Implied Duty to Google It?

Marshall, a pediatrician was charged with 32 counts of sexual assault and sexual interference in relation to 20 of his former patients and two young males who were not patients. At the conclusion of the trial Marshall was acquitted of all the allegations involving the 20 patients and one of the non-patients.

Marshall was convicted of one count of sexual assault in relation to a young man PM, who was not a patient. PM testified that on three occasions when he was between the ages of 16 and 18, Marshall touched him in a sexual manner. Marshall was found guilty of touching PM’s genitals, rubbing his crotch against PM’s buttocks and laying on top of PM. In the last incident PM was able to break free and run away as Marshall “I am not trying to fuck you yet.” [at para. 8]

Marshall was sentenced to 8 months in custody. He appealed both conviction and sentence and sought to tender fresh evidence. The Ontario Court of Appeal dismissed the appeals from conviction and sentence: 2015 ONCA 518

The Court also declined to admit the fresh evidence. On appeal Marshall sought to tender evidence that PM suffered from PTSD, anxiety and depression, all of which arose following his return from a difficult tour on active duty as a member of the Canadian Armed Forces. Additionally, Marshall wished to tender evidence that in 2006 PM had been charged with two counts of assault causing bodily harm and two counts of assault and that a stay of proceedings was entered following the plea of guilty of a co-accused.

The Court found that none of the proposed fresh evidence met the threshold for admissibility as set out in the Supreme Court’s decision in Palmer. In reaching this conclusion the court noted that the evidence was in fact “available at the time of trial in that it was posted on the internet.” [at para 19].  Such a statement of course begs the question, do lawyers have an implied duty to google it?





New & Notable: Sentencing is not a Never-Ending Process

James Sipos is a dangerous offender. He was so designated by a court in 1998. Some 12 years later his appeal was before the Ontario Court of Appeal where he presented fresh evidence; that evidence indicated that he had made much progress in his treatment – “progress that was not foreseen at the time of his sentencing in 1998” [para 48]. His appeal was dismissed by the ONCA and he appealed to the Supreme Court. On appeal it was admitted and recognized that the sentencing judge committed the Johnson error. What remained, however, was whether a new hearing was warranted due to this error and/or as a result of the proposed fresh evidence. Cromwell J concluded that there was “no role for the fresh evidence in relation to the curative power” on appeal [para 41] and dismissed the appeal: 2014 SCC 47.

In addressing the appeal Cromwell J began by noting:

In dangerous offender appeals, the appellate court may use its curative power to dismiss an appeal even though there was a legal error at first instance. This power may be used only where the legal error was “harmless” in the sense that there is no reasonable possibility that the result would have been different had the error not been made. It follows that a legal error does not necessarily require reconsideration of the sentence. The appellate court must consider whether the error had any impact on the result. But there is a heavy onus on the Crown: it must show that there is no reasonable possibility that the result would have been different had the error not been made. [Para 35].

In the present case, in relation to the proposed fresh evidence, Cromwell J held that there must be some connection between the “fresh evidence and the sentencing judge’s legal error” [para 37]. In this case, the fresh evidence related to the rehabilitative prospects of the offender. Cromwell J’s conclusion on this point:

In this case, the fresh evidence has nothing to do with the impact of the legal error made by the sentencing judge. There is no dispute that, on the record before the sentencing judge, the only realistic option was a dangerous offender designation [para 38].

In coming to this conclusion, Cromwell J held, contrary to the offender’s position – that the issue is what the “outcome might conceivably be today [with the fresh evidence]” – that the issue is “whether the past decision would have been the same notwithstanding the error” [para 40]. Recognizing that it is possible that “after-the-fact evidence” may influence a court on sentencing, Cromwell J noted that “post-sentencing rehabilitative efforts and prospects will only exceptionally” meet the test for intervention and that “generally speaking [these are] matters for the correctional authorities to consider” [para 43].

Cromwell J concluded [at para 48], in relation to the proposed fresh evidence:

This evidence shows that Mr. Sipos has made commendable progress in recent years, progress that was not foreseen at the time of his sentencing in 1998. However, Dr. McMaster’s report, viewed in light of the full record before the sentencing judge, falls considerably short of showing that the dangerous offender designation was unreasonable. I agree with Doherty J.A. that, placing ourselves in the position of the sentencing judge with the added information from Dr. McMaster’s assessment, there is no reasonable possibility that the result would have been different. It follows that there is also insufficient evidence to show that the sentencing judge’s decision, even had he had the benefit of Dr. McMaster’s report, was unreasonable. As Doherty J.A. put it:
I do not think that Dr. McMaster’s risk assessment casts any doubt on the trial judge’s assessment that as of 1998, an indeterminate sentence was the appropriate sentence.  Despite the positive treatment developments, Dr. McMaster still viewed the appellant’s potential release into the community as about six years distant.  We now know, with the benefit of hindsight, and accepting Dr. McMaster’s opinion, that on a “best case” scenario, the appellant’s potential for release into the community was at least some 18 years away in 1998. [Emphasis added; para. 34.]

A final notable point raised by Cromwell J in dismissing the appeal was that “[r]outinely deciding sentence appeals on the basis of after-the-fact developments could both jeopardize the integrity of the criminal process by undermining its finality and surpass the appropriate bounds of appellate review” [para 30].


Do your due diligence, or not...

The Supreme Court's recent decision in R v JAA, 2011 SCC 17 offers some insight into the application of the fresh evidence test and  provides some ground for debate - or at least reflection - about "due diligence"...or does it?
JAA was charged with sexual assault related offences.  The defence centred around his position that the sex was consensual.  The complainant testified that she had bitten the appellant on the finger.  An officer testified that there was indeed a mark on the appellant's finger and that it looked like a bite mark.  JAA was convicted in what the trial judge admitted was a "close one" [para 10].
JAA appealed and sought to introduce fresh evidence.  A majority of the Ontario Court of Appeal [2010 CarswellOnt 4840] would not have allowed the fresh evidence.  Charron J, on behalf of the majority of the Supreme Court, allowed the fresh evidence and ordered a new trial. 

The test for the admission of fresh evidence, set out in R v Palmer, [1980] 1 SCR 759, 1979 CarswellBC 533 requires consideration of the following four factors: (1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial; (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (3) the evidence must be credible in the sense that it is reasonably capable of belief; and (4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
At the Supreme court the majority and dissent disagreed on the fourth factor and parted ways as well on the importance of the first factor.
With respect to the first factor, Charron J noted that "[t]rial counsel explained in an affidavit that he did not consider retaining any kind of expert to examine the photos of the mark on his client’s finger, as it seemed to him that 'the mark was a minor generic scratch' which in fact appeared inconsistent with the complainant’s testimony" [para 8].  Admittedly the due diligence criterion could not be met but Charron J held that "the due diligence criterion should not trump the other Palmer criteria, particularly in circumstances such as here where trial counsel’s strategy was not unreasonable given the nature of the anticipated Crown evidence" [para 8].
In dissent Rothstein J agreed that the due diligence criterion should not trump the other factors, but noted that "[n]either...should it be ignored" [para 26].
Before turning to consider the due diligence test, it is first interesting to note that the majority of the Supreme Court and the majority of the Court of Appeal appear to have taken different views of the affidavit of trial counsel.
The majority of the Court of Appeal  noted that "in an affidavit prepared for the fresh evidence application, [trial counsel] indicated that he had considered and rejected the possibility of retaining an expert to analyze the mark" [emphasis added] [para 33].  In dissent Winkler CJO also appears to have interpreted the affidavit to suggest that trial counsel did consider, but chose not to, consult an expert [para 69].
At the Supreme Court, the majority noted that "[t]rial counsel explained in an affidavit that he did not consider retaining any kind of expert to examine the photos of the mark on his client’s finger" [emphasis added] [para 8].
It seems difficult to reconcile the different interpretations of the affidavit by the majority of the Supreme Court and the Ontario Court of Appeal.  The Ontario Court of Appeal clearly understood that trial counsel did consider, but chose not  to, retain an expert.  Charron J appears to have understood that trial counsel did not consider retaining an expert.
Perhaps its just semantics.  Although Charron J clearly noted that trial counsel "did not consider retaining" an expert, perhaps she meant that although he was aware of the issue he chose not to pursue it by retaining an expert.  
If that is the case - that trial counsel did consider but chose not to call an expert - it begs the question: was this simply not a strategic decision?
If this was a strategic decision, despite the fact that it may have changed the verdict, the caution, noted by Rothstein J in dissent, from R v PSM, 1992 CarswellOnt 803 (CA) is worth repeating:
Section 683(1)(d) of the Code recognizes that the appellate function can be expanded in exceptional cases, but it cannot be that the appellate process should be used routinely to augment the trial record.
On the other hand, perhaps it is about due diligence.  Perhaps trial counsel was not duly diligent in retaining the expert and obtaining an opinion prior to trial.  Perhaps, even if it was a strategic decision, it was not a fully informed one and therefore not duly diligent.
In that case, it is worth noting that, with respect to whether this evidence would have affected the verdict, although the five member majority found it would have, four other judges (two at the Court of Appeal and two dissenting at the Supreme Court) felt differently.  Those four judges felt that the fresh evidence would not have affected the verdict. 
In the present case counsel was aware of the potential issue.  Was of the view that the complainant - in a he said she said case - could be contradicted by expert evidence.  Due diligence would have resulted in retaining an expert.  Counsel was not duly diligent.  The ultimate impact of that evidence is of great debate.  A debate that may be settled at a new trial when counsel will undoubtedly take advantage of the opportunity to call the evidence that should have been called at the first trial.
Perhaps the outcome is the right one - after all the search for the truth is at the heart of the criminal justice system; as the famous proverb notes, "truth fears no trial".  Regardless, the decision still raises some concerns: what does it mean about the interplay between due diligence and strategic decision making?  what has it said about the standard for due diligence; and has this decision greased the edge of the slippery slope recognized in PSM?


DG Mack