Court File and Parties

Date: November 4, 2015

Ontario Court of Justice

Her Majesty the Queen

v.

Jessica S. Remilien

Before: The Honourable Madam Justice J.V. Loignon

On: November 4th, 2015, at Ottawa, Ontario

Appearances

Counsel for the Crown: B. Lee-Shanok, Esq.

Counsel for the Accused: D. Anber, Esq.

Ruling

Loignon, J. (Orally):

This is an application by the accused for an order declaring a mistrial due to the incompetence of counsel, which resulted in a miscarriage of justice. The applicant was convicted following two days of trial for the following offences: driving a vehicle while her ability to do so was impaired by alcohol; driving a motor vehicle while her blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood; operating a motor vehicle in a dangerous manner; and failing to remain at the scene of an accident. This current application was brought following the findings of guilt but prior to sentencing.

The parties are in agreement that the court retains a common law jurisdiction to declare a mistrial even after conviction. Though such matters are normally disposed of at the appellate level following the imposition of sentence, the parties recognize the court's jurisdiction to intervene at this juncture.

Crown and defence agree that there is a very high onus to be met when alleging ineffective assistance of counsel resulting in a miscarriage of justice. Both parties agree that the matter must be beyond simply an accused person not receiving the benefit of good trial strategy or the execution of that strategy. As Justice Hill in R. v. Furtado [2006] O.J. No. 3866 at paragraph 74-12 cautioned:

"It is natural a person aggrieved by the outcome of a criminal trial to seek to assign blame. Reviewing courts must be very conscious of the ease with which it is possible for condemned prisoners, as a last resort, to invent allegations of refusal to accept instructions or incompetence on the part of counsel who defended them."

The parties essentially agree on the applicable law but disagree on its application in this particular case. In R. v. Furtado, supra at paragraph 74, Justice Hill summarized the first principles relevant to this type of application. He began by noting that the right to effective assistance of counsel extends to all accused persons as a constitutionally protected principle of fundamental justice. This is so because of our trust in the adversarial process to seek out the truth, treat criminal defendants fairly and protect the innocent from wrongful conviction. Where advocacy is incompetent the adversarial system is undermined and the appearance of fairness is compromised such that the reliability of the verdict is called into question.

Where, however, an accused is not self-represented there exists a "strong presumption that defence counsel's conduct fell within the wide range of reasonable professional assistance". R. v. Furtado, paragraph 74 citing R. v. B(GD) (2000) 2000 SCC 22, 143 C.C.C. 3rd, 289 S.C. at page 298.

When seeking a mistrial or to quash a conviction on the basis of ineffective assistance of counsel an applicant must:

1. Show where the claim is based on contested facts, establish the material facts on the balance of probabilities
2. Demonstrate that trial counsel's acts or omissions amounted to incompetence
3. Establish that counsel's ineffective representation caused a miscarriage of justice

(See Furtado at para. 74-8)

And for greater clarity, a miscarriage of justice occurs where the appearance of a fair trial has been undermined or calls into question the reliability of the verdict. Furtado at para 74-3

Standard of Competence

When considering the competent performance standard the experience of trial counsel in criminal litigation is relevant and weighs the balance in favour of a presumption of competence.

"Defence counsel's standard of care is that of a reasonably competent counsel acting in a criminal proceeding, having regard to prevailing professional norms"

The applicant is required to establish the incompetence of counsel on a balance of probabilities pointing to specific acts or omissions of counsel at trial, that fell below the standard of reasonable, professional assistance in the circumstances. This last factor does not entitle an applicant to:

"Perfect advocacy judged with the benefit of hindsight". Furtado at paragraph 74-16 to 74-18

The standard of professional competence bears in mind that different lawyers may make different tactical decisions. It does not follow that one may demonstrate incompetence and the other not. It is not sufficient to suggest that trial may have been conducted differently or in certain respects, may have been conducted more skilfully.

"The standard demands that the lawyer bring to the exercise of his or her judgment the effort, knowledge and insight of the reasonably competent lawyer. If the lawyer has met that standard, his or her duty to the client is discharged even if the decision proves to be disastrous." Furtado at paragraph 74-19

Scope of Counsel's Obligations

"Within the discharge of their functions, counsel must inform and advise his or her client, especially with respect to significant matters, so that an accused person may make an informed choice for those decisions that are reserved for the accused alone. This particular area has been found to include decisions as to whether or not to plead guilty or whether or not to testify. These are areas where counsel is ethically obligated to discuss with the client and take instruction."

Tactical decisions, however, are ones that are left within the discretion of counsel. Examples that have been cited include the decision to cross-examine a particular witness, the manner of cross-examination, the mode of trial. See Furtado, paragraph 74-23 to 74-25.

"This supports the further principle that counsel are not required to bring forward any and all arguments suggested by an applicant. Indeed defence counsel is not simply the mouthpiece of the accused. Counsel is expected and required to exercise independent judgment otherwise the applicant would simply have been self-represented."

With respect to preparation, the degree will depend necessarily upon the complexity of the charges and the experience of counsel.

"The failure to act or take a step out of ignorance is more susceptible to review and therefore entitled to less deference than a considered judgment by counsel which turns out badly". Furtado at paragraphs 74-31.

Nature of the Charges

In this particular case, Miss Remilien was facing charges of impaired operation of a motor vehicle, operating a motor vehicle with a blood alcohol concentration over 80; dangerous driving, and failing to remain at the scene of an accident. Impaired and over 80 charges are amongst the most technical in the Criminal Code. The means to defend are varied, but also very case specific. Sometimes there may not be an active defence and the defence strategy will be to lie in wait for an error by the Crown. This can be a legitimate and viable strategy. This having been said, these types of charges still require research, preparation and an understanding, even rudimentary, of the interplay between science and the law.

Test for Miscarriage of Justice

If an applicant demonstrates incompetence or ineffective assistance on the balance of probabilities the next step is to determine whether a miscarriage of justice occurred.

The court must examine:

"The nature and seriousness of the errors from the perspective of the reliability and the adjudicative fairness of the process leading to the verdict. If counsel's incompetence rendered the verdict unreliable or the process unfair, then the appellant has demonstrated that he received ineffective assistance resulting in a denial of the right to a fair trial and the miscarriage of justice." R. v. Joanisse, [1996] O.J. No. 2883 at paragraph 76.

The courts have considered various types of incompetence and the effect it may have on trial fairness. Where counsel is impaired during a trial or accepts a retainer when in conflict of interest the appearance of justice cannot be said to be done and the adjudicative process is tainted. There is no need even to embark an inquiry into the reliability of the verdict in those cases because of the clear unfairness of the trial. See Joanisse at paragraphs 78 to 79 in the cases cited therein.

Where an applicant claims that their counsel did not competently advance their defence and made poor decisions, the court must look to the impact of the errors on the reliability of the result. If:

"There is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different"

Then the reliability of the verdict has been undermined.

Reasonable probability is more than a mere possibility but less than a likelihood. Joanisse at paragraph 81 citing Strickland v. Washington, 104 S.C.T. 2052, (1984) at paragraph 82.

Factual Foundation for Allegations of Ineffective Assistance of Counsel

Counsel for Miss Remilien submits that incompetence pervaded the trial rendering it unfair. The areas of ineffective assistance of counsel raised may be discretely summarized in the following fashion:

1. Language of trial
2. Trial strategy
3. File transfer and trial preparation
4. Trial strategy execution

The applicant gave evidence on the application through an affidavit as well as cross-examination on this affidavit. The Crown called two witnesses, namely, Mr. Alfonse Andre and Mr. Severin Ndema-Moussa. Mr. Andre is a lawyer practicing in Ottawa with 16 years' experience. While initially the majority of his work was in criminal law, in the last few years that has not been his focus. Indeed, in 2014 he dealt with four criminal cases in total.

Mr. Ndema-Moussa is a lawyer practising in Ottawa with some 13 years of experience. It is unknown what percentage of Mr. Ndema-Moussa's practice is criminal and how often he has defended drinking and driving charges.

Language of Trial

Applicant's Evidence

On the second day of trial, October 17, 2013, just prior to calling evidence, counsel for the applicant advised that the accused would testify in English where up to then everything had been conducted in French. It is of interest that all the witnesses spoke English and their evidence was interpreted into French. All procedural aspects of the trial were dealt with in French. When addressed directly by the court at that time, the applicant stated that her first lawyer selected the French trial without discussing it with her. She also stated that she was surprised everyone was speaking French over the past two days.

In her affidavit of January 23, 2014, Miss Remilien said that the trial commenced in French, though she did not know why and had never given instructions for this. She wanted her trial in English. In a second affidavit sworn July 15, 2014 the applicant denied ever having agreed to a French trial in advance but added she was made aware of the trial having been requested in French at a meeting with her counsel and agreeing to this so long as she could testify in English.

She was made aware by Mr. Andre that he felt he could do a better job in French. She confirmed with him that she would not be lost in French and furthermore it was obvious to her that not only was he more comfortable in French but he actually had trouble in English. During cross-examination on her affidavits, the applicant confirmed that she understands French and in fact is fluent in French. She advised that she met with Mr. Andre at her mother's request and agreed that Mr. Andre should represent her. After having met with him she was comfortable with both him and his strategy. Furthermore, she confirmed that all of the meetings she attended took place in French.

I note at this time that there are discrepancies between Miss Remilien's assertions on October 17, 2013 and her evidence on this application. Indeed, her silence during day one of the trial and her request to testify in English on day two of the trial certainly do not suggest someone who was surprised by the language of trial but rather someone who was aware that the trial would be conducted in French but they would testify in English.

Mr. Andre's Evidence

Mr. Andre testified that as a condition of being retained in this matter he required that the trial be conducted in French. He, himself, only conducts trials in French even when his client is an allophone. It is easier for him and is more efficient for the client. Mr. Andre testified that he only spoke with his client in French though the text messaging on the second day of trial is mixed English and French. He noted that it is sometimes simply faster to text in English.

When his conditions were met with respect to retainer, strategy and language of trial he went on record and requested a French trial. There was never any question in his mind that the trial would be in any language other than French. In terms of communications with his client, she only spoke with him in French as well as with her mother who was often present in the meetings. He was aware that she took certain classes in French or at least took classes at a bilingual school. The only time he recalled speaking English with his client was when he read out English witness statements. Any discussion about these was in French.

Trial Strategy

Applicant's Evidence

The applicant testified that she and Mr. Andre reviewed the evidence which included a review of all civilian witness statements and a review of police witness summaries. They did not, however, review the Breathalyzer room video and she did not at that time appreciate the significance of timing. When discussing her file and the evidence with her prior counsel, Jessica Addley, she understood her focus to be on rights to counsel. She was aware that Mr. Andre's strategy was instead of attacking what transpired with police to use a psychiatrist or psychologist to establish the absence of or raise a doubt with respect to the mens rea of the offences. Miss Remilien agreed to this strategy.

Mr. Andre's Evidence

Mr. Andre testified at length with respect to the trial strategy. As noted by the applicant, his approach was to attack the mens rea for the dangerous driving and fail to remain charges. With respect to the over 80 charge he planned to raise post-offence drinking in an effort to undermine the readings. To that end he had determined that it would be necessary to retain two experts, namely, a psychiatrist or psychologist, as well as a toxicologist.

Finally, in support of this approach, he did not intend to dispute the fact of the accident, identity as well as the actus reus of the offences. In fact, with respect to identity it was his opinion that there was ample evidence regarding identification and therefore it was not worth pursuing. The strategy above was developed as a result of being told by the accused of the events of the evening and their impact on her mental state. The events included an encounter in a limousine and unwanted advances, drinking to excess at home and threatening suicide. Mr. Andre testified that he provided the applicant and her mother with his strategy during their first meeting. At that time they agreed to this approach. As a result he made various phone calls to retain the appropriate experts. Over the course of time, the applicant showed reluctance to see a psychiatrist and, therefore, he made arrangements for the use of a psychologist. He verified that particular psychologist had experience with PTSD. He ultimately received a report from the psychologist in early September 2013. This was discussed with his client at a meeting some time prior to trial.

Mr. Andre was also ultimately advised of monetary constraints and therefore, instead of hiring their own toxicologist he determined that they would make use of the Crown's. Mr. Andre testified that he had specific discussions with the applicant concerning the police interview and admitting voluntariness. He explained that such an admission was consistent with the defence strategy and emphasis on the psychologist. Mr. Andre also testified that he was aware that even if the breath test results were excluded on a rights to counsel argument there still remained the impaired charge and therefore his focus was to raise a doubt in the mens rea in order to attack all charges.

He did not discuss the 10b violation with the applicant as he did not feel the time line was exaggerated, some 21 minute delay. He stated that the prior firm had not focussed on it either as despite a prior trial date being set, no Charter Application had been filed. His plan to deal with the over 80 charge was to, through the use of a toxicologist, raise a doubt as to the readings based on post-offence drinking.

He did not, however, consult a toxicologist in order to ensure the defence was viable and was also ultimately trusting that what the accused was telling him was the truth concerning her alcohol consumption.

Mr. Andre wanted, through the toxicologist, to establish that at the time of driving his client's blood alcohol concentration would have been under 80 based on the consumption of one shot and two beers. He then expected that the toxicologist would confirm that his client was over 80 as a result of consuming a large amount of Bailey's liqueur.

Transfer of the File

Applicant's Evidence

The applicant testified that the night before her trial she met with Mr. Andre and was told that there was a problem with his licence to practice. She was also told that his mother-in-law had recently died and that he had certain matters to attend to on the next day. She was told that Mr. Andre had an associate who would be able to run the trial. She was then presented with a letter in French. She testified that it was summarized for her, she glanced at it and then signed it. The applicant testified that she wanted Mr. Andre to conduct the trial as she had spoken with him. She did not, however, express her displeasure that night with either Mr. Andre or Mr. Ndema-Moussa. The applicant testified that she signed a letter she was presented with out of desperation and because she was told that Mr. Ndema-Moussa had helped prepare the file which made her feel somewhat more comfortable.

Mr. Andre's Evidence

Mr. Andre testified that he met with the applicant in an office apart from Mr. Ndema-Moussa's the evening before the trial. During this meeting he advised her that he could not conduct the trial because of amongst other reasons, his mother-in-law's death. Mr. Ndema-Moussa would replace him. And according to Mr. Andre he advised her that she could ask for an adjournment or go forward with Mr. Ndema-Moussa. Mr. Andre testified that Miss Remilien was comfortable going forward with Mr. Ndema-Moussa and as a result she signed the document and they went forward to meet with Mr. Ndema-Moussa.

The letter discussed during that meeting was filed as an exhibit on the application. Though there is mention of most of the factors noted above there is nothing with respect of the applicant's option of seeking an adjournment.

Between October 4 and 11, 2013, Mr. Andre was suspended for non-payment of Law Society of Upper Canada fees. Since his call to the bar this was his ninth administrative suspension before the October 16, 2013, trial date. Mr. Andre testified that prior to the first day of trial he had not been reinstated and therefore could not conduct the trial. He then added that in the afternoon of the first day of trial a colleague told him that he had been reinstated which turned out to be true. I do note that on the first day of Mr. Andre's evidence he repeatedly noted the first day of trial being the 15th when in fact it was the 16th. By the time he returned to complete his evidence Mr. Andre was referring to the correct day meaning the 16th.

During the course of cross-examination it became evident that Mr. Andre had a conflict with the date of October 17th and that he had a settlement conference in L'Orignal. Mr. Andre testified that by the 17th he felt all was in order with respect to the running of the trial including the psychologist's evidence and since he himself was not occupied with the trial it would be appropriate for him to attend the settlement conference. He testified that had he, in fact, been double booked he would have obtained an agent to deal with this commitment.

Mr. Andre also testified that while he was driving to L'Orignal he received a phone call from Mr. Ndema-Moussa that the applicant was refusing an adjournment to call the psychologist. I do note that, given the various text messages, the fact of this communication seems to be borne out.

Mr. Ndema-Moussa's Evidence

Mr. Ndema-Moussa testified that sometime before the trial date he was told by Mr. Andre that he had various administrative issues and would not be able to conduct the trial for the applicant. As a result he was asked to assist and prepare the file for himself to conduct the applicant's defence. A few days prior to the trial, Mr. Andre and himself spoke and reviewed various pieces of disclosure.

One or two days prior to trial Mr. Andre confirmed with him that he would not be able to do the trial at all. As a result of this, he asked Mr. Andre to meet with the applicant and ensure that she was comfortable with him running the trial. Mr. Ndema-Moussa was not clear on exactly what the applicant would be told by Mr. Andre. Mr. Ndema-Moussa always spoke with the applicant in French and no concerns were ever expressed to him about the language of trial. If there had he would not have taken the file.

Trial Strategy Execution

Applicant's Evidence

The applicant testified that she did not agree to the admissions that were made on the first day of trial. She did state that she understood that the purpose of the admissions was to speed up the trial by not requiring certain witnesses to testify. She herself thought that Mr. or Miss O'Hara was relevant but in her evidence did not say why she believed this. She ultimately did not insist that O'Hara be called and explained that by then, in any event, it was too late as the witness had already been sent home.

The applicant did, ultimately, concede that in part she did not object to the witnesses going home because she understood that the focus of the defence strategy was not on what the civilian witnesses had to say but rather on the expert evidence to attack mens rea.

The transcript of the proceedings on October 16th, 2013 show that at 10 a.m. the applicant was not present. Her matter was stood down to await her arrival but also for counsel to speak with her concerning various admissions. When the trial ultimately began, the Crown noted for the court that defence counsel had spoken with his client. The admissions were confirmed with defence directly by the court. Voluntariness was separately confirmed as being admitted.

When cross-examined on her affidavit the applicant confirmed that when she spoke with the Breathalyzer technician she had received rights to counsel, had spoken with counsel, and had no issues speaking with him. She confirmed that she was not under any pressure at the time.

Concerning the proposed expert psychologist the trial transcripts show that on the first day of trial the psychologist testifying on behalf of the applicant was present, though not reached. The following day it was discovered that defence counsel had never served the appropriate notice of expert on the Crown concerning this particular witness. The court advised defence that an adjournment would be given to the Crown in order to receive the appropriate notices and reports to allow preparation for cross-examination. When the adjournment for the receipt of the psychologist's evidence was discussed the Crown put defence on notice that they were not conceding qualifications or even relevance of the evidence. No ruling was made by the court and there was a notation that all argument would be deferred to the day of the admissibility and qualification voir dires. Time was given for defence counsel to consult with his client as well as to obtain continuation dates. Ultimately, defence advised that the psychologist would not be called.

The affidavit sworn by the applicant does not reflect what occurred during the proceedings. The court never considered any expert evidence because none was called. There was no discussion of it being inadmissible or the evidence being refused altogether. Defence was offered an adjournment to call the psychologist and this was refused.

I do not find the applicant to be an accurate historian as to what occurred concerning the psychologist.

Mr. Andre's Evidence

Mr. Andre testified that the notice of expert was not served and filed until the morning of the second day of trial. He testified that he had failed to advise Mr. Ndema-Moussa of this problem. Mr. Andre testified that he had the Breathalyzer room video and watched it. He also showed it to the psychologist though at the time the video itself did not function properly and the psychologist was only able to hear the various conversations.

He did not provide Mr. Ndema-Moussa with the video, therefore, he did not believe that Mr. Ndema-Moussa was aware of what was on the video other than what he himself had relayed to him. Mr. Andre also confirmed that he did not review the video himself with the applicant. When being cross-examined on the defence strategy Mr. Andre disagreed that the accused was required to testify for the various defences. He testified that he felt it was enough for the court to consider what could be seen on the video itself.

There are a number of problems with these assertions. The first was, how did he expect Mr. Ndema-Moussa to advise the accused about testifying if he did not provide him with the video? As well, how was Mr. Ndema-Moussa to prepare cross-examination of the toxicologist if he was not aware of the various statements made by the accused to the technician as to her consumption of alcohol? Still on the issue of providing advice on whether she ought to testify or not, Mr. Andre's assertion that there was enough evidence found on the video alone to address the mental state does not stand up to scrutiny.

The defence strategy with the mens rea required the applicant to testify not only concerning what happened following the accident but also prior to.

Mr. Ndema-Moussa's Evidence

Mr. Ndema-Moussa testified that he discussed the various admissions with the applicant within the context of the trial strategy which was less about the facts themselves and more her state of mind. According to Mr. Ndema-Moussa this was discussed during the trial preparation meeting as well as during the trial itself. As previously mentioned the psychologist was present and ready to testify on the first day of trial. She had to leave on the second day in the afternoon for a flight to Vancouver and as a result it was always contemplated that the defence would require an adjournment irrespective of the issue of the notice of expert.

Miss Remilien however, said no to the adjournment because she wanted to end the trial. More specifically when the issue of notice arose Mr. Ndema-Moussa recommended that it was better to elect for the adjournment. She said no. Following this, Mr. Ndema-Moussa phoned Mr. Andre to have him convince her to opt for the adjournment. He believed that he would be in a better position to persuade her because he had a longer relationship with her. Because he was not able to reach Mr. Andre, Mr. Ndema-Moussa felt that he had no choice but to go along with Miss Remilien's instructions.

Mr. Ndema-Moussa confirmed that there was indeed a break during the trial for him to speak to his client on this topic. This is reflected in the trial transcript. Mr. Ndema-Moussa confirmed that he never received written instructions from the applicant not to seek an adjournment for the expert to testify. When explaining the rationale for this Mr. Ndema-Moussa noted that the psychologist was sitting outside ready to testify. However, it's clear from reviewing the actual trial transcript that by this time the psychologist had already left for Vancouver. Mr. Ndema-Moussa likely has no notes on this and did not read the transcripts prior to testifying. I do not think he's trying to mislead the court but he is not an accurate historian.

Mr. Ndema-Moussa was relying on the Crown toxicologist to mitigate and contest the evidence in order to simply raise a doubt with respect to the presumption of identity. With respect to these particular issues Mr. Ndema-Moussa testified that he did not feel hampered by any lack of preparation. During his cross-examination of the toxicologist it is not evident that Mr. Ndema-Moussa fully understood the mechanics of the defence he wished to raise. Indeed at one time he began asking questions concerning the machine's last calibration. In addition, the trial transcripts demonstrate that he did not have the necessary details such as what is in a Polar Bear drink in alcohol volume for the toxicologist to make the appropriate calculations.

With respect to preparing the accused to testify Mr. Ndema-Moussa felt that she had been sufficiently prepared by her original counsel, Miss Addley, as well as Mr. Andre. As a result, it did not matter in his view that she only had limited time with himself. This particular statement does not withstand any real scrutiny given that the first counsel did not even consider a strategy similar to Mr. Andre's and, therefore, the issue of her being prepared to testify was unlikely.

In addition, Mr. Ndema-Moussa does not provide any insight into what he actually did to prepare his now client to testify. Mr. Ndema-Moussa testified that he reviewed a list of admissions with the applicant the night before the trial, however, no longer had it or did not retain it. The file was returned by himself to Mr. Andre. Mr. Ndema-Moussa did confirm, however, that he never received written instructions with respect to any admissions. He did note, however, that the applicant was content with the strategy and for it to go forward. He also noted that he checked with her as matters did indeed unfold during the trial. Mr. Ndema-Moussa pointed to one of the recesses, noting that he simply confirmed with Miss Remilien the instructions he had received the night before.

Trial Transcripts

One of the witnesses whose evidence was not admitted was Mr. Sequin. Though he was present and available to give evidence with respect to the applicant's emotional state, no questions were asked of him in cross-examination. While it may be because he had limited evidence to give on this topic, during Mr. Ndema-Moussa's submissions he made reference to this witness' evidence and the applicant's emotional state suggesting observations were made though the witness was never asked any questions about the applicant's behaviour. He was also not asked with respect to signs of impairment though counsel speculated in that regard during submissions as well.

With respect to the issue of identification, the information elicited during the trial does seem to support the contention that such an argument was not viable. Indeed, civilian witnesses gave various descriptions of the vehicle as well as the driver. In addition to this the applicant's mother gave a witness statement identifying the accused as the driver of the vehicle.

Based on the evidence heard during the actual trial as well as the materials filed on the application it would seem that rights to counsel at the roadside was a live issue as there are discrepancies as between the two principal officers, Constable Cochran and Constable Bernie. Each has the other reading rights to counsel and at a different time. As noted previously, there is a potential twenty-one minute delay concerning the reading of rights to counsel depending upon whose evidence is accepted as to who actually read rights to counsel.

The voluntariness of the Breathalyzer room video did not seem to be understood by Mr. Ndema-Moussa as his cross-examination of Constable Cochran went into issues relevant to threats and oppression despite having conceded voluntariness at the outset. Mr. Ndema-Moussa did not seem to be adequately prepared for cross-examination of the toxicologist as, when putting his own scenario to her he was very obviously speaking with the applicant as he was questioning the toxicologist. He also ought to have known prior to putting the post-offence drinking scenario to the toxicologist that it did not support the numbers or testing results to provide a defence. Indeed, because defence admitted the time of the accident, the Crown still had the benefit of the presumption of identity. Ultimately, defence had to show that the post-offence drinking correlated exactly to the results obtained at the time of the testing which they were not able to do. In addition to this, during cross-examination, Mr. Ndema-Moussa sought an opinion as to the ability to drive with a blood alcohol concentration of between 120 and 165, suggesting it was an impossibility. This shows a lack of understanding of the different factors that go into an opinion as to impairment.

Analysis

Credibility Assessment

The first step in this type of application is a determination of the factual underpinnings for the allegations. In that regard I do have to consider the credibility of the various individuals who gave evidence. I've already noted instances where I have found the applicant to be a poor historian of the events and in those instances I do not accept her evidence. This having been said, I also do have various concerns with respect to Mr. Andre's evidence.

At times he was very long-winded and circuitous answering questions. This occurred when speaking of the phone calls from the Crown's office concerning meetings in preparation for the application as well as with respect to his reinstatement in October 2013. With respect to his notes I'm not entirely convinced as to how forthright Mr. Andre has been. He initially said that he took notes at an initial meeting and then retrenched from that saying that he listened attentively. He also added that he had an excellent memory so when he received the file from prior counsel he was able to verify everything in disclosure to which he added Post It notes and some highlighting.

Surprisingly, however, when asked to confirm who was present at these meetings of which he had an extraordinary memory, he was not able to say. Mr. Andre's failure to turn over his file following the court's direction to do so is also concerning. Finally, I find it odd that an individual dependent on Law Society of Upper Canada compliance with client matters and, therefore, income would not regularly be checking their status themselves but rather would rely on what someone else told them concerning reinstatement.

Standard of Review

I'm mindful that in assessing the claim put forward by Miss Remilien of ineffective assistance of counsel, I'm not to consider it through the lens of hindsight, nor am I to grade counsel's performance. Overall, as well, the decisions made by counsel are entitled to a degree of deference, though I do note that in this case, criminal law was not an area of exclusive practice to counsel, which in my view will not attract the same level of deference as someone who is actively engaged in just one area of specialization.

Finally, I also bear in mind the comments of Justice Hill in Furtado that not all lawyers exercise their craft at the same level of experience, skill or judgment. at paragraph 74-22.

Language of Trial

The applicant has made several conflicting statements as to her knowledge of the trial being in French as well as why any trial would be conducted in French. It is evident from her affidavit from July 15th, 2014, that she knew in advance and agreed to trial being conducted in French so long as she could testify in English. I note that she raised the issue of language only on the second day of trial and only when she was about to testify which is consistent with her having knowledge of the language of the proceedings and why.

Indeed her actions then were more consistent with her evidence on this application than her words to the court on October 17th when she stated that she was surprised everyone was speaking French. It's clear from the record before the court that the applicant agreed in advance to have the trial conducted in French. She cannot now complain of the decisions she made when she retained Mr. Andre.

With respect to the language of trial people make certain concessions to retain a lawyer of their choice and through this the language that their lawyer necessarily speaks with the court. This is one such concession arising out of her choice of counsel. Miss Remilien cannot now retrench from this choice. I do not find that the evidentiary basis have been made out on this particular heading.

File Transfer

With respect to the file transfer process, I'm concerned with Mr. Andre's lack of diligence both in terms of ascertaining his status as well as advising his clients in a timely manner of his suspension. He put his client in an impossible situation as evidenced by Miss Remilien's predicament: either continue with a lawyer she was meeting for the first time the night before, or delay matters. I accept that she felt she had no choice but to press on with Mr. Ndema-Moussa given her inexperience with the criminal justice system.

In addition to this, I'm concerned that Mr. Andre did not adequately assist Mr. Ndema-Moussa in preparing for trial. For example, failing to give Mr. Ndema-Moussa the breath room video caused him to be unaware of its contents until it was played in court. Mr. Ndema-Moussa could not have adequately prepared for the cross-examination of the toxicologist or known the viability of the defence approach to that evidence prior to trial. Mr. Ndema-Moussa also could not have made an assessment as to the accused's evidence without knowing what exactly she said to the technician. In all it was irresponsible for Mr. Ndema-Moussa to accept to conduct a trial in the circumstances given the nature of the charges and his ability to prepare.

Trial Strategy and Execution

With respect to trial strategy, the decision not to pursue identity was not unreasonable given the disclosure. With respect to admissions there was no need for counsel to obtain written instructions with respect to all of these as they were tactical decisions. It was not unreasonable either to make those admissions that were consistent with the defence strategy. Indeed, making admissions allows for the parties to focus the court on the real issues.

Given the conflict in the evidence there was a viable argument to be made concerning rights to counsel, though exclusion of the readings was not a forgone conclusion. That having been said, not all arguments need to be pursued. Counsel are free to choose those they feel would be the most effective. Here counsel chose to pursue the post-offence drinking which was not unreasonable. The focus on the mens rea for the dangerous driving and fail to remain charges was not unreasonable either.

Preparation

Mr. Ndema-Moussa felt that he was adequately prepared. However, as noted above, he did not have the benefit of the breath room video, therefore, he did not know what he had been told by the accused and what she had told the breathalyzer technician did not match up, undermining his preparation for the toxicologist, undermining his preparation of his client to give evidence or even his ability to counsel giving evidence.

While he may have had a summary of the contents of the video this was a poor substitute for viewing it. He was not adequately prepared to cross-examine the toxicologist given that he was consulting with his client, obtaining information from her, as he was questioning. I'm unsure how prepared or knowledgeable Mr. Ndema-Moussa was with respect to the toxicologist's evidence as he did not appear to understand the nature of the toxicologist's evidence such as impairment and its impact on the ability to drive. He also did not appreciate the full extent of the post-offence drinking evidence and the toxicologist's opinion in that by admitting the time of driving the Crown did not lose a presumption of identity, thus the Crown was not put to having to disprove bolus drinking, a viable defence strategy.

The issues I've just mentioned are borne out in the trial transcript. The toxicologist's approach is a sound one, however, putting the Crown to the proof of the time of driving would have increased its efficacy. Given the exactly two hour time period between the accident and the readings, not admitting time of driving would have strengthened the defence approach and increased their chances of success. Mr. Ndema-Moussa was not adequately prepared for cross-examination of the toxicologist. Not only was he not familiar with the alcohol he needed for his hypothetical scenario, the results given by the toxicologist to the defence theory were not consistent with the intoxilyzer readings. He should have known ahead of time whether his defence was viable.

State of Mind Defence

The defence strategy for two of the offences was to put the applicant's state of mind at play. The state of mind defence was premised on the applicant's emotional upset from an incident in a limousine prior to the accident. Her behaviour at the scene of the accident was a relevant consideration. Any evidence from the witnesses at the roadside was relevant. It appears Mr. Ndema-Moussa only turned his mind to this during submissions rather than when he made the various admissions and sent the witnesses home, or when he was cross-examining the one remaining witness.

The centre piece of the mens rea defence was the psychologist, who ultimately did not testify. Miss Remilien argues that her counsel was ineffectual and that he failed to file the Notice of Expert and did not adequately explain the relevance of the evidence to the court.

A review of the transcripts shows that indeed the notice was not filed. This, however, was not fatal as the court proposed an adjournment. While the Crown put the defence on notice that they were not conceding qualifications or relevance, no ruling was made and in fact the court expressly stated that those issues would be dealt with during the voir dire.

It's clear from the record before me that the applicant chose not to seek an adjournment and that counsel followed her instructions. She cannot now say that defence counsel was ineffectual when she cut the legs out from underneath them. The evidentiary basis for this particular allegation of ineffectual assistance is not made out.

Applicant's Evidence at Trial

Most of the damaging evidence to the applicant's defence came from the applicant herself. Her statements to the breathalyzer technician as to consumption, her utterances at the scene of the accident and her evidence in court were found to be contradictory and not worthy of belief. Miss Remilien saw the video of her interactions with the breathalyzer technician prior to testifying. Though she perhaps ought to have seen it earlier she was not unaware of its contents by the time she testified. I do not find that the failure to show it to her earlier has established ineffective assistance.

Conclusion on Ineffective Assistance

An imperfect trial strategy will not attract a finding of ineffective assistance of counsel. In this particular case, while there were other avenues that counsel could have pursued in the applicant's defence, the decision not to do so does not amount to incompetence. This, however, is not the end of the matter. The file transfer, trial preparation and trial strategy are also at issue. The applicant must establish on a balance of probabilities that certain acts or omissions fell below the standard of reasonable professional assistance in the circumstances.

Mr. Andre's failure to provide Mr. Ndema-Moussa with the breath room video fell below the standard. Indeed it's utterly unreasonable not to provide trial counsel with all of the disclosure. The transfer of the file on the eve of trial given the technical nature of the defences and preparation required fell below the standard. The failure to understand the toxicologist's evidence, its interplay with the time of driving and the lack of information/preparation of the defence hypothetical and its viability all fell below the standard. Counsel cannot provide reasonable, professional assistance if there is an imperfect understanding of the Crown burden and defence manner of attack. The failure to consider the relevance of behaviour at the scene in support of the mens rea defence fell below the standard. The admission of time of driving given the evidence of post-offence drinking fell below the standard.

Miscarriage of Justice

The next question is whether the reliability of the verdict has been called into question. In other words as stated in R. v. Joanisse, supra at paragraph 81:

"Is there a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different?"

Without the admission of time of driving there's a reasonable possibility that the result may have been different. Without the errors or with appropriate preparation with respect to the toxicologist's evidence and assessment of the applicant's evidence there's a reasonable possibility that the result may have been different. As for the balance of the issues raised I'm not persuaded that the other areas would necessarily have had an impact on the verdict beyond a mere possibility. Notwithstanding the verdict has been called into question and as a result I'm declaring a mistrial.

Released: November 4, 2015

Loignon, J.