R v Brick, 2023 SKCA 107

Court of Appeal for Saskatchewan Docket: CACR3399 Citation: R v Brick , 2023 SKCA 107 Date: 2023-09-14 Between: Brandin Brick Applicant/Appellant And His Majesty the King Respondent/Respondent Before: Richards C.J.S., Jackson and Drennan JJ.A.

Disposition: Fresh evidence application granted, appeal allowed Written reasons by: The Honourable Madam Justice Drennan In concurrence: The Honourable Chief Justice Richards The Honourable Madam Justice Jackson On appeal from: CRM 108 of 2019, Saskatoon (Sask KB) Appeal heard: December 2, 2022, December 21, 2022, and June 26, 2023 Counsel: Christopher Murphy for the Appellant Pouria Tabrizi-Reardigan for the Respondent Brian Pfefferle, K.C. for Saskatchewan Lawyers’ Insurance Association Drennan J.A. I.

INTRODUCTION [ 1 ] After a judge alone trial in what was then the Court of Queen’s Bench, Brandin Brick was convicted of the second-degree murder of James Chaisson, possession of a firearm while prohibited, and failing to comply with a recognizance. He was sentenced to life in prison for the murder, with parole ineligibility fixed at 12 years. Mr. Brick now appeals from his murder conviction. [ 2 ] Mr. Brick’s appeal rests solely on the assertion that his trial counsel provided ineffective representation.

Specifically, he alleges that trial counsel failed to properly advise him on the issue of self-defence and application of s. 34 of the Criminal Code , in the context of his claim that he shot Mr. Chaisson in self-defence. He argues that, as a result, he was deprived of an informed decision as to whether to testify. [ 3 ] As I will explain, I agree that a miscarriage of justice occurred due to the ineffective conduct of Mr. Brick’s trial counsel. On that basis, I would grant Mr. Brick’s appeal, quash his conviction, and remit the matter to the Court of King’s Bench. II. BACKGROUND A.

The trial [ 4 ] On February 14, 2018, Mr. Chaisson was shot and killed. Mr. Brick was charged with and tried for first-degree murder, kidnapping, possession of a firearm while prohibited, breach of recognizance, and possession of a loaded and prohibited firearm. [ 5 ] At trial, the Crown’s theory was that Mr. Brick, along with Nathan Pelly, Dakota Badger Knight, and Justin Dreaver, drove to a 7-Eleven in Saskatoon where they met Mr. Chaisson. Mr. Brick then forced Mr. Chaisson into the vehicle, by threatening him with a firearm. The Crown contended that Mr. Brick eventually shot Mr.

Chaisson in the vehicle, unprovoked, with the other passengers present. Mr. Chaisson exited the vehicle and died shortly thereafter as a result of his injuries. [ 6 ] The Crown argued that Mr. Chaisson died in the course of being confined, thereby elevating his killing to first-degree murder.

It further argued that there was some evidence of planning and deliberation, and that the killing may have been gang motivated. [ 7 ] At trial, the Crown called several police witnesses and three lay witnesses. [ 8 ] Constable Bear testified to having recovered a firearm on February 15, 2018, from a vehicle involved in an unrelated traffic stop. That firearm was found to have Mr. Brick’s DNA on the muzzle. [ 9 ] The Crown’s key witness at trial was Mr. Pelly. He testified that he was dating a member of the Terror Squad street gang at the time of Mr. Chaisson’s death. Mr.

Pelly testified to having been present, hours prior to the shooting, when Mr. Brick and other individuals attended the residence where he was staying. Drugs, knives, and firearms were present. Eventually, Mr. Brick and Mr. Pelly left, picking up Mr. Dreaver and his girlfriend, Ms. Badger Knight. The group then attended the residence of Mr. Brick’s girlfriend, where they consumed drugs. [ 10 ] The same group of four left around midnight and drove in a car to the 7-Eleven. Once there, Mr. Pelly testified that Mr. Brick called through the passenger window for Mr. Chaisson to enter the vehicle. While Mr.

Pelly testified that Mr. Brick brandished a shotgun, a clerk at the 7-Eleven testified that it appeared Mr. Chaisson willingly entered the vehicle. Mr. Pelly stated that Mr. Brick drove a block, pulled over, and shot Mr. Chaisson who was seated behind the front passenger seat, next to Ms. Badger Knight who was seated in the middle, and Mr. Dreaver, who was seated in the back passenger side seat. In cross-examination, Mr. Pelly indicated he did not see Mr.

Chaisson having or brandishing any weapon. Mr. Chaisson jumped out of the vehicle, and ultimately collapsed nearby. [ 11 ] Mr. Chaisson had a backpack at the time of the shooting. Surveillance video showed that after he exited the vehicle, he began running down the street, tossing the backpack away, and collapsing nearby the backpack shortly after. A pedestrian walked past and stole the backpack. [ 12 ] The group left the scene and drove to Mr. Brick’s girlfriend’s residence. Mr. Pelly testified that after Mr. Brick asked him to get cigarettes and then attend Mr.

Dreaver’s home to get hair clippers, he became fearful, left the residence, and called the police. [ 13 ] The Crown also called Mr. Brick’s mother as a witness at trial. She testified that the day before the shooting, Mr. Brick attended her home to pick up a firearm she had not known was there. She asked him to unload the gun. She, as well as Mr. Pelly, identified a firearm entered by the Crown as an exhibit at trial as being the one from her home. [ 14 ] Mitchell Sasakamoose testified as well for the Crown. He was incarcerated for a period along with Mr. Brick following the shooting. He gave evidence that Mr.

Brick had told him that he was prepared to shoot someone to impress a gang. [ 15 ] The defence called no evidence. [ 16 ] In closing arguments, Crown counsel argued that it had been proven beyond a reasonable doubt that Mr. Brick had committed first-degree murder, and that Mr. Chaisson had been confined in the course of the killing. [ 17 ] Trial counsel for Mr. Brick submitted that the Crown had not proven the actus reus or mens rea for murder, arguing in his closing address that: … Certainly, a lowlife, but God knows what was in that [Mr. Chaisson’s] backpack.

You don’t know whether there was drugs or there was another gun. We don’t know whether this is a shake down for drugs. We don’t know whether JJ Chaisson pulled a weapon out himself. What we do know is he got shot. We don’t know who shot him. … [ 18 ] The trial judge determined that Mr. Brick had committed a culpable homicide, but had a reasonable doubt that Mr. Brick had kidnapped or confined Mr. Chaisson. He further had a reasonable doubt as to whether the shooting was planned and deliberate. The trial judge concluded that Mr. Brick intended to shoot Mr. Chaisson and convicted him of second-degree murder.

He specifically noted that “[t]here is no evidence before the Court that Mr. Chaisson made any aggressive actions towards the accused or anyone else in the vehicle, and no evidence that Mr. Chaisson had or produced a weapon”. [ 19 ] The trial judge was not satisfied the firearm that the Crown had tendered into evidence was the murder weapon. He convicted Mr. Brick of possession of a firearm while prohibited and breach of recognizance, and acquitted him of kidnapping and possessing a loaded prohibited weapon. [ 20 ] Mr.

Brick was sentenced to life in prison for the murder, with parole ineligibility fixed at twelve years. He was sentenced to two years time served for possession of a firearm while prohibited and six months concurrent for the breach of recognizance. B. Mr. Brick’s appeal and fresh evidence application [ 21 ] Mr. Brick appeals his murder conviction primarily asserting that his trial counsel was ineffective by (

a) failing to advise him on the application of s. 34 of the Criminal Code in the context of a self-defence claim, (

b) determining that Mr. Brick was lying, without obtaining Mr. Brick’s account of the events underpinning the self-defence claim, and (

c) advising Mr. Brick that there was a prospect of a manslaughter conviction, when there was no legal pathway to manslaughter on the evidence and when trial counsel did not argue for manslaughter before the trial judge. [ 22 ] While Mr. Brick also asserted that trial counsel unilaterally decided that he would not testify, that point was controverted and was not argued strongly. Given Mr.

Brick’s more focused arguments in his counsel’s oral submission, it is not necessary to comment in detail on the other more peripheral issues about competence that he raised concerning trial counsel’s record keeping and overall approach. 1. Mr. Brick’s affidavit and viva voce testimony [ 23 ] Mr. Brick swore an affidavit on which he was cross-examined before this Court. His account is that he shot Mr. Chaisson in self-defence, after Mr. Chaisson attempted to rob him in the vehicle by pointing a firearm at him. Mr. Brick deposes that he advised his trial counsel of this shortly after the shooting. Mr.

Brick says that he raised the self-defence issue again mid-trial, prior to Mr. Pelly’s testimony in the Crown’s case, specifically telling trial counsel that Mr. Chaisson had pointed a firearm at him in the vehicle first. He avers that trial counsel decided that he was lying, dismissed the possibility of this defence, and did not interview him with respect to his account of those events. [ 24 ] Mr. Brick’s evidence is that he is living with fetal alcohol spectrum disorder [FASD]. Mr. Brick stated that he was an unsophisticated litigant generally, struggling with both vocabulary and legal concepts.

He admitted to having memory and addiction problems. 2. Mr. Dreaver’s affidavit and viva voce testimony [ 25 ] Mr. Brick also seeks to admit the affidavit and viva voce evidence of Mr. Dreaver. Mr. Dreaver was subject to cross- examination on his affidavit before this Court. Mr. Dreaver testified at the preliminary hearing, but not the trial. Mr. Dreaver’s evidence is that after he learned that Mr. Brick had been convicted of Mr. Chaisson’s murder, he felt compelled to come forward to say that he had witnessed Mr. Chaisson pull a firearm on Mr. Brick and attempt to rob him in the vehicle.

[ 26 ] At the preliminary hearing, Mr. Dreaver testified to a different version of events. He was compelled to appear in court under subpoena and was ultimately taken by police to Provincial Court to give evidence. He denied any knowledge of the events around the shooting. As to the reason for this conflicting testimony, Mr. Dreaver explained that at the time of the preliminary hearing, he was worried he might be charged in relation to the shooting. 3. Trial counsel’s response affidavit and viva voce testimony [ 27 ] Trial counsel has been a lawyer since 2011.

His practice has focused primarily on criminal defence work. He represented Mr. Brick previously on unrelated criminal matters in 2017. [ 28 ] Trial counsel deposed that Mr. Brick called him three times on February 14, 2018, following the shooting, sounding upset and intoxicated. Mr. Brick stated that he was “on the run” from police and that he had shot a rival gang member. Trial counsel averred that he encouraged Mr. Brick to turn himself over to police on that date. Trial counsel was subsequently advised of Mr. Brick’s arrest and charges on February 17, 2018. He spoke to Mr.

Brick in the days after. [ 29 ] Trial counsel deposed and testified that he was aware Mr. Brick was experiencing both mental health and addictions issues following the shooting. This resulted in his request to have Mr. Brick assessed for fitness to stand trial on several pending criminal charges pursuant to s. 672.11 of the Criminal Code . [ 30 ] Trial counsel’s evidence is that he had represented clients with FASD and mental health issues in the past. He testified that he thought Mr. Brick was living with FASD and had spoken to an FASD worker about Mr. Brick.

He confirmed having received a psychiatrist’s fitness report in August of 2018, which indicated that Mr. Brick had FASD and attention deficit hyperactivity disorder [ADHD]. Trial counsel believed that Mr. Brick was able to understand both their communications and the nature of the legal proceedings. [ 31 ] Trial counsel testified that Mr. Brick did not tell him that he shot Mr. Chaisson in self-defence until mid-trial on March 10, 2020, before Mr. Pelly’s evidence in chief. The conversation with Mr. Brick occurred in an interview room at the court house.

Trial counsel’s evidence was that he was “taken aback” by Mr. Brick’s version of events, but proceeded to put to Mr. Pelly in cross-examination the question of whether Mr. Chaisson had pulled a gun on Mr. Brick. [ 32 ] Trial counsel’s evidence is that he had many discussions with Mr. Brick regarding testifying. He averred that he advised Mr. Brick not to testify, but did not prevent him from testifying or make the decision about testifying for Mr. Brick. He cited the reasons for this advice being that Mr. Brick had a history with violence and drug use, as well as gang involvement.

He believed the Crown would be able to “seriously damage” Mr. Brick’s credibility and reliability in cross-examination. [ 33 ] Trial counsel testified in this Court that when Mr. Brick raised his account of self-defence, he knew him to be lying. He did not interview Mr. Brick as to the circumstances of what occurred, and believed there was an absence of evidence to support his claim of self- defence: Q Okay. On – on your evidence, you knew during – during Mr. Brick’s trial that, according to Mr. Brick, he had shot the victim in self-defence -- A I didn’t -- Q -- correct? A I didn’t believe that was true. Q Okay.

A Mr. Brick – Mr. Brick has proven himself on multiple occasions with me that he’s capable of not telling the truth, and -- Q Okay. A -- I did not believe that was true. Excuse me. There was no evidence, (

a) there was another gun or that he was under any – under any threat. In fact, he told me the reason that he pulled over on Avenue B was because he was concerned that if he went into a parking lot or whatever it was at the time, that there might be other people or he might get robbed. Well, there – there was no evidence of any of that either. So, you know, I have to be cautious. When you put somebody up to provide testimony, at least in my respectful view, you should not be putting them up if they’re going to perjure – if you believe they’re going to perjure themselves.

That is not going to do anybody any good -- Q Well -- A -- particularly that witness. Q Okay. [trial counsel], I think you would agree with me that you personally as an accused person’s lawyer are not the arbiter about whether or not the accused is telling his lawyer the truth; right? A I am the arbiter of what I believe to be correct, and I can make -- Q Okay. A -- that choice as a lawyer, as can you, as to whether you want to represent somebody for whatever reason. If I don’t think the relationship is going to work, I can make that decision.

If I don’t think they’re going to be able to pay me – in this instance it wasn’t relevant – but I can make that decision. If I believe that they’re lying to me and that it’s – this is just going to be a mess, I can – and I don’t want to have anything to do with that mess, I can make that decision. [ 34 ] The trial began on March 9, 2020, at the beginning of the Covid-19 pandemic. The Crown closed its case on June 22, 2020.

Trial counsel’s evidence is that Mr. Brick attended court by video link on that date. He contacted Mr. Brick by phone that day anddiscussed the issue of him testifying. He averred that he explained to Mr. Brick there was no evidence of self-defence before the court, andno evidence corroborating Mr. Brick’s version of events. Trial counsel’s notes, which were adduced into evidence, did not contain theparticulars of that discussion with Mr. Brick. Trial counsel indicated that Mr. Brick advised that he did not wish to testify, and further thathe understood Mr.

Brick’s wish to appear remotely to be indicative of a desire not to testify. [35] In cross-examination before the Court, trial counsel testified that he had not discussed with Mr. Brick the operation of s. 34 ofthe Criminal Code in the context of his claim of self-defence: Q Okay. Now, did you ever have the conversation with Mr. Brick that if he was-- if he testified to self-defence and if the Crown had not negatived

Section 34of the Criminal Code, that Mr. Brick would be found not guilty of thehomicide?A No, I didn’t talk to him about

Section 34. There was no evidence of self-defence in any of the evidence, and I know you have all of the disclosure.There is zero evidence of any self-defence. There’s no other bullets. We wentthrough that with the -- with the forensic officer. There -- there was noevidence of it, and it’s wrong to put forward self-defence if there’s no self-defence. It doesn’t make any sense.Q Okay. Well, I’m going to suggest to you, [trial counsel], that the evidence forself-defence would have come from your client who was telling you that heshot Mr. Chaisson in self-defence.

That would have been the evidence.A He waited for that after he had heard all of the witnesses, and he told me thatin that back room in courtroom number 8, the Saskatoon -- what was then --Court of Queen’s Bench. That’s when he found it convenient to say that, andthat, my friend, was a lie. It was convenient.Q Okay. You’re -- you’re certain it was lie; right?A I’m very certain. You had to look at what took place beforehand, at -- at theother disclosure and the other evidence. There was evidence that there was adrug deal. In my mind it was pretty clear there was a drug deal.

In my mind itwas pretty clear that it was a drug deal that went south, that somebody wasn’thappy about. Nobody was in that vehicle except those five people includingMr. Brick, including Mr. Pelly, including Mr. Dreaver. Dakota never testifiedagain. But nobody talked about what they were in that vehicle for, not evenPelly. [36] Trial counsel testified that that he had advised Mr.

Brick that the best outcome possible at trial was a manslaughter conviction.When asked in cross-examination what legal route was available on the evidence to a manslaughter conviction, trial counsel testified thathe could not “recollect at this point in time exactly what [his] thinking was”, but that in his experience, other trials that began as first-degree murder “ended up as a manslaughter because of the way the testimony came out”. Trial counsel conceded that he had not used theword manslaughter in his closing submission to the trial judge, and that this “was an error”. III.

ANALYSIS [37] The issue to be determined is whether the fresh evidence should be admitted, and whether that evidence demonstrates that trialcounsel acted in an ineffective manner, resulting in a miscarriage of justice. The fresh evidence to be considered is the affidavits of Mr.Brick, Mr. Dreaver, and trial counsel, as well as their viva voce testimony before this Court. A. Should the fresh evidence be admitted? [38] Mr. Brick has applied to adduce fresh evidence pursuant to s. 683(1) of the Criminal Code. That

section reads as follows: Powers of court of appeal 683

(1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice, … (

d) receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness[.] [39] If the fresh evidence establishes that trial counsel provided ineffective representation and that, as a result, there was amiscarriage of justice, the evidence will be admitted and the conviction quashed (see R v Moore, 2002 SKCA 30 at para 2, 163 CCC (3d)343 [Moore]; R v S.G.T., 2011 SKCA 4 at para 37, 265 CCC (3d) 550 [S.G.T.]).

The governing principles for admission of evidence inthis context were recently summarized by Schwann J.A. in R v Bear, 2020 SKCA 86 at para 20, 389 CCC (3d) 437 [Bear], citing R vBelcourt, 2020 SKCA 73 at para 55, 389 CCC (3d) 303 [Belcourt]: [20] The principles that guide the exercise of the Court’s discretion in reference to s. 683(1) were recently set out in R v Belcourt, 2020SKCA 73 [Belcourt]: [55] The discretion reposed in an appellate court under s. 683 is most often invoked by an appellant who seeks to place additionalmaterial before the court relative to a factual or legal determination made at trial.

In such cases, the criteria established in Palmer guidesthe exercise of the Court’s discretion. See also R v W.W. and I.W. (1995) (ON CA), 84 OAC 241 (CA) at para

17 [W.W.], Joanisse at para 17, and Aulakh at para 57. The following principles emerge from what is now referred to as the Palmer test: (

a) the evidence should not be admitted if, by due diligence, it could have been adduced at trial; (

b) the evidence must be relevant and bear upon a decisive or potentially decisive issue at trial; (

c) the evidence must be credible in that it is reasonably capable of belief; and (

d) the evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected tohave affected the result. … [57] A modified Palmer test is applied when ineffective counsel is alleged as a ground of appeal. According to this formulation,fresh evidence may be “admitted if it is (

a) relevant to an issue before the appellate court, (

b) credible, and (

c) sufficient (ifuncontradicted) to warrant the making of the order sought” (R v Dreaver at para 33). See also R v Smith, 2007 SKCA 71, 223 CCC(3d) 114, Graham, and Aisaican at para 16. There appears to be consensus within the case law that where an allegationof ineffective trial counsel is made, the test for the admission of fresh evidence does not include the due diligence criterion: see Graham atpara 31. (Emphasis added) See also R v Power, 2022 SKCA 24 at para 30, [2022] 10 WWR 263 [Power]; R v Wolfe, 2021 SKCA 30 para 89, 404 CCC (3d) 141; R vDreaver, 2014 SKCA 133 at para 33, 446 Sask R 313. [40]

Section 683 provides for the admission of fresh evidence if it is in the “interests of justice”. However, that does not constitute“a free-standing, open-ended right to introduce fresh evidence on appeal” (Belcourt at para 60). As noted by Schwann J.A. in Belcourt, theadmission of fresh evidence is discretionary and “purpose driven and necessarily connected to the miscarriage of justice allegation”: [60] In my view, those authorities clarify that the phrase interest of justice is not a free-standing, open-ended right to introduce freshevidence on appeal.

The case law does not stand for the broad proposition that fresh evidence is admissible outright, unmooredfrom the grounds of appeal and the purpose for which the evidence is sought to be adduced. The application of s. 683 is purposedriven and necessarily connected to the miscarriage of justice allegation made by an appellant.

As discussed in W.W., and numerousother authorities, a court’s power in connection with the exercise of its authority under s. 683 is governed by specified criteria, and todetermine the criteria applicable in any given situation requires an examination of the grounds of appeal, the material tendered and theremedy sought. [61] In

summary, while the court’s authority to receive fresh evidence derives from s. 683, the exercise of its discretion to do so isgoverned either by the Palmer criteria or the modified test set out in Dreaver and Graham. The interests of justice threshold is notindependent of those tests nor is it disconnected from the grounds of appeal. As such, Mr.

Belcourt’s argument that the proposedfresh evidence must be admitted because it will – on its own – reveal the unreliability of the verdict, and hence a miscarriage of justice,must be assessed on the basis of the Palmer test specified in paragraph [55] above. (Emphasis added) [41] Applying these principles to the current circumstances, I will first address the relevance of the proposed evidence. Mr. Brick’sappeal is grounded solely in an ineffective counsel claim. His evidence, Mr. Dreaver’s evidence, and trial counsel’s response evidence,forms the foundation for consideration of that issue.

It is therefore highly relevant to the issue before the Court. [42] It is the second prong of the test, the one relating to the credibility of the fresh evidence, that gives some pause. The Crownargues that Mr. Brick’s own evidence is not credible, and cites R v Archer (2005), (ON CA), 202 CCC (3d) 60 (OntCA) [Archer], for the proposition that ineffective counsel claims generally should engender a “cautious approach” (at paras 141–142).However, many of the Crown concerns centre more on the reliability of Mr. Brick’s evidence.

The Crown correctly points out that Mr.Brick testified before this Court to details not included in his affidavit, such as trial counsel having entered pleas he did not agree to, trialcounsel having elected the mode of trial without instruction, and inconsistencies in his account of the timing as to when he advised trialcounsel that he shot Mr. Chaisson in self defence. Mr. Brick also testified to having problems with his memory.

The Crown argues Mr.Dreaver is not credible, as he admitted to lying at the preliminary hearing, has a lengthy criminal record containing obstructionconvictions, and has a history of dishonesty with the police. [43] Counsel for Mr. Brick addressed these issues directly, arguing that even if this Court finds there are credibility and reliabilityissues with respect to aspects of Mr. Brick’s and Mr. Dreaver’s evidence, there is uncontroverted evidence before the Court that does notsuffer from those frailties. Specifically, he points to trial counsel’s admission that (

a) Mr. Brick did advise him during the trial that Mr.Chaisson attempted to rob him at gunpoint, (

b) he did not interview Mr. Brick about the details of his self-defence claim, (

c) he believedthat Mr. Brick was lying, (

d) he did not advise Mr. Brick as to the operation of s. 34 of the Criminal Code, and the prospect of an acquittalif Mr. Brick testified, and if the Crown failed to prove beyond a reasonable doubt that self-defence did not apply, and (

e) trial counseladvised Mr. Brick that the best he could hope for in terms of an outcome was a manslaughter conviction (which is significant as Mr. Brickargues there was no pathway to such a result on the evidence). There is further common ground on the fact that trial counsel hadknowledge of Mr. Brick having FASD and ADHD. [44] I agree with Mr. Brick’s submission on this point that there is uncontroverted evidence that does not require this Court to wadeinto conflicting aspects of Mr. Brick and trial counsel’s evidence. Further, while there were inconsistencies in his overall account, it is myview that Mr.

Brick testified before this Court in a sincere and forthright manner. He readily admitted in cross-examination to havingmemory problems, addictions issues, and a history of criminal justice system involvement. Although he appeared to struggle at times tounderstand and respond to some of the more complex inquiries put to him, I am of the view he was not evasive, and attempted to answerquestions honestly and to the best of his ability. Overall, and without predetermining any future findings in another court proceeding as to

his credibility and reliability – I found Mr. Brick to be a credible witness. To the extent there are obvious reliability issues associated withMr. Brick’s account, I find that the crucial aspects of his evidence for the purposes of this appeal are corroborated by trial counsel. Ifurther accept Mr. Brick’s evidence that he likely would have testified to his account of self-defence at trial, but for the ineffectiveassistance of trial counsel. [45] Regarding Mr. Dreaver’s evidence, Mr.

Brick seeks to have it support his assertion of self-defence as being something that ismore than speculative (see R v Cinous, 2002 SCC 29, [2002] 2 SCR 3 [Cinous]). After hearing Mr. Dreaver testify, and withoutdetermining the underlying credibility and reliability of his account in any future court proceeding – I was persuaded that given the narrowway Mr. Brick seeks to rely upon this evidence in the context of his appeal, it is sufficiently credible and reliable to support self-defencebeing put to a jury. I note that Mr.

Dreaver gave a sensical explanation for his previous, and conflicting, testimony at the preliminaryhearing, i.e., having been brought to that hearing in custody and fearing he may face charges in this matter. I found he was matter of factand unwavering as to his reasons for coming forward with his evidence on Mr. Brick’s appeal. In any event, it is not his evidence that theappeal ultimately turns on. [46] While aspects of trial counsel’s account differed from that of Mr. Brick, there was no real assertion that trial counsel’s evidencewas not credible or reliable. Mr.

Brick in fact seeks to rely on trial counsel’s evidence regarding his advice to Mr. Brick on testifying, andother aspects of his representation. During lengthy cross-examination before this Court, trial counsel’s testimony remained relativelyconsistent with his affidavit filed in this proceeding. I find his account to be both credible and reliable on the key points relevant to theappeal. [47] To conclude on this point, I find that the proposed fresh evidence meets the credibility hurdle. Again, to the extent the Crown’sargument on Mr. Brick’s and Mr.

Dreaver’s credibility and reliability had some traction in certain respects – it is not necessary to considerand accept the whole of that fresh evidence to determine his appeal. The uncontroverted evidence of trial counsel, in and of itself, goes avery long way in this regard. [48] The last prong of the test to admit the fresh evidence concerns whether Mr. Brick’s proposed evidence is sufficient, ifuncontradicted, to warrant the making of the order sought. In other words, could this fresh evidence affect the result of the appeal. I findthat Mr. Brick’s proposed evidence meets this threshold.

There are points of common ground in his testimony and that of trial counsel’s,going to the heart of whether his decision not to testify was impacted by ineffective representation. Given Mr. Brick’s evidence that hewould have testified but for this ineffective assistance, and the evidence about the kind and quality of the legal advice that he received, theproposed evidence, as explained below, determines the result of the appeal. [49] All of this leads me to the conclusion that it is in the interests of justice in this case that the fresh evidence be admitted. Mr.Brick’s affidavit, Mr.

Dreaver’s affidavit, the response affidavit of trial counsel, along with the viva voce evidence of all three deponentsin cross-examination before this Court, will be admitted into evidence pursuant to s. 683 of the Criminal Code, as it is determinative ofthis appeal. I will now explain in more detail why that is so. B. Did trial counsel act in an ineffective manner, such that a miscarriage of justiceensued? [50] In order for Mr.

Brick to succeed on his appeal, he must establish that (1) trial counsel’s acts or omissions amounted toineffective representation; and (2) that a miscarriage of justice resulted (see R v White, 2022 SCC 7 at para 6, 411 CCC (3d) 419 [White],citing R v G.D.B., 2000 SCC 22 at para 26, [2000] 1 SCR 520 [G.D.B.]; see also Power at para 25).

The focus of the ineffective counselinquiry is ultimately on the issue of whether a miscarriage of justice occurred, and not the grading of defence counsel’s performance,having regard to the record and any fresh evidence admitted (R v Graham, 2019 SKCA 63 at para 25, [2019] 12 WWR 207 [Graham]). [51] In Power, Kalmakoff J.A. summarized the legal framework for considering an ineffective counsel appeal, including the twocomponents to a claim of ineffective representations, being prejudice and performance. “The initial focus is on the prejudice component.

Ifit is apparent from the record that no prejudice was suffered due to the alleged incompetence (i.e., there was no miscarriage of justice),then the claim should be disposed of on that basis and the performance part of the claim need not be considered” (Power at para 27, citingG.D.B. at para 29; see also Bear at para 40, and White at para 6). [52] I turn now to Mr. Brick’s argument on prejudice. 1. Prejudice [53] In order to establish prejudice, Mr. Brick must show that (

a) the ineffective assistance of trial counsel caused an adjudicativeunfairness, or (

b) if trial counsel had performed competently, there is a reasonable probability the verdict would have been different (seeG.D.B. at para 26; see also Power at para 54, Belcourt at para 51, R v Regnier, 2017 SKCA 83 at para 4 [Regnier]). The overarchingprejudice inquiry requires Mr.

Brick to demonstrate “that a miscarriage of justice has occurred as a result of counsel’s ineffectiveassistance” (R v Mehl, 2021 BCCA 264 at para 138 [Mehl], citing R v Meer, 2015 ABCA 141, 323 CCC (3d) 98, aff’d 2016 SCC 5,[2016] 1 SCR 23), and that that ineffective assistance resulted in a procedural unfairness, or compromise of the reliability of the result, orboth (G.D.B. at paras 29 and 34). [54] Mr. Brick’s principal argument in this case is that there is a reasonable probability that the verdict would have been different,but for the ineffective assistance of trial counsel.

The “prejudice issue turns on whether there is a reasonable probability that, but forcounsel’s errors, the results of the proceedings would have been different” (Belcourt at para 52, citing R v Joanisse (1995), (ON CA), 85 OAC 186 (CA) at para 65 [Joanisse] (leave to appeal to the SCC dismissed, [1997] 1 SCR viii). As to the ofteninterchangeable use of “reasonable possibility” versus “reasonable probability” in the case law, the applicable standard “lies somewherebetween a mere possibility and a likelihood” (Joanisse at para 80; see also Belcourt at para 53; Bear at paras 43–44). [55] Given the focus of Mr.

Brick’s submissions on certain uncontroverted aspects of the conduct of trial counsel, it is not necessaryto consider all aspects of Mr. Brick’s evidence that raise the prospect of prejudice. His argument has been narrowed to the point that trial

counsel failed to advise him on the operation of self-defence in the context of s. 34 of the Criminal Code, and that this undermined hisdecision about whether to testify. To paraphrase, s. 34(1) provides that an individual is not guilty of an offence if they (

a) believe onreasonable grounds that force is being used or threatened against them or another person, (

b) that the act is committed for the purposes ofdefence or protection of themselves or another person, and (

c) that the act committed is reasonable. Section 34 (2) lists several factors thatthe court shall consider in determining whether the act committed was reasonable in the circumstances. [56] Mr. Brick argues that his claim of self-defence meets the s. 34(1) criteria, having regard to the factors enumerated at s. 34(2),and that, had he testified, the defence would have been “put in play”, requiring the Crown to prove beyond a reasonable doubt that it didnot apply, and that his act in response to the force or threat of force by Mr.

Chaisson was unreasonable (Cinous at para 52; R v Khill, 2021SCC 37 at paras 120-121, 409 CCC (3d) 141). Thus, according to Mr. Brick, there was the possibility of an acquittal if his defencesucceeded. Mr. Brick says that, without meaningful advice, he could not make an informed decision on testifying. Related to this, he notesthat trial counsel concluded that he was lying, even though trial counsel did not interview him about his account of the shooting. [57] In support of his position that failing to provide advice around the decision to testify can amount to ineffective representationby counsel, Mr.

Brick relies on the Ontario Court of Appeal decision in R v Trought, 2021 ONCA 379, 156 OR (3d) 481 [Trought], citingR v Stark, 2017 ONCA 148, 347 CCC (3d) 73 [Stark], and R v K.K.M., 2020 ONCA 736 [K.K.M.]: [49] Because the right to make these decisions belongs to the client, counsel cannot make them alone. As Lauwers J.A. said in Stark,the question is whether “counsel has made certain decisions that should have been made by the accused person because they relate to theaccused person’s fundamental right to control his or her own defence”: at para. 16, citing R. v.

Swain, (SCC), [1991] 1S.C.R. 933, at p. 972. [50] With respect to these fundamental decisions, ones that belong to the client, all the lawyer can do is provide advice and act onproper instructions. But that advice must be competent. As Doherty J.A. said in K.K.M., at para. 91: An accused is denied his right to choose whether to testify when counsel actually makes the decision, or when counsel provides noadvice or advice that is so wanting, as to preclude the accused from making a meaningful decision about testifying.

In thosesituations, counsel’s ineffective representation denies the accused the right to make a fundamentally important decision about theconduct of his defence. That denial goes to the appearance of the fairness of the trial, if not the actual fairness of the trial. Either results ina miscarriage of justice, regardless of the impact of the ineffective representation on the reliability of the verdict. … (Emphasis added) See also Mehl. [58] White, a recent decision of the Supreme Court, rejected an aspect of Stark.

As counsel argued White’s applicability in differingways, a comment on its implications is appropriate. White considered G.D.B. and Stark in the context of an appellant arguing that hiscounsel elected his mode of trial without instruction. White adopted G.D.B.’s holding that “counsel’s failure to discuss and obtaininstructions on fundamental decisions relating to an accused’s defence ‘may in some circumstances raise questions of procedural fairnessand the reliability of the result leading to a miscarriage of justice’” (White at para 7).

However, it rejected the Stark proposition that “theloss of those decisions alone warrants a new trial on ineffective assistance grounds”, finding that “[t]he accused must, in most cases,demonstrate more than the loss of choice” (White at para 7). [59] It may be that White has some impact on the line of case authority flowing from and referenced in Stark, including Trought,Mehl, and K.K.M., to the extent any hold that a miscarriage of justice is made out simply by an appellant demonstrating a loss of choiceonly in defence decisions.

However, White is a choice of election case, not one dealing with the informed decision to testify (although thecase authority has intermingled these considerations). White also does not negate the reasoning in Trought and G.D.B. that a failure ofcounsel to advise on a crucial aspect of defence, such as the decision to testify, may impact the reliability of a result in somecircumstances. White in fact affirms that reasoning (at para 7). [60] Given Mr. Brick’s evidence, I do not need to comment on the implications of White more broadly.

Accepting that the Whitereasoning is applicable in this case – it does not undermine Mr. Brick’s argument. His evidence is that he would have testified, but for theineffective advice he obtained from trial counsel. White adopted the reasoning in R v Wong, 2018 SCC 25, [2018] 1 SCR 696, that“subjective prejudice” requires that “an accused demonstrate there was a ‘reasonable possibility’ they would have acted differently” ifthey were aware of the legally relevant consequences (White at para 8, citing Wong at para 6). That reasonable possibility exists here. Tothat end, I reference the following excerpt from Mr.

Brick’s affidavit: 85. At my trial, I wanted to testify and tell the Trial Judge that I was acting in self-defence when I shot [Mr. Chaisson]. TrialCounsel would not permit me to testify, and made the decision not to call evidence on his own, without obtaining instructions from me. (Emphasis added) [61] Mr. Brick further testified as follows in cross-examination by Crown counsel before this Court: Q Do you remember, after Mr.

Pelly testified -- you’re -- you’re familiar with --A Before he testified, I -- I was telling [trial counsel] that they -- that I wanted --I told him -- [trial counsel] that, Listen, Pelly’s going to be on the stand. Pleaseask these questions. Like, Please bring up him doing this, or, Ask him thisquestion. And it -- I -- I told him to do that. I told him I wanted to -- I wantedto testify because I -- I knew this guy was going to be lying.

So I -- I wantedto be able to take the stand and tell the judge, like, my story.Q If somebody’s lying, isn’t it a lot of work for you to want them to show up andthen convince someone they’re not lying -- sorry -- that -- that they are lying?Wouldn’t it be better if they just didn’t show up so nobody hears about it?

A No. Because he -- he was part of the -- I was hoping he was going to tell thetruth on what happened. ‘Cause I knew, that from the beginning, that this guywas lying. That --Q You had already heard him at the preliminary hearing --A Yeah.Q -- give a testimony.A Yeah.Q It wasn’t good. So you want him to show up at trial, and then you’re going totry to convince the judge not to believe him --A Yes.… Q Didn’t -- without -- without him, the Crown didn’t even have a case, did it?A I -- I don’t even know.Q You don’t even know? Okay. All right. Of the people who were in the car,other than yourself and Mr.

Pelly --A I needed him to come.Q Can I -- can I ask my question?A Yes. Go ahead.Q Of the people who were in the car that night, other than yourself andMr. Pelly, was there anybody else in the courtroom for the trial?A Yeah. I was supposed to take the -- I wanted to take the stand. (Emphasis added) [62] Mr. Brick’s evidence leads me to the conclusion that he has demonstrated that there was a reasonable possibility he would haveacted differently, and that he would have testified, had he known of the operation of s. 34 and the possibility of an acquittal.

His appeal istherefore not about the loss of choice only and meets the subjective prejudice test discussed in White. [63] The Crown’s overall submission on the issue of prejudice is that even if Mr. Brick testified, the verdict would not have beenaffected. Citing Cinous, the Crown says that there is no “air of reality” to Mr. Brick’s defence of self-defence, as his actions were notreasonable within the meaning of s. 34(1) and (2) of the Criminal Code. Cinous involved a jury trial.

It stands for the proposition thatthere must be an evidentiary foundation to ground a finding or inference of objective reasonableness of an accused’s actions in the contextof self-defence. Cinous also holds that there must be an “air of reality” to all elements of a defence, in order to prevent speculativedefences being put to a jury. [64] Respectfully, I disagree that Cinous, or a discussion of the “air of reality” in relation to Mr. Brick’s claim of self-defence,assists the Crown.

The issue in this case is whether the verdict was compromised by the ineffective assistance by trial counsel, andwhether a miscarriage of justice resulted. In my view, the proposed testimony of Mr. Brick that Mr. Chaisson attempted to rob him atgunpoint, in a closed vehicle, with three other passengers present, raises the prospect of objective reasonableness in the context of s. 34.While not determinative of this issue, as Mr. Brick’s evidence, in my view, would suffice, I note that Mr. Dreaver’s evidence supports thisaccount. Put simply, there is enough on the face of Mr.

Brick’s proposed testimony such that self-defence would have been at play had hetestified. Thus, the Crown’s submission ignores the fact that the reliability of the verdict is in question, as Mr. Brick has demonstrated areasonable probability that the outcome would have been different, but for the ineffective assistance. [65] All of this leads me to conclude that Mr. Brick has established that there is a reasonable probability or possibility (somethingbetween a mere possibility and a likelihood, as per Belcourt) that the verdict would have been different, but for the ineffective assistancealleged.

Specifically, there is a reasonable possibility that Mr. Brick may have testified, and that this could have affected the outcome ofthe trial. Without trial counsel advising Mr. Brick on the operation of s. 34 of the Criminal Code, and that his testimony would raise theissue of self-defence, requiring the Crown to disprove its applicability beyond a reasonable doubt – he could not make an informeddecision as to whether to testify. There was no other evidence before the trial judge as to self-defence, and no other pathway to a potentialacquittal.

This problem is compounded by trial counsel’s collateral representations to Mr. Brick that manslaughter was a possible outcome,despite there being no obvious route to manslaughter on the evidence. [66] I conclude therefore that Mr. Brick has demonstrated prejudice. I turn now to the performance analysis. 2. Performance [67] As it pertains to this case, the performance aspect of the test requires Mr.

Brick to establish that “trial counsel’s representation[fell] below the standard of reasonable professional judgment expected from a lawyer” (Moore at para 55; R v Smith, 2007 SKCA 71 atpara 5, 223 CCC (3d) 114; Mehl at para 136, citing Joanisse (1995), (ON CA), 102 CCC (3d) 35 (QL) (Ont CA) atparas 72–73; R v Aulakh, 2012 BCCA 340 at para 44, 295 CCC (3d) 315; G.D.B. at para 27; see also S.G.T. at para 49; Graham at para27). [68] There is a presumption of trial counsel’s competence, measured against a standard of reasonableness, with hindsight playing norole in the analysis (Smith at para 5, citing G.D.B. at para 27).

Mr. Brick must “establish the conduct of counsel, whether acts oromissions, that are alleged not to have been the result of reasonable professional skill” (Power, para 25; R v G.(D.M.), 2011 ONCA 343 atpara 107, 275 CCC (3d) 295, citing G.D.B. at para 27; see also Regnier at para 5). [69] I agree with Mr. Brick’s submission that effective representation includes providing an accused person with reasonable adviceon the decision to testify (see Moore at paras 48, 51–54; Mehl at para 146; Archer; G.D.B. at para 34; Trought).

The depth and detail ofthat advice must fit both the circumstances and capacities of the particular accused. To that end, the comments of the Ontario Court ofAppeal in R v D.A., 2020 ONCA 738, 396 CCC (3d) 151, are pertinent: [32] Effective representation by counsel includes advice as to whether or not to testify: Archer, at para. 139. As noted in G.D.B., atpara. 34, defence counsel are ethically bound to discuss the decision whether or not to testify with the client and must obtain instructions

from the client about his or her choice. [33] That advice should include a review of the advantages and disadvantages of testifying in language that the accused personunderstands. The decision whether to testify is ultimately the client’s, but the client cannot make an informed decision unless he or sheunderstands what is at stake at this crucial moment in the proceedings. The form and content of that review will vary in almost everycase. In some cases, a skeletal discussion may suffice. In others a more detailed review will be required. Sometimes it will belengthy, at other times it may be quite brief.

Counsel should document that discussion, by a scribbled note to file if more is not possible. (Emphasis added) [70] Mr. Brick argues that the importance of advice on testifying in this circumstance was particularly crucial because, given theCrown’s case, there was no pathway to an acquittal or even to manslaughter unless he testified. There was no other evidence of self-defence before the trial judge. In light of this, he asserts that trial counsel had an obligation to advise him of the “danger of not testifying”(R v Ross, 2012 NSCA 56 at para 40, 290 CCC (3d) 555). Mr.

Brick submits that trial counsel’s failure to advise him negated his ability tocontrol his defence (citing R v Swain, (SCC), [1991] 1 SCR 933 at 972). He also says that trial counsel’s determinationthat he was lying was improper and not supported by any specific knowledge that he was being untruthful. [71] I agree with Mr. Brick that, in the circumstances here, trial counsel’s advice (or lack thereof) surrounding Mr. Brick’stestimony fell below the standard of effective representation. Even though trial counsel may have had an honest belief that Mr.

Brick waslying, this did not negate the need to advise him on the framework of self-defence and the impact of that defence being raised (Moore atparas 53–55). Any decision Mr. Brick made or could make with respect to testifying – in the context of a trial where the Crown’s case forculpable homicide was overwhelming – was therefore done without “the full and careful advice of his counsel” (Moore at para 48; seealso R v Chrispen, 2009 SKCA 63 at para 17, 331 Sask R 212). [72] The conclusion of trial counsel that Mr. Brick was lying, and that the self-defence theory was not worth exploration, was alsoerroneous.

The Quebec Court of Appeal in R v Delisle (1999), (QC CA), 133 CCC (3d) 541 (QL) (Que CA),confirmed that “counsel must not set himself up as the judge of his own client”, and that it is for the “trier of fact to decide guilt orinnocence” (at para 56). Trial counsel could not point to objective support for his conclusion that Mr. Brick was lying, and further had nottaken the step of obtaining the details of Mr. Brick’s account before coming to that conclusion. The fact there was conflicting evidence inthe Crown case was not indicative of Mr.

Brick’s dishonesty. [73] This is made all the more problematic by trial counsel’s knowledge that Mr. Brick was living with FASD. I agree with thereasoning in D.A. that trial counsel’s advice and manner of communication needed to be tailored to Mr. Brick’s needs and level ofsophistication. It was evident in his cross-examination before this Court that Mr. Brick struggled to understand complex questions andconcepts. Trial counsel had represented Mr. Brick historically and had the benefit of a 2018 psychiatric assessment confirming some ofMr. Brick’s psychological issues. Further, Mr.

Brick’s evidence is that he had never had a trial before and had never had to navigatedecision-making in that context. Additional care in advising on a major decision, like whether to testify, was required by trial counsel inthis circumstance. [74] To conclude the performance analysis, while I appreciate the pressures that busy defence counsel face, and I further accept thattrial counsel undoubtedly did his best to represent Mr. Brick’s interests – I find that his conduct in advising (or not advising) Mr. Brick onthe issue of testimony was inadequate. Not only did he fail to advise Mr.

Brick on the operation of s. 34, he concluded there was no meritto the defence without interviewing Mr. Brick as to the particulars, and by relying on his personal view that Mr. Brick was lying. This wascompounded by his advising Mr. Brick that a manslaughter conviction was the best possible outcome, when an acquittal was possible. Irespectfully conclude that this conduct fell below the reasonable professional judgment expected of a lawyer, in the context of a trialwhere the Crown case for culpable homicide was strong. 3.

Miscarriage of justice [75] As noted in G.D.B., “[m]iscarriages of justice may take many forms in [the context of ineffective counsel appeals]. In someinstances, counsel’s performance may have resulted in procedural unfairness. In others, the reliability of the trial’s result may have beencompromised” (at para 28; see also R v. R.S., 2016 ONCA 655, 341 CCC (3d) 530). [76] In this set of facts, I have no hesitation in concluding that Mr. Brick has demonstrated that a miscarriage of justice occurred, asthe ineffective conduct of trial counsel undermined the reliability of the verdict. On that basis, Mr.

Brick’s appeal must succeed. IV. REMEDY [77] Given the above conclusion, Mr. Brick’s murder conviction must be set aside and the matter remitted to the Court of King’sBench for trial on second-degree murder. [78] There remains the unusual Crown request that if this Court orders a new trial, it should be restricted to the defence presentationof evidence pursuant to s. 686(8) of the Criminal Code. That

section reads as follows: 686(8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, inaddition, that justice requires. [79] In R v R.V., 2021 SCC 10, 402 CCC (3d) 295, the Supreme Court of Canada identified three requirements to exercising theresidual power under s. 686(8): [74] … For an appellate court to issue an order under its s. 686(8) residual power, three requirements must be met (R. v. Thomas, (SCC), [1998] 3 S.C.R. 535). First, the court must have exercised one of the triggering powers conferred under s. 686(2), (4),(6) or (7).

Second, the order issued must be ancillary to the triggering power. Consistent with the provision’s “broad remedial purpose”,

this Court has taken a flexible approach in determining whether the order is “in addition” to the exercise of the triggering power (R. v.Hinse, (SCC), [1995] 4 S.C.R. 597, at para. 30). In particular, the additional order need not directly advance the exerciseof the triggering power (Hinse, at paras. 31-32; see, e.g., R. v. Power, (SCC), [1994] 1 S.C.R. 601, at pp. 615-18; R. v.Provo, (SCC), [1989] 2 S.C.R. 3, at pp. 19-21; Terlecki v. The Queen, (SCC), [1985] 2 S.C.R. 483, at pp.483-84).

It is enough that the ancillary order not be “at direct variance with the court’s underlying judgment” (Thomas, at para. 17; seealso R. v. Warsing, (SCC), [1998] 3 S.C.R. 579, at paras. 72-74). Third and finally, the order must be one that “justicerequires”. [80] The Crown argues that the “justice requires” assessment must take into account not only the interests of the accused, but theadministration of justice. In support of this argument, it cites the distinguishable circumstance in R v Pearson, (SCC),[1998] 3 SCR 620, which dealt with a post-verdict direction of a trial limited to the issue of entrapment.

It also cites R v Thomas, (SCC), [1998] 3 SCR 535 [Thomas], where an accused had admitted an unlawful act causing the death of a victim, and a newtrial was directed by the British Columbia Court of Appeal on the issue of intent and intoxication, related to the question of whether theaccused was guilty of manslaughter or second-degree murder.

The Supreme Court held that the Court of Appeal had no power to limit thetrial in this way and ordered a full trial (albeit in the context of a jury trial). [81] The Court in Thomas commented on the use of s. 686(8) to restrict issues in a new trial as follows: [52] Orders made pursuant to s. 686(8) to restrict the issues on a new trial have been made where the only issue at the end of theappeal relates to the defence of entrapment or insanity. For example, this Court’s decision in Pearson, supra, upheld the order for arestricted new trial on the issue of entrapment pursuant to s. 686(8).

Furthermore, the Courts of Appeal of Ontario and British Columbiamade additional orders limiting a new trial to the issue of entrapment in R. v. Maxwell (1990), (ON CA), 61 C.C.C.(3d) 289 (Ont. C.A.); R. v. Barnes (1990), (BC CA), 54 C.C.C. (3d) 368 (B.C.C.A.), aff’d (SCC),[1991] 1 S.C.R. 449; R. v. Laverty (1990), (BC CA), 80 C.R. (3d) 231 (B.C.C.A.), and supplementary reasons,November 1, 1990, Victoria Registry V00270. As well, a five-member panel of the Ontario Court of Appeal restricted the retrial on theissue of insanity at the time of the commission of the offence in Reference re Regina v.

Gorecki (No. 2) (1976), (ONCA), 32 C.C.C. (2d) 135. [53] A new trial restricted to specific verdicts may also be appropriate where the only issue at the end of the appeal is whetherthe accused is guilty of manslaughter or second degree murder. In R. v. Wade (1994), (ON CA), 89 C.C.C. (3d)39, reversed on another point (SCC), [1995] 2 S.C.R. 737, the Ontario Court of Appeal restricted the new trial towhether the accused was guilty of manslaughter or second degree murder, thereby foreclosing the accused from raising the defence ofautomatism already rejected by a previous jury.

Doherty J.A. stated in Wade, supra, at p. 65: From a jurisdictional perspective, I can see no difference between limiting a new trial to the issue of entrapment or insanity, and limiting anew trial to the question of whether the appellant is guilty of murder or manslaughter.

The authorities, considered along with the languageof s. 686(8) and the command to interpret that language broadly found in R. v. [Provo], supra, satisfy me that this court has the jurisdictionto limit a new trial to the determination of whether the appellant committed murder or manslaughter. [54] Doherty J.A. in Wade, supra, at pp. 65-66, pointed out that trials limited to the issue of manslaughter or second degree murder arenot unknown.

These trials occur when the accused admits causing the death of the victim but claims that he or she did not possess the stateof mind required for murder. [55] This said, I fully endorse the position of the Court of Appeal in Gorecki (No. 2), supra, and in Wade, supra, that an orderrestricting a new trial represents an exceptional remedy that justice will require in “special circumstances”. … (Emphasis added) [82] The Court in Thomas concluded that “an order restricting a new trial may exceptionally be available where it is beyondreasonable doubt that the accused committed the guilty act and the only outstanding issue relates to the legal quality of that act by reasonof the accused’s mental state or by reason of possible excuses or defences, like entrapment” (at para 58, emphasis added; see also R vHartman, 2015 ONCA 498, 326 CCC (3d) 263, a new trial on the issue of not criminally responsible; R v Luedecke, 2008 ONCA 716, 236CCC (3d) 317, a new trial on the issues of automatism and not criminally responsible).

R v Warsing, (SCC), [1998] 3SCR 579, added to this reasoning by holding that a limited trial cannot undermine the presumption of innocence, nor the ability of anaccused to control his or her defence (at paras 73–74).

In a related vein, R v Cowan, 2021 SCC 45, 409 CCC (3d) 287, held that an orderfor a limited trial cannot “[threaten] the integrity of the criminal process by distorting the truth-seeking function of the courts”, and canfurther not “restrict the available theories of liability” at a new trial (at paras 63 and 66). [83] Having regard to these authorities, I do not find it is in the interests of justice to order a limited trial in Mr. Brick’s case. This isso for three reasons. [84] First, Mr. Brick’s version of events was not fully put to Mr.

Pelly, beyond a passing inquiry in cross-examination by trialcounsel as to whether Mr. Chaisson had a weapon. The inability to put the full account of Mr. Brick to Mr. Pelly raises a Browne v Dunn(1893), 6 R 67 (UK HL) issue, as well as a larger issue with respect to Mr. Brick’s strategic approach to cross-examination and ability tocontrol his defence. [85] Second, from the standpoint of the logistics of a new trial, the Crown initially suggested the original trial judge coulddetermine the matter after hearing defence evidence. However, that trial judge has now retired.

In such circumstances, it would seem tome that it would be neither fair to the new trial judge nor to Mr. Brick to order a partial trial. [86] Third, while I appreciate the difficulties the Crown may face marshalling its case after a significant passage of time, this doesnot tip the balance in favour of a new trial limited to Mr. Brick’s evidence. In my view, a full trial corresponds to the interests of justice,when considering the jeopardy that Mr. Brick faces and the nature of the case as a whole.

This is not an instance that fits cleanly withinthe authorities, where a finding of guilt has been made, and there is only the issue of intent and / or culpability via avenues of not

criminally responsible or entrapment. Mr. Brick’s self defence argument raises the possibility of an acquittal. [ 87 ] Mr. Brick’s matter will therefore be remitted for trial on second-degree murder. [ 88 ] Mr. Brick was detained in custody on a King’s Bench remand warrant pursuant to s. 516(1) prior to the disposition of his trial matters. He shall remain in custody on that basis until either (

a) he is brought before the Court of King’s Bench to be dealt with under

Part XVI of the Criminal Code , or (

b) he makes application to a judge of this Court to be dealt with in accordance with s. 679(7.1) of the Criminal Code . A warrant remanding him may be issued by the Registrar of this Court to that effect. “Drennan J.A.” Drennan J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Jackson J.A.” Jackson J.A.