R. v. McQuaid, [1998] 1 S.C.R. 285

Herman McQuaid Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. McQuaid

File No.: 25833.

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 assaults -- 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 accused was convicted of the aggravated assaults of Watts and Charman. This appeal, however, arose only in relation to the assault on Watts and the factual background and issues 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 materiality of the third (Tynes’) and fourth (Daye’s) statements was very low. Nothing in them would in any way affect the reliability of the conviction. Defence counsel was well aware that Tynes and Daye played a role in the events outside the fraternity house that evening and in the ensuing investigation, and knew that they might have witnessed the assaults. Trial counsel failed to exercise due diligence because he knew the statements had not been disclosed but assumed that he already had all relevant material in his possession. For the reasons set out in Dixon, it could not realistically be said that the failure to produce the statements affected the fairness of the trial process.

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 209, 158 N.S.R. (2d) 207, 466 A.P.R. 207, [1997] N.S.J. No. 23 (QL), dismissing the accused’s appeal from his conviction on two counts of aggravated assault (1996), 1996 CanLII 5424 (NS SC), 148 N.S.R. (2d) 321, 429 A.P.R. 321, [1996] N.S.J. No. 81 (QL). Appeal dismissed.

David J. Bright, Q.C., and Jeffrey S. Moors, 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

1 Cory 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

2 The 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)](https://www.canlii.org/en/ns/nssc/doc/1996/1996canlii5424/1996canlii5424.html), 148 N.S.R. (2d) 321

3 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 John Charman. This appeal arises in relation to the assault on Watts only.

B. Nova Scotia Court of Appeal (1997), [1997 NSCA 209](https://www.canlii.org/en/ns/nsca/doc/1997/1997canlii9888/1997canlii9888.html), 158 N.S.R. (2d) 207

4 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), 1997 NSCA 50, 156 N.S.R. (2d) 81, except with regard to the due diligence of counsel.

5 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. 212). 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.

6 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 the assault on Darren Watts. However, she agreed with the majority that the appellant’s appeal from conviction in relation to the assault on John Charman should be dismissed, as the appellant had admitted to this assault in his own statement to police.

III. Analysis

7 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 both the Daye and Tynes statements.

Application to this Appeal

8 The analysis set out in this Court’s judgment in Dixon, supra, is applicable in the same manner to this appeal. The statements of Daye and Tynes are reviewed in some detail in those reasons. It should be noted that Daye does not make the same disparaging remarks about McQuaid that he did about Dixon; indeed, Daye makes no reference to the appellant at all. As such, the materiality of the statements in their application to McQuaid is very low. There is nothing in those statements which would in any way affect the reliability of McQuaid’s conviction differently from that of Dixon.

9 In 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 Daye and Tynes are named as likely eyewitnesses.

10 On direct examination, Clayton stated that he had attended the party with Tynes and Daye and left with them after the assaults took place. Counsel for the accused Guy Robart, on cross‑examination, specifically asked Clayton about Daye’s and Tynes’s involvement in the assaults. Counsel for Stacey Skinner also cross‑examined Clayton as to whether he believed Daye and Tynes had given statements to the police. Most telling of all, however, is the following excerpt from the cross‑examination of Clayton by counsel for the appellant:

Q. The first statement that you provided on September 20th, what you had to tell the police about what you saw or did in relation to Darren Watts was not true?

A. Correct.

Q. Now, not only did they show you other portions, portions of other people’s statements, they were saying things to you at the same time as to what they believe occurred that night?

A. Correct.

Q. But you didn’t think that these statements or these portions of these statements that were provided by other people were provided by Terrance Tynes, did you? You didn’t think you were hearing Terrance Tynes’s statement being read to you, did you?

A. Right.

Q. Because you and Terrance were still good friends at that time?

A. No. His name was involved in some statements.

Q. I realize his name was involved in some statements.

A. Right.

Q. O.K. So that’s on one basis that you felt it wasn’t Terrance’s statement?

A. Yes.

Q. O.K. As well, you didn’t think that it was Terris Daye’s [sic] statement, did you?

A. Because again his name was involved in some statements.

Q. But aside from that, you were good friends with those two individuals, weren’t you?

A. Yeah.

Q. And you didn’t think that they had been picked up and provided a statement by the police, up to that point in time, did you?

A. I don’t know. [Emphasis added.]

Clearly, defence counsel was well aware that both Daye and Tynes played a role in the events outside the fraternity house that evening and in the ensuing investigation, and knew that they might have witnessed the assaults. In light of this knowledge, trial counsel for the appellant failed to exercise due diligence. He knew Daye’s and Tynes’s statements 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 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 statements affected the fairness of the trial process.

IV. Disposition

11 There is nothing is which distinguishes this appeal from that of Dixon. For the reasons given in that case the appeal must be dismissed.

Appeal dismissed.

Solicitors for the appellant: Boyne Clarke, Dartmouth.

Solicitor for the respondent: The Nova Scotia Public Prosecution Service, Halifax.