TORONTO — A man convicted of killing his wife will get a new trial because his lawyer had wanted out of the case but the judge refused to allow him to step down, Ontario's top court ruled Tuesday.
In its decision, the Court of Appeal found that Roger (Craig) Short, of Mooretown, Ont., may have been denied a fair trial because the judge forced his lawyer to stay on.
"The trial judge was obliged in the circumstances to remove trial counsel from the record. Instead, he required counsel to continue to act for the appellant at the trial," the Appeal Court said in its ruling. "His ruling created the appearance of unfairness — regardless of whether it actually negatively impacted the conduct of the defence."
As a result, the court quashed his first-degree murder conviction and ordered what will be Short's third trial for the murder of his wife, Barbara Short, 48, in October 2008.
Court records show Roger Short was arrested and charged with first-degree murder shortly after someone took a four-by-four plank to Barbara Short's head. Her husband of 28 years and high school sweetheart said he found her dead in the backyard of their home in the early hours after returning from watching a hockey game and a pub crawl.
The prosecution alleged Roger Short was an abusive, controlling and volatile man, and that he killed his wife because she was having an affair and preparing to leave him.
Among other things, Short denied killing her, maintained the relationship was not as bad as portrayed and that things were actually getting better. He also raised the prospect that someone else killed her — possibly a known violent offender who lived nearby — during theft of gas from a tank on their property.
Short's trial ended in a hung jury in May 2012 and a new trial was ordered.
About six weeks before the start of the second trial, Short's defence lawyer Phillip Millar applied to step down on the grounds his client had failed to pay him for the first trial or for the proceedings leading up to the second hearing. He later cited issues that resulted in a "loss of confidence" between him and his client but said he couldn't elaborate because it would mean breaching confidentiality. The prosecution opposed Millar's application to resign.
Justice Joseph Donohue ordered the lawyer to stay on, without hearing from Short, saying non-payment of legal fees was not enough of a reason to be allowed to step aside.
In February 2013, a Superior Court jury convicted Short — then 53 and a father of two — after a second trial presided over by Donohue. Short appealed.
Reviewing the conviction and appeal, the higher court said Donohue had focused too much on the non-payment problem and had failed to listen properly to the lawyer's insistence that the relationship had broken down for reasons that went beyond unpaid fees.
"The trial judge was obligated to accept trial counsel's representation," the Appeal Court said. "Counsel's representations that ethical reasons prevented him from continuing to act cannot be read as limited to his concerns about possibly suing his client for his fees."
The Appeal Court also faulted Donohue for failing to ask Short whether he wanted the lawyer gone.
Colin Perkel, The Canadian Press