COURT OF APPEAL FOR ONTARIO
CATZMAN, WEILER and LASKIN JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN ) Trevor Shaw, for the respondent
)
(Respondent) )
)
–and– )
)
Dennis Rodgers ) Gregory Lafontaine and
) Tanya Kranjc, for the appellant
(Appellant) )
)
) Heard: May 18, 2000
On appeal from the conviction imposed by Poupore J. and a jury
dated November 26, 1996.
BY THE COURT:
1We direct that the publication ban in connection with this
matter be continued.
2We called upon the Crown to respond only to two of the
arguments raised by the appellant. Those arguments are:
ineffective assistance of counsel; and improper use of testimony
on the appellant’s bail hearing relating to his knowledge of the
complainant’s residence address and (in a related subject) the
improper admission of reply evidence relating to the contents of
the bail sheet.
(1) ineffective assistance of counsel
3A finding of incompetence requires the appellant to
establish, first, that counsel’s acts or omissions constituted
incompetence and, second, that a miscarriage of justice resulted:
R. v. G.D.B., 2000 SCC 22, 2000 S.C.C. 22. The suggested fresh evidence in
this case establishes neither.
4The proposed strategy to point to another suspect would, in
our assessment, have been problematic. It would have opened the
door to the admission of evidence of the appellant’s record for
sexual interference and of a psychological assessment that
labelled him as a psychopathic deviant: R. v. Rodgers, Ont. C.A.,
April 4th, 2000, unreported; R. v. McMillan, 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824;
R. v. Parsons (1993), 1993 CanLII 3428 (ON CA), 84 C.C.C. (3d) 226 (Ont. C.A.). Weighed
against this is the high-risk approach of shifting suspicion to
an individual who, despite an undeniable facial resemblance, was
significantly shorter and weighed significantly less than the
assailant described by the complainant and who had only a limited
opportunity to commit the offence.
5Another basis on which ineffective assistance of counsel is
alleged is that defence counsel proceeded to trial without full
disclosure. It is argued that trial counsel failed to interview
certain defence witnesses prior to giving a list of potential
witnesses to the Crown, as a result of which the Crown learned of
two witnesses whose evidence proved unhelpful to the defence. In
fact, the police already knew the names of these witnesses
because the appellant, contrary to his counsel’s advice, had made
a statement to police in which he gave their names.
6The third basis on which ineffective assistance of counsel
is alleged is in the failure to prepare the defence witnesses
sufficiently for trial. If the cross-examination of these
witnesses, on the application to admit fresh evidence on appeal,
is any guide, fuller preparation by trial counsel would have
yielded evidence that was not only unfruitful but indeed was
detrimental to the appellant’s defence. Indeed, the alibi letter
written by the appellant to trial counsel a month after the
offence date (which came to light only on the motion to admit
fresh evidence in this court) belies the integrity of the further
alibi evidence now proferred on his behalf.
7Lastly, it is submitted that the appellant’s consciousness
of his innocence should have been brought out more extensively
than it was at the trial. This submission is, in essence, a
rehash of evidence that was already before the jury at the trial
and which was, in any event, of minimal assistance to the
appellant’s defence.
8The suggested fresh evidence does not foretell the
possibility of a different verdict or demonstrate any miscarriage
of justice. The application to admit it is dismissed.
(2) improper use of the bail hearing evidence and reply on the
bail document:
9The appellant’s argument on this point turned on what
counsel described as “a broad interpretation of the phrase ‘used
to incriminate’ the witness appearing in section 13 of the
Charter”. In our view, what happened in this case never engaged
s.13, nor (as was fairly argued by Crown counsel as an
alternative basis for this submission) did it violate s.7. The
appellant was never confronted with evidence given on his bail
hearing. At the highest, he was asked, without any reference to
his bail hearing, a question which he was constrained to answer
truthfully because an untruth might have contradicted an answer
he had given at that hearing. The result was that the appellant
gave at trial evidence that was consistent with the evidence he
gave at the bail hearing. We see no impropriety in the asking of
that question. As to the use, in reply, of the bail document,
trial counsel effectively established that that document was not
the sole source of knowledge available to the appellant regarding
where the complainant lived, and the effect of that reply
evidence was entirely unconsequential to the result.
Disposition
10The appeal is dismissed.
Released: MAY 26 2000 Signed: “M.A. Catzman J.A.”
“K.M. Weiler J.A.”
“John Laskin J.A.”