NOVA SCOTIA COURT OF APPEAL Citation: R. v. Simpson, 2018 NSCA 25. v. Her Majesty the Queen. Restriction on Publication: of the Criminal Code

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1 NOVA SCOTIA COURT OF APPEAL Citation: R. v. Simpson, 2018 NSCA 25 Date: Docket: CAC Registry: Halifax Between: Paul Wayne Simpson Appellent v. Her Majesty the Queen Respondent Restriction on Publication: of the Criminal Code Judge: Appeal Heard: Subject: Summary: The Court (Beveridge, Van den Eynden and Derrick, JJ.A.) January 17 and 18, 2018, in Halifax, Nova Scotia Criminal Law; Fresh Evidence; Ineffective Assistance of Counsel; Trial Fairness The appellant was convicted of sexual assault in February 2017 following a trial that started in October He appealed his conviction solely on the basis that his defence lawyer failed to provide him with effective representation. He advanced a fresh evidence application and at the appeal, he and his trial lawyer were cross-examined on their Affidavits. The appeal was heard over two days January 17 and 18, In a letter dated January 19 to the Registrar for the Court, the Crown advised that, having further considered the testimony of the appellant s trial lawyer, the appeal was being

2 conceded on the basis that the ineffective assistance of counsel compromised trial fairness, resulting in an unfair process. Issues: Result: Did the appellant s trial satisfy the standards for trial fairness, including the appearance of fairness? The fresh evidence is admitted, the appeal allowed, and a new trial ordered on the charge of sexual assault. Every accused is constitutionally entitled to a fair trial. Impairment of the right to a fair trial can constitute a miscarriage of justice requiring appellate intervention under section 686(1)(a)(iii) of the Criminal Code. A miscarriage of justice may be found where, in the course of a trial, anything happens, including the appearance of unfairness, which is so serious that it shakes public confidence in the administration of justice. The appellant s trial was not one that would maintain public confidence in the administration of justice. Its appearance was not of effective, dedicated representation. It was plagued by delays occasioned by trial counsel and the distractions of a proposed section application that had no merit and never materialized. It was not characterized by a diligent preparation of the appellant for testifying. A reasonable member of the public would not view the representation provided to the appellant as emblematic of a fair trial. The Crown s concession of the appeal was wholly appropriate. This information sheet does not form part of the court s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 11 pages.

3 NOVA SCOTIA COURT OF APPEAL Citation: R. v. Simpson, 2018 NSCA 25 Date: Docket: CAC Registry: Halifax Between: Paul Wayne Simpson v. Her Majesty the Queen Restriction on Publication: of the Criminal Code Appellant Respondent Judges: Appeal Heard: Held: Counsel: Beveridge, Van den Eynden and Derrick, JJ.A. January 17 and 18, 2018, in Halifax, Nova Scotia Appeal allowed, conviction overturned and a new trial ordered per reasons for judgment of the Court. Luke Craggs, for the appellant Jennifer MacLellan, Q.C, for the respondent

4 Order restricting publication sexual offences (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, , , , , 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

5 Page 2 Reasons for judgment: (By the Court) Introduction [1] Paul Simpson appeals his conviction for sexual assault solely on the basis that his defence lawyer failed to provide him with effective representation. He says that as a result he did not get a fair trial. He has advanced fresh evidence his own Affidavit in support of his claim. His trial lawyer, Laura McCarthy, filed an Affidavit in response. [2] This appeal was heard over two days - January 17 and 18, 2018 with much of the time taken up by cross-examination of Mr. Simpson and Ms. McCarthy. In a letter to the Registrar for the Court dated January 19, Ms. MacLellan advised that she had further considered the testimony of Ms. McCarthy at the fresh evidence hearing. She indicated the Crown was conceding the appeal on the basis that the ineffective assistance of counsel compromised trial fairness, resulting in an unfair process. [3] We accept the Crown s concession. We conclude that the fresh evidence should be admitted, the appeal allowed, and a new trial ordered on the charge of sexual assault. These are our reasons. Mr. Simpson s Conviction [4] Provincial Court Judge Theodore Tax convicted Mr. Simpson on February 27, 2017 of having sexual intercourse with the complainant without her consent. Mr. Simpson denied there was any sexual penetration and said the complainant had consented to him rubbing his penis around the exterior of her vagina. Judge Tax found there was uncontested evidence from the complainant of consensual sexual touching and fellatio, but no consent to any sexual touching below her waist. [5] Judge Tax described the complainant s evidence as highly credible and reliable. He gave detailed reasons for accepting her testimony and rejecting Mr. Simpson s. He noted corroborating evidence tendered by the Crown: a taxi driver who picked the very distraught complainant up from Mr. Simpson s residence and drove her to the hospital, and the vaginal swab taken from inside the complainant s vagina which revealed the presence of Mr. Simpson s DNA.

6 Page 3 Mr. Simpson s Notice of Appeal [6] Mr. Simpson appealed his conviction on the basis that Ms. McCarthy: 1. Failed to advise him of his different modes of trial and the availability of a preliminary inquiry; 2. Failed to investigate potentially exculpatory evidence; 3. Failed to prepare him for testifying in his own defence; and 4. Failed to properly or effectively cross-examine the complainant. [7] As we will explain, Mr. Simpson s complaints about the election to Provincial Court for trial and his claim that there was potentially exculpatory evidence to explore are not borne out by the record before us. The dispositive issue in this appeal is Ms. McCarthy s trial preparation of Mr. Simpson and how it fell short of the standard for trial fairness. This will be contextualized by a description of the proceedings. The Trial Process [8] Mr. Simpson s first court appearance was on April 23, Lyle Howe was representing him. In his fresh evidence Affidavit Mr. Simpson explained that as an African-Nova Scotian he wanted a lawyer who understood the social construct in which I live. He testified this was why he chose Mr. Howe, and subsequently why he accepted Ms. McCarthy as his lawyer. Both Mr. Howe and Ms. McCarthy are African-Nova Scotian. They are also husband and wife. [9] When Mr. Howe was suspended from practice by the Nova Scotia Barristers Society in late May 2014, Ms. McCarthy became Mr. Simpson s lawyer. She represented him throughout the remainder of the proceedings. [10] On September 9, 2014 Ms. McCarthy elected trial in Provincial Court on Mr. Simpson s behalf. The Crown estimated that a single day would be sufficient to complete the trial. Ms. McCarthy, advising that Defence evidence likely may be called, suggested scheduling a day and a half. The trial was set for October 2015: October 6 in the afternoon and October 8 for the full day. Although a full day was available in July with a half day in September it was Ms. McCarthy s preference to have the trial dates closer together.

7 Page 4 [11] On October 6, Ms. McCarthy appeared 45 minutes late, at 2:15 p.m. She explained to Judge Tax she had been unable to get her car out of the parking garage and that once she arrived at the courthouse she spent some time talking to the Crown and Mr. Simpson. [12] No evidence was called on October 6. The afternoon was taken up with a long discussion about what the Defence was willing to admit as facts. The Crown had understood that sexual penetration was being admitted. Ms. McCarthy advised it was not. [13] The Crown s understanding of the Defence position had been germinated at a pre-trial conference on June 12, Judge Tax s Pre-trial Conference Minutes recorded: No contest: re-sexual contact DNA evidence will not be necessary. Will be some admissions of fact. Issue will be consent. [14] In concluding the October 6 proceedings and adjourning the trial to October 8, Judge Tax urged Ms. McCarthy to communicate more effectively with the Court in the event that an unforeseeable event prevented her from being on time. [15] On October 8 the trial proceeded and the complainant and the taxi driver testified. Prior to Ms. McCarthy starting her cross-examination of the complainant, there were discussions about the right to cross-examine on prior sexual activity. The Crown advised Judge Tax he would object to any attempt by Ms. McCarthy to crossexamine the complainant on prior sexual activity in the absence of proper notice and a formal application. After a brief recess, Ms. McCarthy informed the Court that Mr. Simpson wished to have a formal application filed before she commenced her crossexamination. A successful application pursuant to section of the Criminal Code would permit questioning about prior sexual activity. Ms. McCarthy s adjournment request was granted and additional trial dates were set for June 21, 22, and 23, [16] October 30, 2015 was the next court appearance. An Agreed Statement of Admissions was filed. Ms. McCarthy confirmed that Mr. Simpson wanted her to proceed with preparing the section application. She agreed with the Crown s request to have the application filed by the end of the year. [17] On Friday, June 10, 2016 a pre-trial conference was held at the Crown s request. The Crown told Judge Tax the Defence had not filed the section application. Ms. McCarthy indicated she was under the impression that it was filed before the end of the year. It would have been in those few days before the new

8 Page 5 year. When Ms. McCarthy was informed that neither the Crown nor the Court had received anything, she said she would check to see if the application had been sent from her office and undertook to advise on Monday whether the Defence would be proceeding with it so that there are no surprises. [18] Ms. McCarthy never did advise the Court or the Crown concerning the section application she said she thought had been filed. At the appeal hearing she was asked to indicate what was contained in her file and located an unsigned Notice of Application dated December 30, 2015, but no Affidavit in support or brief. [19] Mr. Simpson s trial resumed on June 21, Ms. McCarthy was not present. A lawyer appearing on Ms. McCarthy s behalf advised she was ill and requested an adjournment until the next day. [20] On June 22, Ray Kuszelewski, another lawyer from Ms. McCarthy s office, attended before Judge Tax and requested a further adjournment of the trial as Ms. McCarthy was still sick. Mr. Kuszelewski also advised Judge Tax that Ms. McCarthy s husband, Lyle Howe, was appearing, on short notice, at a Nova Scotia Barristers Society hearing the next day, June 23, and that Ms. McCarthy was counsel of record in the matter and expected to appear with him. The Barristers Society proceeding was scheduled for 8:30 a.m. Mr. Kuszelewski said it was to be a short matter. Judge Tax indicated his expectation that Ms. McCarthy would be in court on June 23 to continue Mr. Simpson s trial. He re-scheduled the start time to 10 a.m. from 9:30 a.m. [21] Ms. McCarthy did not appear at 10 a.m. on June 23. No one attended on her behalf. Mr. Simpson had not heard from her, nor had the Crown. She was located at the Barristers Society hearing. She arrived in Judge Tax s court at 2:45 p.m. and advised that the proceedings involving her husband had gone longer than she expected. Ms. McCarthy does not now recall whether she specifically informed the Barristers Society hearing that she had a long-standing trial continuation commitment and that she had already missed the first two days of the three day trial. [22] Following a lengthy exchange about her failure to effectively communicate the reason for her absence, Ms. McCarthy advised Judge Tax that after seeking advice from senior counsel and discussing the matter with Mr. Simpson, she was not pursuing the section application. [23] Mr. Simpson s trial continued on January 16 and 17, Ms. McCarthy conducted her cross-examination of the complainant on January 16, which was

9 Page 6 followed by the evidence of the S.A.N.E. nurse (Sexual Assault Nurse Examiner) who took the vaginal swab. Mr. Simpson was the sole Defence witness. The final submissions of the Crown and Ms. McCarthy were made on January 17. The Fresh Evidence on Modes of Trial and Potentially Exculpatory Evidence [24] Mr. Simpson waived solicitor-client privilege and filed an Affidavit setting out what he claimed was Ms. McCarthy s ineffective representation. (Exhibit 1) Ms. McCarthy responded to the allegations in her Affidavit. (Exhibit 2) They were both cross-examined. [25] Although Mr. Simpson alleges he wanted a trial by judge and jury and only acquiesced to Ms. McCarthy s insistence that the trial be heard in Provincial Court, Ms. McCarthy s file notes indicate that on August 18, 2014 she discussed the various options for election with Mr. Simpson. These notes state: wants Provincial Crt quicker to trial (Exhibit A to Exhibit 2, Affidavit of Laura McCarthy affirmed November 10, 2017) Ms. McCarthy says in paragraph 6 of her Affidavit that, contrary to Mr. Simpson s claim, I did not argue back and forth with Mr. Simpson at any point about his election before the court. I explained the differences to Mr. Simpson between a trial at the Provincial Court and Superior Court, including the availability of a preliminary inquiry. Mr. Simpson indicated that he did not want more hearings and that he wanted to proceed before the Provincial Court without a preliminary inquiry. Mr. Simpson was well aware that he had the option to have a Supreme Court trial, with a judge alone or judge and jury as well as a preliminary inquiry [26] Mr. Simpson admitted in his testimony before us that he had wanted the matter kept quiet: he had not told his wife, whom he met in May 2014, that he was facing a trial for sexual assault. Ms. McCarthy testified that she believed it was important to Mr. Simpson to keep the case quiet and to get it done as soon as possible. [27] Mr. Simpson also claims that Ms. McCarthy should have investigated potentially exculpatory evidence which is a reference to his tenant, A.C. In his Affidavit, Mr. Simpson says he told Ms. McCarthy that A.C. was at home at the time of the incident and he may have relevant evidence about the case. Ms. McCarthy dealt with this in her Affidavit at paragraph 8: I spoke with Mr. Simpson at length regarding [A.C.] s involvement with the complainant and Mr. Simpson on the evening of the incident. Mr. Simpson made it clear to me that [A.C.] did not meet or see the complainant at any point during

10 evening of the incident. Mr. Simpson indicated to me that his interactions with his roommate were limited and that his roommate remained in the downstairs area of the home the entire evening. Mr. Simpson s indication of the relevance of his roommate s evidence would be to establish that the complainant did not scream out or make any noise during the assault. The disclosure and statement from the complainant did not suggest she screamed or yelled out. As a result, I did not assess [A.C.] s evidence to be relevant. From my discussions with Mr. Simpson, he expressed that he from his view that if the complainant was acuals [sic] sexually assaulted, that she should have been screaming and fighting him through the process. I explained to Mr. Simpson that a situation of sexual assault does not require the complainant to scream and fight back, simply the crown only need to prove there was no consent provided for the sexual contact. I did explain to Mr. Simpson that if [the complainant] unexpectedly testified that she was screaming, yelling, fighting or making any noise in the house, that we could call [A.C.] to respond to this evidence to question her credibility. [The complainant] s evidence did not include her screaming or fighting against Mr. Simpson such that [A.C.] s evidence would be required. Page 7 [28] Mr. Simpson recalls Ms. McCarthy telling him that A.C. could be a relevant witness if the complainant testified to having been loud during the time she and Mr. Simpson were together in his bedroom. It was Ms. McCarthy s evidence that the complainant s cross-examination satisfied her she had been not been loud enough to have been heard by A.C. [29] Mr. Simpson has also said in his Affidavit that he had wanted Ms. McCarthy to make an application to obtain any therapeutic records for the complainant. There was some evidence at trial that the complainant had previously experienced mental health issues. There was no evidence that the complainant s mental health history was likely relevant to any issue in the trial. The fact of a mental health history is not a basis by itself for an application. The Fresh Evidence on Ms. McCarthy s Trial Preparation of Mr. Simpson [30] As we noted earlier, the allegations against Ms. McCarthy of failure to advise about different modes of trial and failure to investigate potentially exculpatory evidence have not been made out. What must be examined now is Mr. Simpson s allegation that Ms. McCarthy failed to prepare him to testify. This issue received considerable attention in the fresh evidence. [31] Mr. Simpson states in his Affidavit at paragraph 19 that he and Ms. McCarthy met prior to my trial date. He says she did not prepare him to testify other than telling me the order in which witnesses would be presented, asking if I was

11 Page 8 emotionally ready to testify, and cautioning not to react to what [the complainant] said about sailors. He says she did not tell him what to expect from her questions, what possible questions the Crown might ask, nor did she advise him on the most effective way of conveying my narrative to the court. [32] Ms. McCarthy denies this allegation, saying in paragraph 10 of her Affidavit that: I met with Mr. Simpson prior to trial and we discussed numerous issues in preparation for his trial including the formalities of the trial process, differences between direct and cross examination, reviewed his evidence for direct, discussed the particular deviations between her statement and Mr. Simpson s evidence to be provided to the court in his direct evidence. I specifically informed Mr. Simpson that the crown attorney would question him about his actions with the complainant and the differences between their testimony as well as any inconsistencies, should any appear in his testimony. I explained to Mr. Simpson that the crown will ask pointed leading questions to him to test his evidence and be [sic] listen carefully to the questions before he answers. In preparation for his testimony I reviewed his entire version of events; Mr. Simpson and I spoke extensively about the relevance and lack thereof with respect to various details that arose in discussions between myself and Mr. Simpson [33] Ms. McCarthy attached to her Affidavit as Exhibit B a copy of file notes from a meeting she had with Mr. Simpson on September 26, Occupying a page and a half, they primarily consist of what appears to be a recital of the evidence anticipated from Mr. Simpson. Ms. McCarthy s notes of September 26, 2015 do not contain all the topics she describes in paragraph 10 of her Affidavit. [34] In her Affidavit at paragraph 10 Ms. McCarthy describes the file notes as a copy of my notes from some of my meetings with Mr. Simpson in preparation for his trial and his testifying. She further states: It should be noted that I also spoke with Mr. Simpson at his court appearances regarding his testimony and what he should expect when testifying. [35] Mr. Simpson testified that the only discussion about his testimony occurred after the taxi driver and the complainant testified: we did have some discussion with regards to me presenting my evidence, my narrative. As we noted earlier, the complainant and the taxi driver testified on October 8, Mr. Simpson gave his evidence fifteen months later, on January 16, 2017.

12 Page 9 [36] Mr. Simpson testified before us that Ms. McCarthy told him the Crown would cross-examine him on how the military preps their members in regards to consent. He does not remember being prepared for any other questions and was given no advice about how to present himself. [37] Ms. McCarthy has disputed Mr. Simpson s claim that she did not prepare him to testify. She testified that she 100 percent recalls meeting Mr. Simpson at her office in the period between the June 2016 trial dates and when the trial resumed in January She also says she did not take notes if she and Mr. Simpson stepped into a meeting room just on the side for a half hour recess or over lunch. This appears to refer to recesses and lunch breaks during court proceedings. [38] But despite saying that every conversation we had we would talk about his evidence and what he could anticipate, Ms. McCarthy was unable to show any concentrated focus on preparation. Asked to review her file and identify the dates of meetings with Mr. Simpson, Ms. McCarthy found no record in her file of any meeting with Mr. Simpson after September 26, She indicated that she largely did not invoice him and therefore could produce no itemized accounts or time records detailing when they met and for what purpose. Ms. McCarthy agreed on cross-examination that the last time it is known for certain that she took notes for a client meeting with Mr. Simpson was September 26, Fair Trial Rights and the Appearance of Unfairness [39] Every accused is constitutionally entitled to a fair trial. As noted by Doherty, J.A. in R. v. Joanisse, [1995] O.J. No. 2883, para.63: That entitlement finds expression in s. 7 and s. 11(d) of the Charter. It is a right afforded to all accused persons and is seen as a principle of fundamental justice. (R. v. G.D.B., 2000 SCC 22, para. 24) Impairment of the right can constitute a miscarriage of justice requiring appellate intervention under section 686(1)(a)(iii) of the Criminal Code. A conviction entered after an unfair trial is in general a miscarriage of justice. (R. v. Wolkins, 2005 NSCA 2, para. 89) [40] Where an irregularity in the conduct of the trial was severe enough to render the trial unfair or to create the appearance of unfairness, a miscarriage of justice occurs. (R. v. Khan, 2001 SCC 86, para 69) (emphasis added) The Supreme Court of Canada in Khan identified the need to carefully weigh the whole of the circumstances of a case in determining whether the trial has been rendered unfair in reality or in appearance. And while an accused is not entitled to a perfect trial, a

13 Page 10 trial must satisfy the standards of actual fairness and the appearance of fairness. (Khan, para. 72) [41] The appearance of trial unfairness is to be assessed on a reasonableness standard. Will the reasonable and objective observer consider the administration of justice to have been compromised? The fact that some member of the public may consider the trial to have been unfair is not sufficient. We must look at whether a well-informed, reasonable person considering the whole of the circumstances would have perceived the trial as being unfair or as appearing to be so. (Khan, para. 73) [42] Confidence in the administration of justice must be maintained. As Cromwell, J.A. held in Wolkins: A miscarriage of justice may be found where anything happens in the course of a trial, including the appearance of unfairness, which is so serious that it shakes public confidence in the administration of justice. (para. 89) [43] Mr. Simpson s trial cannot be seen as one that would reassure the public to have confidence in the administration of criminal justice. Its appearance was not of effective, dedicated representation. It was plagued by delays occasioned by Ms. McCarthy and the distractions of a proposed section application that had no merit and never materialized. It was not characterized by a diligent preparation of Mr. Simpson for testifying. [44] There was nothing complicated about this trial. A reasonable member of the public would not view the representation provided to Mr. Simpson as emblematic of a fair trial. The Crown s conceding of this appeal reflects that. [45] An accused s entitlement to a fair trial includes the right to be properly prepared to testify in his own defence. A failure by trial counsel to discharge this fundamental obligation to a client can be enough to undermine the integrity of the trial process and the appearance of trial fairness, constituting a miscarriage of justice. We agree with the Crown s conclusion that Ms. McCarthy s representation of Mr. Simpson denied him the fair trial to which he was entitled. [46] Ms. McCarthy expressed confidence before us that she had adequately prepared Mr. Simpson for direct and cross-examination. She grounded this confidence in what she says she recalls of her discussions with Mr. Simpson. But this has to be contrasted with the file record. The last client meeting for which Ms. McCarthy has notes is September 26, Mr. Simpson ultimately did not testify until January 16, 2017 fifteen months later, and he says Ms. McCarthy did not

14 Page 11 prepare him during this hiatus. We are satisfied that a feature of effective representation that gives a trial the appearance of fairness a thorough and rigorous preparation timed to reasonably coincide with when an accused actually testifies did not occur in this case. We do not accept Ms. McCarthy s evidence on this issue as reliable. Conclusion [47] The Crown s concession of this appeal is appropriate. The fairness reflected in this concession is a central pillar of the prosecutorial role, which excludes any notion of winning or losing, and deserves to be commended. (R. v. Boucher, [1955] S.C.R. 16) We would allow the appeal, overturn the conviction and order a new trial. [48] It is ordered that Mr. Simpson be released pending his new trial and that in the interim he continue to be bound by the terms of the Recognizance and Order of this Court dated June 15, 2017 until such time as he appears in Provincial Court. Beveridge, J.A. Van den Eynden, J.A. Derrick, J.A.