting an accused person’s offending historyinto evidence in this way is perhaps not a common practice. However, it is difficult to see it as having a prejudicial effect in a judge-alone trial when, as here, there is no dispute about the accuracy of the record. The trial judge received no more information about Mr.Dreaver’s criminal convictions than if the prosecutor had confronted Mr. Dreaver with those convictions one-by-one on the witnessstand. [46] I would observe as well that there is nothing in the transcripts or otherwise to suggest the evidence of Mr.

Dreaver’s priorconvictions was used in anything other than an appropriate way. The prosecutor did not mention Mr. Dreaver’s record in his closingargument with respect to the conviction side of the case and he certainly did not invite the judge to find that, because of his record, Mr.Dreaver would have been inclined to assault Ms. Merasty. Nor did the trial judge suggest anything of the sort. Indeed, in his reasons fordecision, the judge made no reference to Mr. Dreaver’s record.

Therefore, if the trial judge relied on the record at all in his decision-making, it must be assumed that he acted lawfully and in accordance with the well-known principles limiting the use of such evidence. [47] The new evidence put forward by Mr. Dreaver does not change any of this. That new evidence is found in para. 25 of his affidavit: 25.

THAT during my cross-examination [trial counsel] consented (on page 130 of the trial transcript) to having the Crown file myentire Criminal Record as an exhibit rather than restricting the prosecution to referring to offences that would negatively impact on mycredibility, and he did not discuss that decision with me, and I would not have wanted to let the Crown file evidence of bad character onmy trial if anyone had asked me about it. [48] This “evidence” really does not do much more than recite the facts evident on the face of the transcript and set out Mr.

Dreaver’sposition that his trial counsel proceeded improperly by allowing his record to be filed as an exhibit. The only truly new thing brought tothe table by this part of Mr. Dreaver’s affidavit is his contention that trial counsel acted without instructions in agreeing to have his

criminal record filed. The Supreme Court’s decision in R v B.(G.D.) is a full answer to this complaint. There, at para. 34, Major J. said a court should only look behind a decision made by counsel in good faith in order to prevent a miscarriage of justice. Here, as explained above, trial counsel’s failure to obtain express instructions about the filing of Mr. Dreaver’s record (assuming such instructions were both required and not received) did not affect the outcome of the trial or result in unfairness. [ 49 ] Thus, by way of

summary on this part of the appeal, I see no basis on which trial counsel’s handling of Mr. Dreaver’s criminal record can be said to have led to a miscarriage of justice. Ms. Merasty’s Record and the Related Cross-Examination [ 50 ] Mr. Dreaver’s second point about the effectiveness of trial counsel is that counsel did not put Ms. Merasty’s full criminal record before the trial judge and did not cross-examine her aggressively enough on her record. He submits trial counsel cross-examined Ms.

Merasty quite effectively until a recess in the trial but that, when the proceedings recommenced, he failed to carry on with sufficient vigour. [ 51 ] Mr. Dreaver’s central concern here is rooted in his theory of the case—his theory that he had been violently attacked by Ms. Merasty and had reacted out of fear for his life to take the poker-like weapon away from her and to inflict the injuries she suffered. He contends, in effect, that it was necessary for trial counsel to cross-examine Ms.

Merasty with sufficient effectiveness to paint her, as much as possible, as the sort of person who could or would have attacked him in the way he described. [ 52 ] In the end, I am not persuaded by Mr. Dreaver’s submissions on this point. Trial counsel did cross-examine Ms. Merasty at some length and he did bring out evidence with respect to her offending history. He established the fact that there were several assaults on her record and got her to agree that she did not take “crap” and would stand up for herself. She also acknowledged there were instances in her life where she had been fighting.

He asked her to estimate the number of fights she had been in and she indicated that she had been in lots of fights when she was younger. Trial counsel also put a number of questions to Ms. Merasty about the physical violence that had characterized a 15-year long abusive relationship in which she had been involved. She agreed that she would not “just sit back and take it,” except when she had been pregnant. [ 53 ] Therefore, while trial counsel did not expressly put each of Ms.

Merasty’s convictions for violence to her, he certainly did succeed in establishing that she was a person with experience in violent confrontations and someone who, in at least some circumstances, was prepared to be violent. [ 54 ] Against this background, I am unable to see how counsel’s decision not to cross-examine Ms.

Merasty more extensively about her criminal history or his decision not to confront her with each of the individual offences on her record led to a miscarriage of justice, i.e. , how it compromised the reliability of the trial or was procedurally unfair. [ 55 ] There are three main weaknesses in Mr. Dreaver’s submission that counsel’s decision not to go further in his cross-examination caused a miscarriage of justice. First, as just explained, broadly speaking it is by no means clear what else might have been gained by more extended questioning. Without going into the details of all of Ms.

Merasty’s individual offences, trial counsel did succeed in establishing the basic points that she was no stranger to violence, had been in many fights and could be aggressive. [ 56 ] Second, the transcript reveals that Ms. Merasty was not a compliant witness and it indicates very clearly that she would have resisted any effort by trial counsel to show her in a bad light in the context of individual offences. For example, in relation to her conviction for assault causing bodily harm (about which she was asked specifically), Ms. Merasty did just acknowledge the offence.

She explained that the victim of the assault had been her physically abusive husband and that she had pled guilty so she could get home to nurse an infant child. Ms. Merasty also characterized her other assault convictions as involving, in general terms, acts of self-defence. Accordingly, Ms. Merasty’s overall approach to her evidence tends to suggest there was little to be gained in extending the cross- examination to include each and every individual offence. [ 57 ] Third, and in any event, Mr. Dreaver’s self-defence argument was dubious at best. No matter what Ms.

Merasty’s record might have been, and no matter how violent her past, it is difficult to imagine that the trial judge could have accepted Mr. Dreaver’s version of events. This is principally because there was simply no evidence to suggest he had been violently attacked. There were no cuts or bruises on his face and head and no poker or similar type of object was found in Ms. Merasty’s apartment. [ 58 ] The new evidence proffered by Mr. Dreaver does not change this analysis. The relevant parts of his affidavit say only this: 20.

THAT at my trial I wanted [trial counsel] to bring out the criminal record of the complainant because I thought that [the judge] should know that she had previously committed violent offences, in order to properly assess the credibility of my evidence that she hit me first, and I asked him to, but [trial counsel] did not ask the complainant very many questions about her criminal record, and at my trial he admitted that he did not have a copy of it, and I later found out that [trial counsel] did not even ask the Crown for a copy of her record. 21.

THAT a true copy of the document identified to me as being the Criminal Record of the complainant is attached to this my Affidavit and marked as exhibit “C” hereto. [ 59 ] Like the proposed evidence in relation to Mr. Dreaver’s own record, these parts of his affidavit largely involve no more than a recitation of what is apparent on the face of the transcript and a statement of his criticism of counsel. [ 60 ] The full particulars of Ms. Merasty’s record, as revealed by Exhibit “C”, are new. However, the sentences imposed on Ms. Merasty suggest that the offences she committed were not particularly serious.

Those offences, and the sentences for each of them, can be summarized as follows: (

a) assault (1997)—$100; (

b) assault (2000)—suspended sentence and probation for one year; (

c) assault with a weapon (2003)—12-month conditional sentence; (

d) assault causing bodily harm (2007)—two years less a day conditional sentence and one year probation; (

e) assault (2007)—time served of 107 days; (

f) assault peace officer (2007)—time served of 107 days; and (

g) assault peace officer (2008)—90 days. We know nothing of the nature of any of these offences (except the aggravated assault) and hence it is not possible to determine categorically whether there was something about any or all of them which might have reflected especially

badly on Ms. Merasty. But, on the surface of things, there appears to be no individual violent crime of significance which trial counsel failed to canvass. [ 61 ] I note as well that it was quite properly acknowledged during oral argument that (contrary to what Mr. Dreaver’s affidavit says) trial counsel did, in fact, have a copy of Ms. Merasty’s record when he cross-examined her. [ 62 ] In the end, I am unable to find that trial counsel’s approach to the cross-examination of Ms. Merasty in relation to her criminal record somehow resulted in a miscarriage of justice.

Counsel successfully established the main points about Ms. Merasty and her history. It is unlikely that more extended questioning on this front would have yielded much more that would have been helpful. In any event, given the whole of the evidence, I do not see how additional evidence about Ms. Merasty’s offending history could have led the trial judge to accept Mr. Dreaver’s defence of self-defence. V. conclusion [ 63 ] I conclude, for the reasons given above, that Mr. Dreaver’s application for fresh evidence must be dismissed.

His appeal must be dismissed as well. [ 64 ] As noted earlier, in light of my conclusion about Mr. Dreaver’s fresh evidence application, I would also dismiss the Crown’s application. [ 65 ] Mr. Dreaver asks that the shoes marked at trial as Exhibit P-4 be returned to him when the appeal period in relation to this decision has run or the proceedings in relation to this case are otherwise concluded. There will be an order to that effect. DATED at the City of Regina, in the Province of Saskatchewan, this 18th day of December, A.D. 2014. “Richards C.J.S.” Richards C.J.S. I concur “Lane J.A.” Lane J.A.

I concur “Jackson J.A.” Jackson J.A.