R v Woods, 2017 SKCA 67

Court of Appeal for Saskatchewan Docket: CACR2445 Citation: R v Woods , 2017 SKCA 67 Date: 2017-08-28 Between: David Neil Woods Applicant/Appellant And Her Majesty the Queen Respondent/Respondent Before: Jackson J.A. (in Chambers) Disposition: Application allowed in part On Application From: QBJ 4/2013, Saskatoon Application Heard: August 24, 2017 Counsel: James Streeton for the Appellant W. Dean Sinclair, Q.C., for the Respondent Jackson J.A. [ 1 ] This is an application to amend a notice of appeal from conviction to add significant additional grounds. The appeal had been scheduled to be heard on June 15, 2017.

On June 13, 2017, the hearing of the appeal was adjourned on a peremptory basis to September 12, 2017. [ 2 ] Dorothy Ann Woods disappeared on November 11, 2011. Her body was discovered on January 4, 2012. Her husband, David Neil Woods, was charged with unlawfully causing her death and thereby committing first degree murder contrary to s. 235 of the Criminal Code , RSC 1985, c C-46. [ 3 ] A jury convicted Mr. Woods on May 15, 2014, of the above charge. He was sentenced the same day to life imprisonment with no chance of parole for 25 years, less his remand credit.

His trial counsel filed a notice of appeal on May 23, 2014. [ 4 ] In that notice of appeal, Mr. Woods’s trial counsel put forward these grounds of appeal: 1. The decision is contrary to the law, the evidence and the weight of the evidence thus being an unreasonable verdict; 2. The learned trial judge erred in fact and/or law by admitting the text messages broadcast from the deceased’s cellular telephone on or about November 15, 2011 as evidence in the trial; 3. The learned trial judge erred in fact and/or in law in admitting statements the deceased made to Elizabeth Tawpisin as evidence in the trial; 4.

The learned trial judge erred in fact and/or in law in providing the charge (instructions) to the jury by the following:

a) by giving an unbalanced charge in favor of the prosecution;

b) by ruling the Prosecution’s theory had an air of reality and thereby allowing the theory to be put to the jury or by failing to give a limiting instruction on said theory;

c) by incorrectly instructing the jury on the evaluation and use of circumstantial evidence. 5. Such further and other grounds as counsel may advise and this Honourable Court may allow. [ 5 ] Mr. Woods’s trial counsel remained the counsel of record until May 13, 2015. Since then, Mr. Woods has received advice and counsel from four lawyers, some of whom have withdrawn and some of whom have been discharged by Mr. Woods. Mr. Streeton, who is his fifth counsel, is the first to have progressed the matter to this point.

He now applies, on behalf of his client, to substantially file a new notice of appeal. [ 6 ] In his proposed notice of appeal, filed August 2, 2017, Mr. Woods puts forward these grounds of appeal: 1. The jury’s verdict was unreasonable and cannot be supported by the evidence; 2. The Learned Trial Judge erred in law by admitting the text message broadcast from the Appellant’s cellular telephone on or about October 22, 2011 and the text message broadcast from the deceased’s cellular telephone on or about October 22, 2011; 3.

The learned Trial Judge erred in law by admitting the text messages broadcast from the deceased’s cellular telephone on or about November 15, 2011, as evidence in the trial; 4. The learned Trial Judge erred in his charge to the jury as follows: a. The learned Trial Judge provided a charge that was unbalanced and favoured the prosecution;

b. The learned Trial Judge erred in his instruction to the jury on the use of the evidence of the Appellant’s post offence conduct; c. The learned Trial Judge erred in his instruction to the jury on the question of whether the murder was planned and deliberate and therefore first degree; and d. The learned Trial Judge erred in his instruction to the jury on the question of whether the murder was first degree because the death was caused by committing or attempting to commit the offence of forcible confinement. 5.

The Appellant’s trial counsel was ineffective, resulting in a miscarriage of justice, in that trial counsel: a. Failed to present exculpatory evidence to the jury; b. Failed to prevent highly prejudicial evidence from being put before the jury; c. Failed to properly prepare for trial; d. Failed to properly prepare the Appellant for trial; e. Failed to consult the Appellant in relation to decisions and admissions made during the course of his representation; f. Failed to give an opening statement; g. Failed to effectively cross-examine the Crown’s witnesses; h.

Such further reasons as counsel may advise and this Honourable Court may allow. 6. Such further and other grounds of appeal as counsel may advise and this Honourable Court may allow. [ 7 ] On August 23, 2017, Mr. Woods filed a factum to explain his application in detail. He has placed the following matters in issue: IV. POINTS IN ISSUE: 1. Did the learned trial judge err in allowing text messages showing the bad character of the accused to be admitted into evidence?

a) Texts from the appellant to Wayne Lewis in October of 2011.

b) Texts from the deceased’s phone to Derrick Brown and Wayne Lewis in November of 2011. 2. Did the learned trial judge improperly instruct the jury in his charge to the jury?

a) Instructions leading the jury to place undue weight on post-offence conduct.

b) No limiting instruction on the use of post-offence conduct on the issue of whether or not the murder was planned and deliberate.

c) No instruction that forcible confinement must be distinct from the act of murder.

d) Failure to adequately instruct the jury regarding the use of bad character evidence. 3. Was the Appellant’s representation at trial ineffective?

a) Failure to introduce exculpatory evidence

i) John Van Tassel ii) Greg Litzenberger iii) Sandra Lukowich

b) Failure to make an opening statement

c) Failure to prevent bad character evidence from being introduced

d) Failure to prepare the accused for examination in chief and cross-examination [1]

e) Failure to cross-examine crown witnesses

f) Failure to challenge evidence being introduced by the Crown 4. Was the jury’s verdict of guilty of first-degree murder unreasonable?

a) Evidence murder was planned and deliberate

b) Evidence of forcible confinement [ 8 ] Crown counsel consents to all of the proposed amendments except for the proposed ground of appeal relating to trial counsel’s representation of Mr. Woods. This last amendment is opposed on substantive and procedural grounds. [ 9 ] A Chambers judge has the jurisdiction to amend a notice of appeal from conviction.

The Criminal Code leaves the procedural administration of notices of appeal to The Court of Appeal Rules of the individual jurisdictions: Notice of appeal 678(1) An appellant who proposes to appeal to the court of appeal or to obtain the leave of that court to appeal shall give notice of appeal or notice of his application for leave to appeal in such manner and within such period as may be directed by rules of court. Extension of time

(2) The court of appeal or judge thereof may at any time extend the time within which notice of appeal or notice of application for leave to appeal may be given. [ 10 ] In this jurisdiction, the authority to amend a notice of appeal in criminal or civil matters is governed by Rule 13 of The Court of Appeal Rules : Amendment to notice of appeal 13 A notice of appeal or cross-appeal may be amended at any time with leave of the court or a judge. [ 11 ] The Court of Appeal Rules are specifically incorporated into The Court of Appeal Criminal Appeal Rules (Saskatchewan) by Rule 5 of the latter: Application of civil rules 5 Except where otherwise provided in the Code, a statute or these rules, The Court of Appeal Rules pertaining to the practice and procedure for civil matters, as amended from time to time, apply, where appropriate and with any necessary modification. [ 12 ] While it is clear that the above provisions grant a single judge, sitting in Chambers, the jurisdiction to grant Mr.

Woods’s application, I have concluded I should not exercise my jurisdiction to grant the opposed aspect of Mr. Woods’s application. Without passing on any of the arguments that Crown counsel made opposing the application on its merits, I will grant Mr. Woods’s application to amend the notice of appeal in so far as Crown counsel consents to the amendments, but I will dismiss that aspect of his application relating to trial counsel’s representation. [ 13 ] The progress of Mr. Woods’s appeal has been closely managed by the Registrar of the Court almost from the outset.

The Registrar referred his appeal to a judge of this Court for the purposes of management on two occasions. Mr. Woods’s appeal has most recently been managed by Chief Justice Richards of this Court, who made an order that the appeal be scheduled for hearing on June 15, 2017, at a point when Mr. Woods did not have counsel. On the faith of that order, and in order to comply with it, Crown counsel filed his factum on May 30, 2017. [ 14 ] Mr. Woods retained his present counsel in June of 2017. After hearing written submissions, the panel scheduled to hear Mr.

Woods’s appeal granted a peremptory adjournment of the June appeal to September 12, 2017, at 10:00 a.m. in Regina. [ 15 ] If I were to grant Mr. Woods’s application in its entirety, it is clear that the appeal scheduled for September 12, 2017, would not proceed. Having regard for all of the circumstances, and giving pre-eminence to the fact that this matter is scheduled to be heard on a peremptory basis on September 12, 2017, I make this order: (

a) the application is allowed in part; (

b) Mr. Woods may file an amended notice of appeal encompassing all matters mentioned in his factum other than the allegation of ineffective trial representation; (

c) Mr. Woods is directed to file a revised factum to reflect the amended notice of appeal; (

d) the revised factum shall be filed by September 1, 2017; and (

e) the balance of Mr. Woods’s application is dismissed without prejudice to him to renew it in whatever manner he sees fit before the panel scheduled to hear his appeal on September 12, 2017. [ 16 ] The Crown is permitted to file a revised factum to respond to the new grounds of appeal and has undertaken to do so in time for the appeal to be heard on the scheduled date. [ 17 ] Order accordingly. “Jackson J.A.” Jackson J.A.