New & Notable: Choosing Between the Devil and the Deep Blue Sea

Choosing between the devil and the deep blue sea is not something one envies but it is something one must do from time to time; the longevity of this idiom is a testament to that fact.  The precise origins of this idiom seem to be the source of some debate.  The Phrase Finder canvasses some of this debate noting that CANOE (the committee to ascirbe a nautical origin to everything); that approach to the origin of the phrase is also noted by Wikipedia.  Both sites seem to reject this explanation however; The Phrase Finder favours Greek origins for the phrase:
Homer's Odyssey refers to Odysseus being caught between Scylla (a six-headed monster) and Charybdis (a whirlpool).
Whatever the origin, the phrase is well known and been used in songs (sung first by Cab Calloway in 1932), movies and plays.
In the recent case of R v Borde, 2011 ONCA 534, the appellate Crown (James Stewart) craftily made reference to this phrase in discussing the dilemma facing defence counsel at trial in response to a ground of appeal alleging ineffective assistance of counsel.
Quinn Borde was charged with several offences relating to a robbery and attempted murder.  At trial his position was that he did not commit the offences and was at home with his mother when the offences occurred [paras 1-2].
On June 29, 2006 two young women were partying together and decided to attend at another woman's residence for the purpose of buying some marijuana.  During their trip to that residence they were accosted by a male, alleged to be the appellant.  The appellant robbed them of a chain and some cash and then told them they were staying with him.  The three then attended another residence to find some marijuana and a confrontation occurred at the door of that residence during which the appellant shot the resident.  The appellant and the girls left the apartment and shortly thereafter on the street were confronted by the police.  The appellant began shooting at the officers and then fled.  During his flight he fired shots at an ambulance which was attending to help the residence who had been shot earlier.
At trial the Crown called eye-witness photo lineup including one of the females who had known the appellant.  While the appellant had apparently not planned to testify, after the female witness proved to be "formidable" he chose to testify and provide an alibi defence - which, due to his initial position, had not previously been disclosed. 
The appellant was convicted of almost all of the offences he was charged with and appealed [paras -14].
One of the grounds of appeal related to an allegation of ineffective assistance of counsel.  The allegation related to the failure to make timely disclosure of the alibi and accordingly avoid the adverse inference that could be drawn.  In rejecting this ground of appeal Juriansz JA, for the court, offered the following:
Defence counsel examined both the appellant’s mother and brother regarding his claim of alibi and concluded that the jury was unlikely to believe them. Counsel for the appellant accepts that it was reasonable for defence counsel to make this judgment initially and to advise the appellant not to testify. Counsel for the appellant points out that circumstances change, as they did in this case, and because the accused always has the right to decide to testify, defence counsel must serve a notice of alibi in all cases. The only exception this rule that counsel for the appellant would recognize is where defence counsel knows the claim of alibi is fabricated.
I find the proposition too unequivocal. Certainly, having the case go to the jury with an adverse inference instruction is always undesirable for the defence. Every effort should be made to avoid that happening. However, sometimes the defence must choose between the devil and the deep blue sea, as counsel for the Crown put it. Here, defence counsel considered that the appellant’s alibi defence would be disbelieved, and that having the police investigate the claimed alibi would harm the defence by exposing its weakness or possibly establishing it was concocted. The appellant was prepared to accept that advice. In the unlikely event that the appellant changed his mind, going to the jury with a failed or concocted alibi would have been worse for the defence in defence counsel’s judgment. This was a competent, professional tactical decision that I would not second guess [paras 20-21] [emphasis added].
Other grounds of appeal were raised and rejected including an allegation with respect to the use that could be made out of the appellant's failure to call his mother [paras 26-29]. 
In the end the appeal was dismissed.  The appellant had been sentenced by the trial judge to 25 years.
DG Mack

Comment: The Curative Proviso; to apply or not to apply, that is the question...

The curative proviso is a powerful tool on appeal; it is also one that often highly contentious. The Supreme Court's recent ruling in R v O'Brien, 2011 SCC 29 is yet another example of this.  In O'Brien the respondent was charged in relation to the robbery of a variety store; the robbery was committed by someone wearing a blue Halloween mask.  During the robbery a knife was also used.  The next morning the police recovered a blue Halloween mask, a large knife and the plastic cover from the store's cash register (that had been taken) near the store; subsequent DNA testing identified the assailant as a match.  
At trial [2009 NSSC 194] the DNA evidence become effectively the only evidence identifying the respondent as the robber.  During the course of the trial, both in chief and cross-examination, the investigating officer made reference to the respondent as a known offender and someone who the police knew well to be involved in criminal conduct [para 26].  No objection was made to this evidence being elicited.  The respondent was convicted and appealed.

On appeal [2010 NSCA 61] the respondent argued that the bad character evidence was inadmissible and impacted on the verdict.  The Crown agreed that it was inadmissible but argued that the curative proviso should apply.  The majority allowed the appeal and ordered a new trial.  Fichaud JA, in dissent, would have applied the curative proviso, noting that the error was harmless:
The trial judge’s written reasons satisfy me affirmatively that the improper evidence had no impact.  This, in my view, satisfies the Crown’s burden under the proviso.  The judge’s words that he relied “entirely on the DNA evidence” to connect Mr. O’Brien to the robbery exclude any imputation to the judge of a veiled line of reasoning sourced in [the investigating officer’s] problematic testimony.  My colleague does not explain how such a veiled line of reasoning can co-exist with the judge’s clear statement that he relied “entirely on the DNA evidence.”  My colleague says that if the judge had “arrived at his conclusion by expressly relying on evidence untainted by the impugned evidence”, he might take a different view of the proviso.  By my reading of the decision, that is what the judge did. . . .
. . . Nothing in the decision suggests, even obliquely, that [the investigating officer’s] improper character testimony figured in the identification. [para 10]
The Crown appealed.  Abella J on behalf of the majority allowed the Crown's appeal.  It was clear, she held, that the trial judge relied "entirely" on the DNA evidence and therefore did not rely on the bad character evidence.  The following comments (an honourable mention for the "quotable quotes" section) are instructive:
The trial judge said in his reasons that he relied “entirely” on the DNA evidence (para. 8).  That meant that he did not rely on the character evidence.  Imputing such reliance into reasons that state the contrary creates a new, unchartable universe of appellate review where even if the reasons reveal a proper grasp of the facts and the law, the trial judge may nonetheless find the integrity of his or her decision undermined by the possibility that judicial silence on an issue will be interpreted as “unconscious” judicial error [para 16].  [Emphasis added]. 
In conclusion, Abella J held that the curative proviso should apply; the error was harmless.
In dissent, Binnie J would not have applied the curative proviso.  In so concluding Binnie J first noted his disagreement with the interpretation of "entirely":
Nor should the Court’s refusal of a new trial hang on the thread of the trial judge’s use of the word “entirely” which — it seems to me — just reflects the fact that there was no other identification evidence before him.  If he had intended by the word “entirely” to distance himself from the inadmissible propensity evidence, I expect he would have said so [para 35].
Based on this, Binnie J found that the error was not harmless as the potential danger of the inadmissible evidence could not simply be ignored based on the reference to "entirely". 
A couple of points are worth noting in relation to this decision.  First, the impending decision in R v Sarrazin (on appeal from the Ontario Court of Appeal 2010 ONCA 577) should be interesting.  Given the differing views the members of the Court appear to have on the applicability of the curative proviso, it will be interesting to see how they handle Doherty JA's refusal to apply the curative proviso on the view that the failure to leave attempted murder with a jury that returned a guilty verdict on murder could have subconsciously impacted on their deliberations and verdict - especially in the absence of any indication that it did.
Second, there is an interesting reference to R v Mars, 2006 CanLII 3460 (ON CA).  In Mars the Ontario Court of Appeal overturned a verdict essentially finding that since the only evidence was a fingerprint found on a pizza box linked to the offence the verdict was unreasonable.  Here, the majority of the Court of Appeal held that the verdict - based "entirely" on the respondent's DNA being on items linked to the robbery - was not unreasonable.  Interestingly, on appeal to the Supreme Court the only issue appears to have been the applicability of the curative proviso.  It would be an interesting exercise - and perhaps the subject of another blog - to compare the ratio of Mars and the NSCA's decision in O'Brien.
DG Mack

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