FRESH EVIDENCE
Defence counsel at trial performed competently
Accused charged with incest and sexual assault. Accused’s 15-year-old daughter testified that accused came into her bedroom at 4:00 a.m. after night of drinking and engaged in cunnilingus and sexual intercourse. Accused testified that on night in question he returned home and passed out on kitchen floor and denied any sexual activity with his daughter. Theory of defence was that complainant invented allegations out of anger that accused and his new wife refused her request to move in with them. Trial judge accepted complainant’s evidence and convicted accused. Accused on appeal alleged that his trial counsel was ineffective and tendered fresh evidence affidavits from witnesses who were not called at trial. Some witnesses offered evidence of complainant’s anger at accused for not allowing her to move in to his house and others gave evidence to contradict accusations made in complainant’s police statement that accused sexually assaulted her on one other date. Majority of Court of Appeal allowed appeal from convictions and ordered new trial. Appeal allowed and convictions restored. Defence counsel at trial performed competently. Proposed fresh evidence could not reasonably be expected to have affected the result at trial.
R. v. M. (G.) (Apr. 25, 2013, S.C.C., McLachlin C.J.C., Fish J., Abella J., Moldaver J., and Karakatsanis J., File No. 34952) Decision at 103 W.C.B. (2d) 11 was reversed. 106 W.C.B. (2d) 266.
