WARNING

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

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

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

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

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

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

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

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

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

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

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

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

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

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 2018-04-23

Docket: C61394

Judges: Rouleau, Tulloch and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

G.C. Appellant

Counsel

G.C., in person

Erika Chozik, duty counsel

Deborah Calderwood, for the respondent

Heard: April 6, 2018

On appeal from the conviction entered on April 23, 2015 and the sentence imposed on August 14, 2015 by Justice Leonard Ricchetti of the Superior Court of Justice sitting with a jury.

Reasons for Decision

[1] The appellant was convicted of incest and sexual assault. The complainant was his teenage daughter. She gave birth to two of his children. He received a global sentence of ten years.

[2] At trial, the appellant was represented by counsel. He testified. Midway through his cross-examination, he dismissed his counsel, claiming that his lawyer had been incompetent. The appellant then made an application for a mistrial on the basis of what he asserted was the ineffective assistance of counsel. The jury was sent away for a brief time so that the mistrial application could be heard. The application was dismissed.

[3] The appellant maintains that the trial judge erred in law by failing to apply the same standard as that used to assess claims for ineffective assistance of counsel on appeal. On appeal, the test focuses on whether there is a "reasonable possibility" that a miscarriage of justice resulted from ineffective assistance at trial: R. v. Stark, 2017 ONCA 148, 347 C.C.C. (3d) 73, at paras. 14-15. The test for a mistrial is different. The decision whether to grant a mistrial is a matter that lies within the discretion of the trial judge, "who must assess whether there is a real danger that trial fairness has been compromised": R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 79.

[4] We disagree that the same test to assess ineffective assistance claims on appeal should apply at trial. An incompetence of counsel claim, brought during the course of a trial, should be approached within the principled framework for mistrial applications. Bearing in mind the unique dynamics of each trial, judges need to be left with a broad discretion to manage the trial process. A mistrial is a remedy of last resort, and it falls squarely within the discretion of the trial judge who is in the best position to assess whether such a remedy is needed in order to avoid miscarriages of justice. No new test is required.

[5] Read in totality, the trial judge's reasons demonstrate that he essentially considered the incompetence claim by applying a mistrial framework. He was faced with a difficult and complex issue at a sensitive time in the trial. He managed the issue in a deft manner and we see no error in his exercise of discretion. We specifically endorse the trial judge's conclusion that there had been no incompetence of counsel in this case.

[6] We also agree with the Crown's submission that, in any event, this was an overwhelming prosecution case. The complainant's evidence was supported by independent DNA evidence suggesting that her children were fathered by the appellant. There was no miscarriage of justice.

[7] We also see no error in the sentence imposed.

[8] The conviction and sentence appeals are dismissed.

Paul Rouleau J.A.

M. Tulloch J.A.

Fairburn J.A.