Judge refuses to remove defence lawyer
A Halifax judge has denied the Crown’s application to have Randy Desmond Riley’s lawyer removed as solicitor of record.
Riley is awaiting a retrial in Nova Scotia Supreme Court in relation to the October 2010 murder of a pizza delivery driver in Dartmouth.
The 29-year-old Dartmouth man was found guilty of second-degree murder and illegal possession of a sawed-off 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.
The Crown then applied to have defence lawyer Trevor Mcguigan removed from the case because of an alleged conflict of interest.
Mcguigan also represented Riley at the first trial and at his unsuccessful appeal in the Nova Scotia Court of Appeal but stepped aside for the appeal to the Supreme Court of Canada.
Justice Denise Boudreau heard submissions by two Crown attorneys and McGuigan on Monday before directing Riley to receive independent legal advice about his situation.
The hearing resumed Thursday, with Riley confirming that after meeting with lawyer Laura Mccarthy, he still wanted Mcguigan to represent him.
Following further remarks by counsel, the judge said she was ready to give her “bottom-line” decision.
“I am not granting the Crown’s application,” Boudreau said. “I am not ordering the removal of Mr. Mcguigan as counsel for Mr. Riley.”
She said she will provide the written reasons for her ruling to counsel as soon as possible.
At the start of the hearing Monday, the judge said details of the submissions could not be reported in the media to preserve Riley’s right to a fair jury trial. She said the reasons for her decision would also be banned from publication.
Riley will appear in Supreme Court on Friday to begin the process of setting dates for his retrial and again Dec. 22 to schedule a bail hearing. He has been in custody since the summer of 2013.
In a statement, Mcguigan said the Crown’s motion to have him removed was “unnecessary and frivolous.”
“There was obviously no conflict of interest,” McGuigan told The Chronicle Herald.
“It is frustrating for my client because it has had the effect of delaying his bail application.”
Donald Chad 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 on Oct. 23, 2010.
The Crown alleged Riley killed Smith in revenge for an earlier assault with a hammer and that Nathan Tremaine Johnson phoned the pizza shop to lure Smith to the address where the shooting took place.
Johnson, 28, of Cherry Brook, stood trial in 2015 and was found guilty of firstdegree murder.
Compelled by the Crown to testify at Riley’s trial, Johnson told the jury he was the only person responsible for Smith’s killing and claimed 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 majority decision. The dissenting member of the panel, Justice Ted Scanlan, said he was not convinced that the verdict would have been the same with a properly instructed jury. Scanlan said he would have quashed the convictions and ordered a new trial.
That dissenting opinion gave Riley an automatic right to take the case to the Supreme Court of Canada, which heard his appeal Nov. 3 and unanimously granted it.
The top court did not consider Riley’s accompanying application for leave to appeal based on fresh evidence — a recantation by Paul Smith, who was a key Crown witness at both murder trials.
Smith, no relation to the victim, testified at Riley’s trial that on the day of the killing, he drove Riley and Johnson to an apartment building on Lawrence Street in Dartmouth. He said Riley went inside the address and appeared to be concealing something in the leg of his pants when he came out and was wearing doctor’s gloves.
Smith also told the court that Riley mentioned wanting to settle a score with someone because of an earlier assault.
But after contacting McGuigan’s office in July 2019, Smith met with a private investigator in Vancouver, where he was living, and provided two videotaped statements last January and February. In those statements, Smith recanted much of his testimony and said he had lied to police to avoid being charged in the murder after he was arrested in Calgary.
Smith also revealed that he had received $17,550 from RCMP in October 2013 to help him move to Edmonton.
Riley’s application for leave to appeal included an affidavit in which Mcguigan swore that he had not known about the RCMP payment to Smith at the time of the trial.
On Thursday, Mcguigan said that with the “distraction” of the Crown’s removal application out of the way, the focus should shift to the lack of a case against his client.
“The Crown’s only essential witness has now recanted and admitted to lying under oath at the first trial, and someone else has confessed to committing the murder alone,” Mcguigan said.