COURT OF APPEAL FOR ONTARIO
Coroza, George and Monahan JJ.A.
BETWEEN
His Majesty the King
Respondent
and
C.M.
Appellant
Counsel:
Gerry Smits, for the appellant
Stephanie A. Lewis, for the respondent
Heard and rendered orally: March 19, 2026
On appeal from the convictions entered by Justice Kim Carpenter-Gunn of the Superior Court of Justice, sitting with a jury, on December 15, 2022.
REASONS FOR DECISION
1This is an appeal from convictions for one count sexual assault and one count of sexual interference. The appellant claims that he received ineffective assistance of counsel. He argues that his trial counsel, 1) failed to bring a pre-trial s. 276 application, 2) failed to adequately advise him on his right to elect as to mode of trial, and 3) effectively precluded him from making a meaningfully informed choice about whether to testify.
2We are unpersuaded by the appellant’s arguments. With respect to s. 276, as the appellant has not established that the evidence he says his counsel should have attempted to elicit could have impacted the verdict, the decision to not pursue it was reasonable.
3With respect to both mode of trial and the decision to testify, the appellant has not established either the factual basis for his claims or that there is a reasonable probability that he would have made different decisions had he received competent advice. Of note, when cross-examined on his affidavit, the appellant acknowledged that he had signed a written notice of election and later a written notice of re-election. In both, he states that he acknowledges and understands that he may elect to be tried by a judge sitting alone, either in the provincial court or the superior court, or by a judge sitting with a jury.
4On the question of whether to testify, the appellant’s affidavit evidence was significantly undermined during cross-examination. Consequently, the appellant has failed to establish that he was prevented from testifying, that he did not know it was his choice whether to testify, or that his counsel failed to explain why he recommended against testifying.
5The appeal is dismissed.
“S. Coroza J.A.”
“J. George J.A.”
“P.J. Monahan J.A.”
Footnotes
- This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.