R. v. Faudar, 2021 ONCA 226
COURT OF APPEAL FOR ONTARIO
DATE: 20210413 DOCKET: C64030
Watt, Tulloch and Roberts JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Kevin Faudar Appellant
Counsel: R. Craig Bottomley and Andrea Vanderheyden, for the appellant Catherine Weiler, for the respondent
Heard: September 16, 2020 by video conference
On appeal from the conviction entered on January 25, 2017 and the sentence imposed on June 15, 2017 by Justice Nancy L. Backhouse of the Ontario Superior Court, sitting without a jury.
A. Introduction
1On April 13, 2014, police executed a search warrant at the appellant’s family home. They located a large .44 Magnum Taurus handgun with live ammunition in a small dresser in the appellant’s bedroom.
2According to the appellant, his friend, X.Y., placed the handgun and live ammunition in the appellant’s music studio, unbeknownst to him. When the appellant learned that the gun and ammunition were in his studio, he decided to move the items into his locked bedroom for temporary safekeeping. Unfortunately for the appellant, five days later, police searched his residence and seized the items.
3While the appellant contends that the gun and ammunition belonged to his friend and not him, he did not turn the items into the police nor did he insist that they be removed immediately from his possession upon discovering them in his studio. In other words, based on the factual narrative of this case, there was no doubt that the appellant was knowingly in possession of the gun and ammunition, and that he had no licence or authorization to possess such items. To compound the problem with the possession of the firearm and ammunition, the appellant also had what appeared to be drug trafficking paraphernalia in his possession.
4The appellant was charged with various firearms offences. Following a judge-alone trial, the appellant was found guilty of all charges and subsequently sentenced to 2 years and 3 months’ incarceration, less 114 days credit for time served.
5The appellant now appeals his convictions on the basis that he received ineffective assistance of counsel at trial, resulting in a miscarriage of justice. He advances three main reasons for this position:
i. The appellant’s counsel previously represented his friend, X.Y., which placed the appellant’s counsel into a conflict of interest that negatively affected the appellant’s trial; ii. The appellant’s counsel improperly advised the appellant to testify at his trial and his testimony ensured his own conviction; and iii. The representation by the appellant’s counsel at trial was ineffective.
6Following the convictions, both the appellant and his defence counsel provided affidavits and oral testimony, which form the basis of a fresh evidence application at this appeal. Since the appellant seeks to set aside his convictions on the basis of ineffective assistance of counsel, it is in the interests of justice to consider the fresh evidence: R. v. W. (W.) (1995), 25 O.R. (3d) 161 (Ont. C.A.), at pp. 169-170.
7For the reasons that follow, I would dismiss the conviction appeal.
8In his notice of appeal, the appellant asks for leave to appeal his sentence. It appears that he has since abandoned his sentencing appeal. Accordingly, I would also dismiss the sentencing appeal as abandoned.
B. Background Facts
I. Events Leading Up to the Search Warrant and Arrest
9The appellant lived at a home with his parents, grandparents, two younger siblings and uncle. At the back of the home, there was a shed that he had converted into a music studio.
10As indicated earlier, X.Y. was the appellant’s friend. On April 8, 2014, X.Y. texted the appellant to advise that he had left something in the music studio. X.Y. asked the appellant to keep it safe for him until he could retrieve it upon his return to Toronto; he was headed to the United States for a short trip. The appellant found out that the “something” that X.Y. had left behind was a gun. The appellant was upset, and texted X.Y. to ask that he retrieve the weapon as soon as he returned to the city. He also condemned X.Y. for leaving the firearm at his residence and ended their friendship. The appellant had an additional reason to be upset: X.Y. was aware that the appellant was under a court order prohibiting him from possessing weapons at the time.
11The appellant moved the firearm into his bedroom for safe keeping, as people freely filtered in and out of the music studio and his bedroom had a locked door.
12On April 13, 2014, X.Y. contacted the appellant to advise him that he was back in town and would collect his gun. On that same day, the Toronto Police Service executed a search warrant at the appellant’s home. The telewarrant had been issued pursuant to s. 11 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, (“CDSA”) to search for drug related items. The basis for the search was a tip from a confidential informant. The police did not find any narcotics, but as noted above, they did find the firearm and ammunition. Thus, as a result of the search, the appellant was charged with a number of weapons related charges.
13X.Y. gave the appellant’s mother a phone number for a defence lawyer. Several years prior to the matter at issue, and when X.Y. was a youth, that same lawyer represented X.Y. at his own criminal trial. The appellant retained this lawyer for his trial knowing that he had previously represented X.Y.
II. Evidence at the Preliminary Inquiry
14A preliminary inquiry was held on September 8, 2015. The parties agreed to tender the evidence from the preliminary hearing at trial, supplemented with some further evidence.
15The evidence at the preliminary hearing indicated that before executing the search warrant, the police arrested the appellant outside his home for possession of cocaine and marijuana for the purpose of trafficking.
16Soon thereafter, the appellant’s grandfather identified the appellant’s bedroom to the police officers. Inside, they found a .44 Magnum Taurus handgun in a dresser containing male clothing, as well as seven loose rounds of .44 calibre ammunition, a box of fifty .44 calibre ammunition, and a number of shotgun shells. A dresser in the room contained paperwork from the Canada Revenue Agency bearing the appellant’s name. A safe in the bedroom closet contained his passport, driver’s licence and other forms of identification. Other items found in the bedroom included: a small digital scale, empty baggies, a collapsible baton, and a trigger lock that was found in another safe in the bedroom. The officers did not find any drugs in the appellant’s room or on his person.
17Defence counsel cross-examined the police officers at the preliminary inquiry regarding the reason for the arrest, as well as the circumstances surrounding the search, both with respect to the purpose of the search warrant and the manner of its execution.
III. The Charter Application
18After the preliminary inquiry, the appellant brought an application under s. 8 of the Canadian Charter of Rights and Freedoms to exclude the evidence that the police obtained pursuant to the search warrant.
19At the hearing of the Charter application, the appellant’s position was that the police used the CDSA search warrant as a guise to gain entry into the residence to conduct a search for firearms, rather than drugs. According to defence counsel, it followed that the information to obtain the search warrant did not contain full, fair and frank disclosure of the true purpose of the search. Further, defence counsel submitted that the warrant lacked reasonable grounds to believe that drug dealing was occurring on the premises and the officers improperly relied upon the telewarrant procedure. Lastly, defence counsel argued that the warrant had been improperly executed. Specifically, he alleged that the officers did not show the warrant to the appellant or any of the other occupants of the residence upon request, in contravention of s. 29(2) of the Criminal Code, R.S.C., 1985, c. C-46.
20The appellant also sought to reveal the identity of the confidential informant, pursuant to the innocence at stake exception to informer privilege. Defence counsel argued that X.Y., or someone he knew, had planted the gun and informed the police on the appellant.
21On January 18, 2017, the judge dismissed the appellant’s application, finding that the warrant had been properly obtained and executed. She further concluded that there was full, fair, and frank disclosure in the information to obtain.
22The application judge also found that the appellant’s submissions on the innocence at stake exception failed to meet the high threshold necessary to reveal the identity of the confidential informant.
IV. The Judicial Pretrial
23After receiving the decision denying the Charter application, defence counsel arranged to conduct a judicial pretrial with another judge. The judicial pretrial was held that afternoon. In the pretrial, the Crown made an offer of a three-year sentence in exchange for a guilty plea to a breach of s. 95(1) of the Criminal Code. Defence counsel rejected the Crown’s offer and instead elected to proceed to trial before the application judge.
V. The Trial
24The Crown’s case began on January 18, 2017. The Crown called two officers who took part in the search and who had already testified at the preliminary inquiry.
25In his cross-examination of the two officers, defence counsel essentially asked one question: did the police use sniffer dogs when exercising the search warrant? The officers answered no.
26The defence case began on January 19, 2017. Defence counsel requested a brief adjournment so that he could locate X.Y. and serve him with a subpoena to testify. The trial judge denied the adjournment request, reasoning that defence counsel should have served X.Y. with the subpoena in advance.
27The appellant then testified. He explained the circumstances under which X.Y. had left the gun at his home. The appellant noted that he did not ask for the gun to be left there, nor did he want it left there. He was angry with X.Y. for ever putting him or his family in this position. The appellant moved the gun from the music studio to his bedroom where it would be safer because fewer people would have access to it.
28The appellant also testified about why he did not bring the firearm to the police station. First, the appellant testified that he was afraid of retribution from X.Y. if he did return the gun and he did not want to be known as a snitch in the neighbourhood. Second, the appellant was afraid to turn the gun in because he had witnessed police officers beat his friend to death. He had also had other negative interactions with the police, which led him to fear that the police would try to “pin it” on him.
29The appellant also testified that the scale and baggies found in his room were for his jewellery business and were not related to drug trafficking. He indicated that he used the sealed baggies to contain earrings, chains and other items that he sold at a flea market; and he used the scale to measure the weights of different earrings. He denied ever selling marijuana or cocaine from his house. He also denied ownership of the extendable baton and trigger lock, both of which police found in his bedroom.
30Defence counsel again requested an adjournment of the trial to locate X.Y. on January 20, 2017. The application judge again denied the request.
31In his closing statement, defence counsel alleged a conspiracy between the Crown and the police to frame the appellant. He indicated that the firearm would not be in the appellant’s residence but for the involvement of police and the alleged confidential informant, X.Y. He also argued that the appellant had no ill-intention with respect to the firearm and in fact repudiated X.Y. for leaving it at his residence in the first place. Furthermore, defence counsel argued that the appellant exercised a quasi-public function by moving the firearm from an insecure location to his bedroom until X.Y. could pick it up. According to defence counsel, the appellant “did all that he could to take innocent possession of that firearm.”
VI. The Decision of the Trial Judge
32The trial judge rejected the appellant’s defence and convicted the appellant of five firearms offences: (1) possession of a loaded, restricted firearm, together with readily accessible ammunition, without a licence or registration certificate (Criminal Code, s. 95(1)); (2) possession of a firearm knowing its possession is unauthorized (Criminal Code, s. 92(1)); (3) unlawful possession of a firearm (Criminal Code, s. 91(1)); (4) possession of a firearm while prohibited from doing so (Criminal Code, s. 117.011); and (5) careless storage of ammunition (Criminal Code, s. 86.1). As noted above, he received a sentence of two years and three months’ imprisonment, less time served.
33The trial judge found no evidence to support the defence theory that anything was planted or that the police had orchestrated a conspiracy or entrapment scheme against the appellant.
34The trial judge further concluded that this was not a case of innocent possession. While recognizing that the firearm and ammunition may have fallen into the accused’s possession without his knowledge initially, the trial judge found that: “after he became aware of the items, all of the decisions were made by him.” Specifically, the appellant knew that possessing the firearm and ammunition was illegal. In fact, he was under a firearm prohibition at the material time. Moreover, the appellant had knowledge, personal possession and control of the firearm and ammunition over a five-day period after he became aware that they had been left in his music studio; and the appellant’s intention was to hand back a deadly weapon to X.Y., not to turn it into police or otherwise destroy it.
35In coming to her decision, the trial judge noted that there was no identification found in the bedroom for anyone other than the accused. The bedroom also contained male adult clothing and other items, including the baggies and scale, which the appellant admitted were his. The trial judge found aspects of the appellant’s evidence not credible, including his testimony that he had no knowledge of the trigger lock and baton found in his bedroom.
C. ISSUES TO BE DECIDED
36As noted above, the only issue in this appeal is whether a miscarriage of justice occurred due to ineffective assistance of counsel. The appellant raises three concerns with respect to defence counsel’s assistance during the trial proceedings: (1) his representation of the appellant was negatively impacted by a conflict of interest arising from his previous representation of X.Y.; (2) he improperly encouraged the appellant to testify, ensuring his conviction; and (3) he represented the appellant in an ineffective manner. I will deal with each allegation in turn.
D. CONFLICT OF INTEREST AND X.Y.’S EVIDENCE
I. Position of the Appellant
37The appellant argues that defence counsel was in a conflict of interest when representing the appellant after previously representing X.Y., particularly in light of the alleged involvement of X.Y. in the case against the appellant. Again, the defence argued that X.Y. might have been the confidential informant or was an agent for the police when planting the firearm at the appellant’s home.
38The appellant submits that representing both parties runs contrary to r. 3.4-10 of the Law Society of Ontario’s Rules of Professional Conduct, which provides that a lawyer shall not act against a former client in the same matter, any related matter, or any other matter if the lawyer has relevant confidential information, unless the former client consents. In oral submissions, counsel for the appellant argued that X.Y.’s matter was related to the case at bar because he was alleged to be a confidential informant against the appellant.
39The appellant argues that defence counsel should have recognized that there was a conflict; he should have explained the conflict of interest and any related risks to the appellant; he should have obtained a waiver from both the appellant and X.Y.; and he should have required the appellant to obtain independent legal advice prior to retaining defence counsel. As the appellant points out, defence counsel did none of these things.
40According to the appellant, the conflict could explain defence counsel’s failure to call X.Y. as a witness, to subpoena him in a timely manner, or to interview him as a witness. In light of defence counsel’s allegations against X.Y. in relation to this matter – i.e., that he was a confidential informant or planted the firearm – X.Y.’s evidence was needed at trial. Defence counsel failed to obtain his evidence. According to the appellant, this was evidence of incompetent lawyering.
41In making his submissions on this issue, the appellant relies on a decision of this court: R. v. Baharloo, 2017 ONCA 362, 348 C.C.C. (3d) 64. In Baharloo, the court considered an ineffective assistance of counsel claim where trial counsel represented the alternate suspect giving rise to a potential conflict of interest. The appellant relies on the following passage from that decision:
[51] At a minimum, before accepting a retainer from Banda in August 2012 to represent her on the possession of cocaine charge, [trial counsel] was required to fully disclose to both the appellant and Banda the issues and risks associated with concurrent representation, secure their informed consent to concurrent representation, and reasonably conclude that she would be able to represent each client without adversely affecting the other: Neil, at para. 29. That [trial counsel] did not do.
[52] By accepting the retainer to act for Banda on the possession of cocaine charge, [trial counsel] put herself in an actual conflict of interest with respect to her representation of the appellant. Her representation of the appellant, from that point forward at the latest, was tainted by impermissible divided loyalties and an actual conflict of interest.
[53] As this court stated in W. (W.), at p. 178, the real issue on appeal in cases involving allegations of conflicts of interest arising out of the joint defence of co-accused “will be whether there was an actual conflict of interests. If that conflict is demonstrated, the conclusion that at least one of the co-accused did not receive effective representation will follow in most cases.” That applies with equal force to the present case, even though the retainers involved different matters and the appellant and Banda were not co-accused.
[54] Accordingly, the appellant has demonstrated that (i) an actual conflict of interest existed by [trial counsel]’s concurrent representation of Banda and him, and (ii) that conflict impaired [trial counsel]’s ability to represent effectively the appellant’s interests. It led [trial counsel] to fail to pursue a third party suspect defence which, in the circumstances, was a realistically available defence. The appellant has established a lack of effective assistance by trial counsel.
[55] As a result of the ineffective assistance [trial counsel] provided to the appellant because of her conflict of interest, a miscarriage of justice occurred: W. (W.), at p. 173. The appellant’s conviction cannot stand. [Emphasis added].
42The appellant argues that this court’s reasoning in Baharloo is apposite to the case at bar. Specifically, in this case, the appellant submits that defence counsel did not recognize the conflict, failed to ensure the appellant sought out independent legal advice, failed to obtain waivers from both clients, failed to apprise the appellant of the risks of the conflict, and then failed to ensure X.Y. gave evidence before putting the appellant on the stand. The appellant suggests that these facts constitute evidence of an actual conflict of interest that impaired trial counsel’s ability to represent the appellant’s interests effectively.
43The appellant further relies on the following passage of a decision of this court in R. v. Joanisse, [1995] 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 62, leave to appeal refused, [1996] S.C.C.A. No. 347 (S.C.C.):
The nature of the incompetence demonstrated will, in large measure, dictate the kind of inquiry required to determine the effect of that incompetence on the fairness of the trial. In some cases, counsel's incompetence rests in conduct which permeates and infects counsel's entire performance. Where counsel's incompetence is pervasive, the focus must be on the effect of that incompetence on the fairness of the adjudicative process.
The conflict of interests cases such as R. v. Widdifield and Widdifield, supra, provide a second example of ineffective representation which destroys the fairness of the adjudicative process at trial. Where counsel represents competing interests at trial, and as a result, counsel's ability to represent either or both of those interests is adversely affected, a miscarriage of justice has occurred without any inquiry into the effect of the conflict on the reliability of the verdict. This is so because counsel's undivided loyalty to the client is an essential component of a fair adversarial process. Where counsel's loyalty is divided and the client suffers as a consequence, the adversarial dynamic of the trial is lost and with it the fairness of the trial: R. v. Dunbar and Logan (1982), 68 C.C.C. (2d) 13 at 47-48 (Ont. C.A.); U.S. v. Decoster, supra, per MacKinnon J. concurring at pp. 235-237. [Emphasis added].
44The appellant argues that the failure to subpoena a central witness for the defence in a timely manner was evidence of how the conflict and incompetence undermined the fairness of the adversarial trial process.
45The appellant argues that the conflict of interest with respect to X.Y. contributed to a miscarriage of justice. Consequently, he contends that the convictions should be set aside, and a new trial ordered.
II. Position of the Crown
46At the outset, the Crown notes that the appellant was aware that his lawyer had previously represented X.Y. when the appellant retained him, and the prior representation of X.Y. happened years before, for a completely unrelated matter.
47The Crown argues that r. 3.4-10 of the Rules of Professional Conduct allows a lawyer to act against a former client on an unrelated matter where there is no risk that the confidential information obtained during the representation of the former client would be used in the new representation. According to the Crown, this was an unrelated matter and defence counsel did not learn any confidential information from X.Y. during the course of his unrelated, earlier retainer that could have been used in his representation of the appellant. Therefore, the Crown submits that defence counsel did not act in contravention of the Rules of Professional Conduct.
48Moreover, the Crown submits that the appellant has not established that there was an actual conflict of interest. The Crown argues that defence counsel acted with undivided loyalty towards the appellant: first, he subpoenaed X.Y. to testify; and second, he vigorously argued at trial that X.Y. was the confidential informant.
49Further, the Crown asserts that the timing of X.Y.’s subpoena did not amount to incompetence. Defence counsel explained that he did not seek to subpoena X.Y. until he felt it was absolutely necessary, which was after the judge dismissed the s. 8 Charter application on January 18, 2017. Defence counsel twice requested an adjournment so that he could serve X.Y. with a subpoena to secure his attendance to testify. The trial judge rejected both of these requests.
50According to the Crown, X.Y. ultimately was served with the subpoena and he appeared on January 20, 2017, but the proceedings had already been adjourned for the day. X.Y. attended again on January 25, 2017, when the trial judge was to issue her decision. Although she was aware of X.Y.’s presence, the trial judge was unwilling to revisit her earlier ruling given the limited relevance of his evidence.
51The Crown argues that X.Y.’s evidence would have been of limited relevance and would not have exculpated the appellant nor eliminated the need for him to testify. The text message exchange between X.Y. and the appellant tendered on the s. 8 application already indicated that X.Y. left the gun at the appellant’s home without the appellant’s consent.
52The Crown submits that even assuming X.Y. testified consistently with the text messages, at most, X.Y.’s evidence would have confirmed that he left the gun in the appellant’s music studio and eventually told the appellant that he had done so. Given that the gun was found in the appellant’s bedroom, there would have been an undeniable inference that the appellant moved the gun from the studio to his bedroom. X.Y.’s testimony would have confirmed both the appellant’s personal possession in moving the firearm and his constructive possession of it.
53The Crown also points out that the trial judge found X.Y.’s anticipated evidence to be irrelevant to the issues in the trial proper, short of questions suggesting that he might be the confidential informant, which defence counsel was not permitted to ask having failed on the innocence at stake application.
54The Crown distinguishes the facts in Baharloo from the current matter. According to the Crown, unlike the current matter, the appellant in Baharloo was unaware of the prior representation of the potential third party suspect, and the retainers of Mr. Baharloo and the potential third party suspect substantially overlapped and were factually related.
III. Analysis
55A lawyer owes a duty to their client to avoid conflicts of interest: Baharloo, at para. 31. Section 1.1-1 of the Law Society of Ontario’s Rules of Professional Conduct defines a “conflict of interest” as a substantial risk that a lawyer’s loyalty to, or representation of, a client would be materially and adversely affected by the lawyer’s duties to a former client.
56The rule against conflicts guards against two forms of prejudice: first, there is “prejudice as a result of the lawyer's misuse of confidential information obtained from a client”; and second, there is “prejudice arising where the lawyer ‘soft peddles’ his representation of a client in order to serve his own interests, those of another client, or those of a third person”: Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, [2013] 2 S.C.R. 649, at para. 23.
57With respect to former clients, lawyers must refrain from misusing confidential information. Whereas, for current clients, lawyers must not misuse confidential information, nor place themselves in a situation that jeopardizes effective representation: Canadian National Railway Co., at para. 23.
58A lawyer can render effective assistance only when that lawyer champions the accused’s cause with undivided loyalty: W. (W.), at p. 13. Effective representation may be threatened where a lawyer is tempted to prefer other interests over those of their client: Canadian National Railway Co., at para. 26. As this court wrote in R. v. McCallen (1999), 43 O.R. (3d) 56 (C.A.), at p. 67, cited with approval by the Supreme Court in R. v. Neil, 2002 SCC 70, [2002] 3 S.C.R. 631, at para. 12: “There should be no room for doubt about counsel's loyalty and dedication to the client's case.” A lawyer’s duty of loyalty to their client is foundational to the adversarial system and “essential to the integrity of the administration of justice”: Neil, at para. 12.
59This court has identified specific criteria to determine where a conflict of interest causes a denial of the accused’s constitutional right to make a full answer and defence, and results in a miscarriage of justice. As Doherty J.A. wrote in W. (W.), at pp. 15-16, the appellant must show:
i. an actual conflict of interest between the respective interests represented by counsel; and ii. as a result of that conflict, some impairment of counsel’s ability to represent effectively the interests of the appellant.
60If both criteria are established, then the appellant has been denied the right to make full answer and defence and a miscarriage of justice has occurred: W. (W.), at p. 16.
61It is not enough simply to have an appearance of a conflict. The court must determine whether counsel’s representation was, in fact, adversely affected. The concern on appeal must be with what happened and not what might have happened: W. (W.), at pp. 17-19.
62The cases provided by the parties on this issue, namely Baharloo and W. (W.), consider the issue of a potential conflict of interest with another “current client”, as opposed to a former client. However, if the trial counsel’s representation of an accused may be compromised by a duty to a former client, counsel should first advise the new client and obtain their consent. If counsel believes that the duty to the former client actually will compromise the new retainer, then the lawyer should decline to accept the case.
63The appellant’s fresh evidence affidavit confirms that after he was arrested in this matter, X.Y. came to his home to provide his mother with defence counsel’s phone number. The appellant retained defence counsel knowing of his prior representation of X.Y. The appellant accepted the referral from the very same person he would accuse of being a confidential informant against him. Defence counsel did not need to advise the appellant of the former retainer since it was common knowledge that the appellant was already aware of it.
64Defence counsel owed a duty to X.Y. as a former client, at least with regard to not misusing information obtained as a result of the former retainer: Canadian National Railway Co., at para. 23. Even where there is no such risk, it would be preferable not to act against a former client. However, the concern in this appeal is not the duty to X.Y.; it is the duty to the appellant.
65On the face of it, there was a potential conflict of interest between defence counsel’s representation of the appellant and his past representation of X.Y. due to the nature of the argument advanced at trial: i.e., that X.Y. was either a confidential informant or planted the firearm at the behest of the police. Given the nature of the defence theory, and the potential for a conflict, it would have been preferable for defence counsel to decline to represent the appellant in this matter.
66However, I am not persuaded that defence counsel’s prior representation of X.Y. manifested in an actual conflict that impaired trial fairness. On a review of the full trial record, it does not appear that defence counsel was torn by any feeling of divided loyalty. Defence counsel was willing to require X.Y. to attend at trial. The appellant admitted that defence counsel retained a private investigator to try to locate X.Y. to serve him with a subpoena. X.Y. was subpoenaed to testify, albeit late in the process. Again, the concern on appeal is whether a conflict of interest actually compromised representation; the appellate court is not concerned with mere possibilities.
67Even if he had testified, X.Y.’s evidence would, at best, corroborate the appellant’s explanation that he was the unwilling recipient of a gun left at his home. There was not much else to be gained from X.Y.’s testimony at that point in the proceedings. Again, the outcome of the innocence-at-stake application prevented counsel from exploring the issue of the confidential informant in the examination of X.Y.
68As a result, despite any potential for conflict of interest in this case, it did not affect the trial nor result in any miscarriage of justice.
69I would dismiss this ground of appeal.
E. The decision to testify
I. Position of the Appellant
70In the affidavit tendered as part of the fresh evidence application, the appellant indicated that he and defence counsel discussed his testimony and the innocent possession defence for the first time just before trial. Defence counsel insisted that the appellant testify. The appellant did not want to testify.
71In the appellant’s testimony at trial, he reiterated that: he had control over the bedroom where he stored the gun, he consented to it being there, and he was planning to give the gun back to X.Y. In short, the appellant contends that his testimony was a complete confession that ensured his conviction of the offences charged. According to the appellant, it follows that his convictions rest on the ineffective assistance of counsel.
72The appellant’s position is that defence counsel never should have advised him to testify since his evidence provided all that was needed to convict him on the basis of the doctrine of constructive possession. According to the appellant, a reasonably competent lawyer would have advised the appellant to sit silently and let the Crown prove its case against him, as the innocent possession defence had virtually no chance of success on these facts.
II. Position of the Crown
73The Crown argues that the appellant made an informed decision to testify in this case. Defence counsel’s evidence was that he did, in fact, inform the appellant that he did not need to testify. Additionally, the Crown contends that the appellant would have known that he had the right not to testify. The appellant had four prior criminal trials, with three prior lawyers, and he did not testify at any of those trials.
74Given that the s. 8 application was unsuccessful, it is the Crown’s position that the appellant’s convictions were virtually certain on the basis of constructive possession regardless of whether the appellant testified, due to the strong circumstantial case against him. The Crown submits that there were seven pieces of circumstantial evidence upon which the court could draw the inference beyond a reasonable doubt that the appellant was aware of the firearm and ammunition found in his bedroom and that he had a measure of control over it:
- The firearm and a substantial amount of ammunition were found in a bedroom identified by the appellant’s grandfather as belonging to the appellant.
- Police found CRA paperwork bearing the appellant’s name in the top drawer of one of the dressers in the bedroom, indicating he stored items belonging to him in the dressers in the bedroom.
- The bag containing the firearm and ammunition was immediately visible when the police officer opened a drawer in the second dresser in the bedroom.
- The bedroom contained adult, male clothing. The bag containing the firearm and ammunition was situated on top of male clothing in the dresser drawer.
- In a different drawer of the same dresser that contained the firearm, police found a second weapon – an extendable baton.
- A safe in the closet of the bedroom contained the appellant’s passport, driver’s licence, SIN card and health card. A trigger lock for a gun was also found in a safe in the bedroom.
- Paraphernalia consistent with drug dealing was found in the bedroom, including a digital scale and a quantity of small ziplock baggies.
75The Crown argues that it was extremely unlikely for the court to find another reasonable inference other than guilt on these facts.
76The Crown submits that there was no downside to testifying in this case. If the appellant did not testify, only the Crown’s evidence would be before the trial judge. If the appellant testified, he could cast the evidence in the most favourable light. The Crown argues that testifying gave him a long shot at an acquittal if the trial judge accepted the innocent possession defence. At worst, testifying provided context for the gun being in his bedroom, explained the presence of the baggies and scale, and would be treated as mitigating factors on sentencing. The Crown states that it cannot be a miscarriage of justice for an accused to decide to testify and tell the truth.
77The Crown points out that evidence from the accused is necessary to support an innocent possession defence. While the defence of innocent possession was a long shot, it could have succeeded, but only if the appellant testified. Accordingly, the Crown submits that defence counsel’s advice to testify was apt: testimony that acknowledged possession but proved innocent possession was the appellant’s best chance of an acquittal in this case.
78The Crown argues that the mitigating impact of his testimony was borne out on sentencing. Again, the information the appellant supplied resulted in a sentence of two years and three months, which was less than the three-year plea deal offered by the Crown.
III. Analysis
79I do not accept that there was any failure of legal representation, nor any miscarriage of justice, in the appellant’s decision to testify at trial.
80There is no dispute that it was the appellant’s inalienable right to sit silently at his trial and require the Crown to prove its case against him beyond a reasonable doubt. Part of counsel’s duty involves advising an accused whether to testify: R. v. K.K.M., 2020 ONCA 736, at para. 62. A competent lawyer will offer sage advice in this regard, but only the client can make the ultimate decision as to whether the benefits of testifying outweigh the risks: R. v. Stark, 2017 ONCA 148, 347 C.C.C. (3D) 73, at para. 17.
81While it may very well be true that the appellant knew he did not need to testify due to his prior involvement with the justice system, this fact cannot displace the responsibility of counsel to ensure that an accused is apprised of their rights in a criminal trial. This responsibility remains with the lawyer no matter how many times a client has previously been committed to trial.
82That being said, I am not persuaded that the appellant’s decision to testify was uninformed or involuntary. The appellant was fully aware of the considerable evidence against him. Defence counsel detailed the significant risk of a conviction on the basis of constructive possession in a reporting letter provided to the appellant prior to trial.
83Defence counsel was right: the appellant was at a substantial risk of conviction on the basis of constructive possession if he failed to testify.
84Constructive possession applies when an accused did not have physical custody of the object in question, but did have it “in the actual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person”: Criminal Code, S. 4(3)(a); R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 17.
85To establish constructive possession, the Crown must prove:
- That the accused knew the character of the object;
- That the accused knowingly put or kept the object in a particular place; and
- That the accused intended to have the object in the particular place for his use or benefit or that of another: Morelli, at para. 17; R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at paras. 47-48.
86There must be knowledge that discloses some measure of control over the item to be possessed: R. v. Pham (2005), 77 O.R. (3d) 401 (Ont. C.A.), at paras. 14-15, aff’d 2006 SCC 26, [2006] 1 S.C.R. 940. In many cases, the evidence relied upon to prove constructive possession is wholly or substantially circumstantial: Lights, at para. 48.
87Occupancy of premises alone does not create a presumption of possession, but it supports an inference of control when coupled with evidence of knowledge: Lights, at para. 50, R. v. Watson, 2011 ONCA 437, at para. 13; R. v. Lincoln, 2012 ONCA 542, at para. 3. The circumstantial evidence must tie the accused to the location such that the only reasonable inference is that the accused was aware of the contraband and had control over access to it: Lights, at paras. 36, 98; Pham, at paras. 17-18, 25-29; R. v. Dipnarine, 2014 ABCA 328, 316 C.C.C. (3d) 357, at paras. 17-20.
88In this case, the police found the firearm and ammunition in a bedroom that the appellant’s grandfather identified as belonging to the appellant. The prohibited items were stored with adult male clothing, and the appellant’s identification. There was no identification found in the bedroom for anyone other than the accused. I agree with the Crown that there was ample circumstantial evidence pointing to constructive possession, even without the appellant’s testimony.
89After the trial judge dismissed the s. 8 application, the appellant’s only chance of succeeding was a defence of innocent possession.
90The doctrine of innocent possession can provide a defence to an accused who technically had either constructive or personal possession of a prohibited item but lacked a blameworthy state of mind or blameworthy conduct: R. v. Chalk, 2007 ONCA 815, 88 O.R. (3d) 448, at para. 25. The rationale underlying this defence is that criminal liability should not attach to brief, “innocent” possession, where the intention is solely to divest oneself of control rather than to possess the prohibited item: Chalk, at para. 25.
91The cases where innocent possession is a viable defence normally involve a person who takes control of contraband out of a sense of public duty: to prevent injury to others, to destroy the contraband, or to permanently move it beyond their control: Chalk, at para 23-25. The defence has been successful in situations that are comparable to that of the appellant, where the accused does not opt to turn the gun into the authorities, or destroy it: R. v. Ali, 2018 ONCJ 379, at paras. 55-56, 79-83; R. v. Adedokun, 2018 ONSC 2138, at paras. 23-24, 31-35.
92The defence of innocent possession in this case had a slim chance of success but was nonetheless arguable. Unfortunately for the appellant, the trial judge rejected the defence. Although the trial judge accepted that the gun fell into the appellant’s possession through no fault of his own, she did not accept that he acted out of a public duty in retaining the gun to return it to X.Y. She specifically rejected the appellant’s evidence that he feared retaliation from X.Y. if he got rid of the firearm. She also found that the appellant lied about not knowing about the baton and trigger lock in his bedroom.
93The appellant turned down the plea deal offered by the Crown. He elected to take his chances at trial. He was convicted, as he was in his four prior trials where he did not testify. In this case, he succeeded in receiving a sentence that was lower than what the Crown had offered on a plea deal.
94His counsel did not act ineffectively in advising the appellant to testify. It was his best chance at an acquittal once the trial judge dismissed the s. 8 application, and it succeeded in reducing his sentence.
95I would dismiss this ground of appeal.
F. Ineffective representation
I. Position of the Appellant
96The appellant argues that he was not properly represented at the trial itself. According to the appellant, trial counsel’s incompetence rendered the result of the trial unreliable, in that, absent the errors of counsel, the trier of fact may have come to a different conclusion.
97He points to his counsel’s lack of cross-examination at the trial proper. Defence counsel asked only one question of each of the two police officers who testified. The appellant submits that failing to conduct meaningful cross-examination on the core issue of the case is the kind of incompetence that can require a new trial if the result may have been different.
98The appellant also argues that defence counsel did not understand the basic tenets of constructive possession or innocent possession. According to the appellant, defence counsel put his client on the stand with no appreciation of the core issue at trial. In support of this argument, the appellant points to defence counsel’s submission that: “I challenge the absolute foundation of my friend’s assertion that the possession is really what’s at issue in this case.” The appellant also relies upon counsel’s faltering response when questioned about the definitions of constructive possession and innocent possession in his subsequent cross-examination that formed part of the fresh evidence tendered for this appeal.
99As noted above, the appellant maintains that defence counsel’s failure to issue a timely subpoena and his advice to the appellant to testify also amounted to incompetence.
II. Position of the Crown
100The Crown points out that the only two Crown witnesses at trial were already fully cross-examined by defence counsel at the preliminary inquiry and their evidence was entered into the trial record on consent. The Crown submits that any further evidence at trial from these two officers would not have yielded anything useful for the defence.
101The Crown also takes issue with the appellant’s suggestion that defence counsel did not understand the elements of constructive possession and innocent possession at trial. The Crown points to the fact that defence counsel correctly referenced the leading case in his submissions, and fully informed the appellant about the risks of conviction on the basis of constructive possession in the reporting letter delivered prior to trial.
102The Crown argues that counsel’s performance was reasonable in this case. It also submits that, even if it was imperfect, counsel’s failure to meet competence standards does not automatically lead to a reversal of a conviction. Here, the Crown contends that the appellant has failed to show how he was prejudiced by his counsel’s representation, such that it occasioned a miscarriage of justice.
III. Analysis
103The right to effective assistance of counsel is a principle of fundamental justice: R. v. G.D.B., 2000 SCC 22, 143 C.C.C. (3d) 289, at para. 24. As Doherty J.A. wrote in Joanisse, at p. 57:
Where counsel fails to provide effective representation, the fairness of the trial, measured both by reference to the reliability of the verdict and the adjudicative fairness of the process used to arrive at the verdict, suffers. In some cases the result will be a miscarriage of justice.
104To succeed on a ground of appeal on the basis of ineffective assistance of counsel, an appellant must establish three elements:
i. the facts on which the ineffectiveness claim is based on a balance of probabilities; ii. that the representation provided by trial counsel amounted to incompetence on a reasonableness standard (the performance component of the test); and iii. that the incompetent representation resulted in a miscarriage of justice (the prejudice component of the test): Joanisse, at p. 59; R. v. Archer (2005), 202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 119-120; G.D.B., at paras. 24, 26; R. v. Hartling, 2020 ONCA 243, 150 O.R. (3d) 224, at paras. 73-74; R. v. Cherrington, 2018 ONCA 653, at para. 25.
105This test presents a high bar that is not easily met: Cherrington, at para. 25. The standard is not perfection. Rather, the court must measure counsel’s performance or competence against a reasonableness standard, having regard to the circumstances as they existed when the impugned acts or omissions occurred. Different lawyers may have run the trial differently, but that does not mean a trial counsel’s choices are incompetent. Appellate courts must give deference to the choices made by trial counsel and the benefit of hindsight plays no part in this assessment: Joanisse, at para. 72; Archer, at para. 119; G.D.B., at para. 27; Hartling, at para. 74.
106Once the appellant has established the facts underpinning the claim of ineffectiveness under the first branch of the test, the analysis turns to the third branch – the prejudice component. If there was no prejudice, then it is undesirable for the court to proceed to the second branch, or the performance component, of the test: G.D.B., at para. 29; Hartling, at para. 74. In regard to the prejudice element of the test, there are two ways to show prejudice:
- the appellant must establish that there is a reasonable probability that the verdict would have been different had he received effective legal representation; or
- he must show that his counsel’s conduct deprived him of a fair trial.
107A reasonable probability is a “probability sufficient to undermine confidence in the outcome”: Joanisse, at paras. 74, 79-80; Archer, at para. 120; R. v. Davies, 2008 ONCA 209, 234 O.A.C. 291, at para. 37.
108If prejudice is made out, the court turns to the second branch – the performance component. The analysis under the second branch proceeds upon a strong presumption that counsel’s conduct fell within the wide parameters of reasonable professional assistance: G.D.B., at para. 27; Hartling, at para. 74.
109Turning to the facts at hand, I agree with the position of the Crown. I have not been persuaded that trial counsel’s alleged incompetence undermined the integrity or reliability of the verdicts, or that it rendered the trial unfair. Stated otherwise, the appellant has failed to establish prejudice.
110The thrust of the defence at the trial proper was innocent possession, which required evidence of the appellant’s intention. It was advisable in the circumstances for the appellant to testify. This recommendation by counsel did not amount to incompetence.
111Nor did counsel’s cross-examination rise to the level of incompetence. The police officers simply acted on a search warrant and identified what they found. The question posed in cross-examination as to whether they used sniffer dogs related to the allegation that the search warrant really was not about drugs, but to find the firearm planted by X.Y. This was consistent with the appellant’s position that he was framed. The cross-examination of the police officers from the preliminary inquiry was already before the judge. The failure to cross-examine further does not mean that the representation was incompetent, or that there was a miscarriage of justice.
112Moreover, as I noted above, I do not think that the absence of a timely subpoena would have reasonably altered the course of the trial. While it was certainly inadvisable to leave the subpoena to the day the witness was supposed to testify, I am not persuaded that his testimony would have had an impact on the verdict. Again, his best shot at an acquittal was innocent possession, and the trial judge squarely rejected that defence based on a sufficient evidentiary record.
113Furthermore, a review of the record demonstrates that defence counsel was competent with respect to his understanding of the legal concepts of constructive possession and innocent possession at the time of trial. His reporting letter and his submissions on the issue show his understanding. The quote referenced by the appellant – “I challenge the absolute foundation of my friend's assertion that the possession is really what's at issue in this case” – is anomalous when contextualized with the full record. I would not accede to the appellant’s submission on this point.
114Finally, defence counsel’s failure to issue a timely subpoena for X.Y. did not prejudice the appellant. As explained above, there was no reasonable probability that the verdict would have been different had X.Y. testified at trial. That said, while it did not rise to the level of ineffective assistance of counsel, leaving a subpoena until the last minute was certainly inadvisable. On different facts, a failure to issue a timely subpoena of a key witness could lead to an unfair trial.
115I would dismiss this ground of appeal.
G. Disposition
116In summary, the appellant retained counsel on the recommendation of the very person the appellant accused of being a confidential informant against him, knowing that the recommended counsel previously represented that same person. The appellant subsequently failed in his attempt to exclude the evidence of a gun and ammunition found in his bedroom, when the only identification found in that bedroom belonged to the appellant. The appellant was at substantial risk of conviction on the basis of constructive possession. The appellant unsuccessfully advanced a defence of innocent possession but was successful in receiving a lower sentence than was previously offered by the Crown. The convictions were not the result of any failure of representation, nor did they result from a miscarriage of justice.
117The appeal is dismissed.
Released: April 13, 2021 “D.W.” “M. Tulloch J.A.” “I agree. David Watt J.A.” “I agree. L.B. Roberts J.A.”
