Effective Assistance - Tactical Dispute


Anthony Regnier was charged with assault with a weapon, to wit, his dog. During police attendance he had allegedly “sicced” his dog on the police. He was convicted after trial. He was sentenced to 90 days jail and 12 months probation.

Regnier appealed. He alleged ineffective assistance of counsel and his sentence was unfit. His appeal was dismissed: 2017 SKCA 83.

The Court of Appeal outlined the background to this complaint as follows:

Taking these appeals in turn, Mr. Regnier’s notice of appeal against conviction alleges “defence lawyer conflict” and that his “defence was not properly heard.” Particularising these allegations in the hearing before us, Mr. Regnier said he had wanted his trial counsel to call two witnesses to corroborate his own testimony to the effect that he had not “sicced” his dogs on a police officer, which had given rise to the assault with a weapon charge. He says his trial counsel persuaded him to believe the Crown’s case was weak and, therefore, he reluctantly agreed not to adduce further evidence. The fact a discussion of this general sort occurred between Mr. Regnier and his trial counsel, although not its detail, is borne out by the transcript of trial. [Para 2].

To succeed, Regnier would have to “first establish that his trial counsel’s advice not to call the two witnesses in question constituted incompetence and, second, that a miscarriage of justice resulted”: see for example R v GDB, 2000 SCC 22.

The court noted further that it is important for a reviewing court to start with the “strong presumption” of counsel competence.   

An appellant must establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. In assessing that conduct, “the wisdom of hindsight” has no role to play—that is, the adverse result of a trial strategy or decision does not of itself diminish the reasonableness of the strategy or decision when it was made or taken. [Para 5].

Turning to apply this law, the court noted there was:

...nothing in the court record that, on its face, suggests Mr. Regnier’s trial counsel acted incompetently. There are many reasons why an accused might decide to call or not call a witness. In this case, we are not privy to the details of the discussion between Mr. Regnier and his trial counsel in that regard—or, indeed, to what the two witnesses in question might or might not have said had they been called. We only have what Mr. Regnier says occurred because his trial counsel was not notified of this allegation of ineffective representation and Mr. Regnier has not waived his solicitor-client privilege, which would have allowed his trial counsel to defend against it. In short, the evidence falls far, far short of displacing the presumption of trial counsel competence. [Para 6].

The court further noted, for sake of completeness no doubt, that there was no apparent miscarriage of justice.

With respect to the 90 day sentence, it was not demonstrably unfit and no error of law or principle was occasioned by the sentencing judge. Appeal dismissed.

Regnier is a welcome decision reinforcing the presumption of competence and limiting success on appeal alleging incompetence when the true request is to permit another trial with a different tactical approach.