Judge wants accused to receive independent advice

A Nova Scotia Supreme Court judge wants Randy Desmond Riley to get independent legal advice before she makes a decision on the Crown's application to have his lawyer removed as solicitor of record.

The 29-year-old Dartmouth man is awaiting a retrial for murder in connection with the October 2010 shooting of pizza delivery driver Donald Chad Smith.

Riley was found guilty of second-degree murder and illegal possession of a sawedoff, 12-gauge shotgun by a jury in April 2018, but the convictions were quashed last month by the Supreme Court of Canada, which ordered a new trial.

Earlier this month, the Crown applied to have defence lawyer Trevor McGuigan removed from the case because of an alleged conflict of interest.

Mcguigan, who represented Riley at the first trial and at his unsuccessful appeal in the Nova Scotia Court of Appeal, is opposing the motion on behalf of his client.

A hearing on the application got underway Monday in front of Justice Denise Boudreau, who ruled at the outset that counsel's arguments cannot be reported on to preserve Riley's right to have a fair jury trial.

Boudreau said the media is free to report on the outcome of the application but not on the reasons for her decision on whether McGuigan can continue to represent Riley.

After hearing submissions by counsel, Boudreau said she was not comfortable with proceeding any further until Riley receives independent legal advice about his situation.

“I realize that means an adjournment,” the judge said. “I wish that were not the case, but I find that I simply cannot, given the seriousness of this matter, proceed otherwise.”

Boudreau scheduled the hearing to resume Thursday and asked counsel to help find a lawyer to speak with Riley before then. She said that lawyer will have access to the briefs submitted for the hearing so they know which issues need to be discussed with Riley.

When the hearing continues, the judge said she will have questions for Riley about his legal representation, and counsel might want to make additional submissions.

Boudreau said she knows it would be valuable for everyone involved if she could give her decision before Friday, when Riley is scheduled to appear at a special sitting of Supreme Court to set dates for a number of jury trials, but “you may not have the answer.”

Riley told the judge Monday that meeting with an independent lawyer is not going to change his mind.

“I accept that,” Boudreau said. “I just want that to happen, sir, before I make any decisions about this.”

Smith, a 27-year-old father of two, was killed by a shotgun blast to the chest after delivering a pizza to an address on Joseph Young Street in north-end Dartmouth on Oct. 23, 2010.

The Crown alleged Riley killed Smith in revenge for an earlier assault with a hammer and that a man named Nathan Tremaine Johnson phoned the pizza shop to lure Smith to the address where the shooting occurred.

Johnson, 28, of Cherry Brook, was also charged in the killing. He stood trial in 2015 and was found guilty of first-degree murder.

Johnson was compelled by the Crown to testify at Riley's trial but surprised prosecutors by saying he was the only person responsible for Smith's killing, and that he shot him over a drug debt.

Riley appealed his convictions to the Appeal Court, arguing that the trial judge's special caution to the jury about the dangers of accepting Johnson's testimony without corroborating evidence was critical to the defence case.

The Appeal Court dismissed the appeal and upheld the convictions in a 2-1 decision. The dissenting member of the appellate panel said he would have quashed the convictions and ordered a new trial. Justice Ted Scanlan said he was not convinced that the verdict would have been the same with a properly instructed jury.

Riley then took his case to the Supreme Court of Canada, which unanimously granted the appeal Nov. 3.