R. v. Smith

Cory J. -- This appeal was heard on the same day as R. v. Dixon, [1998] 1 S.C.R. 244. 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.

The factual background of this appeal is set out in Dixon, supra.

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 Rob Gillis. This appeal arises in relation to both convictions.

The majority of the Court of Appeal (Chipman J.A. (Flinn J.A. concurring)) stated that its reasons in this appeal were the same as those set out in its decision in R. v. Dixon (S.) (1997), 156 N.S.R. (2d) 81, except with regard to the due diligence of counsel.

On that issue Chipman J.A. held that once trial counsel for the appellant became aware of the existence of the missing statements during the course of trial, he was faced with a choice: “call for the statements or risk having to live without them” (p. 69). He found that counsel would only accept the summaries included in the occurrence report as an alternative to production of the statements if it had been decided not to pursue disclosure. Based on counsel’s lack of due diligence in the face of the Crown’s failure to disclose, and the conclusion in R. v. Dixon (S.), supra, that the undisclosed information was of no weight, the majority dismissed the appeal from conviction.

Bateman J.A. dissented for the same reasons set out in R. v. Dixon (S.), supra. She would have ordered a new trial for the appellant in relation to both convictions.

The principles applicable to situations involving the Crown’s duty to disclose relevant material 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.

The statement of Terris Daye is reviewed in some detail in this Court’s judgment in Dixon, supra. For the reasons given there, the failure to disclose Daye’s statement cannot have affected either the reliability of the appellant’s conviction or the fairness of his trial for the aggravated assault on Darren Watts under s. 21(1) of the Criminal Code , R.S.C., 1985, c. C-46 . However the same reasoning cannot apply to the conviction of the appellant as a principal in the assault of Rob Gillis.

In his statement Daye makes it clear that he only witnessed two of the assaults and implies that he did not see the assault of Darren Watts. Indeed, Daye has little to offer in relation to the assault on Watts, beyond the description of two circles of people around the victim and the location of the assault. However, Daye makes the following statements about the appellant:

Q. What was Cyril Smith wearing?

A. I can’t remember.

Q. Did you see Cyril Smith strike, hit or kick anyone?

A. No.

In addition, it appears that one of the assaults Daye witnessed was the assault on Rob Gillis. In relation to this assault Daye stated:

Q. Who hit this guy (#2 guy)?

A. There was a crowd of people around him. Spencer punched and kicked this guy. He likes to kick. He also hit this guy #1 (John Charman). Terry and Shannon go from south Cedar, Shannon goes back to the house, Shannon Burke, and Terry goes down Cedar with the crowd. Terry Dixon says just mind your own business. I guess this guy (Charman) grabs Terry and Damon Cole punches this guy in the face. I’m saying there is a reason. He just didn’t hit him for nothing. I see this.

Q. Did anyone else hit this guy #1 . . .?

A. Spencer. That’s all I can remember.

Q. What did you see?

A. Lot of people around him, he’s in Terry’s face, grabs Terry, Damon says take your hands off my cousin and punches him. (#1 person) (Added when read over.)

Q. Where did the punch land?

A. In the jaw. One punch, he’s down, Spencer kicked him and I can’t remember who all kicked him.

Q. Do you remember anyone who was around him when he was being kicked (Charman)?

A. My crowd was still with me, Terrance, Danny, Michael Barton, Stevie Dee.

Q. What happens next?

A. 2 or 3 minutes later #2 gets beat up and then we leave.

Q. Who hits #2?

A. Spencer. All I seen was Spencer kicking him. The guy that hit this guy was light skinned.

From Daye’s description of the surrounding events, it seems that “guy #1” was in fact Rob Gillis, not John Charman. In light of the evidence tendered at trial, it is reasonably possible that the trial judge would have interpreted the statement as describing the assault on Rob Gillis. This reasonable possibility must be taken into account in assessing the impact the statement might have had on the appellant’s conviction for assaulting Gillis. Since this interpretation of the statement is the most favourable to the appellant, it is appropriate to proceed on the basis that the trial judge would have found Daye was referring to the assault on Gillis.

Daye identified Damon Cole and Spencer Dixon as Gillis’s assailants, and stated he did not see the appellant Smith hit anyone. By contrast, Clayton testified that the appellant struck Darren Watts and that Damon Cole and the appellant struck Rob Gillis. These aspects of Daye’s statement provide the appellant with exculpatory evidence that he could have used in his defence. If the trial judge had accepted this evidence, there is a reasonable possibility that the outcome at trial might have been different. To put it another way, there is a reasonable possibility that these aspects of Daye’s statement could have been used, perhaps by calling Daye as a witness, to raise a doubt in the trial judge’s mind as to the appellant’s involvement in the assault of Rob Gillis. It follows that the appellant’s right to make full answer and defence at his trial for the assault of Rob Gillis was impaired by the Crown’s failure to disclose Daye’s statement. In Dixon, supra, it was said that where a court is persuaded that there is a reasonable possibility that, on its face, the undisclosed information affects the reliability of the conviction, it must order a new trial. It follows that the appellant is entitled to a new trial for the assault on Rob Gillis.

For the reasons given in Dixon, supra, the Crown’s failure to disclose these statements did not affect the fairness of the trial process in the Watts assault. In the Gillis assault, it has been concluded that there is a reasonable possibility that Daye’s statement, on its face, would have affected the outcome of the appellant’s trial for the assault of Rob Gillis. The appellant is entitled to a new trial in relation to this assault on this basis alone, and it is not necessary to consider whether the fairness of the trial process was affected by the failure to disclose Daye’s statement.

The appeal from conviction for the assault of Darren Watts is dismissed. The appeal from conviction for the assault on Rob Gillis is allowed and a new trial is directed.