Case information
Conduct a refined search of the Supreme Court of Canada database to obtain details on the status of a matter before the Court.
39785
Her Majesty the Queen v. Trent White
(Newfoundland & Labrador) (Criminal) (As of Right)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2024-01-26 | Appeal closed | |
| 2022-05-17 | Correspondence received from, (Letter Form), Counsel Jason Edwards is now listed as primary counsel, (Printed version due on 2022-05-25) | Trent White |
| 2022-04-06 |
Transcript received, 36 pages paper copies rec'd: 2022-04-21 |
|
| 2022-03-18 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2022-03-18 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2022-03-18 |
Judgment on the appeal rendered, Ka Row Mar Kas Ja, The appeal from the judgment of the Court of Appeal of Newfoundland and Labrador, Number 201901H0005, 2021 NLCA 39, dated June 25, 2021, was heard on March 18, 2022, and the Court on that day delivered the following judgment orally: KARAKATSANIS J. — This appeal as of right comes to us based on the dissent of Hoegg J.A. in the Court of Appeal of Newfoundland and Labrador. For the following reasons, we are all agreed to allow the appeal. The respondent, Trent White, was charged with several offences following an incident on a fishing vessel off the coast of Labrador in 2017. The charges included aggravated assault, an offence for which Mr. White had a right to choose between a trial in the Provincial Court, a trial in the Supreme Court before a judge alone, and a trial in the Supreme Court before a judge and jury (Criminal Code, R.S.C. 1985, c. C-46, s. 536(2)). His trial counsel told the court that Mr. White was electing for a trial in Provincial Court. He was later convicted of assault, aggravated assault, and mischief. Mr. White appealed, seeking a new trial on the basis of ineffective assistance of counsel. According to him, his trial counsel had failed to advise him of his choices and had elected for a Provincial Court trial on his behalf without discussion or instructions. Mr. White did not indicate, however, that he would have considered a different election, or that he would elect differently on a retrial. A majority of the Court of Appeal of Newfoundland and Labrador accepted Mr. White’s uncontradicted evidence, allowed his appeal, and ordered a new trial. Reasoning that an election is one of the important rights of an accused, the majority concluded that his counsel’s failure to advise his client, or to seek his instructions on the choice, undermined trial fairness and resulted in a miscarriage of justice, satisfying the test for ineffective assistance of counsel (para. 23 (CanLII)). Citing the Ontario Court of Appeal’s decision in R. v. Stark, 2017 ONCA 148, 347 C.C.C. (3d) 73, it explained that Mr. White was “not required to establish further prejudice” (para. 12). We agree that the right to elect the mode of trial is an important right that should be exercised by the accused. But we do not agree that Mr. White has shown that the circumstances of this case resulted in a miscarriage of justice. Rather, we agree with Hoegg J.A., in dissent, that ineffective assistance of counsel was not made out. Ineffective assistance has a “performance component” and a “prejudice component”: for such a claim to succeed, the appellant must establish that (1) counsel’s acts or omissions constituted incompetence; and (2) that a miscarriage of justice resulted (R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 26). Here, Mr. White failed to state that he would have chosen differently had counsel informed him of his right to elect his mode of trial. Even accepting Mr. White’s evidence that there was no discussion or consultation regarding his right of election, it did not rise to a miscarriage of justice in this case. In G.D.B., the Court explained that counsel’s failure to discuss and obtain instructions on fundamental decisions relating to an accused’s defence “may in some circumstances raise questions of procedural fairness and the reliability of the result leading to a miscarriage of justice” (para. 34). Stark itself recognizes this at para. 32. However, the Court has never provided that the loss of those decisions alone warrants a new trial on ineffective assistance grounds. To the extent that Stark suggests otherwise, it is incorrect. The accused must, in most cases, demonstrate more than the loss of choice. Although it did not address ineffective assistance of counsel, the Court in R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, explained that to withdraw a guilty plea on the basis that the accused was unaware of legally relevant consequences, an accused must show subjective prejudice. Subjective prejudice demanded that an accused demonstrate there was a “reasonable possibility” they would have acted differently (para. 6). The Court was unanimous that a mere failure to exercise an informed choice was insufficient. In our view, these principles also apply to an accused’s election of the mode of trial. Further, Mr. White’s request for a new trial cannot succeed on the basis of an appearance of unfairness. The standard for establishing a miscarriage of justice on this basis is high; the defect must be “so serious that it shakes public confidence in the administration of justice” (R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828, at para. 51, quoting R. v. Wolkins, 2005 NSCA 2, 229 N.S.R. (2d) 222, at para. 89). While the loss of his right to elect was serious, the facts of this appeal do not rise to that standard. Indeed, if Mr. White’s convictions were set aside, and he proceeded with the same election on retrial, that could undermine public confidence in the administration of justice. Finally, even if Mr. White’s loss of his election amounted to a procedural error under s. 536(2) of the Criminal Code, the Provincial Court retained jurisdiction to hear the matter, since the court had jurisdiction “over the class of offence” under s. 686(1)(b)(iv) of the Criminal Code (R. v. Esseghaier, 2021 SCC 9, at para. 48, fn. 2). For these reasons, we would allow the appeal and remand the matter to the Court of Appeal to address Mr. White’s remaining grounds of appeal, which were not addressed below. Allowed |
|
| 2022-03-18 |
Hearing of the appeal, 2022-03-18, Ka Row Mar Kas Ja Judgment rendered |
|
| 2022-03-16 | Appellant's condensed book, (Book Form), (Printed version due on 2022-03-23) | Her Majesty the Queen |
| 2022-03-10 | Respondent's condensed book, (Book Form), (Electronic version filed on 2022-03-10) | Trent White |
| 2022-03-09 | Correspondence (sent by the Court) to, Correspondence relating to upcoming hearing | |
| 2022-02-14 |
Notice of appearance, Dana Sullivan will appear before the Court and will present oral argument. |
Her Majesty the Queen |
| 2022-02-14 |
Notice of appearance, (Letter Form), Jason Edwards will appear before the Court and will present oral argument. , (Printed version filed on 2022-02-21) |
Trent White |
| 2022-02-09 | Correspondence (sent by the Court) to, Letter of direction relating to March hearing | |
| 2022-01-17 | Order on motion to extend time, by CÔTÉ J. | |
| 2022-01-17 |
Decision on motion to extend time, Côt, UPON APPLICATION by the respondent for an order extending the time to serve and file his factum and book of authorities to January 11, 2022. AND THE MATERIAL FILED having been read; AND NOTING the consent of the appellant; IT IS HEREBY ORDERED THAT: The motion is granted. Pursuant to Rule 71 (3) of the Rules of the Supreme Court of Canada, the respondent is also granted permission to present oral arguments at the hearing of the appeal. Granted |
|
| 2022-01-17 | Submission of motion to extend time, Côt | |
| 2022-01-11 | Certificate (on limitations to public access), (Letter Form), (Printed version filed on 2022-01-14) | Trent White |
| 2022-01-11 | Respondent's book of authorities, (Book Form), Completed on: 2022-01-12, (Printed version filed on 2022-01-14) | Trent White |
| 2022-01-11 | Respondent's factum, (Book Form), Completed on: 2022-01-12, (Printed version filed on 2022-01-14) | Trent White |
| 2022-01-11 | Response to motion to extend time, (Letter Form), Missing: Proof of Service (rec' 01/12/22), Completed on: 2022-01-12, (Printed version due on 2022-01-18) | Her Majesty the Queen |
| 2022-01-11 |
Motion to extend time, (Book Form), to serve and file the Respondent's Factum and Book of Authorities. Missing: Filing Fee (rec' 01/13/22), Completed on: 2022-01-18, (Printed version filed on 2022-01-14) |
Trent White |
| 2021-12-21 | Correspondence received from, (Letter Form), Notice of withdrawal of Counsel, (Printed version due on 2021-12-30) | Trent White |
| 2021-11-08 | Notice of hearing sent to parties, (sent electronically on 2021-11-09) | |
| 2021-11-08 |
Appeal hearing scheduled, 2022-03-18 Judgment rendered |
|
| 2021-10-29 | Letter advising the parties of tentative hearing date and filing deadlines (Notice of appeal – As of right) | |
| 2021-10-14 | Certificate of counsel (attesting to record), (Letter Form), (Printed version filed on 2021-10-15) | Her Majesty the Queen |
| 2021-10-14 | Appellant's book of authorities, (Book Form), Completed on: 2021-11-03, (Printed version filed on 2021-10-15) | Her Majesty the Queen |
| 2021-10-14 | Appellant's record, (Book Form), Completed on: 2021-11-03, (Printed version filed on 2021-10-15) | Her Majesty the Queen |
| 2021-10-14 | Appellant's factum, (Book Form), Completed on: 2021-11-03, (Printed version filed on 2021-10-15) | Her Majesty the Queen |
| 2021-09-02 | Letter acknowledging receipt of a notice of appeal, FILE OPENED 2021-09-02 | |
| 2021-08-20 | Certificate (on limitations to public access), (Letter Form), 23A, (Printed version due on 2021-08-27) | Her Majesty the Queen |
| 2021-08-20 |
Notice of appeal, (Book Form), Required: - CA order (rec'd 2021-09-20) - TC orders for 2018-11-08, 2018-12-21, 2019-01-08, 2019-01-10 judgments - Signed judgments (2018-11-08, 2018-12-21, 2019-01-08, 2019-01-10) , Incomplete, (Printed version filed on 2021-08-20) |
Her Majesty the Queen |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Her Majesty the Queen | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| White, Trent | Respondent | Active |
Counsel
Party: Her Majesty the Queen
Counsel
4th Floor, Atlantic Place - 215 Water Street
St. John's, Newfoundland & Labrador
A1C 6C9
Telephone: (709) 729-4299
FAX: (709) 729-1135
Email: danasullivan@gov.nl.ca
Agent
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-8695
FAX: (613) 788-3509
Email: lynne.watt@gowlingwlg.com
Party: White, Trent
Counsel
Derek Hogan
Suite 200
251 Empire Avenue
St. John's, Newfoundland & Labrador
A1C 3H9
Telephone: (709) 552-7691
FAX: (709) 753-6226
Email: jasonedwards@legalaid.nl.ca
Summary
Keywords
Criminal law — Procedure — Trial fairness — Election of mode of trial — Accused alleging he was not informed of his right to elect mode of trial — Whether appellate court can overturn trial verdict on procedural fairness grounds alone without proof of prejudice.<br><br>
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
The respondent was charged with assault, aggravated assault, uttering a threat, and damage to property. On June 5, 2018, the Crown elected to proceed summarily on three hybrid offences, and the charge of aggravated assault was electable as to mode of trial. On the same date, the respondent’s counsel stated that the election was trial in the Provincial Court. The trial judge found the respondent guilty. The respondent appealed his convictions on the basis that his trial counsel had failed to obtain his informed instructions regarding his election as to the mode of his trial. He alleged that he had not been informed that he had a right to elect the mode of trial, resulting in a miscarriage of justice. A majority of the Court of Appeal for Newfoundland and Labrador allowed the appeal, set aside the convictions, and ordered a new trial. In dissent, Hoegg J.A. would have dismissed the appeal.
Lower court rulings
Provincial Court of Newfoundland and Labrador
2018 CanLII 105266 (NL PC), 2018 NLPC 1318A00216
See file
Provincial Court of Newfoundland and Labrador
2018 CanLII 123399 (NL PC), 2018 NLPC 1318A00216
See file
Provincial Court of Newfoundland and Labrador
2019 CanLII 144 (NL PC), 2019 NLPC 1318A00216
See file
Provincial Court of Newfoundland and Labrador
2019 CanLII 442 (NL PC), 2019 NLPC 1318A00216
See file
Court of Appeal of Newfoundland and Labrador
201901H0005, 2021 NLCA 39
Appeal allowed, convictions set aside, new trial ordered.
Memorandums of argument on application for leave to appeal
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
Not available
Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
Not available