WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO DATE: 20211101 DOCKET: C68073 & C68410 Watt, Pardu and Trotter JJ.A.

DOCKET: C68073 BETWEEN Her Majesty the Queen Respondent and David Kaczmarek Appellant

DOCKET: C68410 AND BETWEEN Her Majesty the Queen Respondent and Terrell Sullivan Appellant

Michael Hayworth, for the appellant David Kaczmarek Mindy Caterina, for the appellant Terrell Sullivan Samuel Greene, for the respondent Crown

Heard: June 29, 2021 by video conference

On appeal from the convictions entered by Justice John A. Desotti of the Superior Court of Justice, dated February 13, 2019, and from the sentence imposed on Terrell Sullivan on May 3, 2019.

Trotter J.A.:

A. INTRODUCTION

1After a day of heavy drinking with some girlfriends, the complainant found herself in a stranger’s apartment, being sexually assaulted by the appellants.

2Shortly before, the complainant was in another apartment unit in the same building. She left that apartment, shoeless and heavily intoxicated, in search of her friend. The complainant had a vague recollection of being in an elevator with the two men, and then being in the apartment. The next thing she remembered was being sexually assaulted by the appellants while she was being held down on a couch. The complainant told them to stop on more than one occasion. When they eventually did, she fled the apartment.

3The appellants were found guilty of sexual assault. The trial judge found that the complainant lacked the capacity to consent, and she did not agree to the sexual activity with either man. He sentenced them both to three years’ imprisonment.

4The appellants appeal their convictions. They attack various aspects of the trial judge’s reasons for judgment. Mr. Kaczmarek also appeals his conviction on the basis that he received ineffective assistance from his trial counsel. Mr. Sullivan appeals his sentence.

5The following reasons explain why I would dismiss the conviction appeals and Mr. Sullivan’s sentence appeal.

B. FACTUAL OVERVIEW

(1) Introduction

6At the time of the offences, the complainant was 19 years old, 5’2” tall, and weighed 100 lbs.

7It was not disputed at trial that the appellants engaged in sexual activity with the complainant, at the same time. Neither could be excluded as the sources of DNA found in the complainant’s vagina (Mr. Sullivan) or mouth (Mr. Kaczmarek).

8The contentious issues at trial were whether: (1) the complainant had the capacity to consent to the sexual activity; (2) she agreed to the sexual activity; and (3) the appellants had an honest but mistaken belief that the complainant consented. Neither appellant testified, but as discussed below, Mr. Kaczmarek now contends that, despite his wishes, trial counsel prevented him from doing so.

(2) At A.B.’s Apartment

9The day’s events started out at the apartment of A.B., the complainant’s best friend. Another friend, K., came to the apartment at 9:30 a.m. and the two went to the LCBO and purchased an assortment of alcohol. The two women started drinking as they walked back to the apartment. A.B. said the complainant joined them at noon; the complainant said it was 3:00 p.m., although she was not sure. Both acknowledged having memory problems because of their alcohol consumption. Nonetheless, they both testified that they drank a lot of alcohol, including shots of liquor. Neither was keeping track of how much was consumed, but they were very intoxicated.

(3) Shelby and Austin’s Apartment

10After spending time at A.B.’s apartment, the three women left and went to a nearby park, where they continued drinking. They eventually walked to another building where their friends Shelby and Austin had an apartment. They arrived between 4:00 p.m. to 5:30 p.m. A.B. testified that all three women were drunk. She described the complainant as being “hammered.”

11At the apartment, A.B. had a conversation with a male guest in a bedroom, while the complainant socialized with others. At some point, K. left the apartment. The complainant described K. as having “gone missing” and remembered leaving the apartment, by herself, to look for her.

12Someone told A.B. that the complainant left the apartment without her shoes. A.B. went looking for her. When she could not find the complainant, she went back to her own apartment. As discussed below, she was summoned back to Shelby and Austin’s at 7:40 p.m. that night.

(4) The Sexual Assault

13The complainant gave a fragmented account of what transpired after she left Shelby and Austin’s apartment. When asked what happened next, she testified, “I suppose I was abducted. I don’t know.” The complainant continued:

I guess we ended up upstairs. We must’ve taken the elevator. I don’t know how I got up there. I don’t even know how I met them. Just ended upstairs and then from there, it’s kind of blank.

The complainant explained that she has a fear of elevators, so she was confused as to how she ended up in the elevator in the first place.

14The complainant remembered being on a balcony and having something to drink in the apartment, but she did not know whether it was alcohol. She said the appellants “forced themselves on me.” She was with Mr. Kaczmarek and Mr. Sullivan “disappeared” into what she surmised was “his room” or the washroom, but then came back to the living room. The complainant testified:

I don’t remember how it started. I was blackout. I don’t remember anything and then I came to or sobered up and realized what was happening as it was happening. [Emphasis added.]

15The complainant said she was bent over, face down on a sofa. She was penetrated from behind by both appellants. While it was happening, the complainant tried to get up but she was being pushed down into the sofa by Mr. Kaczmarek, who was behind her. The complainant testified she said “stop” when “I had one behind me penetrating me from behind, and I had one in my mouth.” She believed that Mr. Kaczmarek was the former; Mr. Sullivan the latter. She was unable to say how often or how loudly she asked them to stop. The complainant said one of them (Mr. Sullivan) “finished” or “got done” first and walked away; then the other one (Mr. Kaczmarek) “got done” or “finished or gave up, I don’t know, got up, walked away.”

16The complainant fled the apartment as soon as she could and ran down the stairs, trying to find Shelby and Austin’s apartment. She did not know what floor she was on, or how many floors she had to descend to get back to their apartment. When she eventually found the apartment, someone called A.B. and asked her to return. This was at 7:40 p.m. A.B. ran back to Shelby and Austin’s apartment barefoot. It took her roughly 20 to 25 minutes to get there.

17According to A.B., the complainant was “a mess”, curled up in a ball on the bathroom floor, crying uncontrollably and hyperventilating. A.B. and the complainant were driven back to A.B.’s apartment, where A.B. eventually persuaded the complainant to call the police. The police arrived at A.B.’s apartment at 11:05 p.m. and spoke to the two women. The complainant was taken to the hospital for examination.

(5) The Note in the Apartment

18The complainant was cross-examined about a note that was found in the apartment where she was assaulted. It contained the complainant’s contact details. It was not in her handwriting. The complainant could not remember providing this information to either appellant. She said that the email address “sort of” looked like hers. It was an admitted fact at trial that Mr. Kaczmarek gave this note to the police. He told an officer that he had changed part of the phone number on the note from “666” to “888” because “he was not comfortable with those numbers in his apartment.”

(6) The Complainant’s Statement

19The complainant was cross-examined on a statement she gave to the police on the night she reported the assault. In the course of making this statement, she said “I must have said yes to the first guy because there was one guy and we were getting it on and I don’t remember saying anything like stop”. She also said she would not have agreed to the other person joining in.

20The complainant testified that she made this statement “because I don’t remember if I said yes or not, but it was happening so … I don’t remember.”

(7) The Trial Judge’s Reasons

21As discussed in more detail below, the trial judge first addressed the issue of the complainant’s capacity to consent to having sex with the appellants. He accepted her evidence that she was unconscious and only realized what was happening when she “came to.” The trial judge went on to conclude that, based on the complainant’s evidence that she asked the appellants to stop after she “came to”, she did not agree to the sexual activity that subsequently occurred. Lastly, the trial judge rejected the claim that the appellants had an honest but mistaken belief that the complainant consented to the sexual activity.

C. THE CONVICTION APPEAL

(1) Capacity and Consent (Mr. Kaczmarek & Mr. Sullivan)

(a) Introduction

22Both appellants submit that the trial judge erred in various ways in concluding that the complainant lacked the capacity to consent, and that she did not agree to the sexual activity with the appellants. Although they initially appealed the trial judge’s rejection of their claim of mistaken belief in consent, the appellants abandoned this ground during the hearing of the appeal.

23In order to succeed, the appellants must establish that the trial judge erred in relation to both the issues of capacity to consent and whether the complainant agreed to the sexual activity with the appellants. In my view, this appeal can be disposed of on the issue of capacity alone.

24The appellants submit that the trial judge erred in addressing the issue of capacity before determining whether the complainant consented to the sexual activity with the appellants. The appellants contend that the evidence fell short of proving that the complainant lacked the capacity to consent, largely because it came from two unreliable witnesses: the complainant and A.B. In order to make a finding of incapacity, more evidence was required, from other witnesses. The appellants also submit that the trial judge erred by equating the complainant’s lack of memory with a lack of capacity. Lastly, they also submit that the trial judge reversed the burden of proof. I would reject each of these arguments.

(b) Evidence of the Complainant’s Intoxication

25Before delving into these issues, I highlight the evidence concerning the complainant’s sobriety that day. The evidence of her condition at the time of the sexual activity comes from the complainant alone. However, the complainant’s consumption of alcohol and her sobriety before and after the incident are informed by the evidence of both the complainant and A.B.

26As noted above, alcohol was purchased by A.B. and K. around 9:30 a.m. that day. A.B. and the complainant were imprecise about how much they consumed. However, they both described drinking enough alcohol to make them extremely intoxicated. As the complainant said: “I was drinking all afternoon. I was already blackout drunk. I was walking around barefoot, without a cellphone and no one with me.”

27On a scale of one to ten, she said it was “ten” – “I’ve never been blackout drunk in my life except for that day.” By the time she got to the hospital, she said it was a “four”. She agreed with the suggestion that blackout “describes kind of not knowing what’s occurring until you come-to”. As noted, when the police asked her if she could have agreed to sexual activity with them, she said, “Well, it’s possible. I was completely blackout drunk so.”

28A.B. said the complainant was very drunk or “hammered” before she left the apartment in search of K. When A.B. returned to Shelby and Austin’s after the 7:40 p.m. call, she described the complainant as “a mess”. A.B. could not understand what the complainant was trying to tell her because she was not making sense.

29The other witness who testified about sobriety was a police officer who responded to the 911 call. He did not notice any overt signs of impairment in relation to either woman. However, that was at 11:05 p.m., well after the incident.

(c) The Order of the Trial Judge’s Findings

30The appellants submit that the trial judge erred in addressing the issue of capacity before deciding whether the complainant agreed to the sexual activity with the appellants. They say this ran afoul of the Supreme Court of Canada’s holding in R. v. Hutchison, 2014 SCC 19, [2014] 1 S.C.R. 346, at para. 4. The appellants submit that this decision requires a trial judge to address the issue of consent before considering questions of capacity.

31However, in R. v. G.F., 2021 SCC 20, 71 C.R. (7th) 1, at para. 50, the court clarified that Hutchison was concerned only with apparent consent and whether consent had been vitiated; it “has nothing to do with incapacity”. Karakatsanis J. wrote, at para. 24, that when a trial involves the issues of capacity and whether the complainant agreed to engage in the sexual activity in question, “the trial judge is not necessarily required to address them separately or in any particular order as they both go to the complainant’s subjective consent to sexual activity.”

32The trial judge made no error in the order in which he chose to address these issues.

(d) The Finding of Incapacity Was Reasonable

33The appellants submit that the trial judge erred in how he approached the issue of capacity. First, they submit that he wrongly equated the complainant’s lack of memory with incapacity. Moreover, they submit that the trial judge’s finding of incapacity was unreasonable and not supported by the evidence. I disagree with both submissions.

34The trial judge did not equate lack of memory with incapacity. The trial judge referred to this court’s decision in R. v. C.P., 2019 ONCA 85, 373 C.C.C. (3d) 244, aff’d 2021 SCC 19, 71 C.R. (7th) 118, noting that, “the appellate court affirmed the oft stated position that an inability to remember something does not necessarily mean that the person was acting without capacity.”

35More generally, the trial judge did not err in how he conceptualized the issue of capacity. He reviewed numerous appellate decisions, including the decision of the Nova Scotia Court of Appeal in R. v. Al-Rawi, 2018 NSCA 10, 359 C.C.C. (3d) 237, in which Beveridge J.A. held that capacity to consent involves an operating mind capable of “appreciating the nature and quality of the sexual activity”; “knowing the identity of the person or persons wishing to engage in the sexual activity”; or “understanding she could agree or decline to engage in, or to continue, the sexual activity”: at para. 66.

36The trial judge accepted the complainant’s description of her own sobriety, including that she was “blackout drunk”, which he found to be “a vivid and descriptive expression capturing the level of intoxication she was experiencing.” He ultimately found that the complainant had lost consciousness at some point and only regained consciousness after the sexual activity was already happening. As the trial judge said:

Forgetting for the moment that she told the two accused to “stop”, but did not know how many times she told them to “stop” or how loud or if they heard her. Her initial involvement in this sexual activity came about because of her gross intoxication, her “blackout”. To wake up or become conscious and then to find oneself engaged in a sexual activity with strangers, as did the complainant, S.D. when there is no independent memory of the how, when or why of this sexual activity, is certainly by every objective reasoning, an indication of the incapacity of a complainant. [Emphasis added.]

37The trial judge’s reasons are in accord with Supreme Court of Canada jurisprudence concerning capacity to consent to sexual activity: see R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at paras. 3, 34-37, 66; C.P., and R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 88.

38The principles in these cases were recently discussed in G.F. The court underscored that, at its base, “the capacity to consent requires that the complainant have an operating mind capable of understanding each element of the sexual activity in question: the physical act, its sexual nature, and the specific identify of their partner”: at para. 55. Karakatsanis J. also provided the following summary, at paras. 57-58:

In sum, for a complainant to be capable of providing subjective consent to sexual activity, they must be capable of understanding four things:

1. the physical act;
2. that the act is sexual in nature;
3. the specific identity of the complainant’s partner or partners; and
4. that they have the choice to refuse to participate in the sexual activity.

The complainant will only be capable of providing subjective consent if they are capable of understanding all four factors. If the Crown proves the absence of any single factor beyond a reasonable doubt, then the complainant is incapable of subjective consent and the absence of consent is established at the actus reus stage. There would be no need to consider whether any consent was effective in law because there would be no subjective intent to vitiate. [Emphasis added.]

39The court reiterated what was confirmed in J.A.: “an unconscious complainant could not provide contemporaneous consent”: at para. 56. This proposition was at the heart of the trial judge’s finding on incapacity.

40The evidence supported the trial judge’s conclusion that at some point during the incident with the appellants, the complainant lost consciousness and was incapacitated. It was open to the trial judge to accept the evidence of the complainant and A.B. on the complainant’s general level of intoxication that day, and the complainant’s own description of her level of cognition at the time of the sexual activity. Equally, he was entitled to reject the submission that the complainant and A.B. were unreliable witnesses.

41The appellants point to other cases in which the complainant’s incapacity was proved through evidence independent of the complainant. In C.P., for instance, the complainant’s incapacity was proved through the observations of a friend, who came upon the complainant immediately after sexual intercourse had occurred. The complainant had been vomiting, she could not get up, and she was incapable of communicating.

42C.P. must be placed in context. In that case, the complainant did not testify because she had no memory of the event. As such, a self-report about her level of sobriety was unavailable; the information had to come from other sources.

43In this case, the complainant had fragmented memories. She was able to narrate her own situation, but only to a point. The trial judge’s incapacity finding hinged on his acceptance of the complainant’s evidence that she only realized what was happening to her when she “came to.” By definition, before she “came to”, she was in a state of unconsciousness, incapable of consenting due to a complete lack of agency. [1]

44The appellants submit that more was required to prove incapacity, such as objective evidence of the complainant’s condition at the time. They point to the fact that there was no evidence of profound intoxication after the event, such as vomiting. This submission amounts to an insistence that the complainant’s evidence had to be corroborated. Such a requirement was pruned from the law of sexual assault many years ago: Criminal Code, R.S.C. 1985, c. C-46, s. 274; Hamish C. Stewart, Sexual Offences in Canadian Law (Toronto: Carswell, 2021), at 7:1, 7:8 and 7:9. It is not resurrected simply because of the evidentiary challenges that sometimes accompany incapacity cases. Complainants are capable of self-authenticating their own incapacity, as the complainant did in this case.

45In any event, the complainant’s evidence did not stand alone. The evidence of A.B. provided important context for the complainant’s evidence. She gave evidence of the complainant’s highly intoxicated condition both before and after the incident with the appellants. As noted above, in the aftermath, A.B. described the complainant as crying uncontrollably, hyperventilating, and not making any sense in describing what happened to her. A.B. said that “she was just a mess”.

46Based on all of the evidence, it was open to the trial judge to find that the complainant lacked the capacity to consent to engage in sexual activity with the appellants.

(e) The Burden of Proof Was Not Reversed

47The appellants point to certain passages in the trial judge’s reasons that they say are indicative of the reversal of the burden of proof. However, when viewed as a whole, it is clear that the trial judge did no such thing.

48On the issue of incapacity, the trial judge said: “The onus is correctly stated to be on the Crown to establish that the complainant, S.D. was so intoxicated that she was incapacitated at the material time to engage in the sexual activity that occurred.” Once the trial judge accepted the complainant’s evidence that she “came to” and only became aware of the sexual activity “as it was happening”, a finding of incapacity was inevitable. The complainant’s evidence stood uncontradicted on this issue. The appellants did not seriously challenge the evidence relating to the complainant or A.B.’s alcohol consumption and their self-reports of being very intoxicated. Instead, they relied on this evidence to assert that both women were unreliable witnesses, leaving room for reasonable doubt.

49To the extent that the trial judge made references to the absence of evidence at various points in his reasons, he did so partly in the context of addressing the mistake of fact in consent issue. More broadly, the trial judge did not err in pointing out the absence of evidence contradicting the complainant’s account. These statements did not amount to a reversal of the burden of proof, especially in light of the trial judge’s statement set out above.

(f) Conclusion

50The trial judge appropriately articulated the test for incapacity. His findings were sound. Accordingly, I would dismiss this ground of appeal. In the circumstances, it is not necessary to evaluate the trial judge’s conclusion that the complainant did not agree to the sexual activity in question.

(2) Ineffective Assistance of Counsel (Mr. Kaczmarek)

(a) Introduction

51Mr. Kaczmarek submits that he wished to testify in his own defence but was prevented from doing so by trial counsel.

52Mr. Kaczmarek submits that he had an exculpatory narrative he wished to share. He relies on his statement to the police in which he said the complainant was not as intoxicated as she claimed, and that she was a willing participant in the sexual activity with himself and Mr. Sullivan. Mr. Kaczmarek submits his trial counsel repeatedly discouraged him from testifying and that his reasons for giving this advice reflect incompetence. In the end, trial counsel usurped his decision and prevented him from testifying.

53Mr. Kaczmarek has failed to establish that his trial counsel provided incompetent legal advice, or that he countermanded his decision to testify. Trial counsel’s concerns about Mr. Kaczmarek’s anticipated performance as a witness were well-founded. Moreover, the fresh evidence admitted on appeal suggests that Mr. Kaczmarek followed his trial counsel’s advice not to testify, but then regretted his decision when it did not work out as he had hoped. By the time he changed his mind, it was too late; the trial was over and sentencing submissions had been completed. An application to reopen would have been futile.

54Reaching this conclusion, however, is not without its challenges. This is another ineffective assistance of counsel (“IAC”) case where trial counsel failed to obtain written instructions from a client concerning the decision to testify: see R. v. Trought, 2021 ONCA 379, 156 O.R. (3d) 481, at paras. 76-78. Unfortunately, in order to resolve the relevant issues on appeal, resort must be made to the duelling affidavits and cross-examinations of Mr. Kaczmarek and trial counsel. Although failure to obtain written instructions is not necessarily an indicium of ineffectiveness, it presents challenges for appellate review. It is also in tension with “the strong presumption of competence in favour of counsel”: R. v. Archer (2005), 2005 ONCA 705, 202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 140-42.

(b) The Competing Accounts

(i) Mr. Kaczmarek

55Mr. Kaczmarek was 31 years old at the time of the offence; he was 33 at trial. It is known from his Pre-Sentence Report (“PSR”) that he has a criminal record that includes convictions for offences of dishonesty and offences against the administration of justice. All of his convictions were registered after the offence in this case.

56Mr. Kaczmarek was in a car accident in 2007 and sustained significant injuries, including head trauma. This resulted in an acquired brain injury and memory loss. He reported to the author of the PSR that he has suffered mental health problems and has been hospitalized. He was assessed as having schizoaffective disorder and bipolar disorder and has been taking medications for many years. The PSR also indicates that Mr. Kaczmarek has a long history of alcohol, cannabis, cocaine, and methamphetamine use. He may have been using the latter at the time of the offence.

57Mr. Kaczmarek swore an affidavit in support of his IAC claim and submitted to cross-examination. He agreed that he spoke to trial counsel before his police interview and was advised to exercise his right to remain silent. He did not. In cross-examination, he acknowledged that he should have heeded that advice.

58Mr. Kaczmarek recalled that he spoke with trial counsel a number of times about whether he would testify at trial. He claims that, after the complainant finished testifying (on January 31, 2019), he “insisted that I wished to testify because I had a significantly different version of events that I wanted the trial judge to consider.” He said that his trial counsel told him that he “’would not look good on the stand’” because he tended to “‘trail on with [his] words’ and would not look credible on the stand”. In cross-examination, Mr. Kaczmarek acknowledged, “And I do talk. I am a conversationalist.” Mr. Kaczmarek swore that trial counsel also told him that his drug use and mental illness would harm his credibility.

59Mr. Kaczmarek said that he “protested several times against my trial counsel’s refusal to abide by wish to testify during our discussion but, despite my serious misgivings about my trial counsel’s advice, eventually felt that this a discretionary decision to be made by my trial counsel.” He denied ever being told that the decision was his to make. However, in cross-examination on his affidavit, Mr. Kaczmarek admitted that at a meeting on February 1, 2019, the day after the complainant testified, he met with trial counsel who advised him not to testify and he replied “okay”. He testified that “in my head I was thinking I’ll wait ‘til it’s my turn to testify.” He acknowledged that this was never conveyed to trial counsel. He said that trial counsel told him “I have a couple of tricks up my sleeve.”

60In his statement to the police, Mr. Kaczmarek denied ever penetrating the complainant vaginally. He said that he only had oral sex with the complainant. In his affidavit, Mr. Kaczmarek alleged that his trial counsel failed to challenge the complainant on whether Mr. Kaczmarek penetrated her vaginally and about whether she was drunk that night. During his cross-examination, he was shown excerpts from the trial transcripts that show that she was questioned about these issues. He acknowledged he was wrong and said the errors were the result of the challenges of preparing his affidavit during the COVID-19 pandemic.

(ii) Trial Counsel

61Trial counsel, a lawyer with 45 years’ experience in criminal litigation, was representing Mr. Kaczmarek in respect of other criminal matters when he was charged with the sexual assault in this case. When Mr. Kaczmarek was arrested, trial counsel spoke with him for about 30 minutes and “repeatedly advised [him] to exercise his right to silence and say nothing” because he thought he would make inculpatory statements.

62Trial counsel swore that he met with Mr. Kaczmarek approximately five times before trial. They often spoke about whether Mr. Kaczmarek would testify. Trial counsel told him that the decision was his to make, but advised him that it was not in his best interest to do so. Trial counsel explained that Mr. Kaczmarek “tended to ramble and made statements regarding his relationship[s] with women that were not helpful to his case.”

63Trial counsel formed this opinion from his experience in representing Mr. Kaczmarek at a previous sexual assault trial. Mr. Kaczmarek testified in his own defence. Although he was acquitted, the trial judge (who was not the trial judge in this case) found Mr. Kaczmarek to be not credible. Trial counsel said that his client had done poorly during his examination-in-chief and “just went to pieces” in cross-examination. Trial counsel said, “He just – he rambles, and there’s no reeling him in.” He was confident that he could keep his client on track during examination-in-chief but predicted that things would deteriorate in cross-examination. Mr. Kaczmarek has a tendency to want to please other people and “makes admission … some of them are detrimental.” Trial counsel referenced Mr. Kaczmarek’s police statement, in which he said, when the complainant and Mr. Sullivan became intimate, he (Mr. Kaczmarek) “threw in a couple of moves.”

64Trial counsel explained that another reason he thought it was inadvisable for his client to testify was that Mr. Kaczmarek’s statement differed from Mr. Sullivan’s police statement. Mr. Sullivan said that both men had penetrated the complainant vaginally, just as she had described in her evidence. Trial counsel was under the impression that, if his client testified, Mr. Sullivan would also testify. This would be damaging to his client who maintained that he never penetrated the complainant vaginally.

65Despite advising Mr. Kaczmarek multiple times not to testify, trial counsel said, “Up until the close of the Crown’s case at trial, I believed [Mr. Kaczmarek] would disregard my advice and testify in order to portray himself in what he thought would be a positive light.” Trial counsel agrees that he spoke with Mr. Kaczmarek after the complainant testified (on January 31, 2019) and his client said he wanted to testify. Trial counsel repeated his advice. That evening, trial counsel told counsel for Mr. Sullivan that he expected his client to testify.

66The following morning (February 1, 2019) trial counsel spoke to Mr. Kaczmarek, who was in “good spirits.” Trial counsel said, “He was smiling, and seemed confident. He told me he had thought the matter over and decided to follow my advice and not testify.” In cross-examination, trial counsel said that his client told him, “you never led me wrong. I’m going to take your advice.” However, he denied telling Mr. Kaczmarek that he had “a couple of tricks up his sleeve.”

67Neither appellant called a defence. The trial judge heard submissions on February 4 and 7, 2019. The trial was adjourned while the trial judge took the matter under reserve. On February 13, 2019, the trial judge found both appellants guilty. In his affidavit, trial counsel said that, upon hearing the verdict, Mr. Kaczmarek immediately said that he wished to testify. Trial counsel said, “That was the first and only time [Mr. Kaczmarek] told me to call him to testify. I told him it was not possible to do so at that stage, because the trial was over, and he would have to appeal if he wished to challenge the verdict.”

68Prior to trial counsel’s cross-examination, he sent an email to the Crown to advise that he had in fact not been in attendance for the verdict; an agent appeared on his behalf. He said that the incident he had previously described occurred once sentence was passed. This too was incorrect. In cross-examination, he said that he received these instructions after sentencing submissions were made (on April 4, 2019), not upon the passing of sentence. This is supported by trial counsel’s contemporaneous note, in which he wrote “client now wants to testify. Told him too late. Didn't understand. Had to appeal.”

69Trial counsel disputes many of the claims in Mr. Kaczmarek’s affidavit. He did not reference his client’s drug use and mental health challenges when attempting to dissuade him from testifying. Trial counsel only learned of this client’s mental illness when reading the PSR. Moreover, contrary to Mr. Kaczmarek’s contention, he did prepare his client to testify. When trial counsel believed that his client would disregard his advice about testifying, he told him that he “should have his prior statement straight in his mind and stick to it.” Given Mr. Kaczmarek’s previous performance as a witness, trial counsel thought it would be fruitless to conduct a dry run of his testimony.

70Trial counsel disputes the allegations of an inadequate cross-examination of the complainant. He contends that he challenged her on the important aspects of her evidence, including the sequence of events, who did what, and her level of intoxication. As he points out, counsel for Mr. Sullivan pursued similar lines of questioning. The two lawyers coordinated their efforts in defending the case.

71Mr. Kaczmarek contends that trial counsel ought to have moved to re-open the case so that he could testify. Trial counsel testified that he “didn’t think there was any hope” of reopening at that stage of the proceedings (i.e., at the conclusion of sentencing submissions).

72As noted above, trial counsel did not obtain written instructions from Mr. Kaczmarek about whether he would testify. Trial counsel said that, when his client told him that he would follow the advice not to testify, they were due back in court and his client (who was in custody) was “hustled out of” the room where they met. There was no time to obtain instructions. He also said that obtaining written instructions “slipped [his] mind.” He further said that, because he had a long-standing relationship with the appellant, he did not feel uncomfortable in not obtaining written instructions.

73Lastly, trial counsel volunteered in cross-examination that he suffers from a medical condition that affects his memory. However, he said that it did not affect his memory about anything to do with this case. It has never caused him to think he remembered things that did not actually happen.

(c) Analysis

74The applicable legal principles for ineffective assistance of counsel claims are well-established. To succeed, Mr. Kaczmarek must establish: (1) the facts material to the claim of ineffective assistance on a balance of probabilities; (2) that the representation provided by counsel fell below the standard of reasonable professional assistance in the circumstances; and (3) the ineffective representation resulted in a miscarriage of justice: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 26-27; R. v. Joanisse (1995), 102 C.C.C. (3d) 35, at pp. 43-46.

75The decision whether to testify at a criminal trial belongs to the accused person: G. Arthur Martin, “The Role and Responsibility of the Defence Advocate” (1969-1970), 12:4 Crim. L.Q. 376, at pp. 386-87; Trought, at paras. 46-47. The Crown concedes that, “if [Mr.] Kaczmarek can prove trial counsel disregarded an instruction to call him to testify, or never advised him of his right to make that decision, his IAC claim should prevail.” This is based on the acknowledgement that the decision is “fundamental” and “the prejudice arising from its loss is obvious.”

76In making the decision whether or not to testify, an accused person is entitled to competent advice from counsel. In R. v. K.K.M., 2020 ONCA 736, Doherty J.A. said, at para. 91: “An accused is denied his right to choose whether to testify when counsel actually makes the decision, or when counsel provides no advice or advice that is so wanting, as to preclude the accused from making a meaningful decision about testifying.”

77This court has struck a cautious tone when considering a claim that trial counsel usurped or compromised an appellant’s decision to testify, noting that there is sometimes a strong motive to fabricate such an allegation after being convicted and sentenced to jail: Archer, at paras. 140-42; R. v. Nwagwu, 2015 ONCA 526, at paras. 11-12.

78Applying these principles to this case, I am of the view that Mr. Kaczmarek has not established on a balance of probabilities that his desire to testify was overridden by his trial counsel, nor that the advice he was given was wanting.

79As the Crown points out, Mr. Kaczmarek has a criminal record that is relevant to his credibility. Moreover, Mr. Kaczmarek proved himself to be a poor historian of what occurred at trial, and this undermines his ineffective assistance of counsel claim. As noted above, in cross-examination on his affidavit, he was forced to back off of two allegations of incompetence leveled against his trial counsel: (a) that trial counsel failed to question the complainant about her assertion that Mr. Kaczmarek had vaginal intercourse with her; and (b) that trial counsel failed to question the complainant on her degree of intoxication that night.

80Additionally, Mr. Kaczmarek’s apparent understanding of the nature of the decision to testify changed over time. At one point he said that he thought it was a matter in the “discretion” of his trial counsel; at other times he said that he was simply waiting until it was his turn to testify. Beyond the contradiction, the latter claim is difficult to accept. Although Mr. Kaczmarek faces certain challenges in his life as detailed in the PSR, he presented as an intelligent person in his cross-examination on his affidavit. Moreover, he had already been through a different sexual assault trial at which he testified in his own defence.

81This case differs from Trought, in which the IAC claim turned on the appellant’s understanding of the legal niceties of a blended voir dire, or R. v. Faudar, 2021 ONCA 226, in which the IAC claim concerned the appellant’s understanding of the complex doctrine of constructive possession. In this case, Mr. Kaczmarek’s assertion that he believed he could testify after he had already been convicted is implausible. It is telling that his direction to trial counsel came at the end of sentencing submissions, where the Crown had requested a sentence of three to five years’ imprisonment. The circumstances reflect a change of heart, not confusion.

82Trial counsel’s evidence, however, was not without its shortcomings. As detailed above, he waivered on when he received Mr. Kaczmarek’s unequivocal instructions that he wished to testify. To review, he originally said it was immediately after verdict, but then remembered that he was not in court that day. Secondly, he said that it was after sentence was imposed on May 3, 2019, but that also turned out to be inaccurate. Ultimately, he remembered that the discussion occurred following sentencing submissions on April 4, 2019.

83Nonetheless, trial counsel was consistent on the content of the exchange with Mr. Kaczmarek. Perhaps most importantly, this exchange was documented in trial counsel’s file. This is strong confirmation of trial counsel’s testimony that this was the first time he received clear instructions that his client wished to testify.

84On appeal, Mr. Kaczmarek’s submits that, having received these instructions at the end of sentencing submissions, trial counsel should have moved to re-open the proceedings to provide his client with an opportunity to testify. After all, the case was adjourned for a month while the trial judge reserved his decision.

85There can be no doubt that the trial judge, sitting without a jury, had jurisdiction to re-open the trial, vacate the finding of guilt, and permit a defence to be led. However, this power may only be exercised in “exceptional circumstances”: R. v. Lessard (1976), 30 C.C.C. (2d) 70 (Ont. C.A.), at p. 73; R. v. Griffith, 2013 ONCA 510, 116 O.R. (3d) 561, at paras. 12-17. Trial counsel was aware of this line authority. However, in cross-examination, he said that such an application would have been “hopeless”.

86Trial counsel was undoubtedly correct. The timing of the request would likely have been viewed as an attempt to reverse a tactical choice to not testify. In R. v. Tortone (1992), 75 C.C.C. (3d) 50 (Ont. C.A.), rev’d in part, but not on this point, , [1993] 2 S.C.R. 973, Goodman J.A. wrote, at p. 57: “It would be disastrous to the due administration of justice if an accused were permitted to wait until after a verdict has been rendered before making a decision as to whether he wished to give evidence in his defence, except in the most exceptional circumstances.”

87In all of the circumstances, I would accept trial counsel’s account of the instructions he received from his client about his desire to testify. Trial counsel did not usurp his client’s decision on this fundamental issue.

88On the related issue of whether trial counsel provided competent advice about whether Mr. Kaczmarek should testify, it is my view that his recommendations were sound. Trial counsel’s professional opinion that his client would not perform well was based on two factors: (a) his observations of his client’s testimony, as well as the trial judge’s credibility findings, at a previous sexual assault trial; and (b) his concerns with his client’s statement to the police in this case. Both were legitimate factors to take into account.

89I have already discussed above, how counsel drew upon his earlier experience and observations at Mr. Kaczmarek’s previous sexual assault trial. It cannot be said that reliance on his client’s previous testimony rendered his advice incompetent. Indeed, counsel for Mr. Kaczmarek on appeal did not question trial counsel’s reliance on this factor.

90Mr. Kaczmarek’s statement to the police is somewhat more complicated. It is true that the statement is exculpatory on certain issues, but it is concerning in other respects, both in form and in substance. During the interview, Mr. Kaczmarek demonstrated some of the same qualities that trial counsel described with respect to his testimony at the previous sexual assault trial. He tended to go on and on when giving his answers. He was voluble and tangential. Recall, Mr. Kaczmarek participated in this interview in the face of advice given by his counsel that he should exercise his right to remain silent.

91Some of Mr. Kaczmarek’s comments in his statement were unhelpful to his cause. As noted above, he described a scenario in which the complainant and Mr. Sullivan were intimate and then he, “threw in a couple of moves.” Trial counsel testified that he still did not know what his client meant by his expression. Nonetheless, this trivializing expression was alarming in the face of the complainant’s serious allegation.

92More importantly, Mr. Kaczmarek’s statement was at odds with Mr. Sullivan’s statement in an important respect. Mr. Sullivan said that the two men “switched” places and Mr. Kaczmarek did penetrate the complainant vaginally. Mr. Kaczmarek contends that DNA analysis confirms his version of events in that his DNA was found only in the complainant’s mouth, whereas Mr. Sullivan’s DNA was found in her vagina. However, the absence of Mr. Kaczmarek’s DNA in the complainant’s vagina does not confirm that he did not vaginally penetrate her; it merely fails to confirm that he did.

93Thus, trial counsel had legitimate concerns that if his client testified in a manner consistent with his statement, it would likely result in Mr. Sullivan testifying in a manner consistent with his statement, undermining Mr. Kaczmarek’s position.

94Accordingly, I am of the view that trial counsel’s legal advice that Mr. Kaczmarek should not testify was sound.

95I would dismiss this ground of appeal.

D. APPEAL AGAINST SENTENCE (MR. SULLIVAN)

96Mr. Sullivan appeals his sentence of three years’ imprisonment. The appeal, however, is contingent on this court finding that the trial judge erred in concluding that the complainant lacked the capacity to consent, but upholding his finding of a lack of consent in fact. The appellant submits that continuing sexual activity after consent has been withdrawn is “materially different” and less morally blameworthy than engaging in sexual activity with someone who never consented in the first place, or who lacked the capacity to consent.

97Strictly speaking, it is unnecessary to address this argument because I would uphold the trial judge’s finding on the capacity issue. However, I would reject Mr. Sullivan’s submission that his moral blameworthiness would somehow be reduced because he continued sexual activity after consent was withdrawn, as opposed to no consent being present in the first place.

98This issue was considered in R. v. Garrett, 2014 ONCA 734. In that case, the complainant initially consented to kissing. However, the situation soon evolved into one of non-consensual intercourse, during which the complainant repeatedly told Garrett to stop, but to no avail. In allowing the Crown’s sentence appeal, this court held that failing to stop when in these circumstances, “constitutes demeaning behaviour and contemptuous disregard for the personal integrity of the complainant and engages the predominant sentencing principles of denunciation and deterrence”: at para. 19. The court added that, “the complainant’s initial consent to kissing does not render less serious the subsequent non-consensual intercourse”: at para. 20.

99Beyond this issue, the trial judge’s reasons for sentence reveal no error. Mr. Sullivan’s long-standing struggles, which include addiction and mental health issues, were properly considered by the trial judge.

100Ultimately, the sentence imposed properly reflected Mr. Sullivan’s moral blameworthiness for his part in the concerted sexual exploitation of an extremely intoxicated young woman who was a stranger to the appellants. This type of predatory conduct must be met with a sentence that emphasizes deterrence and denunciation.

101I would dismiss the appeal from sentence.

E. CONCLUSION AND DISPOSITION

102I would dismiss the appeals from conviction. I would grant leave to appeal to Mr. Sullivan to appeal his sentence but dismiss the sentence appeal.

Released: November 1, 2021 “D.W.” “Gary Trotter J.A.” “I agree. David Watt J.A.” “I agree. G. Pardu J.A.”

1Section 273.1(2)(a.1) of the Criminal Code provides that no consent is obtained if “the complainant is unconscious.” This provision was enacted after the appellants’ trial (S.C. 2018, c. 29, s. 19(2.1)) but it reflects the common law.