R. v. Khan, 2015 ONCJ 182

minicounsel

Ontario Court of Justice

Between:

Her Majesty the Queen Respondent

— And —

Doulat Khan Applicant

Before: Justice P. Downes

Heard on: January 23 & February 18, 2015

Reasons for Ruling released: April 1, 2015

Counsel:

Mr. James Vlasis, for the Crown
Ms. Alison Craig, for Doulat Khan

1. INTRODUCTION

1Mr. Khan has been convicted of sixteen counts of Fraud. But for the imposition of sentence, his trial proceedings are over. He now says that his convictions are the product of a miscarriage of justice because his lawyer failed to meet her professional obligations to him and was ineffective in her representation of him at his trial.

2Mr. Khan alleges that his trial counsel's conduct was deficient in several areas. But at the heart of this application is the question of who and how it was decided that Mr. Khan would not testify in his own defence. If he made that decision, or if he made an informed choice to leave that decision to his counsel, then his counsel is not at fault for his failure to testify. If, on the other hand, Mr. Khan has shown that it was his trial counsel and not he who decided that he would not testify, and that he would have testified had he understood that it was his decision, then a miscarriage of justice has occurred and, regardless of the impact his evidence would have had on the outcome of the trial, he is entitled to a remedy.

3On the application, I heard from Mr. Khan and, in reply, from Mr. Richard Posner, a colleague of Ms. Craig's and the lawyer who was initially consulted by Mr. Khan after he was convicted. Mr. Khan's trial counsel testified in response to the application on behalf of the Crown.

4In my view, Mr. Khan has established that it was indeed trial counsel and not he who made the decision that he would not testify in his own defence. At the very least, I have no doubt that even if Mr. Khan left that decision to his trial counsel, he did so without understanding that whether to testify was ultimately his decision to make, regardless of counsel's advice. Mr. Khan is entitled to a mistrial.

2. THE COMPLAINT

5The applicant alleges that his trial counsel was ineffective in her representation of him in three areas: first, he says that his counsel never interviewed him fully about the charges or his version of events. Mr. Khan says that his lawyer "did not seem interested" in hearing from him. Second, Mr. Khan says that he was never told that he had the right to a preliminary inquiry or a jury trial. According to Mr. Khan, he did not even know what a preliminary inquiry was until after he was convicted. Third, Mr. Khan says that although he always wanted to testify in his own defence, the decision that he would not was made by his counsel in the face of his "strong desire" to take the stand.

6Mr. Khan testified that from the time he retained her until the commencement of his trial he met with his lawyer only twice, both times in her office. His lawyer never reviewed the evidence or the Crown disclosure with him in advance of the trial and he never told her his side of the story. According to Mr. Khan, his lawyer consistently told him not to worry. He said that he never met with her in the days or weeks leading up to the trial because she had told him it was not necessary. According to Mr. Khan, his lawyer told him that she knew everything she needed to know, and that she would just see him at court.

7With respect to the decision not to testify, Mr. Khan swore in his affidavit that he repeatedly told his lawyer that he wanted to testify. She consistently told him that he did not need to. Mr. Khan in particular recalled that he asked her whether he should testify after his co-accused had testified in his own defence. Again, however, his lawyer told him it was not necessary. Mr. Khan said that he accepted what his lawyer told him because, "she's my lawyer, I have no other choice, I have to listen to my lawyer."

8Under cross-examination, Mr. Khan was pressed about whether he simply accepted his lawyer's advice on the issue of whether he would testify:

Q: And you understood that it's you making the decision, right, and your decision was to leave it in her hands, yes?

A: I have no choice because she's the lawyer, she's assisting me, she's the one suggesting not to do, I cannot force her I cannot force [inaudible]… She's not suggesting she's insisting there's no need to…

Q: Is this fair, I'll use your word, she suggested to you not to take the stand, yes? She suggested that to you?

A: You don't need to, yeah.

Q: You don't need to she said, okay. And then you made the choice…?

A: …You don't need to and I don't want you to.

Q: Okay and then you made a choice and told her I leave it up to you. You made the choice yes?

A: I didn't mention it to her but I thought this is, I have a, I don't have any other choice.

3. THE RESPONSE

9The Crown resisted Mr. Khan's application. His trial counsel testified and vigorously defended her representation of Mr. Khan.

10With respect to the issue of who and how it was decided that Mr. Khan would not testify, his counsel swore to the following in her affidavit (the emphasis is added):

During our various conversations throughout my involvement in the case he told me that he wanted to testify. We frequently spoke about his testimony, both in person and on the phone, and I was left with the impression that he would not do well in cross-examination. Furthermore, after the trial started when the motion to exclude his statement was dismissed and the Crown tendered his statement as part of the case I felt that the applicant's explanation was already before the court in the form of his video (which would not subject him to what I believe would be a grueling and counterproductive cross examination). The applicant never brought me any other possible defence witnesses. Ultimately I did not believe that calling the defence would be advisable, and my tactical approach towards this part of the case was clearly informed by my assessment of the strength and nature of the Crown's case.

At the conclusion of the Crown's case, I elected to call no evidence. This was a contentious decision, and I recall that the applicant wanted to testify against my advice. Ultimately, I did not call him because his position was already before the court in the form of his statements; he had not provided the backup documentation that I had requested; and I did not believe that after cross-examination his viva voce testimony would be accepted or aid his cause. Once decision was made, I did not speak to my client further about this as I believe there was no need to do so.

Towards the end of her affidavit, counsel testified that, "I now lament my former client's silence in the face of my announcing to the court the decision that I had made about him testifying. I now regret not having obtained my instructions in writing."

11In her testimony before me Mr. Khan's lawyer was asked why, in preparation for the trial, and knowing that her client wanted to testify, she did not prepare him to testify in the eventuality that he would. In response, counsel testified that, "prior to the commencement of the trial there was no discussion about him wanting to testify at all. That only came up in the midst of the trial."

12In cross-examination, Ms. Craig put the following to trial counsel about the decision that Mr. Khan would not testify:

Q: It was very clearly your decision contrary to his wishes, was it not?

A: It was actually my tactical legal decision.

Q: Contrary to his expressed desire to testify?

A: Of cour…yes, yes.

13In re-examination counsel was asked what she meant by this answer:

Q: What did you mean when you said you agreed that it was done contrary to Mr. Khan's expression about testifying…?

A: He told me…

Q: Because you said yes…?

A: Yes, yes, that is true…

Q: Can you tell us what you meant?

A: Okay what I mean by that is that he told me that he wanted to testify and I had discussions with him that, (a) that he'll be cross-examined, and I gave him reasons by which that his testimony would not assist him in his legal defence. It was a tactical decision by which that I made, and I expressed it to Mr. Khan. It's not like done in a in a vacuum by which I just… uh the manner in which this is written can be read in that I didn't have any discussion, I just made this this decision not to call any evidence. I had discussions with him I told Mr. Khan that his honour already ruled on the videotape, your statement and I, you'll be cross-examined and you will not carry very well on the stand and, and then and then and then I said, made the decision not to call him as a witness.

Q: What did he say to that?

A: Nothing, nothing.

Trial counsel testified that this conversation happened at court.

14Trial counsel also testified that Mr. Khan was inconsistent in his position on whether to testify. She said that he would:

Always flip back and forth back and forth and then, now like you know I'm being accused of being incompetent counsel because he, you know, expressly wanted to testify but that's not really the truth. The truth of the matter is that he mentioned it to me, we discussed it, a decision was made. He never complained and then he sends me the e-mail and then nine months after the fact or ten months after the fact he brings this application with Mr. Posner.

4. ANALYSIS

15The applicant seeks a mistrial or, in the alternative, leave to reopen the trial and call evidence in his defence. There is no dispute that a trial judge who has entered a finding of guilt but not yet passed sentence is not functus and has jurisdiction to permit either side to reopen its case. This power is, however, to be used very sparingly, but should be used to ensure that a miscarriage of justice does not occur.

16As I have said, Mr. Khan alleges three complaints with respect to his counsel's representation of him. I have concluded that a mistrial must be declared in relation to the issue of whether he would testify. I therefore see little point in exploring the other allegations, much less in making any findings with respect to them.

17In her factum, Ms. Craig grounds the approach to the assessment of the evidence tendered on this application in the well-known judgment of the Supreme Court of Canada in R. v. Palmer, which sets out the four-pronged test for the admission of fresh evidence on appeal. In my view, however, that test is not germane to the assessment of this application. As the Court of Appeal recently held in R. v. Poulos, the Palmer criteria speak to new evidence tendered in relation to a factual or legal issue at trial. They do not apply where a party submits fresh evidence to attack the validity of the trial process. In those circumstances, the court will admit the fresh evidence as long as it complies with the normal rules of evidence.

18In my view, Mr. Khan's complaint with respect to the conduct of his counsel is about the validity of the trial process in as much as he says that he was improperly deprived of his ability to choose whether or not to testify in his own defence. I am obliged, therefore, only to assess the evidence before me and to determine whether Mr. Khan has demonstrated on a balance of probabilities that the conduct of his trial counsel resulted in a miscarriage of justice.

19The issue of the responsibility for deciding whether an accused will testify in his or her own defence was definitively addressed by the Court of Appeal in R. v. Archer. There, one of the many allegations about trial counsel's performance was that it was he, and not the appellant, who decided that the appellant would not testify at his trial. The appellant claimed that he did not know that it was his decision to make.

20In discussing the issue of an accused person's right to determine whether or not to testify, the court held at paragraphs 139 to 140:

While counsel owes an obligation to advise his client as to whether he or she should testify, the ultimate determination must be made by the client. If the appellant can show that it was trial counsel and not the appellant who decided that the appellant would not testify, and that the appellant would have testified had he understood that it was his decision, it seems to me that it must be accepted that his testimony could have affected the result, thereby establishing that a miscarriage of justice occurred: see R. v. Moore. The crucial question becomes - who made the decision?

The appellant bears the onus of demonstrating that trial counsel and not the appellant decided that the appellant would not testify. In determining whether the appellant has met that onus, I bear in mind the strong presumption of competence in favour of counsel.

21Undoubtedly, the issue must be approached with caution. As the Court of Appeal said in Archer, once an accused has been found guilty, "common sense dictates a cautious approach to allegations against trial lawyers made by convicted persons who are seeking to avoid lengthy jail terms. It must also be recognized that the confidential nature of the relationship between a lawyer and his client can make it easy for the client to make all kinds of unfounded allegations against his former lawyer." Similarly, it is not uncommon that a person who has been convicted after having received strong advice from his counsel that he should not testify comes to believe, after the fact, that counsel's strong advice was in fact a decision by counsel that the client should not testify. As the Court put it in Archer, "Looking backwards through the bars of a jail cell is not the most reliable of vantage points from which to see events that culminated in the conviction."

22With that caution in mind, I turn to my assessment of the evidence on this application to determine whether Mr. Khan has met his burden. To answer that question, one need look no further than trial counsel's own evidence. Both her affidavit and her viva voce testimony before me, when viewed cumulatively and in context, allow for only one reasonable conclusion: it was trial counsel who decided that Mr. Khan would not testify.

23At paragraph 12 of her affidavit, for example, trial counsel says that the decision not to call any defence evidence was a contentious one, "and I recalled that the applicant wanted to testify against my advice." Mr. Khan's expressed desire at that point in the trial was, according to paragraph 11 of counsel's affidavit, consistent with his position, as she put it, "throughout my involvement in the case." Here, as already noted, trial counsel's affidavit evidence stands in stark contrast to her viva voce evidence, in which she testified that, "prior to the commencement of the trial there was no discussion about him wanting to testify at all. That only came up in the midst of the trial."

24I find that Mr. Khan was steadfast in his position, and that he consistently told trial counsel he wanted to testify. Trial counsel's suggestion that he agreed with her decision or that he had never expressed a desire to testify before trial is undermined by the inconsistency in her evidence, and by the fact that she was unable to assist the court with any details of her conversations with Mr. Khan on the issue because none of those conversations were reduced to writing.

25Ms. Craig's colleague, Richard Posner, met with and spoke to trial counsel after the sentencing hearing in October 2014. Mr. Khan had retained him in the summer of 2014 after he had been found guilty by me. Mr. Posner's testimony was largely hearsay as it was directed at things trial counsel or Mr. Khan had said to him in their meetings. His evidence, even if it was admissible, was of little assistance to me and added nothing to my assessment of the central question of the decision not to call Mr. Khan as a witness.

26The Crown contends that Mr. Khan essentially ceded all decision-making about his trial, including the decision that he would not testify, to his lawyer. In support of that submission, Mr. Vlasis points to Mr. Khan's evidence on cross-examination, referred to above, which, Mr. Vlasis submits, suggests that Mr. Khan in effect went along with the decision his lawyer had made.

27I see two difficulties with this submission. First, I do not accept that Mr. Khan's evidence, when assessed in light of the evidence as a whole on this application, can fairly be read as him simply going along with the decision not to testify. Time and again, both he and trial counsel refer to his repeated assertions that he wished to testify. I do not accept that he ever retreated from that view, or that he was ever prepared to agree that he should not take the stand. I find that he wanted to testify and he maintained that position throughout.

28Second, in my view what matters is not just the making of the decision. The decision was not made with Mr. Khan's full knowledge of his rights. Even if he acquiesced to the advice of his counsel (and I do not accept that he did), he was not aware that on this issue the final decision was his. Regardless of counsel's advice, in those circumstances too there would be a miscarriage of justice.

29The cogency of the evidence as to trial counsel's failings in this regard can be usefully assessed by comparing the evidence of solicitor-client communications in this case with the evidence in Archer. There, Mr. Archer had testified on the pre-trial motion regarding the admissibility of his statement to police. His trial counsel was unimpressed with him as a witness, and so arranged for a videotaped mock examination and cross-examination of his client. Three persons retained by trial counsel viewed the videotape. They too were unimpressed with Mr. Archer as a witness. Further, Mr. Archer signed a clear and explicit acknowledgment that his counsel had explained to him fully the implications of testifying and had discussed with him his performance as a witness on the pretrial motions. Mr. Archer specifically and in writing instructed his lawyer not to call him as a witness in his own defence, stating that he was, "fully aware of the consequences of my choice in this regard." As the Court of Appeal held, this written direction was a significant hurdle to Mr. Archer in attempting to convince the court that it was trial counsel and not he who had made the decision not to testify. It provided an, "inherently more reliable" version of what had happened than the appellant's post-conviction complaints.

30In this case I have not a single document from trial counsel's file to assist me on this issue. Trial counsel testified over two days. Towards the end of the first day Ms. Craig asked her about her meetings with Mr. Khan. Trial counsel testified that while she would have the dates of her meetings with Mr. Khan in her "own personal notes" she did not keep any written notes of her meetings and discussions with him. Court recessed in part to allow trial counsel the opportunity to obtain and bring with her anything which might assist in refreshing her memory as to details and dates of conversations she had had with Mr. Khan. She returned to court on the second date with nothing to assist her. Even after this adjournment to permit her the opportunity to refer to her file she could not give any specific dates when she met with her client to discuss trial preparation. She had no notes, memos, dockets or even calendar entries in relation to any meetings. This is remarkable. It also deprives the court of any contemporaneous account of the conversations counsel may have had with her client during the course of representing him. The failure to obtain any written instructions or keep records of her discussions with Mr. Khan tells very strongly against the position that Mr. Khan ever agreed that he should not testify.

31Nor is trial counsel assisted by her purported rationale for not calling Mr. Khan. She explained that in her view it was unnecessary for Mr. Khan to testify for two reasons: first, his explanation of what had happened to his customers' money was already before the court by way of the statement he gave to the police on his arrest; and second, she believed the Crown's case would fail because proof of the lost funds depended entirely on inadmissible hearsay.

32The first rationale is puzzling: trial counsel sought to exclude Mr. Khan's statement as involuntary. I ruled it admissible on the same day that the Crown commenced calling evidence on the trial proper. Counsel had no way of knowing what that ruling would be, yet according to her, a key component of her defence strategy depended on the statement being admitted. There was no contingency for getting Mr. Khan's version of events before the court in the event that her application to exclude the statement was successful.

33As for the hearsay evidence, counsel was correct, as I pointed out in my trial judgment, that some of the counts could not be proved without relying on inadmissible hearsay assertions. But she took the position that the Crown's entire case was dependent on inadmissible hearsay and that the Crown had no admissible evidence from which it could prove the alleged loss.

34There were other avenues of proof of the losses, including most notably the words and actions of Mr. Khan himself. Depending on this single argument as a principal plank of the defence of these charges was a remarkable gambit, and signals a regrettable lack of awareness of the case against Mr. Khan.

35Considering the evidence of both trial counsel and Mr. Khan in its entirety, and in the context of these proceedings, I find that in this instance, while trial counsel's opinion as to the merits of Mr. Khan testifying and her advice in that regard may very well have been sound, it was she, and not Mr. Khan who made the decision that he would not testify. At minimum, it is clear that Mr. Khan was never advised that the decision on this issue was ultimately his to make.

36The Crown submits that if I find that Mr. Khan was deprived of the ability to make his own decision to testify, then I must go on and consider whether, if he had testified, his evidence would have made any difference to the outcome of this trial. Mr. Vlasis' concern is understandable: even the defence acknowledges that the thrust of Mr. Khan's evidence would have been the same as the explanation he gave to the police in his statement to them post-arrest, an explanation which I have already found to be incredible.

37In the context of a classic Palmer application to adduce fresh evidence one of the crucial components of the admissibility test is whether that evidence could reasonably have affected the outcome of the trial. But as I have already observed, and as I believe Archer makes clear, in the circumstances of this case the court is not permitted to go behind the decision not to testify to inquire as to what the merits of any defence evidence may have been.

38Mr. Vlasis also seeks support for his position in the decision of the Saskatchewan Court of Appeal in R. v. Moore, a judgment referred to favourably by the Court of Appeal in Archer at paragraph 139. In Moore, the court concluded that the appellant's trial counsel had given incorrect advice concerning the appellant's ability to testify. The court held, at paragraph 55 that, "but for this advice Mr. Moore probably would have testified at trial and that had he testified, his testimony could reasonably be expected to have affected the result." Mr. Vlasis says that by referencing the decision in Moore, the Court of Appeal in Archer was in effect endorsing the view that the fourth Palmer criterion was applied in assessing what remedy should flow from a finding that an accused had been improperly deprived of the opportunity to testify.

39I reject that interpretation of Archer. In my view, while Moore may have made reference to the fourth Palmer criterion, it did so in no more than a throwaway line, which might be characterized more as an observation of the consequences of the failing rather than a prerequisite to the declaration of any remedy. Further, the language of Archer is very clear: once it has been established that the decision not to testify was made by counsel and not by the accused, and that the accused would in fact have testified if properly advised then, the court held, "it must be accepted that his testimony could have affected the result, thereby establishing that a miscarriage of justice occurred."

40In other words, the finding that the decision was made by counsel engages what amounts to an irrebuttable presumption that there has been a miscarriage. This reasoning makes sense. Even where there is some cogent indication of what the accused's evidence might have been, what it would have been and the impact of it on the outcome of the trial cannot be known with sufficient certainty until it is heard and tested under cross-examination in court. Attempting to piece together what an accused's evidence would probably sound like is fraught with difficulty. When one remembers that the decisions left to the exclusive sphere of the client in a criminal trial are few and far between, it is not surprising that the court would find that a breach of one of those decision-making obligations is sufficient, standing alone, to warrant a remedy.

5. CONCLUSION

41I return to the fundamental test: is it necessary to allow this application in order to prevent a miscarriage of justice? In my view the record before me compels the conclusion that it is. I am satisfied that Mr. Khan has established that he was denied his right to be the final arbiter of whether he would testify, and to know that it was his decision to make. His counsel made the decision for him, contrary to his express wishes.

42Having made that finding, the only fair and proper remedy is to declare a mistrial on the counts on which I found Mr. Khan guilty, and permit Mr. Khan to be tried with an appropriate opportunity to mount a full, and fully informed defence.

43It hardly needs to be said that this is a most regrettable circumstance. This trial occupied some 17 days of court time. Numerous witnesses, many of whom I found to be victims of a fraud, came to court to testify, undoubtedly in the hope that they would finally be having their day in court for the wrong done to them. Public funds have been expended on Mr. Khan's prosecution, on his defence and on the court time occupied by this application. The employment by counsel of some rudimentary steps and procedures in the course of her representation of Mr. Khan would have averted this most unsatisfactory of outcomes.

Released: April 1, 2015

Signed: "Justice Downes"