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Criminal law Trial Ineffective representation by counsel Fresh evidence Whether the Court of Appeal erred in its interpretation and application of R. v. G.D.B., [2000] 1 S.C.R. 520, by allowing the fresh evidence application in the circumstances of this case.

The respondent was convicted of incest and sexual assault with respect to his daughter. The basis for the respondent’s appeal from conviction was an application for fresh evidence which he claimed would demonstrate that his trial counsel failed to provide him with effective assistance relating to the presentation of evidence and the provision of advice as to an appropriate strategy. The respondent submitted eight affidavits proffering fresh evidence. The majority of the Court of Appeal allowed the appeal and ordered a new trial on the basis that trial counsel’s decisions and omissions had the effect of undermining the reliability of the trial judge’s conviction such that the respondent suffered a miscarriage of justice. Hoegg J.A., dissenting, would have dismissed the appeal. In her view, the majority decision set an unacceptably low standard for an appellate court to interfere with a properly rendered trial decision.