R. v. Robart, 1998 CanLII 806 (SCC), [1998] 1 SCR 279

R. v. Robart, 1998 CanLII 806 (SCC), [1998] 1 SCR 279

Guy Leaman Robart Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Robart

File No.: 25832.

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 to defence counsel’s lack of due diligence.

The factual background and the issues arising from the accused’s conviction of the aggravated assault of Watts were set out in R. v. Dixon. One distinction was that the fourth of the undisclosed statements (Daye’s) did not make the same disparaging remarks about the accused as it made about Dixon.

Held: The appeal should be dismissed.

R. v. Dixon set out 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.

The analysis set out in Dixon was applicable in the same manner here. Nothing in the fourth statement (Daye’s) would affect the reliability of the accused’s conviction differently from that of Dixon. The Crown’s failure to disclose did not affect the fairness of the trial process because the trial defence was well aware of Daye’s being a possible witness. Trial counsel failed to exercise due diligence because, even though he knew this clearly relevant statement had not been disclosed, he assumed he already had all the relevant material.

Cases Cited

Followed: R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244.

APPEAL from a judgment of the Nova Scotia Court of Appeal (1997), 1997 NSCA 205, 157 N.S.R. (2d) 15, 462 A.P.R. 15, [1997] N.S.J. No. 21 (QL) (sub nom. R. v. McQuaid (Robart Appeal)), dismissing the accused’s appeal from his conviction for aggravated assault (1996), 1996 CanLII 5424 (NS SC), 148 N.S.R. (2d) 321 (sub nom. R. v. McQuaid), 429 A.P.R. 321, [1996] N.S.J. No. 81 (QL). Appeal dismissed.

Joel E. Pink, Q.C., 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

1Cory J. -- This appeal was heard on the same day as R. v. Dixon, 1998 CanLII 805 (SCC), [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.

I. Factual Background

2The factual background of this appeal is set out in Dixon, supra.

II. Decisions Below

A. Nova Scotia Supreme Court (1996), 1996 CanLII 5424 (NS SC), 148 N.S.R. (2d) 321

3Saunders J., for reasons set out in Dixon, supra, convicted the appellant of the aggravated assault of Darren Watts.

B. Nova Scotia Court of Appeal (1997), 1997 NSCA 205, 157 N.S.R. (2d) 15

4Flinn J.A. (Chipman J.A. concurring) found there was nothing in the Daye statement that would have assisted the appellant in advancing a defence. He held that the statement could not have been of assistance in challenging the credibility of Danny Clayton, the principal identification witness for the Crown. Flinn J.A. concluded that the appellant had not discharged the onus of showing an impairment of his right to make full answer and defence.

5In relation to the issue of due diligence of counsel, Flinn J.A. further held that where defence counsel knows that a witness statement exists which has not been disclosed, and chooses to do nothing to pursue disclosure, there is a risk that the court will not be receptive to a later complaint that the Crown failed to deliver a copy of the statement.

6Flinn J.A. noted that the police occurrence report which contained a summary of Daye’s statement was disclosed in time for defence counsel to seek production and an adjournment. This was a remedy which the trial judge could have readily provided. Even though several Crown witnesses had already testified when the summary was disclosed, their testimony went only to the background. Counsel for the appellant conceded at the Court of Appeal that no evidence directly relating to culpability had yet been presented. Flinn J.A. observed that as an officer of the court, defence counsel was under an obligation to raise the issue of the failure to disclose the statement prior to the examination of Danny Clayton. He further noted that in a supplementary affidavit filed to address concerns that the Court of Appeal had raised at the hearing, trial counsel for the appellant failed to offer any explanation for his interest in the statement after conviction. Flinn J.A. concluded that the actions or inaction of the appellant’s trial counsel were tantamount to a tactical decision not to pursue disclosure of Daye’s statement, and that as a result, he was not receptive to the appellant’s position. In reaching his decision he also took into account his opinion that Daye’s statement was not material and that the Crown’s failure to disclose Daye’s statement had not impaired the appellant’s right to make full answer and defence. The appeal was therefore dismissed by the majority.

7Bateman J.A. dissented for the same reasons set out in R. v. Dixon (S.) (1997), 1997 NSCA 50, 156 N.S.R. (2d) 81. She would have ordered a new trial for the appellant in relation to the assault on Darren Watts.

III. Analysis

8The 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.

Application to this Appeal

9The analysis set out in this Court’s judgment in Dixon, supra, is applicable in the same manner to Robart. The statement of Terris Daye is reviewed in some detail in those reasons. It should be noted that Daye does not make the same disparaging remarks about Robart that he did about Dixon. However, apart from that, there is no significant difference with regard to the materiality of the statement in its application to Robart. There is nothing in this statement which would in any way affect the reliability of Robart’s conviction differently from that of Dixon.

10In relation to determining whether the Crown’s failure to disclose affected the fairness of the trial process, it will be remembered that the Crown provided all defence counsel with a transcript of the videotaped deposition of Danny Clayton, in which Clayton names Daye as a likely eyewitness. Thus well before trial defence counsel was well aware that Daye was a possible witness.

11Indeed, Clayton testified that he attended the party with both Tynes and Daye and left with them after the assaults took place. Significantly, trial counsel for the appellant, on cross‑examination, specifically asked Clayton about Daye’s and Tynes’s involvement in the assaults:

Q. [Guy Robart] was just a guy from the street?

A. From the neighbourhood, yeah.

Q. Just a guy from the neighbourhood. And many of the other people who were there that night who were more your age, were your friends, isn’t that correct?

A. Yes.

Q. People like Terris Daye, right?

A. Yeah.

Q. Terrance Tynes?

A. Yes.

Q. And nowhere in your evidence right to this day have you ever suggested that any of them had any involvement in this.

A. Ah. hmmm . . .

Q. Isn’t that correct?

A. Correct.

12The appellant himself named Daye as one of the men who were kicking and punching one of the victims that night. It was conceded that trial counsel for the appellant was well aware Daye might have witnessed the assaults. Clearly, he knew that Daye played a role in the events outside the fraternity house that evening. In light of this knowledge, trial counsel for the appellant failed to exercise due diligence. He knew Daye’s statement had not been disclosed, but assumed he already had all relevant material in his possession. Yet, the summary of Daye’s statement disclosed in the police occurrence report clearly reveals the statement’s relevance. Thus, for the reasons set out in Dixon, supra, it cannot realistically be said that the failure to produce the statement affected the fairness of the trial process.

IV. Disposition

13It is apparent that there is nothing which distinguishes this appeal from that of Dixon. For the reasons given in that case the appeal must be dismissed.