R v Madraga, 2015 SKCA 145

Court of Appeal for Saskatchewan Citation: R v Madraga, 2015 SKCA 145Docket: CACR2418 Date: 2015-12-21Kelly Mark Madraga AppellantAndHer Majesty the Queen Respondent Coram: Ottenbreit, Caldwell and Ryan-Froslie JJ.A. Per Curiam Fiat [1] When this matter came before us, we determined that the appeal would be adjourned and we ordered the Crown to supplydisclosure. Written reasons were to follow. These are the written reasons. [2] Mr. Madraga was convicted of sexual assault contrary to s. 271 of the Criminal Code and was sentenced to six years’incarceration less one year remand credit.

The usual ancillary orders were also made. He filed his notice of appeal against conviction onApril 7, 2014. The grounds stated that evidence had been improperly admitted or not properly considered by the trial judge. The notice ofappeal also raised issues regarding the effectiveness of the representation by his trial counsel. [3] After filing his appeal, Mr. Madraga initially represented himself. On April 23, 2015, this Court made an order that he havecourt appointed counsel. Thereafter, Mr. Madraga made attempts to obtain counsel, but was unsuccessful until Mr.

Hrycan agreed torepresent him and advised the Court of that on November 18, 2015. The matter had by that time been set for hearing and adjourned on anumber of occasions and a new hearing date of November 24, 2015, loomed. After discussions between Mr. Hrycan and the Crown, thishearing was adjourned to the December sittings of this Court with the consent of the Crown on the basis Mr. Hrycan would file hisclient’s factum. Mr. Hrycan did this. [4] Shortly after filing the factum, Mr.

Hrycan advised the Crown that he intended to argue ineffective representation by trialcounsel as a ground of appeal, but needed disclosure. This ground was not mentioned in the filed factum. It was, however, raised in Mr.Madraga’s notice of appeal. Mr. Hrycan attempted to obtain from the Crown the disclosure that it had provided to trial counsel so that hecould assess whether there was merit to the ground of ineffective representation. It is a given that the argument of such a ground usuallyinvolves a fresh evidence application. [5] Mr.

Hrycan sought to negotiate with the Crown an adjournment of the hearing date set for December 11 and an agreementon a method of moving the matter forward, but was unsuccessful. Accordingly, he filed a motion on Mr. Madraga’s behalf seeking anadjournment of the appeal, as well as an order compelling the Crown to provide to him the disclosure it had provided to trial counsel.

Hisbasis for doing so was to enable him to evaluate the ground of ineffective representation as trial counsel had not yet responded to arequest for a copy of his file and the Crown had not agreed to send him the disclosure. [6] By the time this matter was argued before us, trial counsel had provided to Mr. Hrycan part or all of his file. Mr.

Hrycanproposed in argument that having received part or perhaps all of trial counsel’s file, he would make an inventory of what disclosure hehad, provide that inventory to the Crown, and if anything was missing from the disclosure they had originally given to trial counsel, theCrown would then provide the same to him. [7] The Crown argued that Mr. Madraga’s rights to disclosure in the context of an appeal are curtailed because of his conviction.The Crown submitted that because The Court of Appeal Criminal Appeal Rules (Saskatchewan) require Mr.

Madraga to address all of hisarguments in his factum, he was constrained to argue his appeal on only those grounds set out in the filed factum and thus disclosure wasunnecessary. Counsel for the Crown did not point to the precise rule for this proposition, apart from the fact that it dealt with the contentof the facta. It may be assumed that she was referring to Rule 20. [8] Crown counsel also argued that Mr.

Hyrcan’s request for disclosure was a fishing expedition, that he had filed no affidavit insupport of his motion and that he was not entitled to access disclosure, whether from the Crown directly or through trial counselproviding same. Crown counsel then further submitted that it was inappropriate for trial counsel to have provided his file to Mr. Hrycanand that perhaps Mr. Hrycan had received it inappropriately.

The Crown proffered two cases in support of its position that there was noentitlement to disclosure: R v Trotta (2005), (ON CA), 23 CR (6th) 261 (Ont CA) [Trotta], and R v Singh, 2010ONCA 11, 250 CCC (3d) 187 [Singh]. [9] The Crown’s disclosure obligations after conviction and the principles governing a request for production in anticipation of afresh evidence application, were explained by Doherty J.A. in Trotta: [22] The disclosure jurisprudence arises out of the pre-verdict phase of the criminal process. I see no reason why the Crown’s disclosureobligations should not continue through the appellate process.

The protection of the innocent is as important on appeal as it is prior toconviction. [23] While the nature of the Crown’s disclosure obligation and its rationale remain constant after conviction, the resolution of disclosuredisputes on appeal will require a somewhat different analytical framework than that described in Stinchcombe. There are at least tworeasons for this different approach. A convicted accused is no longer presumed innocent. In fact, the opposite is presumed. Theconviction stands unless the appellant can convince the appeal court that it should be set aside.

A convicted person has also exhaustedhis or her right to make full answer and defence. It is inappropriate at the appellate stage to speak either of the presumption of innocenceor the right to make full answer and defence. It is equally inappropriate to describe the boundaries of the Crown’s disclosure obligation

on appeal by reference to the presumption of innocence or an accused’s right to make full answer and defence. [24] An accused does, however, have broad rights of appeal under the Criminal Code . These include not only legal and factual challenges arising out of the trial record, but also the right to adduce fresh evidence under s. 683(1) if the interests of justice so require.

The broad rights of appeal, the power to receive fresh evidence, and the court’s wide remedial powers are all designed to maximize protection against wrongful convictions. [25] The Crown’s disclosure obligation on appeal must recognize and give full value to an accused’s broad rights of appeal and the rationale underlying those rights. The Crown’s disclosure obligation on appeal must extend to any information in the possession of the Crown that there is a reasonable possibility may assist the accused in the prosecution of his or her appeal.

In the present case, the applicant seeks disclosure in aid of a proposed fresh evidence motion. To obtain production, the applicant must first demonstrate a connection between the request for production and the fresh evidence he proposes to adduce. The applicant must show that there is a reasonable possibility that the material sought could assist on the motion to adduce fresh evidence. By assist, I mean yield material that will be admissible as fresh evidence, or assist the applicant in developing or obtaining material that will be admissible as fresh evidence.

The applicant must next demonstrate that there is some reasonable possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal.

Unless the appellant can make both links, there is no reasonable possibility that the material sought could assist in the prosecution of the appeal and consequently, no reason for this court to require the Crown to disclose it. [26] In assessing whether the applicant has made the first link, that is some connection between the material sought and the evidence proposed to be adduced on appeal, the applicant will often have limited knowledge of the contents of the material. The court will bear this disadvantage in mind in determining whether the applicant has established the necessary link.

In this case, that difficulty does not arise. The applicant has a very good idea of the nature, if not the specifics, of the content of the material he seeks. This statement of the law has been more recently approved in R v Miller , 2015 ABCA 163 ; R v Cook , 2014 ONCA 170 , 307 CCC (3d) 495; R v Rahman , 2013 NSCA 139 , 338 NSR (2d) 113; and in Singh . [ 10 ] In our view, the following principles apply to questions of Crown disclosure on appeal from conviction: (

a) The Crown’s disclosure obligation on appeal must recognize and give full value to an accused’s broad rights of appeal and the rationale underlying those rights. (

b) Where disclosure is sought in anticipation of a fresh evidence application, there is a two-part test. The accused must show: (

i) a connection between the request for production of disclosure and the proposed fresh evidence application, such that there is a reasonable possibility that production will assist the accused in developing or obtaining material that will be admissible as fresh evidence; and (ii) there is some reasonable possibility that the evidence, to which the production request is linked, may be received as fresh evidence on appeal. [ 11 ] The ground of appeal that Mr. Madraga wishes to pursue now that he has appellate counsel is ineffective representation by his trial counsel.

He initially raised this issue in his notice of appeal. Such a ground is usually advanced with the assistance of a fresh evidence application. We are satisfied that for his appellate counsel to properly assess the merits of such a ground, it is necessary to develop information that can only be assessed in light of the disclosure that was provided to his trial counsel. [ 12 ] There is nothing in the Rules that would, in the circumstances of this case, militate against Mr. Madraga having the opportunity to obtain disclosure to properly assess the merits of an issue set forth in his notice of appeal.

Even if there were such a provision in this circumstance, we would exercise our powers under Rule 7 to waive compliance or relieve against non-compliance with the Rules in the interests of the administration of justice. [ 13 ] In our view, Mr. Madraga has demonstrated a connection between the request for disclosure and any fresh evidence he may need to adduce on appeal to advance the ground of ineffective representation. In this case, an affidavit from Mr. Madraga is not necessary given that this issue was raised in his notice of appeal and the application is for disclosure only.

Moreover, we are satisfied that there is some reasonable possibility that the potential evidence to which the disclosure request is linked may be received as fresh evidence on appeal in the event that Mr. Hyrcan believes, after viewing the disclosure, there is an arguable issue on ineffective representation. [ 14 ] While this has always been a jurisdiction where counsel have generally been able to co-operate respecting these kinds of matters within the limits of the law, due to the position taken by the Crown there is no practical way that Mr.

Hyrcan can properly determine whether the ground of ineffective representation is arguable without an order for disclosure. [ 15 ] To be clear, the disclosure sought is no more than what trial counsel received, and it is for the purpose of determining whether the issue of ineffective representation is arguable. Accordingly, there will be an order that the Crown provide to Mr. Hrycan trial disclosure in its possession not received by him from trial counsel based on an inventory of that disclosure to be provided by Mr. Hyrcan to the Crown. [ 16 ] The appeal is adjourned.

While this order will delay matters somewhat, that delay can be managed. In order to ensure that there is an early date set for the hearing of the appeal and that there be a relatively quick determination whether there will be an argument on ineffective representation, the matter shall be adjourned to appeal hearing management at the earliest opportunity for the purposes of setting timelines to expedite progress of this matter. Counsel: Bob Hrycan for Kelly Mark Madraga Erin Bartsch for Her Majesty the Queen