



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smith, 2018 ONCA 908

DATE: 20181113

DOCKET: M49775 (C58086)

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Moving Party

and

Curtis Lee Smith

Responding Party

Avene Derwa, for the moving party

Lindsay Daviau (not retained) and Danielle Robitaille
    (Duty Counsel), for the responding party

Heard and released orally: November 5, 2018

REASONS FOR DECISION

[1]

The motion to strike the affidavits of Curtis Smith, Carley McNab and
    Wendy Smith is dismissed.

[2]

Ms. Daviaus adjournment request was denied as she has not yet been
    retained for the appeal.

[3]

The Crown raises two concerns:

(a)     The
    appellants fresh evidence materials were put together by a lawyer who has been
    found in a conflict of interest and the materials are necessarily impacted by
    that conflict; and

(b)     the
    need for Mr. Smith to be on notice that the Crown will be raising concerns
    about conflict in relation to the fresh evidence on the appeal proper.

[4]

Mr. Smith is now clearly on notice that the Crown will take the position
    that Mr. Smith should not be able to rely upon the parts of the affidavits that
    rely upon a lawyer who was in a clear conflict of interest as captured by
    Justice Trotters earlier order.

[5]

There is nothing that prevents the Crown from asking the panel hearing
    the appeal to give no weight to certain of the appellants evidence because it
    is tainted by a conflict of interest or for any other reason. The interests of
    justice support moving this appeal forward as expeditiously as possible.

[6]

An appeal date was set for December 10, 2018. In accordance with Justice
    Simmons order, if the Crown wishes to file any responding material or take any
    steps to process the ineffective assistance claim they may do so. If the Crown
    chooses to do so, the Crown must advise the court not less than one week before
    the December 10 date that an adjournment will be requested in light of Justice
    Simmons order.

[7]

Mr. Smith should take immediate steps to retain Ms. Daviau for
    the appeal if he intends to do so.

K. Feldman J.A.
L.B. Roberts J.A.
Fairburn J.A.


