“When I was in, on the stand or statements that I wrote, I guess that there was some stuff that was, was false”

MacEwen didn’t further pursue the matter. He should have. However, it’s beyond belief that the Crown prosecutor, Melanie Perry, was not fully aware that Paul Smith had just lied on the stand. But she did nothing to correct the record. She didn’t return to the police payment to Paul Smith on redirect, nor did she otherwise inform the court or the defence that Paul Smith had lied. And so the jury was left with the false understanding that Paul Smith had not received money from the police.

In my opinion, this is a stark and inarguable example of prosecutorial misconduct.

Randy Riley’s case took longer to come to trial, in part because Riley kept switching lawyers. Riley was first represented by Pat Atherton, then by Ian Hutchison, next by Brian Church, and finally by Trevor McGuigan, who was the defence lawyer at trial. With each switch of lawyers, the voluminous court files, including the police disclosures, were transferred.

Problem was, McGuigan missed the May 12, 2014 and May 14, 2014 letters disclosing the payment of $17,550 to Paul Smith. McGuigan wasn’t aware of the payment, and so never questioned Smith about it at trial. After he was told about the letters this past summer, McGuigan explained the situation in an affidavit filed with the Supreme Court in September 2020:

On July 21, 2020, I conducted a detailed review of all file materials in an attempt to locate the covering letter to Mr. Atherton of May 14, 2014 and its attachment. My review included a subfolder created by previous defence counsel labelled “Correspondence Previous Counsel”. This subfolder contained roughly 30 pieces of miscellaneous correspondence – for example letters from previous defence counsel to the Court, to Legal Aid and to Mr. Riley. The material contained in that subfolder did contain the one-page letter from RCMP Inspector Martin Marin dated May 12, 2014, indicating that Paul Smith had received a one-time payment from the RCMP of $17,550. My review did not locate the Crown’s covering letter of May 14, 2014. I do not have a recollection of reviewing the “Correspondence Previous Counsel” subfolder during the time I represented Mr. Riley.

Randy Riley always maintained his innocence. He didn’t testify at court, but in previous statements to police, he said he was with his girlfriend at the time of the murder. Nevertheless, Riley was convicted on April 16, 2018.

On March 20, 2019, Riley was sentenced by Justice James Chipman. Before Chipman read the sentence, members of Chad Smith’s family read victim impact statements. Then Riley himself was given the chance to address the court; he used the opportunity to again declare his innocence, giving this statement (this is a transcript of my recording, not an official court transcript):

Before I get into what I want to say, I want to express the fact that no matter how I feel about the outcome of this verdict, that the most important thing here is the fact that your family lost more. No matter how I feel about the outcome of this trial, no matter how, even as my lawyer goes through the process of appeal, you’ve lost a loved one, and I want you to know that I acknowledge that. And I believe that’s the most important thing here.

From the beginning of this case in 2013 when I was arrested, I believe that the crown was not set out seeking justice on your behalf, but was set out to win, by all means necessary, that’s how I see it.

I’m deeply sorry for your loss, but I want you to try, if you can, to objectively think about what took place in this trial, and ask yourself some serious questions.

Now, you probably [recall] that at the previous trial of Mr. Johnson, where there was an eyewitness that was called to testify, in which the eyewitness testified that he’d seen somebody running and that he had white pants that was presented as evidence, and was not worn by me.

There was a dog, a canine unit, on the scene within minutes of the offence. And the dog trail, and the dog expert testified at my trial to the fact that there was one trail. And the dog, and the man himself, are qualified to determine if there’s more than one trail. And he testified that there was not more than one trail. And so my question to the court is, where did I go? If I committed this offence, what happened to me? I definitely didn’t vanish.

If I was involved with it, I’m pretty sure there would have been another trail, or an eyewitness would’ve said they’d seen two people, instead of just one.

And I want the family of the victim to know that this miscarriage of justice I believe it’s not a burden I put on them, but on the court, because I don’t believe that I was found guilty beyond a reasonable doubt.

Not only that, I don’t believe that the verdict supports the evidence that was presented against me. It seems to me that — though I believe, and I think everyone in this court believes — that no one wanted this case to be about race, but inevitably, race is what it has become. And when things come about race, a lot of time they tend to be ignored. And the elephant in the room is race.

And to those who it should matters most to, it seems to be nothing more than just a shadow on the wall. Because we’re here. And the process is the process. I agree with that. But the particulars of the case.. [several seconds are unintelligible due to noise in the courtroom] Martin Luther King’s name was mentioned [in once of the victim impact statements] for reasons that to me are obvious. He himself was quoted as saying justice delayed is justice denied. In this case to me it is both a delay and a denial of justice. [unintelligible due to softness of speaker’s voice, but he is addressing the judge]

And to the family, I had no involvement and I’m not responsible for this man’s death. And from this day forward, I will continue to pursue my innocence. And that’s all I have to say.

Chipman sentenced Riley to life in prison with no chance of parole for 15 years.

On May 28, 2019, a three judge panel at the Nova Scotia Court of Appeal rejected Riley’s appeal on a split two-to-one decision, with Justices Duncan Beveridge and Cindy Bourgeois denying the appeal, and Justice Edward Scanlan dissenting. Because it was a split decision, the Supreme Court of Canada agreed to hear a further appeal.

Paul Smith recants

In late July 2019, Paul Smith called Trevor McGuigan’s law office and left a voicemail message. Smith said he was now living in Vancouver and he wanted to talk to McGuigan about Randy Riley. Via texts and voicemail, Smith and McGuigan played phone tag for a couple of weeks, but finally connected on August 12.

Smith told McGuigan that he had new information about the case. McGuigan proceeded with caution: he told Smith that he didn’t want to hear about the new information just yet, and he encouraged Smith to get a lawyer before talking to him. Smith said he didn’t know any lawyers. Over the next few weeks, McGuigan found a potential lawyer for Smith, but Smith finally said he didn’t need a lawyer.

On November 2, 2019, McGuigan hired a private investigator, Bruce Pitt-Payne of Xpera Investigations, a Vancouver firm. Pitt-Payne contacted Smith, and got a videotaped statement from him on January 12, 2020, and then a second videotaped statement on February 15.

Smith’s January 12 statement opens as follows:

Well, I got some stuff that, like, was said when, I guess, when I was on, in, on the stand or statements I wrote, I guess there was some stuff that was, was false… And I got to know, stuff that’s been eating me up over, over the years and, and yeah, just stuff’s been really hard. And, like, a lot of stuff’s happened since then, you know, like, so somebody lost a son, two people are gone to jail for life.

…

So it’s just been a lot of stuff happened and obviously, like, I’m actually trying to move on with my life and, and my life’s just been, it’s just been up and down since then, right… So I’m just trying to get everything out of the way and hopefully this will finally put everything behind, like. And honestly, like, I, and like, even, like, in my statements I never said, like, who did whatever, who knows if they, whoever did like, with the people that are arrested for it, like, I really don’t know who did it and… I never did say who did it, right. But it’s just, if like, the person, obviously Randy who I’m coming here for to clarify stuff up that I said, which there’s some false stuff that I said, right.

So I’m just trying to clarify it up and if, you know, really, if he didn’t do it or whoever didn’t do it, either one, which I don’t know, like, it would just, you know, I would just feel really shitty if one person’s really doing life over some stuff that I, like, that I said, that could be false, that, that’s false, right.

Smith spelled out his lies in the two videotaped statements. In their application to the Supreme Court of Canada, Riley’s new lawyers, Lee Seshagiri and Roger Burrill, detail the lies:

• Paul Smith denied that [Riley] made inculpatory admissions about targeting Chad Smith on the drive to the apartment in Dartmouth. He explained that he was previously aware of a violent history between the two men and added this fact to bolster his story to police:

o MR. SMITH: “…[W]e didn’t really talk about much, you know, it was just an everyday thing.”
o MR. SMITH: “And then, like I said, like, on the drive we just, we never really, never really talked that much, you know, just, you know, everything day, you know, “How’s your day going?” You know, “What are you up to?” And stuff like that. And then, yeah, then that, yeah, that’s pretty much it.”
o MR. PITT-PAYNE: So then the next area then that, that I want to go to is the conversation in the car. That night, Randy calls you to come and pick him up and you’re saying that there was no conversation regarding what was going to happen?
MR. SMITH: Yeah. That, that is true because, like, obviously I said in my statement before, probably on the drive that, that, like, he had a problem with this guy, but I already, I already knew that there was a problem. There wasn’t no problem, it’s just I already knew what happened prior to that is just, like, you know, like I said, I kind of just put it in there to make it look better for me, I guess.

• Paul Smith stated that both [Riley] and Nathan Johnson left his vehicle when they arrived at the apartment building, not just the Applicant:

o MR. SMITH: “So you know, I picked him up, took him to this address that I just said. Him and Nathan both went in. They might have been in there for five to, five to ten minutes. Then they, they come back outside and, yeah, they got back in the car.”

• Paul Smith stated that when [Riley] and Nathan Johnson returned to the vehicle, only Nathan Johnson was wearing gloves, not both men:

o MR. SMITH: “And then the only thing I really noticed, when they got, we got back, when they got back in the car, just Nathan had, Nathan had gloves on.”
o MR. SMITH: “And then there’s, like when, when they said, like, I, like, because I did say when Randy come outside they both had gloves on, which, which isn’t true, like, only Nathan come outside with gloves.”

• Paul Smith stated that upon [Riley]’s return from the apartment building, he did not see [Riley] carrying a gun, nor did he see the [Riley] limping, nor did he see a bulge in [Riley]’s pants suggestive of a gun:

o MR. SMITH: “…the police were asking me, ‘Did you see a gun?’ ‘No I never seen a gun.’ And that is still my statement, I really never did see a gun.”
o MR. SMITH: “Like, I said, yeah, when he come outside I could see something bulking out his pants, which isn’t true, I just kind of, I just made that up.”
o MR. SMITH: “So I kind of said in court, you know, I seen him walk with a limp or kind of seen it bulging out of his pants, which wasn’t true.”

• Paul Smith stated that, contrary to his prior testimony, [Riley] did not make any inculpatory admissions to him on the day following the shooting.

o MR. SMITH: “…Then the next day, and I told pretty much the police that, you know, he, when I talked to him that next day that he said it had to be done and stuff like that but it wasn’t true, I just, I just said that because I kind of felt like I was, I was pressured into saying stuff.”
o MR. SMITH: “And, yeah, I talked to Randy the next day, so, and I, I did kind of make that up, like, where I said that, oh, when we talked on the phone that he had, he had to take care of him or to, to handle it, which wasn’t, it wasn’t true, I just made that up to just take everything off of me.”

Pressured in Calgary

Smith said he had concocted the falsehoods because he feared that he would be charged with the murder. As he told private investigator Bruce Pitt-Payne:

And then after maybe a year or so [after the murder], I, I moved out, I moved out west. And then to be exact, in, two, three years later, it would have been like, I think, 2013, Steve Fairbanks [sic, Fairbairn] the cop, a couple of cops from Nova Scotia come to, come to see me at my place where I lived in Calgary. And he just come in by himself because he, he knew me growing up and just, he just knew me. So he just thought, I guess, he’d have a better chance to talk to me.

So he come in and sat down. He pretty much laid everything out on the table and he was there for about an hour and I still never said nothing. But in the chat we had there, he, he pretty much just was like, you know, I should do the right thing. And he knows I, I didn’t have nothing to do with it, I, I bar… , I drove them to go get a gun and dropped them off. And he pretty much told me that he knows Randy did it and Nathan’s the one that made, made the call or, the call to set it up.

So and then we just, we chatted and, I don’t know, he, he pulled out a picture that I had on my wall with me, my wife, and my kid, and just said I, you know, should do the right thing or, you know, I, “Do you want to spend the rest of your life in jail and not see your kid?” And we just chatted and I really never had nothing to say because I feel like I really had no involvement. I picked up a good friend, drove him, it was noth…, like, nothing new, like I picked him up multiple times before. So, you know, I picked him up, took him to a place where he wanted to go, and he come, he come back out and I dropped him back off. It was nothing new to me, so, yeah.

And then after that, you know, I said nothing he pretty much was just like, “Okay, well, we’ll be coming to see you sooner than later.” And then the next, the next day they come, picked me up and charged me with murder, and took me out of my house and down to the Calgary Police Station and interrogated me.

And I, I was scared so, you know, I cooperated with them and said, said some stuff to, you know, kind of take me to, I don’t know, like, how you’d want to put it, like, I just said some stuff to make sure, you know, everything went good and I wasn’t going to be involved in this. And it’s not like, from my standpoint, like, I really never had nothing to do with it.

So, yeah, they interrogated me and, like, pretty much the way I felt, like, they, like, he [Fairbairn] come in and told, he come, he didn’t, he obviously asked me, oh, I knew, I knew what was going on but I really, I never knew that and he pretty much told, told me everything that he knew. So, you know, I kind of just used that to my advantage, I don’t know how you want to put it.

But, so when they, yeah, they interrogated me and some stuff I said I kind of just, I just went with it and, you know, I guess, I don’t know, I made some extra stuff up or I, you know, I’ve been beating myself up and should have, should have come out and said something before. And, yeah, pretty much, yeah, that happened.

In his rambling way, Paul Smith seems to have suggested that Constable Steve Fairbairn had fed Smith particulars about the case in order to help Smith concoct a statement, and then Smith further embellished the story. I hope to soon have more documents that will bring more clarity to this issue.

What happens now?

Now that the Supreme Court of Canada has ordered a new trial, Randy Riley will presumably be moved out of federal prison and back to the Burnside jail on remand to await that trial.

But will there actually be a new trial?

Maybe not, because Paul Smith has disappeared.

On August 31, 2020, RCMP Constable Benedict Chen, who works in Surrey, British Columbia, was asked to locate Smith.

Chen checked with BC’s Social Assistance Information Centre, and learned that Smith had “only attempted, but not completed” an application for social assistance in November 2019.

Chen learned that in June 2020, there were “numerous complaints” about Smith and someone else panhandling at an Esso Station on 104 Avenue. Chen went to the gas station and “spoke with a fellow busker” who said he didn’t know Smith.

Chen went to the last address known for Smith, and no one there knew of him.

Chen also asked the Surrey RCMP Police Mental Health Outreach Team to look out for Smith, but so far they hadn’t located him.

Halifax police, for their part, contacted the mother of Smith’s children, and she said she hadn’t heard from him.

They also contacted Smith’s parents in Dartmouth. They were quite concerned about him, and said all they knew is he is “between addresses” somewhere out west. Their son would call them occasionally, they said, but not recently.

I have the cell phone number that lawyer Trevor McGuigan and private investigator Bruce Pitt-Payne used to communicate with Paul Smith. I’ve left a message on his voicemail, and he hasn’t responded. He also has not responded to a text message.

It’s doubtful that the Crown can successfully retry Randy Riley without the testimony of Paul Smith.

Additionally, the Crown can only retry on the charge of second-degree murder, the conviction that was vacated by the Supreme Court of Canada. The crown’s theory of the case is that the murder of Chad Smith was premeditated — that Randy Riley and Nathan Johnson planned the murder together, went and got the gun, lured Chad Smith with the fake pizza delivery, and then laid in wait to ambush him. It’s difficult to see how that line of reasoning can be used for a second degree murder charge, which is a crime of the moment, without premeditation.

So it’s possible that Randy Riley will soon be a free man.

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