R. v. G.D.B. (2000), 261 A.R. 1 (SCC);
225 W.A.C. 1
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
………………..
Temp. Cite: [2000] A.R. TBEd. AP.069
G.D.B. v. Her Majesty The Queen
(27240; 2000 SCC 22)
Indexed As: R. v. G.D.B.
Supreme Court of Canada
Major, Bastarache, Binnie, Arbour and Lebel, JJ.
April 27, 2000.
Summary:
An accused appealed his conviction on charges of sexual assault and indecent assault, alleging that his trial counsel was incompetent. He also sought to adduce fresh evidence in the form of tape recorded statements in which the complainant denied the alleged assaults.
The Alberta Court of Appeal, O’Leary, J.A., dissenting, in a decision reported at 232 A.R. 307; 195 W.A.C. 307, held that the fresh evidence was inadmissible and dismissed the appeal. The accused appealed.
The Supreme Court of Canada dismissed the appeal.
Editor’s note: for a related proceeding see 200 A.R. 184; 146 W.A.C. 184.
Civil Rights – Topic 3158
Trials – Due process, fundamental justice and fair hearings – Criminal and quasi-criminal proceedings – Right to effective assistance by counsel – An accused was charged with, inter alia, the indecent and sexual assault of his adopted daughter – Defence counsel had a taped recording of the daughter telling her mother that she had not been assaulted – Counsel did not adduce the recording into evidence because it could discredit the mother, who was a defence witness – The accused was convicted – He appealed, seeking a new trial based on fresh evidence – He asserted that the evidence could not have been adduced at trial by due diligence due to incompetent representation – He also claimed that counsel did not advise him that the tapes would not be used – The appellate court held that the fresh evidence was inadmissible and dismissed the appeal – The Supreme Court of Canada dismissed the accused’s appeal – There was no miscarriage of justice – Counsel had implied authority to make tactical decisions – The accused failed to satisfy the due diligence requirement – Finally, the reliability of the trial’s result was not compromised – See paragraphs 16 to 41.
Civil Rights – Topic 3158
Trials – Due process, fundamental justice and fair hearings – Criminal and quasi-criminal proceedings – Right to effective assistance by counsel – The Supreme Court of Canada reviewed the general approach to take when determining a claim of incompetent representation – The client had to establish that the counsel’s acts or omissions constituted incompetence and that a miscarriage of justice resulted – Where it was apparent that no prejudice had occurred, it would usually be undesirable for appellate courts to consider the performance components of the analysis – The object of an ineffectiveness claim was not to grade counsel’s performance or professional conduct – The latter was left to the profession’s self-governing body – If it was appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that was the course to follow – See paragraphs 26 to 29.
Civil Rights – Topic 4620.1
Right to counsel – Right to effective assistance by counsel – [See both
Civil Rights – Topic 3158
].
Criminal Law – Topic 4488
Procedure – Trial – Representation of accused – [See both
Civil Rights – Topic 3158
].
Criminal Law – Topic 4949
Appeals – Indictable offences – New trials -Grounds – New evidence – [See first
Civil Rights – Topic 3158
].
Criminal Law – Topic 4970
Appeals – Indictable offences – Powers of Court of Appeal – Receiving fresh evidence – General – [See first
Civil Rights – Topic 3158
].
Practice – Topic 9032
Appeals – Evidence on appeal – Criminal cases – [See first
Civil Rights – Topic 3158
].
Cases Noticed:
R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 14 C.R.(3d) 22 (Eng.); 106 D.L.R.(3d) 212; 50 C.C.C.(2d) 193; 17 C.R.(3d) 34 (Fr.), refd to. [para. 14].
R. v. Warsing (K.L.), [1998] 3 S.C.R. 579; 233 N.R. 319; 115 B.C.A.C. 214; 189 W.A.C. 214 (S.C.C.), refd to. [para. 16].
R. v. McBirnie (P.S.) (1992), 59 O.A.C. 1; 77 C.C.C.(3d) 402 (C.A.), refd to. [para. 19].
R. v. McMartin, [1964] S.C.R. 484, refd to. [para. 19].
R. v. Price (S.L.), [1993] 3 S.C.R. 633; 157 N.R. 378; 145 A.R. 231; 55 W.A.C. 231, affing. (1992), 131 A.R. 54; 25 W.A.C. 54 (C.A.), refd to. [para. 19].
R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), refd to. [para. 25].
Strickland v. Washington (1984), 466 U.S. 668 (S.C.), refd to. [para. 26].
Authors and Works Noticed:
Law Society of Alberta, Alberta Code of Professional Conduct, Chapter 9, rule 12 [para. 33].
Counsel:
Ben R. Plumer, for the appellant;
Joshua B. Hawkes, for the respondent.
Solicitors of Record:
Ben R. Plumer Law Office, Bassano, Alberta, for the appellant;
Department of Justice, Calgary, Alberta, for the respondent.
This appeal was heard on January 28, 2000, by Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada. Major, J., delivered the following decision for the court in both official languages on April 27, 2000.
R. v. G.D.B. (2000), 261 A.R. 1 (SCC);
225 W.A.C. 1
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
………………..
Temp. Cite: [2000] A.R. TBEd. AP.069
G.D.B. v. Her Majesty The Queen
(27240; 2000 SCC 22)
Indexed As: R. v. G.D.B.
Supreme Court of Canada
Major, Bastarache, Binnie, Arbour and Lebel, JJ.
April 27, 2000.
Summary:
An accused appealed his conviction on charges of sexual assault and indecent assault, alleging that his trial counsel was incompetent. He also sought to adduce fresh evidence in the form of tape recorded statements in which the complainant denied the alleged assaults.
The Alberta Court of Appeal, O'Leary, J.A., dissenting, in a decision reported at 232 A.R. 307; 195 W.A.C. 307, held that the fresh evidence was inadmissible and dismissed the appeal. The accused appealed.
The Supreme Court of Canada dismissed the appeal.
Editor's note: for a related proceeding see 200 A.R. 184; 146 W.A.C. 184.
Civil Rights – Topic 3158
Trials – Due process, fundamental justice and fair hearings – Criminal and quasi-criminal proceedings – Right to effective assistance by counsel – An accused was charged with, inter alia, the indecent and sexual assault of his adopted daughter – Defence counsel had a taped recording of the daughter telling her mother that she had not been assaulted – Counsel did not adduce the recording into evidence because it could discredit the mother, who was a defence witness – The accused was convicted – He appealed, seeking a new trial based on fresh evidence – He asserted that the evidence could not have been adduced at trial by due diligence due to incompetent representation – He also claimed that counsel did not advise him that the tapes would not be used – The appellate court held that the fresh evidence was inadmissible and dismissed the appeal – The Supreme Court of Canada dismissed the accused's appeal – There was no miscarriage of justice – Counsel had implied authority to make tactical decisions – The accused failed to satisfy the due diligence requirement – Finally, the reliability of the trial's result was not compromised – See paragraphs 16 to 41.
Civil Rights – Topic 3158
Trials – Due process, fundamental justice and fair hearings – Criminal and quasi-criminal proceedings – Right to effective assistance by counsel – The Supreme Court of Canada reviewed the general approach to take when determining a claim of incompetent representation – The client had to establish that the counsel's acts or omissions constituted incompetence and that a miscarriage of justice resulted – Where it was apparent that no prejudice had occurred, it would usually be undesirable for appellate courts to consider the performance components of the analysis – The object of an ineffectiveness claim was not to grade counsel's performance or professional conduct – The latter was left to the profession's self-governing body – If it was appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that was the course to follow – See paragraphs 26 to 29.
Civil Rights – Topic 4620.1
Right to counsel – Right to effective assistance by counsel – [See both
Civil Rights – Topic 3158
].
Criminal Law – Topic 4488
Procedure – Trial – Representation of accused – [See both
Civil Rights – Topic 3158
].
Criminal Law – Topic 4949
Appeals – Indictable offences – New trials -Grounds – New evidence – [See first
Civil Rights – Topic 3158
].
Criminal Law – Topic 4970
Appeals – Indictable offences – Powers of Court of Appeal – Receiving fresh evidence – General – [See first
Civil Rights – Topic 3158
].
Practice – Topic 9032
Appeals – Evidence on appeal – Criminal cases – [See first
Civil Rights – Topic 3158
].
Cases Noticed:
R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 14 C.R.(3d) 22 (Eng.); 106 D.L.R.(3d) 212; 50 C.C.C.(2d) 193; 17 C.R.(3d) 34 (Fr.), refd to. [para. 14].
R. v. Warsing (K.L.), [1998] 3 S.C.R. 579; 233 N.R. 319; 115 B.C.A.C. 214; 189 W.A.C. 214 (S.C.C.), refd to. [para. 16].
R. v. McBirnie (P.S.) (1992), 59 O.A.C. 1; 77 C.C.C.(3d) 402 (C.A.), refd to. [para. 19].
R. v. McMartin, [1964] S.C.R. 484, refd to. [para. 19].
R. v. Price (S.L.), [1993] 3 S.C.R. 633; 157 N.R. 378; 145 A.R. 231; 55 W.A.C. 231, affing. (1992), 131 A.R. 54; 25 W.A.C. 54 (C.A.), refd to. [para. 19].
R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), refd to. [para. 25].
Strickland v. Washington (1984), 466 U.S. 668 (S.C.), refd to. [para. 26].
Authors and Works Noticed:
Law Society of Alberta, Alberta Code of Professional Conduct, Chapter 9, rule 12 [para. 33].
Counsel:
Ben R. Plumer, for the appellant;
Joshua B. Hawkes, for the respondent.
Solicitors of Record:
Ben R. Plumer Law Office, Bassano, Alberta, for the appellant;
Department of Justice, Calgary, Alberta, for the respondent.
This appeal was heard on January 28, 2000, by Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada. Major, J., delivered the following decision for the court in both official languages on April 27, 2000.