La Cour d’appel de la Nouvelle-Écosse rappelle l’importance du droit à un procès juste et équitable que possède chaque accusé. Il s’agit d’un principe fondamental de notre système de justice et il appartient au tribunaux de veiller à ce que la confiance du public soit maintenue.
Dans cette affaire, la Cour ordonne un nouveau procès au motif que l’accusé Simpson n’a pas été suffisamment préparé à témoigner par son avocate et qu’ainsi, son droit à un procès équitable a été violé :
[39] Every accused is constitutionally entitled to a fair trial. As noted by Doherty, J.A. in R. v. Joanisse, 1995 CanLII 3507 (ON CA), [1995] O.J. No. 2883, para.63: “That entitlement finds expression in s. 7 and s. 11(d) of the Charter.” It is a right afforded to all accused persons and “is seen as a principle of fundamental justice.” (R. v. G.D.B., 2000 SCC 22 (CanLII), para. 24) Impairment of the right can constitute a miscarriage of justice requiring appellate intervention under section 686(1)(a)(iii) of the Criminal Code. “A conviction entered after an unfair trial is in general a miscarriage of justice.” (R. v. Wolkins, 2005 NSCA 2 (CanLII), para. 89)
[40] Where an irregularity in the conduct of the trial “was severe enough to render the trial unfair or to create the appearance of unfairness”, a miscarriage of justice occurs. (R. v. Khan, 2001 SCC 86 (CanLII), para 69) (emphasis added) The Supreme Court of Canada in Khan identified the need to carefully weigh “the whole of the circumstances” of a case “in determining whether the trial has been rendered unfair in reality or in appearance.” 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, para. 72)
[41] The appearance of trial unfairness is to be assessed on a reasonableness standard. Will the “reasonable and objective observer” consider the administration of justice to have been compromised?
…The 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)
[42] Confidence in the administration of justice must be maintained. As Cromwell, J.A. held in Wolkins: “A 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.” (para. 89)
[43] Mr. Simpson’s 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 application that had no merit and never materialized. It was not characterized by a diligent preparation of Mr. Simpson for testifying.
[44] 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’s conceding of this appeal reflects that.
[45] An accused’s 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. We agree with the Crown’s conclusion that Ms. McCarthy’s representation of Mr. Simpson denied him the fair trial to which he was entitled.
[46] 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 – 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 – a thorough and rigorous preparation timed to reasonably coincide with when an accused actually testifies – did not occur in this case. We do not accept Ms. McCarthy’s evidence on this issue as reliable.
Conclusion
[47] The Crown’s concession of this appeal is appropriate. The fairness reflected in this concession is a central pillar of the prosecutorial role, which “excludes any notion of winning or losing,” and deserves to be commended. (R. v. Boucher, 1954 CanLII 3 (SCC), [1955] S.C.R. 16) We would allow the appeal, overturn the conviction and order a new trial.
[48] 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.