R. v. Skinner, [1998] 1 S.C.R. 298
Stacey Skinner Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Skinner
File No.: 25831.
1997: December 5; 1998: February 19.
Present: Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for nova scotia
Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Duty to disclose ‑‑ Accused convicted of aggravated assault -- Crown not disclosing statements made by four individuals -- Summary of statements included in police reports provided to defence counsel at trial -- Appropriate test for determining whether Crown’s inadvertent failure to disclose relevant material violated accused’s right to disclosure ‑‑ If right to disclosure violated, appropriate test for determining whether constitutional right to make full answer and defence impaired ‑‑ Effect to be given defence counsel’s lack of due diligence.
The accused was convicted of the aggravated assault of Watts. One distinction from the other companion cases was that the Court of Appeal found that counsel had exercised due diligence. The court noted that counsel was inexperienced and observed that she believed that the police occurrence reports contained the fourth statement (Daye’s) in full and therefore believed there was no reason to make further demands.
Held: The appeal from conviction for the assault of Watts should be allowed and a new trial ordered.
R. v. Dixon set out the principles applicable to situations involving the Crown’s duty to disclose and an accused’s right to make full answer and defence.
Although it may well be that the inexperience of counsel should not be considered an appropriate ground for excusing the failure to exercise due diligence, it was accepted that counsel here exercised due diligence. For the reasons set out in Dixon, the fourth of the undisclosed statements (Daye’s), on its face, could have had very little, if any, impact on the reliability of the result reached at trial. Nevertheless, the fairness of the trial process, given that the Court of Appeal found trial counsel to be duly diligent in pursuing full disclosure, could have been affected by the Crown’s failure to disclose that statement because the defence could have garnered additional evidence flowing from this statement that could have affected its strategy. It was reasonably possible that disclosure would have had an impact on the conduct of the defence.
Cases Cited
Followed: R. v. Dixon, [1998] 1 S.C.R. 000.
APPEAL from a judgment of the Nova Scotia Court of Appeal (1997), 158 N.S.R. (2d) 81, 466 A.P.R. 81, [1997] N.S.J. No. 22 (QL) (sub nom. R. v. McQuaid (Skinner Appeal)), dismissing the accused’s appeal from his conviction on two counts of aggravated assault (1996), 148 N.S.R. (2d) 321 (sub nom. R. v. McQuaid), 429 A.P.R. 321, [1996] N.S.J. No. 81 (QL). Appeal from conviction for the assault of Watts allowed and new trial ordered.
Warren K. Zimmer, for the appellant.
Kenneth W. F. Fiske, Q.C., and Richard B. Miller, for the respondent.
//Cory J.//
The judgment of the Court was delivered by
1 Cory J. -- This appeal was heard on the same day as R. v. Dixon, [1998] 1 S.C.R. 000. It arises out of the same factual circumstances as the Dixon appeal and similar issues are raised. These reasons will address only those points unique to this appeal.
I. Factual Background
2 The factual background of this appeal is set out in Dixon, supra.
II. Decisions Below
A. Nova Scotia Supreme Court (1996), 148 N.S.R. (2d) 321
3 Saunders J., for reasons set out in Dixon, supra, convicted the appellant of the aggravated assault of Darren Watts. He also convicted the appellant of the aggravated assault of John Charman. This appeal arises in relation to the assault of Watts only.
B. Nova Scotia Court of Appeal (1997), 158 N.S.R. (2d) 81
4 In considering due diligence of counsel, Flinn J.A. (Chipman J.A. concurring) noted that trial counsel for the appellant did not commence to practise law until October 1994 and that the appellant’s trial in February 1996 was counsel’s second criminal trial in the Nova Scotia Supreme Court. Flinn J.A. observed that in her affidavit filed with the Court of Appeal, trial counsel for the appellant stated she was not even aware that a separate statement of Terris Daye existed. It was her belief that Daye’s full statement was contained in the police occurrence reports. Since she thought she had everything in her possession, there was no reason for her to make further demands for production. Further, trial counsel did not represent the appellant in the Court of Appeal and had no further involvement in the appellant’s representation after conviction and sentencing. As a result, she did not attend the meeting to discuss appeal issues attended by other defence counsel, which led to the demand for production of Daye’s statement. She therefore did not share the same unexplained post‑trial change of heart of other trial counsel concerning the importance of the statement. The majority concluded that trial counsel for the appellant had exercised due diligence in pursuing disclosure. Therefore, based solely on the conclusion that Daye’s statement was not material to the defence, the majority concluded that the appellant’s right to make full answer and defence had not been impaired by the Crown’s failure to disclose Daye’s statement.
5 Bateman J.A. dissented for the same reasons set out in R. v. Dixon (S.) (1997), 156 N.S.R. (2d) 81. Thus the Court of Appeal was unanimous in its finding that trial counsel for the appellant was duly diligent in pursuing disclosure, and as a result, the issue does not arise in this Court. Bateman J.A. also agreed with the majority that the appeal from conviction in relation to the assault on John Charman should be dismissed, as the appellant had admitted to this assault in his own statement to police. However, Bateman J.A. held that the right of the appellant to make full answer and defence was impaired by the Crown’s failure to disclose Daye’s statement. She would have directed a new trial on the basis that had the Daye statement been available to the defence, there was a reasonable possibility that the result might have been different and that the failure to disclose the statement affected the fairness of the trial.
III. Analysis
6 The principles applicable to situations involving the Crown’s duty to disclose and an accused’s right to make full answer and defence are set out in this Court’s judgment in Dixon, supra. It remains only to apply those principles to this appeal, which is based on the failure to disclose Daye’s statement only.
Application to this Appeal
7 Unlike the companion appeals, no finding has been made that trial counsel for Skinner failed to exercise due diligence in seeking Crown disclosure. The Court of Appeal was unanimous in this conclusion and no issue has been raised as to its correctness. In the circumstances nothing can be said about it. Yet it may well be that the inexperience of counsel should not be considered an appropriate ground for excusing the failure to exercise due diligence. Nevertheless, for the purposes of this appeal it must be accepted that Skinner’s trial counsel exercised due diligence in this regard.
8 For the same reasons set out in Dixon, supra, Daye’s statement, on its face, could have had very little, if any, impact on the reliability of the result reached at trial. Nevertheless the appellant will be entitled to a new trial if he can show that the non‑disclosure of this statement affected the overall fairness of the trial process. This is accomplished if it is demonstrated that non‑disclosure of the statement deprived the defence of opportunities to garner additional evidence.
9 In the circumstances of this case, there is a reasonable possibility that the fairness of the trial process was affected by the Crown’s failure to disclose Daye’s statement. In this regard, it must be taken into account that the Court of Appeal was unanimous in finding that trial counsel for the appellant was duly diligent in pursuing full disclosure at trial. Particularly, the Court of Appeal accepted her affidavit as evidence that she was unaware that there existed any other statement of Daye beyond the summary disclosed in the police occurrence reports. The summary, it should be noted, did not include any reference to Daye’s statements concerning the appellant and his actions on the night in question. Further she did not attend the meeting of other defence counsel to discuss appeal issues. As a result she could not be said to have had the same change of heart as to the desirability of obtaining the undisclosed statements, in particular, that of Terris Daye.
10 In these circumstances, did the Crown’s failure to disclose Daye’s statement affect the fairness of the trial process by depriving the defence of opportunities to garner evidence flowing from this statement? There is, I believe, a reasonable possibility that the defence could have garnered additional evidence flowing from this statement which may have been of use at trial.
11 The statement reveals (i) that Daye was an eyewitness; (ii) that Daye contradicts Clayton’s evidence in relation to at least one of the assaults; (iii) that Daye was able to fix the appellant’s location during the initial stages of the events, and thus, at some point, was in a position to observe the appellant; (iv) that Daye did not see the appellant hit anyone. Daye’s statement should have been disclosed to defence counsel. The failure to disclose it affected the fairness of the trial process since the defence was denied the opportunity to explore possible uses of this information.
12 For example, there is a reasonable possibility that had the undisclosed statement been produced by the Crown, it could have affected the defence’s decision not to call evidence. The defence may have chosen to call Daye as a witness to contradict Clayton’s testimony and challenge his credibility. On an appeal, it is impossible to reconstruct the trial process and determine exactly how the defence might have used the undisclosed statement. Yet there does appear to be sufficient relevant information contained in Daye’s statement that its possible utility to the defence is not a matter of pure speculation or fancy. It is reasonably possible that disclosure of this statement would have had an impact on the conduct of the defence at trial. I conclude therefore that non‑disclosure of this statement affected the fairness of the trial process and impaired the appellant’s right to make full answer and defence.
13 It is true that trial counsel for the appellant was aware long before the trial began that Daye was a potential eyewitness. Yet it is no answer to the impairment of the appellant’s right to make full answer and defence to say that defence counsel could have or should have interviewed Daye. Indeed, on appeal the issue to be considered is whether decisions made at trial would have been different if the undisclosed information had been available.
14 It is also true that if the Crown has disclosed alternative sources of the same information contained in the undisclosed material, the Crown has fulfilled its disclosure obligations. In this regard, the disclosure of the summary of Daye’s statement in the police occurrence report must be considered. It reveals (i) that Daye was an eyewitness, which counsel for the appellant would already have known; (ii) that Daye observed two circles around Darren Watts; and (iii) that Daye was able to identify Charman’s assailants. However, the summary does not include any reference to Daye’s statements concerning the appellant and his actions on the night in question. Thus, the appellant was deprived of this information, and it cannot be said that the Crown disclosed an alternative source of the information contained in Daye’s statement to the police.
15 This appeal does not involve either a tactical decision at trial or a failure to exercise due diligence in pursuing disclosure. In the circumstances of this case it must be concluded that there is a reasonable possibility the fairness of the trial process was adversely affected by the Crown’s failure to disclose Daye’s statement. As a consequence, the appellant’s right to make full answer and defence was impaired.
IV. Disposition
16 The appeal by Skinner for his conviction for the assault of Darren Watts is allowed and a new trial is directed.
Appeal from conviction for the assault of Watts allowed and new trial ordered.
Solicitor for the appellant: Warren K. Zimmer, Halifax.
Solicitor for the respondent: The Nova Scotia Public Prosecution Service, Halifax.