R. v Simpson, 2018 NSCA 25<\/a><\/p>\n Dans cette affaire, la Cour ordonne un nouveau proc\u00e8s au motif que l’accus\u00e9 Simpson n’a pas \u00e9t\u00e9 suffisamment \u00a0pr\u00e9par\u00e9 \u00e0 t\u00e9moigner par son avocate et qu’ainsi, son droit \u00e0 un proc\u00e8s \u00e9quitable a \u00e9t\u00e9 viol\u00e9 :<\/p>\n <\/p>\n [39]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 Every accused is constitutionally entitled to a fair trial. As noted by Doherty, J.A. in R. v. Joanisse<\/em>, 1995 CanLII 3507 (ON CA)<\/a>, [1995] O.J. No. 2883, para.63: \u201cThat entitlement finds expression in s. 7 and s. 11(d) of the Charter.\u201d It is a right afforded to all accused persons and \u201cis seen as a principle of fundamental justice.\u201d (R. v. G.D.B.<\/em>, 2000 SCC 22 (CanLII)<\/a>, para. 24)\u00a0 Impairment of the right can constitute a miscarriage of justice requiring appellate intervention under section 686(1)<\/a>(a)(iii) of the Criminal Code<\/a><\/em>. \u201cA conviction entered after an unfair trial is in general a miscarriage of justice.\u201d (R. v. Wolkins<\/em>, 2005 NSCA 2 (CanLII)<\/a>, para. 89)<\/p>\n [40]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 Where an irregularity in the conduct of the trial \u201cwas severe enough to render the trial unfair or to create the appearance of unfairness<\/em>\u201d, a miscarriage of justice occurs. (R. v. Khan<\/em>, 2001 SCC 86 (CanLII)<\/a>, para 69) (emphasis added<\/em>) The Supreme Court of Canada in Khan<\/em> identified the need to carefully weigh \u201cthe whole of the circumstances\u201d of a case \u201cin determining whether the trial has been rendered unfair in reality or in appearance.\u201d And while an accused is not entitled to a perfect trial, a trial must satisfy the standards of actual fairness and the appearance of fairness. (Khan<\/em>, para. 72)<\/p>\n [41]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 The appearance of trial unfairness is to be assessed on a reasonableness standard. Will the \u201creasonable and objective observer\u201d consider the administration of justice to have been compromised?<\/p>\n \u2026The fact that some member of the public may consider the trial to have been unfair is not sufficient. We must look at whether a well-informed, reasonable person considering the whole of the circumstances would have perceived the trial as being unfair or as appearing to be so. (Khan, para. 73)<\/p>\n [42]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 Confidence in the administration of justice must be maintained. As Cromwell, J.A. held in Wolkins<\/em>: \u201cA miscarriage of justice may be found where anything happens in the course of a trial, including the appearance of unfairness, which is so serious that it shakes public confidence in the administration of justice.\u201d (para. 89)<\/p>\n [43]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 Mr. Simpson\u2019s trial cannot be seen as one that would reassure the public to have confidence in the administration of criminal justice. Its appearance was not of effective, dedicated representation. It was plagued by delays occasioned by Ms. McCarthy and the distractions of a proposed section 276.1<\/a> application that had no merit and never materialized. It was not characterized by a diligent preparation of Mr. Simpson for testifying.<\/p>\n [44]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 There was nothing complicated about this trial. A reasonable member of the public would not view the representation provided to Mr. Simpson as emblematic of a fair trial. The Crown\u2019s conceding of this appeal reflects that.<\/p>\n [45]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 An accused\u2019s entitlement to a fair trial includes the right to be properly prepared to testify in his own defence. A failure by trial counsel to discharge this fundamental obligation to a client can be enough to undermine the integrity of the trial process and the appearance of trial fairness, constituting a miscarriage of justice.<\/strong> We agree with the Crown\u2019s conclusion that Ms. McCarthy\u2019s representation of Mr. Simpson denied him the fair trial to which he was entitled.<\/p>\n [46]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 Ms. McCarthy expressed confidence before us that she had adequately prepared Mr. Simpson for direct and cross-examination. She grounded this confidence in what she says she recalls of her discussions with Mr. Simpson. But this has to be contrasted with the file record. The last client meeting for which Ms. McCarthy has notes is September 26, 2015. Mr. Simpson ultimately did not testify until January 16, 2017 \u2013 fifteen months later, and he says Ms. McCarthy did not prepare him during this hiatus. We are satisfied that a feature of effective representation that gives a trial the appearance of fairness \u2013 a thorough and rigorous preparation timed to reasonably coincide with when an accused actually testifies \u2013 did not occur in this case.\u00a0 We do not accept Ms. McCarthy\u2019s evidence on this issue as reliable.<\/p>\n \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 Conclusion<\/em><\/p>\n [47]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 The Crown\u2019s concession of this appeal is appropriate. The fairness reflected in this concession is a central pillar of the prosecutorial role, which \u201cexcludes any notion of winning or losing,\u201d and deserves to be commended. (R. v. Boucher<\/em>, 1954 CanLII 3 (SCC)<\/a>, [1955] S.C.R. 16) We would allow the appeal, overturn the conviction and order a new trial.<\/p>\n [48]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 It is ordered that Mr. Simpson be released pending his new trial and that in the interim he continue to be bound by the terms of the Recognizance and Order of this Court dated June 15, 2017 until such time as he appears in Provincial Court.<\/p>\n","protected":false},"excerpt":{"rendered":" La Cour d’appel de la Nouvelle-\u00c9cosse rappelle l’importance du droit \u00e0 un proc\u00e8s juste et \u00e9quitable que poss\u00e8de chaque accus\u00e9. Il s’agit d’un principe fondamental de notre syst\u00e8me de justice et il appartient au tribunaux de veiller \u00e0 ce que la confiance du public soit maintenue. R. v Simpson, 2018 NSCA 25 Dans cette affaire, […]<\/p>\n","protected":false},"author":11,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[120],"tags":[],"yst_prominent_words":[],"acf":[],"_links":{"self":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/posts\/9136"}],"collection":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/users\/11"}],"replies":[{"embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/comments?post=9136"}],"version-history":[{"count":0,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/posts\/9136\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/media?parent=9136"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/categories?post=9136"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/tags?post=9136"},{"taxonomy":"yst_prominent_words","embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/yst_prominent_words?post=9136"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}