Feb 15, 2016

R v Meer : The Trouble with Bad Lawyers

R. v. Meer, 2016 SCC 5 (CanLII)

The Supreme Court’s judgment in R v Meer [2016 SCC 5] was very brief. In essence: appeal dismissed; majority below—right, dissent—wrong.

The case itself, however, as described in the reasons of the Alberta Court of Appeal (“ABCA”) [2015 ABCA 141] from which the appeal was made, has all the qualities of a soap opera. It would be entertaining had very real harm not come to very real people.

Here’s how it happened.

One Mr. Meer owned a business. Eventually the business went under. Mr. Meer’s creditors, including the Royal Bank of Canada, started suing him. The business went into receivership. Mr. Meer took it badly. So he had his son and his son’s friend (among others) threaten, try to beat up, and set fire to the property of, said creditors and receiver. One of the properties that was set on fire was inhabited, and the unfortunate object of Mr. Meer’s wrath suffered serious burns.

Although Mr. Meer’s son skipped the jurisdiction, Mr. Meer’s other co-conspirators testified against him. Some other relevant evidence included his planner which had the names of all the targets written in what the judge held to be his handwriting (although Mr. Meer claimed it wasn’t his, and Mr. Meer’s wife claimed that she has two kinds of handwriting, one of which is coincidentally nearly identical to her husband’s). There were also intercepted conversations between Mr. Meer and his wife where he said that the court won’t be able to “connect the dots” at the trial with his son not there, and where he made reference to the planner as his own. He was convicted of nearly all counts of arson, conspiracy to commit arson and various other such crimes and sentenced to 15 years in prison.

Then, from the vantage point of his jail cell, Mr. Meer realized that his counsel was incompetent. A law society investigation into counsel dishonesty and competence, of which Mr. Meer was aware wasn’t enough to make him believe it. A Crown application to disqualify counsel for incompetence, which he vehemently protested, wasn’t enough to make him believe it. A conviction was.

The scattershot appeal brought up a host of incompetence allegations in connection with failing to raise issues of spousal privilege, late disclosure, handwriting experts, and more. The ABCA dealt with each in turn, and was of the (correct, I think) opinion that even if Mr. Meer’s counsel was incompetent, this would not have changed the trial outcome or materially altered anything that happened, at least based on the record before it. The record did not include most privileged information exchanged between Mr. Meer and any of his counsel, because Mr. Meer refused to waive privilege.

The majority judgment has left me very convinced very quickly, with arguments such as, crudely put, “he’s guilty as sin and no other counsel would have changed it,” and “he can’t insist on incompetent counsel and then turn around and complain that the Court respected his autonomy.”

Interestingly, however, there was a dissent. The dissent centered around, “come on, just listen to what this lawyer said during examination about incompetence. He had no clue, and it’s wildly unfair to the accused!”

The Supreme Court of Canada (“SCC”) dismissed the dissent: “aside from finding that ‘[c]ounsel’s ineffectiveness pertains to critical aspects of the trial,’ the learned dissenting Justice did not indicate how the instances which he identified of counsel’s incompetence had occasioned a miscarriage of justice.”

With due respect, I believe that the SCC did not do full justice to the dissenting opinion. The dissenting Justice did not simply fail to address miscarriage of justice as the SCC suggests. Rather, based on an earlier statement of the law, Berger J.A. argued in para 123 that a miscarriage of justice can occur not only where the trial’s result has been compromised (which is the approach the majority has taken), but also where there has been procedural unfairness. His view as I see it is that having incompetent counsel is procedurally unfair, even if this doesn’t change the trial result.

Perhaps, then, the dissent was worth more airing: it highlights the fact that there can be two reasons for our concern with counsel incompetence. One concern is that we want justice to be done – we don’t want innocents to go to prison because of bad lawyers. From this point of view, as long as the verdict was just, our concern is alleviated – the counsel’s level of competence does not matter. The other, apparently espoused by Berger, is that we also want justice to be seen to be done.Even if the accused is guilty, we don’t want him or her to believe that they have been treated unfairly, and continuously guess at what would have happened if only they had had a better lawyer (even if the answer, objectively, is the same thing that happened anyway). From that point of view, there ought to be a remedy for being subject to counsel incompetence in principle, whether or not the trial outcome had been affected.

Of course, R v Meer helpfully clarifies once and for all that the SCC is of the former view: as long as the ultimate trial result was fair, no remedy is necessary, incompetence be damned. Perhaps this is the right view; it’s one I would support. It is also, I think, a completely fair result on the facts of this case. I am still left thinking, however, that some more explicit reasoning would have been in order.