BC Court of Appeal rejects criminal defendant's bid to cross-examine trial lawyer

The defendant appealed a conviction, alleging ineffective assistance of counsel

BC Court of Appeal rejects criminal defendant's bid to cross-examine trial lawyer

The Court of Appeal for British Columbia tossed out a criminal defendant’s application to cross-examine his trial lawyer on Tuesday, ruling that it would not help the court decide whether the defendant’s concerns about his lawyer’s conduct have merit.

“There is no reasonable possibility that the proposed cross-examination would assist the court in determining the issues raised in the ineffective assistance ground of appeal,” a unanimous panel wrote.

Shay Crawford was convicted of sexual assault by a provincial court judge in 2022. On the evening of the assault, Crawford and the complainant had engaged in consensual sex. Throughout the trial, Crawford argued that he mistakenly believed the complainant had given him consent and sought rulings that would allow him to bolster that argument with evidence about their sexual activity earlier in the evening.

The trial judge rejected Crawford’s argument, ruling that he did not take reasonable steps to ensure the complainant was consenting.

Crawford appealed, arguing that his trial lawyer gave him ineffective assistance by failing to adequately prepare for trial or cite evidence that would have strengthened his position.

Crawford applied to cross-examine his trial lawyer on several topics, including her knowledge of what she was required to do during voir dire, her failure to cite certain evidence about Crawford’s conduct during the consensual sexual encounter, and the way she handled text messages between Crawford and the complainant.

The appellate court denied Crawford leave to cross-examine his trial lawyer on any of these subjects.

The court found that cross-examination was not necessary to determine whether the trial lawyer incorrectly understood what she was required to do during a Seaboyer voir dire since Crawford could argue she made an error based on a transcript and an affidavit by the lawyer.

The court added that the other subjects on which Crawford wanted to cross-examine his lawyer could all be addressed on the record, and cross-examination would unlikely help the court resolve the issues.

In a statement on Wednesday, the BC Prosecution Service said, “The Court of Appeal dismissed the appeal based on settled principles relating to the proper use of sexual history evidence and allegations of ineffective assistance of counsel. 

“On the latter point, the Court of Appeal reaffirmed the wide latitude properly afforded to counsel in deciding on appropriate trial strategy and conduct.”

Counsel for Crawford did not respond to a request for comment.