COURT OF APPEAL FOR ONTARIO DATE: 20220823 DOCKET: C66685
Doherty, Favreau and Copeland JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Peter Sagos Appellant
Mindy Caterina, for the appellant Michael Dineen, for the respondent
Heard: August 12, 2022
On appeal from the convictions entered on October 3, 2018 by Justice R. Graydon of the Ontario Court of Justice, and from the sentence imposed on February 8, 2019.
Overview
1The appellant was charged with criminal harassment and extortion in December 2016. The Crown alleged that the appellant harassed and threatened his former lawyer. The former lawyer had acted for the appellant in relation to criminal charges in Bermuda.
2This was a short uncomplicated trial. The Crown’s case rested on the evidence of the former lawyer, emails sent by the appellant to the lawyer, and evidence of the appellant’s statements to the police after his arrest. In his statements, the appellant acknowledged authoring the emails and offered explanations for doing so. He denied that anything in the emails was intended as a threat to cause harm to the former lawyer.
3The appellant did not testify.
4The trial judge convicted the appellant on both charges in October 2018. He concluded the former lawyer was a credible witness. The trial judge also concluded the exculpatory explanations proffered by the appellant in his statements to the police did not leave him with a reasonable doubt as to the meaning of the emails and the appellant’s intention.
5The trial judge imposed a suspended sentence.
6The appellant raises one ground of appeal. He contends that trial counsel provided ineffective assistance resulting in a miscarriage of justice. Although the appellant appealed sentence in his original Notice of Appeal, there is no separate sentence appeal advanced.
7For the reasons that follow, I would dismiss the appeal.
Background Facts
8The appellant was arrested in Bermuda on drug charges in 2009 and held in custody. His family retained the former lawyer, who practises in Ottawa. He recommended a Bermuda counsel to conduct the appellant’s defence. That counsel met with the appellant and was retained by him.
9In August 2010, after plea discussions, the former lawyer and Bermuda counsel arranged for the appellant to plead guilty to what was referred to as a “financial offence”. The appellant was quickly released and returned to Toronto within days. His grateful family paid the former lawyer’s bill.
10By 2013, the appellant had become very concerned about what he believed to be the continuing negative impact of the Bermuda charges on his reputation. The appellant had come to believe that he was a victim of police corruption and that the Bermuda authorities, the Royal Canadian Mounted Police (“RCMP”) and the Ottawa police were all conspiring to falsely accuse him of crimes. The appellant claimed that he had been kidnapped by the Bermuda police. In fact, he had been arrested and held in custody.
11The appellant also decided that his former lawyer was improperly withholding from him disclosure that the Bermuda authorities had provided in connection with the criminal charges in that country. The former lawyer had agreed to let the appellant look at the disclosure in his office, but had declined to give the material to the appellant until he had the advice of the Law Society. When the former lawyer received that advice, he provided the material to the appellant. The appellant also came to believe that his former lawyer owed him $125,000.
12At some point, the appellant sued the Ottawa Police Service, the RCMP and his former lawyer. His claim against the former lawyer was dismissed as frivolous and vexatious. The appellant also made a complaint against his former lawyer to the Law Society. That complaint was dismissed.
13The appellant began sending abusive emails to his former lawyer in late 2015. Initially, the former lawyer did not feel threatened, but was concerned about the appellant’s mental wellbeing. Over time, the tone of the emails escalated. The former lawyer became concerned for his safety and his family’s safety. In November 2016, the appellant sent the former lawyer an email indicating he would “sell this debt to people that do not ask questions”. The former lawyer, a very experienced criminal defence lawyer, took this comment as a threat to sell the debt to criminals who would use whatever means necessary to collect the debt. The former lawyer went to the police. The appellant was arrested on December 1, 2016 at his home.
The “Fresh Evidence” Motion Record Filed on Appeal
14This is a very unusual ineffective assistance of counsel application. The appellant has chosen not to file any affidavit. There is also no affidavit from trial counsel. The Crown did not file any material on the motion. Neither the appellant nor the Crown sought to examine trial counsel for the purposes of the motion.
15The material filed by the appellant consists of three affidavits. One affidavit is from a legal assistant who has no firsthand knowledge of the relevant events. The legal assistant has attached a number of documents as exhibits to her affidavit. She has no firsthand knowledge of the contents of the documents, or the source of the documents. Those documents include what is described as material from the “trial file” and correspondence between the appellant and trial counsel.
16The second affidavit is much like the first. This affidavit is provided by a lawyer with no connection to, or knowledge of, the proceedings at the appellant’s trial. This affidavit attaches as exhibits various documents. The documents arise out of appellate counsel’s attempts to develop the ineffective assistance of counsel motion record. Many of the attachments involve correspondence between counsel retained by LAWPRO for trial counsel and appellate counsel. Counsel for LAWPRO provided appellate counsel with responses to her inquiries on a “without prejudice” basis. Ultimately, counsel for LAWPRO took the position that trial counsel would not provide an affidavit in the absence of specific allegations of ineffective assistance in an affidavit from the appellant.
17In addition to the material described above, one of the exhibits to the affidavit of the legal assistant identified disciplinary proceedings that had been brought against trial counsel by the Law Society. Trial counsel was permitted to surrender his licence in 2019. The events relevant to that proceeding have nothing to do with trial counsel’s representation of the appellant.
18The third affidavit filed by the appellant came from his mother. That affidavit attaches as exhibits pictures of the entrance to the home where the appellant lived when he was arrested. It would appear that this affidavit is offered to support the claim that the arrest of the appellant without a warrant was unlawful.
19In argument, counsel for the appellant submitted that this court should draw an adverse inference from trial counsel’s failure to provide an affidavit in response to the ineffective assistance allegation. Counsel submitted that, in the absence of an affidavit from trial counsel, the court should interpret correspondence and other documents attached to the affidavits filed by the appellant in a manner that supports the appellant’s claims of ineffective representation.
20Counsel for the appellant further submitted that no inference should be drawn from the appellant’s failure to file any affidavit in support of the allegations of ineffective assistance. Counsel maintained that trial counsel’s incompetence is apparent from a review of the trial record considered in the context of the exhibits attached to the affidavits filed on the motion. An affidavit from the appellant would not add anything to those allegations.
21When counsel was asked why she did not seek to cross-examine trial counsel, she responded first that there was no authority to compel trial counsel to submit to examination on the allegations and, second, that she had complied with the case management judge’s directions and followed the established Ineffective Assistance of Counsel Protocol.
22Dealing with the second argument first, the case management judge was never asked to direct that trial counsel submit to examination. Nor did any order he made address that possibility. The case management judge made a series of orders designed to move this appeal forward under the Ineffective Assistance of Counsel Protocol established by the court. Nothing in that Protocol speaks to, or could limit the statutory powers of this court or a judge of this court to compel trial counsel to submit to an examination under the provisions in the Criminal Code, R.S.C. 1985, c. C-46. Rules of court and protocols established to give effect to those rules cannot detract from the powers given to the court by the Criminal Code.
23I would also reject counsel’s argument that trial counsel could not be compelled to give evidence on the ineffective assistance motion. Section 683(1)(b) of the Criminal Code provides that the Court of Appeal may direct any witness to attend for examination if that witness would have been a “compellable witness at the trial”. Counsel for the appellant argued that trial counsel was not a compellable witness at the appellant’s trial. This court has held to the contrary: R. v. 1504413 Ontario Ltd., 2008 ONCA 253, 90 O.R. (3d) 122, at paras. 13-14; R. v. Colbourne (2001), 157 C.C.C. (3d) 273 (Ont. C.A.), at para. 51.
24Trial counsel, either for the defence or the prosecution, is a compellable witness at trial, although the circumstances in which trial counsel will be required to testify are narrowly circumscribed by the demands of the interests of justice. I have no doubt that were the competence or integrity of trial counsel raised at trial, perhaps on a Charter-related motion, trial counsel would be a compellable witness, and the interests of justice could well demand that trial counsel testify to permit a proper resolution of the issue. In holding that trial counsel is a compellable witness, I, of course, do not suggest that the applicable rules of evidence, e.g. client-solicitor privilege, would not apply to trial counsel’s evidence.
25The appellant had the onus of demonstrating that he received ineffective assistance of counsel. It was his responsibility to prove the facts underlying that claim. Counsel’s decision to not seek an order compelling trial counsel to give evidence in response to the ineffective assistance allegations permits the inference that anything trial counsel may have said would have either undermined the appellant’s claim or, at a minimum, not helped the appellant’s claim. As counsel could have compelled evidence from trial counsel, there is no basis upon which to draw any inference favourable to the appellant from the absence of any evidence from trial counsel.
26Quite apart from counsel’s failure to seek an order requiring trial counsel to give evidence, I would not draw any inference from trial counsel’s failure to provide an affidavit in the circumstances of this case, where there was no affidavit from the appellant in support of the allegations. Trial counsel refused to provide an affidavit based on legal advice given to trial counsel by counsel for LAWPRO, who had been retained to defend trial counsel against the allegations. The only reasonable inference that could be drawn is that trial counsel decided to follow the legal advice of his lawyer.
27Turning to the appellant’s failure to provide any affidavit, I accept that there are situations in which the trial record, as augmented by admissible evidence tendered on the motion, could establish the facts on which the ineffective assistance claim is based without any affidavit from the appellant. Indeed, there are situations in which the underlying facts are not in dispute: e.g., see R. v. Ally, 2022 ONCA 558, at paras. 216-17. If, however, the facts on which the ineffective assistance claim are predicated are in dispute and the appellant could reasonably be expected to have information relevant to those facts, the appellant’s failure to provide an affidavit invites an adverse inference against the validity of the claims.
28Some of the claims made by the appellant in this appeal rest on factual allegations in respect of which one could reasonably expect the appellant to have relevant information. The appellant’s failure to provide any affidavit in relation to those allegations weakens the argument for drawing any inference in favour of those facts.
The Arguments
29The appellant accepts that he has the onus of establishing on the balance of probabilities the facts on which the alleged incompetence of trial counsel is based. For example, if the appellant alleges that trial counsel did not discuss a relevant matter with the appellant, the onus is on the appellant to establish on the balance of probabilities that no discussion took place: R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at paras. 51, 86.
30Trial lawyers are required to act with reasonable skill, knowledge and ability in the representation of their clients. Lawyers must often make difficult judgments in the course of litigation. The exercise of that judgment is not measured with the benefit of hindsight, or by speculation about what reasonably might have been done differently. For example, cross-examination does not fall below the competence standard because other questions could reasonably have been asked of the witness. There are many ways to cross-examine a witness. Some are better than others. None necessarily demonstrate professional incompetence.
31The appellant submits that trial counsel’s incompetence was so pervasive that it resulted in an unfair trial regardless of what effect, if any, trial counsel’s incompetence may have had on the reliability of the verdict returned by the trial judge: Fiorilli, at para. 54. Counsel has identified several specific examples of trial counsel’s alleged incompetence. She submits that this court must consider the cumulative effect of trial counsel’s many serious missteps when determining whether his ineffective representation rendered the trial unfair.
(i) The defence strategy
32The appellant contends that trial counsel pursued various defences that had no possible chance of success. She refers to the suggestion made by trial counsel that the Ottawa police were acting as “agent” for the Bermuda government. She also refers to the argument brought forward about the lawfulness of the arrest. Counsel contends that any argument about the lawfulness of the arrest had no possible value to the appellant without a Charter motion at trial to exclude the evidence obtained following the arrest. There was no Charter motion brought.
33In advancing this submission, counsel relies primarily on what purports to be a reporting letter from trial counsel to the appellant some time after the trial had been completed. Counsel also refers to the grounds of appeal set out in the Notice of Appeal filed by trial counsel. She submits several of those grounds of appeal raise meritless arguments that have no real connection to the evidence at trial.
34The trial record itself provides by far the best evidence of the defence strategy followed at trial. At trial, the defence took the position that the emails, the contents of which could not be denied, were not intended to be harassing or threatening. In support of this position, the defence relied on the detailed explanations the appellant gave to the police immediately after his arrest and again a short time later. In those statements, the appellant offered a non-culpable explanation for the statements.
35For whatever reason, the appellant had decided he would not testify. Despite the many allegations of ineffective assistance, there is no suggestion the appellant did not receive proper advice as to his right to testify or did not make an informed decision in that regard. In the absence of any evidence from the appellant, the only realistic defence available was a defence based on the explanation for, and interpretation of, the emails the appellant provided to the police. Unless the statements were admitted, the appellant essentially had no defence to the charges. It is not surprising that trial counsel did not attempt to exclude the statements.
36The statements made to the police by the appellant were elicited from the police officers. The trial judge had the appellant’s explanations. He ultimately rejected those explanations and concluded that nothing in the explanations left him with a reasonable doubt. The trial judge’s assessment of the appellant’s evidence is not challenged on appeal. The fact that the appellant’s explanations for the emails were disbelieved offers no basis upon which to question the strategy followed by the defence at trial.
37The other “defences”, which counsel submits had no possible merit and were improperly raised at trial, include the references in submissions to collusion between the Bermuda and Ottawa police. These comments played a minor role at trial. Clearly, as counsel argues, claims based on any collusion between the Bermuda and Ottawa police forces could not assist the appellant in the defence of the charges, and did not advance the only real defence put forward. Nor, however, did these references undermine the defence actually advanced.
38It is difficult to know, in the absence of any affidavit from the appellant or trial counsel, why trial counsel challenged the credibility of the Ottawa police officers and referred to the improper collusion with the Bermuda police. It may be that the references had something to do with the appellant’s ongoing disputes with the various police forces, including the Bermuda police. It may be that the appellant wanted trial counsel to make these points. In any event, trial counsel’s submissions, while irrelevant, did not detract from the actual defence advanced.
39Based on the trial record, trial counsel advanced a reasonable defence in a competent manner. It was probably the only defence available. Trial counsel’s post-trial conduct and correspondence, while suggestive of less than a firm grasp on some criminal law principles, did not diminish the defence actually advanced at the trial.
(ii) Trial counsel’s cross-examination of the former lawyer
40The appellant submits that trial counsel’s cross-examination of the main Crown witness was incompetent. She refers to two possible lines of cross-examination that were not pursued.
41The first involved former trial counsel’s assertion that his fear of the appellant eventually led him to enhance his home and office security. Counsel suggests that trial counsel should have challenged the former lawyer to provide more details about this added personal security.
42There is nothing in the motion record to suggest that further cross-examination, without any knowledge of what the former lawyer’s answers might be, would have achieved anything except perhaps the repetition and reinforcement of the former lawyer’s evidence. Counsel do sometimes “roll the dice” on cross-examination. A decision to not “roll the dice” does not amount to ineffective representation.
43The second alleged failure in the cross-examination arises out of the former lawyer’s evidence about his firm’s billing records. The former lawyer testified that the file had been billed and paid. In cross-examination, trial counsel established a discrepancy in the firm’s accounting records. It appeared that a sum of about $3,400 remained in the lawyer’s accounts even though the fee had been paid in full. The former lawyer could not explain this apparent discrepancy.
44Counsel on appeal submits that trial counsel should have pressed the witness on this discrepancy to establish that the law firm did owe the appellant money. On this argument, a debt owed by the law firm to the appellant of about $3,400 could somehow give legitimacy to the appellant’s harassing and threatening emails. In these emails, he claimed he was owed $125,000.
45Nothing in the material put before this court suggests that further cross-examination of the former lawyer would have added anything to what he had already said about the records. He could not explain the apparent discrepancy. Nothing has been put before this court to suggest that there is any explanation for the discrepancy that would support the claim that the law firm actually owed money to the appellant. Once again, the appellant’s silence is significant. In the emails, he referred to a debt of $125,000. The discrepancy in the law firm’s accounts is about $3,400. If there was a connection between the alleged debt, which was the subject matter of the threatening emails, and the discrepancy in the law firm’s accounts, it was incumbent on the appellant to make that connection.
(iii) The alleged failure to protect client-solicitor privilege
46The appellant submits trial counsel was incompetent in that he failed to consider client-solicitor privilege in the context of determining what objections, if any, he should take to the evidence offered by the appellant’s former lawyer. Counsel argues that some unidentified portion of that evidence may have been covered by client-solicitor privilege.
47There is no evidence on this motion that trial counsel did not consider the question of client-solicitor privilege, did not discuss the issue with the appellant, or made any error in choosing not to raise client-solicitor privilege. Given the serious allegations of professional misconduct the appellant had made against his former lawyer in numerous forums, it is difficult to see how any of the privilege could have survived. In any event, the submissions that the topic was not discussed with the appellant, and that there may have been some breach of client-solicitor privilege in the course of the former lawyer’s evidence, rest on pure speculation. The appellant is the obvious person to provide evidence as to what, if anything, he was told by trial counsel about client-solicitor privilege. He provided none.
(iv) The alleged failure in respect of the late disclosure
48The appellant submits that trial counsel was incompetent because he did not object to disclosure provided by the Crown on the eve of trial, seek an adjournment, and perhaps bring a s. 11(b) Charter motion.
49This submission is built entirely on speculation. There is evidence that the Crown provided some additional disclosure on the eve of trial. There is no evidence of what the disclosure was, or that the disclosure would have warranted any adjournment of the trial, much less an adjournment that might have triggered s. 11(b) of the Charter. The appellant has failed to show the existence of the facts upon which this allegation of ineffective assistance rests. The appellant has also failed to show any possible prejudice arising out of trial counsel’s failure to seek an adjournment.1
Conclusion
50The evidence filed on the ineffective assistance of counsel motion is of little assistance. The appellant has failed to make out the specific allegations of ineffective assistance advanced on the motion. It follows that the claim that trial counsel’s pervasive incompetence rendered the trial unfair must be rejected.
51This was a straightforward case. The contents of the emails, which made up the essence of the allegations, were not in issue. The appellant’s explanations for the emails, as introduced through his police statements and his interpretation of the language he used in the emails, put a non-culpable explanation for his conduct before the court. The trial judge considered and ultimately rejected that explanation. The trial judge’s assessment of the evidence, fully warranted on the record, and not anything trial counsel did or failed to do, fully explains the convictions.
52I would dismiss the appeal.
Released: “August 23, 2022 DD”
“Doherty J.A.”
“I agree. L. Favreau J.A.” “I agree. Copeland J.A.”