COURT OF APPEAL FOR ONTARIO DATE: 20210625 DOCKET: C63004

Feldman, Paciocco and Coroza JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Michele Fiorilli Appellant

Counsel: John Kaldas, for the appellant Hannah Freeman and Elise Nakelsky, for the respondent

Heard: March 11 2021 by videoconference

On appeal from the convictions entered on September 24, 2013 by Justice Gary T. Trotter of the Superior Court of Justice, with reasons reported at 2013 ONSC 5999, [2013] O.J. No. 4343.

Paciocco J.A.:

Overview

[1] Michele Fiorilli was prosecuted for his involvement in two series of Toronto real estate transactions, the first relating to 450 Clinton Street (the “Clinton property”), and the second relating to 30 Buttonwood Avenue (the “Buttonwood property”). Each series of transactions culminated with mortgage funds being fraudulently obtained from the Royal Bank of Canada (“RBC”). The Canada Mortgage and Housing Corporation (“CMHC”), a Government of Canada Crown Corporation that insured the RBC mortgages, ultimately bore the combined loss of $267,083.

[2] At his trial in connection with these two series of transactions, Mr. Fiorilli faced four counts of fraud, contrary to s. 380(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. Two of those counts related to the Clinton property; count 1 alleged that Mr. Fiorilli defrauded the Government of Canada and count 2 alleged that he defrauded RBC. Counts 3 and 4 were an identical set of charges relating to the Buttonwood property.

[3] On September 24, 2013, a judge of the Superior Court of Justice, sitting alone, found Mr. Fiorilli guilty of all four charges. To avoid double jeopardy, the trial judge convicted Mr. Fiorilli of the two charges involving the Government of Canada, and conditionally stayed the two RBC charges. Mr. Fiorilli received a global sentence of one year in prison. A restitution order was also imposed, with a fine of $110,000 in lieu of forfeiture and two years’ imprisonment in the event of default.

[4] Mr. Fiorilli now appeals his convictions and the findings of guilt made against him. He advances one ground of appeal. He submits that he received ineffective assistance of counsel from his trial counsel, resulting in a miscarriage of justice. He claims that the manner of his representation resulted in unreliable verdicts of guilt and deprived him of a fair trial. The multiple challenges Mr. Fiorilli makes about the incompetence and misconduct of his trial counsel include allegations that trial counsel:

(1) prohibited Mr. Fiorilli from testifying, and acted incompetently when advising him about testifying; (2) lost crucial evidence inconsistent with Mr. Fiorilli’s guilt; (3) failed to raise a theory of Mr. Fiorilli’s defence, or marshal available evidence of Mr. Fiorilli’s innocence; (4) failed to pursue or review disclosure; (5) failed to competently discredit key Crown witnesses; and (6) acted outside of his expertise, and otherwise contravened the Law Society of Ontario’s Rules of Professional Conduct.

[5] Despite the range of challenges made by Mr. Fiorilli, for reasons that follow I am not persuaded that he has met the burden required to succeed on an ineffective assistance of counsel appeal. I would therefore dismiss Mr. Fiorilli’s appeal.

Material Facts & Proceedings Below

[6] The subject series of transactions involving the Clinton and Buttonwood properties were initiated by an Ontario company called Camera Capital Investments Inc. (“CCI”). Mr. Fiorilli was, at the material time, President and one of two directors of CCI, and he had signing authority for CCI.

A. The Clinton Property

[7] There were three material transactions involving the Clinton property, which I will refer to as the “CCI Clinton transfer”, the “Cirillo transfer” and the “Gutnikov transfer”.

The CCI Clinton Transfer

[8] The Clinton property was purchased in April 2004 by CCI for $265,000. CCI placed three mortgages on the property which together, at approximately $295,000, exceeded the purchase price. Mr. Fiorilli personally guaranteed the mortgages.

The Cirillo Transfer

[9] On August 19, 2004, CCI transferred the Clinton property to Mr. Salvatore (Sam) Cirillo. Suspiciously, no consideration was provided. Mr. Cirillo testified as a Crown witness at trial and denied any knowledge of the transfer. He testified that he was Mr. Fiorilli’s uncle. He said that in 2004 he was a drug addict, and that Mr. Fiorilli knew he was an addict at that time. Mr. Cirillo testified that he told Mr. Fiorilli he could use his name to do whatever he wanted, so long as it was legitimate.

[10] As I will note again below, there were credibility and reliability problems relating to Mr. Cirillo’s testimony. The trial judge called him “a most difficult witness”.

The Gutnikov Transfer

[11] On August 23, 2004, the Clinton property was transferred to Ms. Natalia Gutnikov for $469,000. The circumstances of this transfer were suspicious, as well. The sale price was approximately $200,000 more than CCI had paid for the property four months before. At trial the Crown presented evidence that, as of August 2005, the Clinton property was worth between $280,000 and $295,000. In addition, the agreement of purchase and sale had been executed on July 30, 2004, weeks before Mr. Cirillo even owned the property. Moreover, the agreement of purchase and sale identified RE/MAX Performance Realty Inc. (“RE/MAX”) as the broker for the transaction. The agreement of purchase and sale also reflected a deposit of $20,000 to be paid by CCI and held by RE/MAX. Yet RE/MAX had no record of the deposit having been received, or of any real estate commission having been paid. Ms. Gutnikov testified as a Crown witness at Mr. Fiorilli’s trial. She denied ever paying the $20,000 deposit.

[12] Ms. Gutnikov further testified that she became involved with Mr. Fiorilli after being introduced to “Slava”, a business associate of Mr. Fiorilli. Slava told her that Mr. Fiorilli had an uncle who needed to transfer his house for three months because of marital problems. She would receive $5,000 if she assisted. She agreed. Slava, Mr. Fiorilli, and another associate, Fred Procopio, had Ms. Gutnikov sign many documents, some of which were blank. She testified that Slava drove her to an office in Mississauga to sign some of the documents.

[13] Ms. Gutnikov also testified that at one point during their dealings, Mr. Fiorilli was hospitalized.

[14] Evidence showed that documentation signed by Ms. Gutnikov was used to secure “cash back” mortgage financing from RBC in the amount of $444,226. A “cash back” mortgage provides a payment to the mortgage borrower as an incentive to attract their business.

[15] In support of the cash back mortgage application, RBC had also been provided with an employment letter signed by Mr. Wesel Peart, which represented that Ms. Gutnikov was employed by a company called “Mr. Vigorous Roots Tonic” with an income of $146,000. Ms. Gutnikov testified that she was, in fact, unemployed and impecunious at the time, and had never heard of Mr. Vigorous Roots Tonic.

[16] Mr. Peart also testified at trial as a Crown witness. He confirmed that he operated Mr. Vigorous Roots Tonic. He denied knowing Ms. Gutnikov but confirmed knowing Mr. Fiorilli. He lived near, and parked his car on, a property Mr. Fiorilli owned, and would occasionally visit Mr. Fiorilli’s office. Mr. Peart denied supplying letterhead to Mr. Fiorilli. However, he said that his office was always open, and someone could have taken his letterhead.

[17] An RBC mortgage specialist, Mr. Jack Abboud, who testified for the Crown, participated in processing the mortgage. Mr. Abboud would later become the subject of an internal RBC investigation involving numerous other suspicious mortgage transactions.

[18] When the Gutnikov transfer was completed, the CCI mortgages were discharged with the proceeds of sale, thereby releasing Mr. Fiorilli from the guarantees he had signed for over $290,000. Mr. Fiorilli also received $102,435.49 from the closing funds, even though the property was in Mr. Cirillo’s name, not his. Mr. Procopio also received approximately $32,000. An individual named Mr. Siva Suthakaran received $9,200. There is no record that Mr. Cirillo received anything.

[19] Ms. Gutnikov testified that she was paid the promised $5,000 after accompanying Mr. Fiorilli when he visited an RBC branch. She said that it had been agreed that Mr. Fiorilli would give her the money required to make the mortgage payments until the property was re-transferred to his uncle. She testified that, for a time, Mr. Fiorilli provided her with the money to make those payments, but that he eventually stopped doing so. Entries in Ms. Gutnikov’s bank records, admitted into evidence, were consistent with this testimony. Those bank records confirmed that until early 2005, mortgage payments of approximately $3,000 per month were paid. Shortly before each payment, deposits of approximately that amount were made into her account.

[20] Ms. Gutnikov also testified that when the money stopped coming, she went to see Mr. Fiorilli. She testified that he refused to pay her, and instead put a tape recorder on the desk and said that he had never seen her before. Ms. Gutnikov said she was thereby left with a mortgage debt that she could not afford.

[21] After the mortgage fell into default, RBC took possession of the Clinton property. RBC eventually sold the property to recoup the money loaned to Ms. Gutnikov, but there was a significant shortfall. CMHC ultimately sustained a loss on the Clinton property of $172,637.82.

[22] Mr. Procopio and Mr. Suthakaran did not testify at the trial. Neither did any real estate agents allegedly involved in the material transactions, nor anyone from the law firm of Mr. Zeyaul (Zeya) Haque (the “Haque law firm”), which handled the legal end of the Clinton property transfers and the Buttonwood property transfers described below.

B. The Buttonwood Property

[23] There were two relevant transactions involving the Buttonwood property, which I will refer to as the “CCI Buttonwood transfer” and the “Smith transfer”.

The CCI Buttonwood Transfer

[24] CCI purchased the Buttonwood property in October 2003 for $167,250. CCI obtained mortgage financing on the property under three mortgages, totalling approximately $220,000, mortgage funding that was, once again, well in excess of the purchase price. As he had done with respect to the CCI Clinton transfer, Mr. Fiorilli personally guaranteed the mortgages on the Buttonwood property.

The Smith Transfer

[25] On September 8, 2004, CCI transferred the Buttonwood property to Mr. Orville Smith for $262,000, once again, significantly more than the purchase price paid by CCI. The Crown presented evidence of an appraisal showing that the value of the Buttonwood property as of August 2005 was between $190,000 and $214,000, well below the purchase price of the Smith transfer from September 2004, a little less than a year earlier.

[26] Once again, the agreement of purchase and sale for the Smith transfer identified RE/MAX as the broker of record and provided for a deposit of $10,000 to be held by RE/MAX. As was the case with the Gutnikov transfer of the Clinton property, evidence was presented that RE/MAX had no record of this deposit, nor of any commission having been paid for the Smith transfer.

[27] Mr. Smith testified as a Crown witness. He said that he never paid the $10,000 deposit. He described how his purchase materialized. He said that at the time of the purchase, he had a modest annual income of between $25,000 and $30,000 as a filmmaker but wanted to purchase a house for himself and his son. He said he mentioned this to Mr. Peart, with whom he was acquainted. Mr. Peart introduced him to Mr. Fiorilli to help him secure a home. Mr. Smith testified that he went to Mr. Fiorilli’s office and, with Mr. Fiorilli’s assistance, he signed documents, including for mortgage financing through RBC’s $10,000 cash back promotion. Under Mr. Fiorilli’s direction, Mr. Smith said he also went to other locations accompanied by Mr. Procopio to sign documents. Once again, Mr. Abboud participated on RBC’s behalf in the mortgage transaction.

[28] Mr. Smith testified that he knew some of the statements about his financial background that Mr. Fiorilli had provided for use in his RBC mortgage application were false, including an employment letter from Mr. Vigorous Roots Tonic showing Mr. Smith’s income to be $92,000. Based on the documentation admitted into evidence, RBC advanced Mr. Smith $248,087 to acquire the Buttonwood property.

[29] Other documentation admitted into evidence showed that when the Smith transfer closed, the CCI mortgages that had been guaranteed by Mr. Fiorilli were paid off. Other funds were disbursed to several individuals, including Mr. Procopio ($10,140) and Mr. Suthakaran ($3,851.84). A further $8,720 was advanced to CCI under Mr. Fiorilli’s direction. Another individual named Mr. Farida Khan received $2,500.

[30] Mr. Smith testified that after the closing he had difficulty getting keys to the Buttonwood property. He also had difficulty accessing the home because there were tenants occupying it. With the assistance of a lawyer, Mr. Smith obtained possession as well as funds from Mr. Fiorilli that he used to make mortgage payments. Mr. Smith said he understood the funds he obtained from Mr. Fiorilli were those owing to him from the RBC cash back program, which Mr. Fiorilli had wrongfully withheld. Bank documents confirmed that Mr. Smith received approximately $14,000 through cheques signed by Mr. Fiorilli.

[31] It was put to Mr. Smith during cross-examination that Mr. Fiorilli in fact paid this money to Mr. Smith in settlement of a dispute relating to the number of bedrooms in the house. Mr. Smith confirmed that there had been such a dispute but insisted that the payments consisted of the cash back funds Mr. Fiorilli owed him.

[32] Mr. Smith further testified that when this money dried up, RBC took possession of the house. Once again, when RBC sold the property there was a shortfall in repaying the mortgage, this time resulting in a loss to CMHC of $94,445.42.

C. The Trial and the Decision

[33] During the trial, no issue was taken with whether there were fraudulent transactions relating to the Clinton and Buttonwood properties. It was the position of the defence that Mr. Fiorilli was not complicit in the fraud. Mr. Fiorilli did not advance this defence by testifying or offering affirmative evidence relating to his involvement. Instead, Mr. Fiorilli’s trial counsel contended that the Crown evidence could not establish that Mr. Fiorilli acted dishonestly beyond a reasonable doubt, given credibility and reliability problems with the Crown witnesses, the many unanswered questions about the transactions left by the Crown’s evidence, and the number of other individuals implicated in the transactions.

[34] The trial judge accepted that there were credibility and reliability problems with many Crown witnesses, that there were unanswered questions, and that other people were, or may have been, complicit in the fraudulent conduct. However, the trial judge disagreed with Mr. Fiorilli’s position that the Crown had not proved its case. He concluded that “the evidence adduced at this trial points directly at Mr. Fiorilli as the person at the helm of both scenarios”.

Findings Regarding the Clinton Property

[35] With respect to the Clinton property transactions, the trial judge did not find Mr. Cirillo to have been a credible witness. He expressed skepticism about Mr. Cirillo’s assertion that he had “no knowledge of the real nature of the Clinton transactions”. Nevertheless, he held that “even if Mr. Cirillo was complicit, it does not help Mr. Fiorilli”.

[36] Nor did the trial judge accept Mr. Peart’s evidence. He said that Mr. Peart minimized his relationship with Mr. Fiorilli, and that Mr. Peart may have been complicit in preparing the false employment letter that was used to secure Ms. Gutnikov’s RBC financing.

[37] The trial judge was also skeptical of Ms. Gutnikov’s claim that she did not think her involvement was wrong. Nonetheless, he found her testimony to be credible as it was “completely confirmed by documentation”. He accepted that there was some confusion in her evidence relating to meetings and who was in attendance, which he attributed to the passage of time.

[38] The trial judge ultimately found that the agreement of purchase and sale executed by Ms. Gutnikov was fraudulent and “created to lend the appearance of legitimacy to the transaction”. He found indicia of fraud in the absence of the usual RE/MAX records of the transaction relating to the payment of the deposit and commission. He also noted the appraisal evidence showing the significant inflation in the value of the Clinton property over a short time. However, with respect to the appraisal disparity, the trial judge said, “the Crown need not prove this aspect of its allegations to succeed in establishing fraud in this case; it merely speaks to the extent of the loss incurred by RBC (and CMHC) in this straw purchaser arrangement.”

[39] After finding beyond a reasonable doubt that Mr. Fiorilli was an active participant in the fraud, the trial judge found him guilty of defrauding the Government of Canada and defrauding RBC in the transactions involving the Clinton property.

[40] In coming to this conclusion, the trial judge considered Mr. Procopio’s involvement in the fraudulent transactions. He said he had “no doubt that Mr. Procopio was involved in these scenarios”. The trial judge went on to say, “It would appear that [Mr. Procopio] was paid a fee for his services in both transactions. However, this fact does not detract from the case against Mr. Fiorilli”.

Findings Regarding the Buttonwood Property

[41] With respect to the transactions involving the Buttonwood property, the trial judge expressed concerns about Mr. Smith’s claim that he expected to receive a home from a stranger without investing any of his own money. The trial judge also concluded that Mr. Peart may have been complicit in preparing the false employment letter used to obtain Mr. Smith’s mortgage on the Buttonwood property. He found, however, that the Crown allegation relating to the Buttonwood property transactions was supported by the documentary evidence. The trial judge held that whether or not Mr. Smith and/or Mr. Peart were complicit, he was satisfied that Mr. Fiorilli “was a guiding hand, if not the directing force, in the process” leading to what the trial judge found to be fraudulent transactions involving the Buttonwood property.

[42] In finding the Buttonwood property transactions to be fraudulent, the trial judge once again noted that the deposit had not been made, the real estate commission had not been paid, and that there would have been no need for a real estate agent in the circumstances, given how Mr. Smith came to be involved in the transaction through Mr. Peart. He noted, as well, the apparently inflated purchase price, although once again commenting that “such a finding is not necessary to sustain a finding of guilt on these counts”.

[43] Ultimately, the trial judge found that Mr. Fiorilli assisted and facilitated the fraudulent mortgage applications for Mr. Smith, who could not afford the mortgage, and that Mr. Fiorilli was able to discharge existing mortgages on the Buttonwood property that he had guaranteed, and to walk away “with a little extra cash for himself and his associates, including Mr. Procopio.” The trial judge therefore found Mr. Fiorilli guilty of defrauding the Government of Canada and defrauding RBC in the transactions involving the Buttonwood property.

Issues on Appeal

[44] Mr. Fiorilli does not take any issue on appeal with the trial judge’s handling of the trial, or with his decision. Mr. Fiorilli argues instead that a miscarriage of justice occurred because he received ineffective assistance from his trial counsel.

[45] As I will explain immediately below, the burden is on Mr. Fiorilli to establish this ground of appeal. There is therefore only one issue in this appeal: Has Mr. Fiorilli established that he received ineffective assistance of counsel, resulting in a miscarriage of justice?

[46] In the context of answering this question, I will identify and consider each of the multiple challenges Mr. Fiorilli makes to the performance of his trial counsel. Before doing so, I will identify the relevant principles of law.

The Relevant Legal Principles

[47] The right to effective assistance of counsel is of such importance that effective representation is a principle of fundamental justice: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 24. However, “[c]ounsel’s failure to meet competence standards does not automatically lead to a reversal of a conviction,” as “[t]he ultimate purpose of the appellate inquiry is not to grade counsel’s performance, but to determine whether a miscarriage of justice occurred”: R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 62, leave to appeal refused, [1996] S.C.C.A. No. 347.

[48] A three-part test is used to determine ineffective assistance of counsel appeals, with the appellant bearing the onus of proof and persuasion with respect to each part. The structure of the test was neatly summarized by Watt J.A. in R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 91:

An appellant must establish:

i. the facts on which the claim is grounded [the factual component]; ii. the incompetence of the representation provided by trial counsel (the performance component); and iii. a miscarriage of justice as a result of the incompetent representation by trial counsel (the prejudice component).

[49] Naturally, the factual component is examined first, since there is no point in assessing the competence of unproven acts or omissions. As Watt J.A. affirmed, “Once the facts that underpin the claim have been established, the ineffective assistance analysis begins with the prejudice component”: Girn, at para. 92. This is because if the prejudice component cannot be met, there is no reason to subject the performance of counsel to judicial inquiry: R. v. G.D.B., at para. 29. Put simply, it will usually be the case that the proper analytical order of the three-part test is (i), (iii), and then (ii).

[50] Each of the three parts of the test requires elaboration.

(i) The Factual Component

[51] The factual component requires the appellant to “establish the facts material to the claim of ineffective assistance on the balance of probabilities”: R. v. K.K.M., 2020 ONCA 736, at para. 55. In determining whether an appellant has done so, allegations of incompetent representation must be assessed in light of the “strong presumption of competence in favour of counsel”: R. v. Archer (2005), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 140. Courts should also be mindful of the incentive there may be for a convicted appellant to make false allegations, particularly in light of the ease with which false allegations can be made, and the potential unreliability that can arise when events are recalled “through the bars of a jail cell”: Archer, at para. 142. As Doherty J.A. noted in Archer, at para. 141, “Common sense dictates a cautious approach to allegations against trial lawyers made by convicted persons who are seeking to avoid lengthy jail terms.”

(ii) The Performance Component

[52] To meet the performance component of the test “the appellant must demonstrate that counsel’s acts or omissions amounted to incompetence”, with incompetence “measured against a reasonableness standard”: Archer, at para. 119. The test for establishing incompetence is “a strict one”; the appellant must show that “the acts or omissions of counsel could not ‘have been the result of reasonable professional judgment’”: R. v. Prebtani, 2008 ONCA 735, 243 O.A.C. 207, at para. 3 (quoting from R. v. G.D.B., at para. 27), leave to appeal refused, [2009] S.C.C.A. No. 153.

[53] In assessing the performance component, an appellate court must be mindful that the “art of advocacy yields few, if any, absolute rules”, and that there exists a “broad spectrum of professional judgment that might be considered reasonable”: R. v. White (1997), 114 C.C.C. (3d) 225 (Ont. C.A.), at p. 247, leave to appeal refused, [1997] S.C.C.A. No. 248. In Archer, at para. 119, Doherty J.A. helpfully elaborated on the highly deferential standard that applies when assessing the performance component:

That assessment is made having regard to the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role in the assessment. Allegations of incompetent representation must be closely scrutinized. Many decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction. The reasonableness analysis must proceed upon a “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance”. [Citations omitted.]

(iii) The Prejudice Component

[54] To satisfy the prejudice component, “the appellant must show the ineffective representation resulted in a miscarriage of justice, ether by rendering the trial unfair or the verdict unreliable”: R. v. K.K.M., at para. 55. Put otherwise, the appellant must meet either or both of two alternative prejudice branches, the ‘trial fairness’ branch, and the ‘unreliable verdict’ branch.

The Trial Fairness Branch of the Prejudice Component

[55] The trial fairness branch of the prejudice component is concerned with the “adjudicative fairness of the process used to arrive at the verdict”: Joanisse, at p. 57. Occasionally, appellate courts refer to “procedural” fairness instead of trial fairness to describe this branch: see e.g., R. v. G.D.B., at para. 34; Prebtani, at para. 4. In Joanisse, when illustrating the kinds of infirmities in legal representation that might cause a trial to become unfair, at pp. 62-63, Doherty J.A. spoke of lawyers who are intoxicated throughout a trial, or who are acting in a conflict of interest. In such cases, the incompetence is so pervasive that it destroys the fairness of the adjudicative process at trial, thereby amounting to a constructive denial of the assistance of counsel: Joanisse, at pp. 62-63.

[56] Some of the decisions that must be made during the course of a trial, such as the mode of trial, whether to testify or plead guilty, or whether to advance the defence of not criminally responsible, are so fundamental to procedural fairness that counsel’s failure to permit the appellant to make the decision, or to provide effective advice on the matter, can raise questions of procedural fairness: R. v. G.D.B., at para. 34; R. v. Trought, 2021 ONCA 379, at paras. 46-50.

[57] Where the trial fairness branch of the prejudice component is at issue, the focus is, in fact, on “the appearance of the fairness of the trial”: Archer, at para. 120. This is in keeping with the principle that “justice must not only be done, but must manifestly be seen to be done”: Joanisse, at p. 63, citing R. v. Cook and Cain (1980), 53 C.C.C. (2d) 217 (Ont. C.A.), at p. 224. If counsel’s performance has undermined the appearance of trial fairness, no further prejudice need be established: R. v. Stark, 2017 ONCA 148, 347 C.C.C. (3d) 73, at para. 14.

The Unreliable Verdict Branch of the Prejudice Component

[58] The unreliable verdict branch of the prejudice component operates differently than the trial fairness branch. As its name suggests, the unreliable verdict branch is concerned with the confidence that can be placed in the validity or reliability of the result of the trial: R. v. Dunbar, 2007 ONCA 840, at para. 23; R. v. Nwagwu, 2015 ONCA 526, [2015] O.J. No. 3695, at para. 7. In Joanisse, at p. 63, Doherty J.A. explained this branch as follows:

Some claims of incompetence relate to specific decisions made or actions taken by counsel in the course of the defence. These claims do not assert an actual or constructive denial of the assistance of counsel, but instead contend that the assistance given was so deficient that it was ineffective. These claims come down to the assertion that because of counsel’s incompetence, the defence was not properly put, or the Crown’s case was not properly challenged. In these situations, the effect on the fairness of the trial of counsel’s incompetence is measured by reference to the impact of the error or errors on the reliability of the result.

[59] This court spoke in Archer, at para. 120, of the appellant satisfying the unreliable verdict branch of the prejudice component by demonstrating that “had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different” (emphasis added). However, the authorities coalesce in requiring the appellant to establish a reasonable probability that the result would have been different: see e.g., Joanisse, at p. 64; Prebtani, at para. 4; R. v. R.S., 2016 ONCA 655, 341 C.C.C. (3d) 530, at para. 44; R. v. Al-Shammari, 2016 ONCA 614, 350 O.A.C. 369, at para. 75. In Joanisse, at p. 75, Doherty J.A. described a “reasonable probability” as “more than a mere possibility, but less than a likelihood”. In Al-Shammari, at para. 75, Juriansz J.A. said “a reasonable probability is established when the reviewing court is satisfied that because of counsel’s incompetence, the verdict cannot be taken as a reliable assessment of the appellant’s culpability.”

[60] I will now apply the foregoing principles to Mr. Fiorilli’s appeal.

Analysis

[61] Below, I consider each of Mr. Fiorilli’s claims of incompetent or ineffective representation. I am not satisfied, examining those claims in turn or collectively, that Mr. Fiorilli has satisfied the ineffective assistance of counsel test. With some claims, he has not satisfied the factual component of the test. With others, he has not demonstrated prejudice, or he has failed to establish incompetence. I would therefore reject Mr. Fiorilli’s appeal.

(1) Did Trial Counsel Prevent Mr. Fiorilli from Testifying, or Act Incompetently When Advising Mr. Fiorilli About Testifying?

[62] An ineffective assistance of counsel claim can succeed where: (a) trial counsel has prevented the appellant from testifying, or (b) trial counsel has acted incompetently in giving the appellant client the full benefit of legal advice on whether to testify: Trought, at para. 50. Although both claims engage the trial fairness branch of the prejudice component, the analysis required differs modestly depending on which claim is being made.

[63] In Archer, at para. 139, Doherty J.A. described the analysis required if a lawyer is alleged to have prevented an appellant from testifying:

While counsel owes an obligation to advise his client as to whether he or she should testify, the ultimate determination is 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. The crucial question becomes – who made the decision? [Citations omitted.]

[64] Where the allegation is that the advice counsel gave to the client about testifying was not competent, the central issue is whether the appellant has established that counsel acted unreasonably by failing to give the client the full benefit of their advice, including an explanation of the reason for that advice: R. v. K.K.M., at paras. 66 and 82.

[65] As can readily be seen, this inquiry addresses the performance component of the ineffective assistance of counsel test. In R. v. K.K.M., after resolving the factual component of an ineffective assistance of counsel claim by identifying the advice that had been given, Doherty J.A. went directly to the performance component without first addressing the prejudice component: at para. 62. He no doubt approached the ineffective assistance of counsel claim in this unconventional order because the performance and prejudice components are inextricably linked where the allegation is that, because of incompetent advice, an appellant has been deprived of the ability to make an informed choice on whether to testify. Where this has occurred, and it is shown there is a reasonable probability that the appellant would have testified had they been given competent advice, adjudicative fairness will have been undermined.

[66] As I understand Mr. Fiorilli’s argument before us, he appears to be straddling both these claims. He contends that trial counsel prevented him from testifying, and he complains that trial counsel undermined his choice to testify by mocking his desire to do so and by failing to provide fulsome advice on the matter.

[67] In my view, no matter how one characterizes Mr. Fiorilli’s claim relating to his failure to testify, it must fail. As I will describe below, he has not satisfied me on the balance of probabilities that trial counsel prevented him from testifying, nor has he established that trial counsel’s advice or conduct relating to whether he should testify was outside the range of reasonable professional judgment.

[68] In coming to this decision, I have chosen to ignore trial counsel’s testimony relating to Mr. Fiorilli’s right to testify. I have made the choice to do so, instead of resolving Mr. Fiorilli’s challenge to trial counsel’s credibility, because trial counsel’s testimony is not needed to reject Mr. Fiorilli’s complaint. As I will explain, Mr. Fiorilli’s claim that trial counsel was incompetent relating to his right to testify fails because the affirmative evidence Mr. Fiorilli relies upon is incapable of proving the allegations he makes. Moreover, my decision to ignore trial counsel’s testimony will not prejudice Mr. Fiorilli. Trial counsel said nothing that would support Mr. Fiorilli’s claims relating to the decision that he not testify, and I have no other use for findings relating to trial counsel’s credibility since I do not rely on trial counsel’s evidence to resolve any of the other issues in this appeal.

(a) Did Trial Counsel Prevent Mr. Fiorilli from Testifying?

[69] Had trial counsel obtained written instructions from Mr. Fiorilli relating to whether to testify, as he should have, this would likely have been a simple matter to resolve (see the sage advice to defence counsel on this point offered in Trought, at paras. 76-78). Unfortunately, trial counsel did not obtain written instructions. Nonetheless, as I will explain, I am satisfied that Mr. Fiorilli has failed to satisfy the factual component of the ineffective assistance of counsel test relating to his claim that trial counsel prevented him from testifying.

[70] First, Mr. Fiorilli has not presented affirmative evidence to support this allegation. Although in his fresh evidence affidavit he baldly asserts that trial counsel “failed to let [him] take the stand to clarify points in [his] defence”, the testimony Mr. Fiorilli provided when examined on his fresh evidence affidavit does not support this claim. On a fair reading, Mr. Fiorilli’s testimony suggests he let trial counsel know on several occasions that he wanted to testify, but ultimately acceded to trial counsel’s advice not to do so.

[71] Most notably, during questioning, appellate counsel for Mr. Fiorilli offered him a summary of the evidence he had given on the subject by saying: “you wanted to testify; he advised you against it and that’s it?” Mr. Fiorilli answered, “A hundred percent”.

[72] When Crown counsel pressed Mr. Fiorilli on this issue, Mr. Fiorilli said, “All I know is [trial counsel] said it wouldn’t be a good idea. How’s that in plain English?” Mr. Fiorilli then specified what he meant by saying, “In the gist of the conversation [with trial counsel] that I wouldn’t – I shouldn’t take the stand.”

[73] Mr. Fiorilli’s daughter, Girardina Fiorilli, swore in her fresh evidence affidavit to having been at a Korean restaurant where her father and his trial counsel discussed the prospect of Mr. Fiorilli testifying. She swore that when her father said he wanted to take the stand, trial counsel “told him not to be an idiot and that he should not take the stand.” At no point does Ms. Fiorilli suggest in her affidavit that trial counsel prohibited her father from testifying.

[74] Put simply, although the affirmative evidence shows on its face that Mr. Fiorilli expressed the desire to testify on several occasions, and that trial counsel was forceful in his views to the contrary, Mr. Fiorilli’s understanding of counsel’s position was that Mr. Fiorilli should not testify, not that he could not testify. This evidence is insufficient, in my view, to satisfy the factual component of Mr. Fiorilli’s claim that trial counsel prevented him from testifying.

[75] Moreover, even had Mr. Fiorilli asserted clearly and consistently that his trial counsel prevented him from testifying, I would have arrived at the same result. It is simply not plausible that Mr. Fiorilli would have passively accepted the decision by his counsel not to permit him to testify. I reject this suggestion. In doing so, I make four material observations from Mr. Fiorilli’s fresh evidence testimony.

[76] First, Mr. Fiorilli is not passive or retiring. He was brash and assertive when cross-examined by the Crown.

[77] Second, based on Mr. Fiorilli’s own testimony, he was not shy about confronting trial counsel. When describing one of their conversations, Mr. Fiorilli testified that he confronted trial counsel by asking him, “Do you f-----g have a hearing problem?” He also testified that when trial counsel told him he was an idiot for wanting to testify, he was “ready to punch [trial counsel] … right in the face”.

[78] Third, Mr. Fiorilli did not hesitate to raise concerns in court about trial counsel. He testified that prior to trial, and because of disagreements they were having, he asked a judge to remove trial counsel from the record.[^1]

[79] Fourth, if Mr. Fiorilli’s version of events is true, his urge to reject trial counsel’s attempt to prevent him from testifying would have been irresistible. Specifically, Mr. Fiorilli testified he had evidence to give that could have clarified the record in his favour. He also expressed the belief that trial counsel did not want him to testify in order to shorten the trial, and that trial counsel did not care about the result. In these circumstances, it defies belief that Mr. Fiorilli would have passively accepted an effort by trial counsel to prevent him from testifying.

[80] I make one further observation. In Nwagwu, this court faced a claim that counsel had coerced the appellant into not testifying. In rejecting this claim as unproven, this court noted, at para. 13, that the appellant’s “long-standing relationship with counsel, which continued even after his conviction in this matter, causes us to be highly sceptical of his version of events.” Similar considerations operate here. Trial counsel had represented Mr. Fiorilli in the past, as well as Mr. Fiorilli’s daughter on several occasions. Moreover, there is evidence before us that Mr. Fiorilli attempted to retain trial counsel to conduct his appeal after counsel supposedly prevented him from testifying. In my view, this is not the conduct of someone who, against his wishes, has been prevented from testifying.

[81] Accordingly, I would find that Mr. Fiorilli has not satisfied the factual component of the ineffective assistance of counsel test relating to this allegation of incompetence.

(b) Did Trial Counsel Otherwise Act Incompetently When Advising Mr. Fiorilli About Testifying?

[82] Mr. Fiorilli raises multiple concerns about trial counsel’s actions relating to whether he would testify at trial. In my view, those remaining concerns can be framed fairly as three arguments, namely, that counsel acted incompetently by: (i) describing Mr. Fiorilli as an idiot; (ii) failing to adequately explain why Mr. Fiorilli should not testify; and (iii) recommending that Mr. Fiorilli not testify. I would not accept any of these arguments.

(i) Describing Mr. Fiorilli as an Idiot

[83] In framing his ineffective assistance of counsel arguments, Mr. Fiorilli objects to trial counsel telling him that he would be an idiot if he testified. Trial counsel denied that this exchange occurred, but I need not resolve this dispute. Even if it happened, in my view this event has no impact on Mr. Fiorilli’s ineffective assistance of counsel appeal. I come to this conclusion by looking at the two possible uses to which this event might be put.

[84] First, I would reject any suggestion that trial counsel’s comment undermined Mr. Fiorilli’s ability to choose whether to testify. As indicated, Mr. Fiorilli and trial counsel had a long-standing relationship that was frank and familiar, and Mr. Fiorilli has a strong personality. This insult would not have intimidated or otherwise undermined his ability to decide whether to testify.

[85] I would equally reject any suggestion that addressing a client in this way is an act of incompetence caught by the ineffective assistance of counsel test. The focus on reasonableness and professional judgment under the performance component of the ineffective assistance of counsel test is on the competence of the advice, not on the professionalism with which that advice has been delivered. Therefore, unless the way the advice is delivered undermines the advice itself, the mere fact that advice has been provided in an unprofessional manner will not satisfy the test. As I have said, in the circumstances of this case, even if trial counsel told Mr. Fiorilli that he would be an idiot if he testified, this could not have undermined trial counsel’s advice.

(ii) Failing to Adequately Explain Why Mr. Fiorilli Should Not Testify

[86] During his fresh evidence testimony, Mr. Fiorilli alleged that trial counsel never explained why it was not a good idea to testify. If this were true, this ground of appeal might succeed. However, I have no confidence in this claim. Mr. Fiorilli was unable to provide a reliable account of the relevant exchanges he had with trial counsel. He had little memory of the discussions surrounding whether he would testify. He was confused about the time and place of relevant conversations. In fact, he could provide no detail about the content of the conversations he had with trial counsel about testifying, other than to say he made clear to trial counsel that he wanted to testify, trial counsel told him that if he testified he would be “eaten alive” by the skilled and experienced Crown, it was not a good idea to testify, and he was an idiot for wanting to testify. In describing the relevant conversations, Mr. Fiorilli could offer only the “gist” of what was said. Quite simply, the factual record he presents is not complete enough to reliably capture the full scope of the advice that trial counsel gave him.

(iii) Recommending Against Testifying

[87] In his fresh evidence testimony, Mr. Fiorilli identified some of the things he would have testified to had he been called as a witness at trial, things he believes would have answered concerns that led to his conviction. He also suggests on this appeal that if he had testified, he would have had the benefit of the decision in R. v. W.(D.), [1991] 1 S.C.R. 742. As I understand these and other submissions, Mr. Fiorilli is arguing it was incompetent for trial counsel to recommend that he not testify.

[88] I will assume, without deciding, that an appellant can ground an ineffective assistance of counsel appeal on an unreasonable recommendation to a client not to testify. I confess to some intuitive reservations about this, as the decision whether to testify is ultimately the client’s decision to make. If trial counsel has reasonably provided the appellant with the information required to make their own informed decision, I am not certain the appellant can later challenge the competence of a recommendation they accepted. But I will leave that to the side. I would instead reject Mr. Fiorilli’s challenge to the competence of the recommendation not to testify because this challenge cannot satisfy the performance component of the ineffective assistance of counsel test.

[89] It is important to understand that Mr. Fiorilli cannot satisfy the performance component simply by establishing that it would have been a sound – or even a preferable – trial strategy to have him testify in his defence. To meet the performance component, Mr. Fiorilli would have to establish that trial counsel’s recommendation not to testify fell outside the “broad spectrum of professional judgment that might be considered reasonable”: White, at p. 247. I am far from persuaded that this is so.

[90] To be sure, I have no doubt that many defence lawyers would have recommended that Mr. Fiorilli testify so that he could attempt to “clarify” his role in the suspicious transactions by offering explanations for the apparently compromising circumstances. But I also have no doubt that other defence lawyers would have recommended the strategy trial counsel pursued; that of leaving gaps in the evidence which might make it more difficult for the trier of fact to arrive at findings beyond a reasonable doubt, while attempting to point the finger of blame elsewhere. As Doherty J.A observed in Dunbar, at para. 26, albeit in a slightly different context, “Clarification is not always an advantage.” This is particularly so where there is a risk that the “clarification” may not be credible, or where the appellant is not apt to be a good witness.

[91] Based on the record before us, I am not persuaded that competent counsel would invariably have concluded that clarification would have been an advantage in Mr. Fiorilli’s case. I have reviewed the explanations Mr. Fiorilli proposes. By way of illustration, immediately below I offer my evaluation of the reasonableness of the explanation he would have provided had he testified about the gratuitous transfer of the Clinton property to Mr. Cirillo. I have also reviewed Mr. Fiorilli’s fresh evidence testimony and have acquired a measure of the kind of witness he would have made at trial. Suffice it to say, I do not accept on this record that trial counsel’s advice to Mr. Fiorilli not to testify in this case did not fall “within the wide range of reasonable professional assistance”: Archer, at para. 119.

(2) Did Trial Counsel Lose Crucial Evidence Inconsistent With Mr. Fiorilli’s Guilt?

[92] Mr. Fiorilli claims he had a “trust agreement” with Mr. Cirillo that, if proven, would explain why CCI transferred the Clinton property to Mr. Cirillo without consideration shortly before the Gutnikov transfer. He testified that CCI was holding the property in trust for Mr. Cirillo. Mr. Fiorilli explained that he did this in order to help Mr. Cirillo obtain money he required.

[93] Mr. Fiorilli alleges that he provided this trust agreement to trial counsel, but then trial counsel lost it. In my view, Mr. Fiorilli has not proved the existence of a trust agreement on the balance of probabilities, let alone that trial counsel had the trust agreement and lost it, an allegation that was not even put to trial counsel during his fresh evidence examination. Mr. Fiorilli has therefore failed to meet the factual component of the ineffective assistance of counsel test on this issue.

[94] First, there are consistency issues with Mr. Fiorilli’s explanation for why Mr. Cirillo needed money, the purported motivation for having a trust agreement. Mr. Fiorilli initially said the money was required so that Mr. Cirillo, a Scientologist, could “go to Scientology to take his courses, [and] that he needed a half-a-million dollars or whatever”. Mr. Fiorilli then said he was helping Mr. Cirillo because Mr. Cirillo had prostate cancer and Scientology would help him heal. Perhaps Mr. Fiorilli meant that Mr. Cirillo wanted to take the half-a-million dollars in Scientology courses to heal his cancer, but his explanation is far from clear.

[95] In any event, problems remain. Mr. Fiorilli testified that Mr. Cirillo was a top Scientology salesman on the Internet, selling “I think a million books”. Yet Mr. Fiorilli also said that he had always given Mr. Cirillo money because Mr. Cirillo never worked and was a con man and a gambler who had always taken advantage of him. Even leaving aside the contradiction between the testimony that Mr. Cirillo was a top online salesman and the claim that he never worked, Mr. Fiorilli’s expressed disposition towards Mr. Cirillo does not inspire confidence that he would have wanted Mr. Cirillo to have the proceeds of the Clinton property.

[96] Most importantly, Mr. Fiorilli failed to offer a coherent explanation as to why a trust would have been used to furnish funds to Mr. Cirillo. The only explanation Mr. Fiorilli offered was that the trust would enable him to invest money in the stock market on Mr. Cirillo’s behalf, since Mr. Cirillo did not have a bank account. Frankly, this makes no sense. There is no evidence that money was being earned on the Clinton property pending the Gutnikov transfer. So, what money was being invested while CCI supposedly held the Clinton property in trust for Mr. Cirillo? And why would the trust be collapsed by transferring the property to Mr. Cirillo immediately prior to the Gutnikov transfer, if the purpose of the trust was to give Mr. Fiorilli access to the funds so that he could invest them on Mr. Cirillo’s behalf? By collapsing the trust, Mr. Cirillo, the so-called con man gambler, would be legally entitled to receive the proceeds, not Mr. Fiorilli.

[97] Quite simply, the evidence does not support a finding on the balance of probabilities that there was a trust agreement with Mr. Cirillo, let alone a finding that trial counsel was provided with such an agreement and lost it.

(3) Did Trial Counsel Incompetently Fail to Marshal Evidence of Mr. Fiorilli’s Innocence, or Raise a Theory of His Defence?

[98] Mr. Fiorilli argues that trial counsel failed to marshal “many signs” of his innocence. Specifically, he argues that competent trial counsel would have cross-examined Mr. Cirillo to prove that the trust existed, and would have shown that Mr. Fiorilli had an alibi, had nothing to gain by committing fraud, and that there were other suspects. Ultimately, Mr. Fiorilli contends that his trial counsel failed to raise a theory of his defence, and that he provided incoherent closing submissions.

[99] I will begin with the generic allegations that trial counsel failed to raise a theory of the defence or provide effective closing submissions, and then address the more granular complaints I have listed.

Generic Allegations: The Theory of the Defence and the Closing Submissions

[100] I reject the suggestion that trial counsel proceeded without a theory of the defence. I have alluded to that theory above. The explanation provided by trial counsel in his fresh evidence affidavit is fully verified by the trial record: instead of presenting an affirmative defence, trial counsel’s strategy was to raise a reasonable doubt about whether Mr. Fiorilli participated in the creation and submission of fraudulent mortgage applications. Trial counsel attempted to do so by casting a cloud of suspicion on others who were involved, a strategy that required a “less is better” approach, lest the unanswered questions and gaps left by the Crown evidence be answered or filled in inadvertently.

[101] I accept that other counsel may have chosen to pursue different strategies. However, it was not unreasonable for trial counsel to take the approach he did. It is common for criminal allegations to be defended by challenging the Crown’s ability to prove those allegations beyond a reasonable doubt. Further, this case accommodated trial counsel’s strategy. There would have been no sense denying that the mortgage transactions were fraudulent. It was patent that they were. And there would have been no sense in denying Mr. Fiorilli’s involvement. As such, the prosecution would come down to whether the Crown could prove that Mr. Fiorilli’s involvement was criminal. In these circumstances, in my view it was a reasonable strategy for trial counsel to attempt to create doubt relating to the nature and extent of Mr. Fiorilli’s involvement by exploiting uncertainty about what had transpired.

[102] Nor do I accept that trial counsel’s closing submissions were incoherent and therefore incompetent. Even if they had been, Mr. Fiorilli cannot satisfy the prejudice component of the ineffective assistance of counsel test on this basis. It is evident that the trial judge fully understood the defence theory. I see no reasonable probability that the outcome could have changed had trial counsel’s closing submissions met the expectations Mr. Fiorilli alludes to in his factum.

Granular Complaints

[103] An ineffective assistance of counsel appeal is not an opportunity for an appellant to benefit from a new trial by advancing arguments or strategies that were not presented at trial, in the hope of attracting a different result. As will often be the case in this type of appeal, Mr. Fiorilli’s submissions about what competent counsel would have done differently can readily be dismissed through a broad examination of the prejudice component.

[104] First, as I have explained, Mr. Fiorilli’s claim that CCI held the Clinton property in trust for Mr. Cirillo makes no sense. I cannot see how the failure of trial counsel to try to prove the trust by cross-examining Mr. Cirillo could have prejudiced his defence.

[105] Second, trial counsel’s decision not to advance an alibi on Mr. Fiorilli’s behalf could not have prejudiced Mr. Fiorilli because there was no alibi to advance. Evidence that Mr. Fiorilli was hospitalized for some of the relevant period could not assist in his defence, particularly not in a fraud case involving falsely dated documents.

[106] Third, no prejudice could have arisen from the failure of trial counsel to suggest, in Mr. Fiorilli’s defence, that he had nothing to gain from the fraudulent transactions. Mr. Fiorilli’s contention that he recouped only his original investment is belied by proof that funds from the fraudulent transactions were used to retire mortgages he had guaranteed in excess of the purchase prices, and that he walked away with additional money from each transaction. The fact that he made money from the fraudulent mortgages also undercuts any utility in advancing his claim that he did not have to commit fraud to make money from the real estate.

[107] Fourth, Mr. Fiorilli could not have been prejudiced by the failure of trial counsel to do more to show the fraudulent involvement of others in the transactions charged, or in other transactions. The involvement of others in no way exculpates Mr. Fiorilli. The trial judge was fully alive to the likely involvement of others but appropriately noted that Mr. Fiorilli was convicted based on evidence that “points directly at Mr. Fiorilli as the person at the helm of both scenarios.”

[108] I would therefore reject any suggestion that trial counsel was ineffective by failing to present evidence of innocence on Mr. Fiorilli’s behalf.

(4) Did Trial Counsel Fail to Pursue and Review Disclosure?

[109] Mr. Fiorilli alleges that trial counsel was incompetent in failing to pursue disclosure relating to the involvement in other suspicious transactions of some of those who were connected to the charged transactions. He also claims that trial counsel failed to review the disclosure he did have relating to the transactions that were the subject of the prosecution, and he alleges that trial counsel failed to obtain copies of audiotapes, but incompetently rested content to rely on transcripts, without questioning redactions in this material.

[110] I have already explained my view as to why the failure of defence counsel to pursue other suspicious transactions in evidence cannot ground an ineffective assistance of counsel appeal. On the same footing, the failure to pursue and review the disclosure relating to those other suspicious transactions cannot do so either.

[111] Nor can Mr. Fiorilli meet the prejudice component with the other complaints he has made. Mr. Fiorilli has provided us with no basis for concluding that trial counsel failed to review material disclosure, or that the audiotapes would have added anything to the written disclosure that was received.

(5) Did Trial Counsel Fail to Competently Discredit Key Crown Witnesses or Challenge the Appraisals?

[112] Mr. Fiorilli argues that trial counsel failed to competently discredit key Crown witnesses, most notably Ms. Gutnikov and Mr. Smith. He also contends that trial counsel failed to competently challenge the appraisals of the Clinton and Buttonwood properties adduced by the Crown at trial.

[113] I would not accept these arguments. The trial judge was alive to the self-serving nature of Ms. Gutnikov’s evidence. He did not believe her claim that she did not know she was doing anything wrong. Ultimately, the trial judge found her material evidence credible because he concluded her account was “completely confirmed by documentation”, including documentation showing her to be a “straw purchaser”. I can therefore see no prejudice arising from the failure by trial counsel to launch a more exerted attack on Ms. Gutnikov’s credibility and reliability by employing the strategies Mr. Fiorilli now suggests.

[114] The same holds true with Mr. Smith. I am not satisfied that there is a reasonable probability that cross-examining Mr. Smith differently could have affected the outcome. Mr. Smith admitted that he knew he was signing fraudulent mortgage application documents. Moreover, the trial judge was alive to the possibility that Mr. Smith was more heavily implicated in the fraud than he acknowledged.

[115] Nor can I accept Mr. Fiorilli’s contention that trial counsel’s failure to challenge the appraisals of the subject properties advances his ineffective assistance of counsel appeal. Mr. Fiorilli holds out no evidence that those appraisals were wrong. Moreover, the disparities between the initial purchase prices and the subsequent straw purchaser sale prices, as well as those between the mortgage advances and the recovery achieved when RBC sold the properties, lend support on their own to the Crown theory that both subject properties were overvalued when mortgage funds were obtained. Finally, as the trial judge was quick to emphasize, the fraud charges would have been made out without proof of loss arising from overvaluation. Quite simply, there is no reasonable probability that the outcome of the trial could have changed had trial counsel been able to discredit the appraisals.

(6) Did Trial Counsel Act Incompetently by Acting Outside His Expertise, or by Otherwise Contravening the Rules of Professional Conduct?

[116] As further indicia of ineffective assistance, Mr. Fiorilli presents evidence that trial counsel promoted his practice by overstating his experience in complex fraud cases, and acted outside his expertise in Mr. Fiorilli’s case. He also identifies numerous other alleged contraventions of the Law Society of Ontario’s Rules of Professional Conduct, including trial counsel’s failure to obtain a written retainer, his failure to record and retain his work product, and improper billing practices, including his failure to keep proper dockets.

[117] It is true that “rules of professional conduct may be used to assist in showing what may reasonably be expected of trial counsel”: White, at p. 247. However, as is evident from R. v. G.D.B., at paras. 5 and 29, and Prebtani, at paras. 141-42, not all matters of professional competence are for appellate courts. Typically, matters of professionalism and professional competence are for the profession’s governing body. As the legal test makes clear, in an ineffective assistance of counsel appeal, an appellate court will not address issues of professional competence unless an appellant establishes that the incompetent acts or omissions impacted on the fairness or reliability of the criminal trial. This is determined not by exploring general questions, such as whether counsel accepted a retainer outside their experience, but through a specific inquiry into trial counsel’s performance at the trial. Nor is proof of counsel’s non-compliance with regulations on matters like recordkeeping or billing germane to an ineffective assistance of appeal.

Conclusion

[118] As the governing jurisprudence makes clear, it is not our role to conduct a forensic autopsy into the quality of Mr. Fiorilli’s legal representation. I therefore do not want to be taken as criticizing or endorsing the representation Mr. Fiorilli received. Our role is to apply the ineffectiveness of counsel test to determine whether Mr. Fiorilli’s appeal should succeed.

[119] I have considered each of the challenges that Mr. Fiorilli raises to the effectiveness of his representation. I have also considered the cumulative impact of the concerns he raises. In my view, Mr. Fiorilli has not established his sole ground of appeal. I would therefore dismiss his appeal.

Released: June 25, 2021 “K.F.” “David M. Paciocco J.A.” “I agree. K. Feldman J.A.” “I agree. Coroza J.A.”

[^1]: Mr. Fiorilli subsequently reconciled with trial counsel.