Court of Appeal for Ontario
Date: 2018-11-13
Docket: M49775 (C58086)
Panel: Feldman, Roberts and Fairburn JJ.A.
Between
Her Majesty the Queen Moving Party
and
Curtis Lee Smith Responding Party
Counsel
Avene Derwa, for the moving party
Lindsay Daviau (not retained) and Danielle Robitaille (Duty Counsel), for the responding party
Heard and Released Orally
November 5, 2018
Reasons for Decision
[1] The motion to strike the affidavits of Curtis Smith, Carley McNab and Wendy Smith is dismissed.
[2] Ms. Daviau's adjournment request was denied as she has not yet been retained for the appeal.
[3] The Crown raises two concerns:
(a) The appellant's fresh evidence materials were put together by a lawyer who has been found in a conflict of interest and the materials are necessarily impacted by that conflict; and
(b) the need for Mr. Smith to be on notice that the Crown will be raising concerns about conflict in relation to the fresh evidence on the appeal proper.
[4] Mr. Smith is now clearly on notice that the Crown will take the position that Mr. Smith should not be able to rely upon the parts of the affidavits that rely upon a lawyer who was in a clear conflict of interest as captured by Justice Trotter's earlier order.
[5] There is nothing that prevents the Crown from asking the panel hearing the appeal to give no weight to certain of the appellant's evidence because it is tainted by a conflict of interest or for any other reason. The interests of justice support moving this appeal forward as expeditiously as possible.
[6] An appeal date was set for December 10, 2018. In accordance with Justice Simmons' order, if the Crown wishes to file any responding material or take any steps to process the ineffective assistance claim they may do so. If the Crown chooses to do so, the Crown must advise the court not less than one week before the December 10 date that an adjournment will be requested in light of Justice Simmons' order.
[7] Mr. Smith should take immediate steps to retain Ms. Daviau for the appeal if he intends to do so.
K. Feldman J.A. L.B. Roberts J.A. Fairburn J.A.