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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

(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.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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.

(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.

(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.

(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: 20211108 Docket: C64152

Paciocco, Nordheimer and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

J.J. Appellant

Counsel: Michael W. Lacy and Bryan Badali, for the appellant Philippe G. Cowle, for the respondent

Heard: October 14, 2021 by video conference

On appeal from the conviction entered on February 22, 2017, with reasons reported at 2017 ONSC 445, by Justice Rick Leroy of the Superior Court of Justice, sitting without a jury.

Thorburn J.A.:

Introduction

[1] The appellant was convicted following trial by judge alone of sexual assault and break and enter for the purpose of committing sexual assault. He was sentenced to three years in prison. He appeals his convictions and seeks an acquittal or a new trial pursuant to s. 686(5) of the Criminal Code, R.S.C. 1985, c. C-46.

Background

Interaction with the Complainant During the Party

[2] The appellant attended a party for A.L., at the invitation of their mutual friend B.H. The party was at A.L.’s residence, which he shared with the complainant.

[3] The complainant testified that she and the appellant did not know each other and did not interact during the party. She testified that at the party, the appellant was wearing a black and white striped shirt.

[4] She said she had consumed twelve bottles of beer and went to sleep while the appellant was still at the party. She got into bed with her clothing on. Her bedroom door was unlocked.

Appellant’s Entry into the Complainant’s Bedroom

[5] A.L. testified that at the end of the party, he saw the appellant enter the complainant’s bedroom and shut the door. After 30 seconds, A.L. entered the bedroom and saw the appellant on top of the bed covers trying to “spoon” against the complainant who was under the bed covers. A.L. heard the complainant say, “Help me” and he pushed the appellant out of the room.

[6] A.L. testified that the appellant told him he had ruined the appellant’s chance of having sex with the complainant.

Evidence Regarding the Incident in Question

[7] The complainant testified that later that evening, she awoke to discover an intruder performing oral sex on her and then penetrating her, at which point she yelled. The intruder got off her, put on his trousers and left the residence. The complainant returned to sleep.

[8] A.L. testified that he heard the complainant cry, “Get the fuck out of my room”, between 5:00 and 6:00 a.m., the morning after the party.

[9] When the complainant awoke around 11:00 a.m., she noted that her clothing had been removed except for her tank top. She put on a pair of her pyjama bottoms that were lying on the floor.

[10] The complainant testified that the pyjama bottoms on the floor had been “left there from maybe the day before.” She did not remember when she had last worn them. She testified that she was in the habit of doing her laundry on Sundays, so if she had washed them when she had last done the laundry, then it would have been six days before the assault. She couldn’t remember if the pyjamas had been washed in that load.

The Complainant’s Identification of the Appellant as the Perpetrator

[11] The complainant testified that it was only when A.L. asked her what she had been yelling about, that her memory of the sexual assault crystallized.

[12] She told A.L. that she had been sexually assaulted and they went to B.H.’s home, as he had invited the appellant to the party. The complainant said the intruder was wearing a black and white striped shirt and had dark hair.

[13] They looked the appellant up on Facebook and she identified him as the perpetrator. The complainant reported the sexual assault to the police.

DNA Found on the Complainant’s External Genitalia and Pyjamas

[14] A swab taken from the complainant’s external genitalia generated a single male DNA profile (“Profile 1”). The appellant could not be excluded as the source of that DNA.

[15] A sample from the complainant’s pyjama bottoms generated a different male DNA profile (“Profile 2”). The appellant could be excluded as the source of that DNA.

[16] The biologist, who was qualified as an expert in “body fluid identification and forensic DNA analysis testing and interpretation of those results”, opined that it was unlikely for a detectable level of DNA to be transferred from brief touching in the absence of bodily fluid, especially when touching smooth or non-porous surfaces.

Charges Laid

[17] The appellant was charged with sexual assault (s. 271 of the Criminal Code) and breaking and entering for the purpose of committing an indictable offence (s. 348(1)(b) of the Criminal Code).

The Trial Judge’s Reasons

[18] The trial judge held that the central issue was identity, and there were three grounds that together, led him to conclude that the appellant was the perpetrator:

i. The complainant identified the perpetrator as the man wearing the striped shirt at the party, and the complainant subsequently identified the appellant as the perpetrator by looking at his Facebook page;

ii. Earlier in the evening, the appellant entered the complainant’s room without consent. He got onto the bed with the complainant. When he was sent out of the room by A.L., the appellant told A.L. he had ruined his chance to have sex with her. This was just hours before the alleged assault; and

iii. The male DNA detected on the complainant’s external genitalia swab matched the appellant’s DNA and there was no evidence to support benign transfer.

[19] The trial judge held that even if the alleged sexual assault and the appellant’s earlier act of entering her room without her consent were not parts of a single distinct event, the evidence of the appellant’s conduct in entering the room, including his statement to A.L., was admissible as similar fact evidence on the issues of identity, animus and motive because its probative value outweighed its prejudicial effect. While the appellant’s statement was hearsay, it was admissible under the admission exception.

[20] During the trial, the appellant’s counsel disclosed to the trial judge that she had previously represented one of the investigating officers in this case, on an unrelated matter. Trial counsel confirmed to the trial judge that the appellant was aware of the conflict and consented to her proceeding. The officer did not permit trial counsel to disclose the nature of the prior representation but provided a waiver to allow trial counsel to cross-examine him.

The Issues on Appeal

[21] This court may allow a conviction appeal where it is of the opinion that the verdict is unreasonable or cannot be supported by the evidence, there is found to be an error of law, or there has been a miscarriage of justice: Criminal Code, s. 686(1)(a).

[22] The appellant raises the following grounds of appeal:

i. The trial judge misapprehended the expert biologist’s findings with respect to Profile 1 by concluding that the male DNA profile on the complainant’s external genitalia was from a bodily substance not skin cells;

ii. The trial judge imposed an onus on the appellant to prove a “benign explanation” for the presence of a male DNA profile (Profile 1) on the complainant’s genitalia from which the appellant could not be excluded;

iii. The trial judge misapprehended the evidence by failing to consider that there was exculpatory evidence of another male DNA profile (Profile 2) on the complainant’s pyjama bottoms from which the appellant was excluded; and

iv. The appellant was deprived of his right to counsel by the trial judge’s failure to address trial counsel’s conflict of interest. The appellant applied for leave to file fresh evidence to address this issue on appeal.

[23] I will address each argument in turn.

Analysis

The First Issue: Did the trial judge misapprehend the DNA evidence of Profile 1?

[24] The appellant claims the trial judge misapprehended the DNA evidence by concluding that the male DNA profile generated from a swab of the complainant’s external genitalia (Profile 1) from which the appellant could not be excluded, was from a bodily substance including saliva or blood. This is incorrect as the expert opinion was that the DNA was from “skin cells or a body fluid other than semen that includes but is not limited to saliva” or blood (emphasis added).

[25] Misapprehension of evidence may include “a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence”: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 538; see also R. v. Stennett, 2021 ONCA 258, at para. 50.

[26] When misapprehension of evidence is alleged, the court should first consider the reasonableness of the verdict, under s. 686(1)(a)(i): Morrissey, at p. 540; Stennett, at para. 51. If the verdict is not unreasonable, the court should determine whether a miscarriage of justice was occasioned, under s. 686(1)(a)(iii): Morrissey, at p. 540; Stennett, at para. 51.

[27] The misapprehension will result in a miscarriage of justice when the trial judge misapprehends the substance of material parts of the evidence and “the errors play an essential part not just in the narrative of the judgment but ‘in the reasoning process resulting in a conviction’”: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2, citing Morrissey, at p. 540; see also Stennett, at para. 52. If there is no miscarriage of justice, the court should determine whether the misapprehension amounts to an error in law, under s. 686(1)(ii): Morrissey, at p. 540; Stennett, at para. 51.

[28] There is no dispute that the trial judge’s characterization of DNA Profile 1 was important to his finding of guilt.

[29] The expert testified that the swab from the complainant’s external genitalia identified a single male DNA profile, from which the appellant could not be excluded, and that DNA possibly derived from “skin cells or a body fluid other than semen that includes, but is not limited to saliva” or blood.

[30] The appellant asserts that the trial judge erroneously suggested that when submissions were being made the critical question was “how does the saliva-based DNA get onto [the complainant’s] genitals” and that this error was a material misapprehension of the evidence.

[31] The appellant is correct that the above statement made by the trial judge was incorrect as the DNA swab from the complainant’s external genitalia was not tested for saliva, given the limits of that testing. There was therefore no evidence that amylase (a protein found in saliva) was found on the DNA swab.

[32] Amylase was only found on the pyjama bottoms from which Profile 2 was generated. The appellant’s DNA was excluded from Profile 2.

[33] The appellant’s trial counsel made similar comments and the Crown did not correct them.

[34] In his reasons for judgment however, the trial judge correctly interpreted the evidence relating to Profile 1. The trial judge held, at para. 59, that:

The DNA swab that contained [the appellant’s] DNA derived from skin cells or a body fluid including, but not limited to saliva…. The biologist’s opinion was that she could not determine whether any blood or saliva present on the swab originated from [the complainant] or the male DNA donor. [Emphasis added.]

[35] These statements in the reasons for judgment, accurately reflect the expert’s evidence that Profile 1 possibly “originates from skin cells or a body fluid other than semen that includes, but is not limited to saliva” and that,

In general terms if amylase is present on that swab, if we accept that amylase is detected if it’s a lower level it could be from saliva or other body fluids. And if there’s a mixture of DNA then I would not be able to determine who the source of the body fluid is.

[36] Moreover, the trial judge made no mention in his reasons for judgment of saliva-based DNA being located on the complainant’s external genitalia. On the contrary, every time the trial judge referenced the forensic evidence linking the appellant to the offence, he referred only to “the accused’s DNA”, “[the appellant’s] DNA” or “the male DNA swabbed” from the complainant’s external genitalia.

[37] It is clear from the reasons for judgment that the trial judge understood that there was no way to know whether the DNA from Profile 1 taken from the complainant’s external genitalia was derived from skin cells or bodily fluid, including saliva or blood. The trial judge’s reasons are clear that his findings in relation to Profile 1 are not about the transfer of DNA from saliva; they are about DNA transfer generally.

[38] In sum, while there was an instance of misapprehension of evidence regarding the nature of the DNA evidence of Profile 1 by the trial judge and the parties during submissions, that misapprehension was cured in the reasons for judgment. The trial judge did not misapprehend the evidence regarding the DNA evidence of Profile 1 in his reasons for judgment.

[39] As such, I would dismiss the first ground of appeal.

The Second Issue: Did the trial judge err by imposing an onus on the appellant to provide a “benign explanation” for the presence of DNA on the complainant’s external genitalia?

[40] The appellant’s theory at trial and on appeal is that the appellant’s DNA must have made its way to the complainant’s external genitalia by way of innocent transfer.

[41] The appellant submits that the trial judge reversed the burden of proof, by suggesting that unless the appellant could establish an innocent explanation for the presence of DNA on the complainant’s genitalia, the only reasonable conclusion was that the presence of the appellant’s DNA was confirmation of the appellant’s identity as the perpetrator.

[42] The appellant submits, as the trial judge noted, that the appellant is not required to provide an innocent explanation for the presence of his DNA.

[43] The appellant relies on the Supreme Court’s decision in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, which he says, supports his argument that the trial judge reversed the burden of proof.

[44] In Villaroman, Cromwell J. held, at paras. 37-38:

When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt.… I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused…. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. [Citations omitted; italics emphasis in original; underline emphasis added.]

[45] Cromwell J. noted, at para. 42, citing R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at paras. 22-25, that the trier of fact should not act on alternative interpretations of the circumstances that are unreasonable, and that “alternative inferences must be reasonable, not just possible”.

[46] As Cromwell J. explained in Villaroman, at para. 71, it is for the trier of fact to draw the line that separates reasonable doubt from speculation and determine whether the alternative inferences proposed by the appellant raised a reasonable doubt about guilt.

[47] A trial judge’s rejection of an alternative theory inconsistent with guilt does not necessarily mean that there was a Villaroman error; it may mean that there was no reasonable inference other than guilt, given the evidence or lack of evidence and in light of human experience and common sense: R. v. S.B.1, 2018 ONCA 807, 143 O.R. (3d) 81, at para. 138.

[48] Deference is owed to a trial judge’s conclusion that there are no reasonable alternative inferences other than guilt: S.B.1, at para. 139. This court held, in R. v. Loor, 2017 ONCA 696, at para. 22, “[a]n appellate court is justified in interfering only if the trial judge’s conclusion that the evidence excluded any reasonable alternative was itself unreasonable.”

[49] In this case, the trial judge recognized that, given that the Crown’s evidence was primarily circumstantial, “the accused can only be found guilty where the guilt of the accused is the only reasonable conclusion to be drawn from the whole of the evidence.”

[50] He considered the evidence and the absence of evidence in light of human experience and rejected as speculative the theory that the presence of the appellant’s DNA on the complainant’s external genitalia was due to innocent transfer.

[51] The trial judge relied on the following uncontroverted evidence adduced at trial:

i. The complainant testified that she had not met the appellant before the evening in question. She had seen him at the party but had no interaction with him before retreating to her bedroom. She testified that she went to bed fully dressed; and

ii. A.L. testified that when he entered the complainant’s bedroom 30 seconds after seeing the appellant enter the room, the complainant was under the covers and the appellant was beside her, over the covers, lying semi-prone. The appellant was about 10 cm from her and was not moving. He looked like he was trying to “spoon” or cuddle her except that she was lying on her back. A.L. did not recall seeing the appellant make any movements but could not remember where the appellant’s hands were.

[52] The trial judge also considered the evidence of the expert who opined that:

i. Skin-to-skin DNA transfer is possible, but DNA transfer occurs more readily when it is moist;

ii. The expert did not have a high expectation of finding a detectable level of DNA from brief touching in the absence of bodily fluid;

iii. The expert would not expect a significant transfer of DNA from the brief touching of an item, especially an item that is smooth or non-porous, for instance a table;

iv. Urine is not a good source of DNA. The expert would not expect to be able to generate a DNA profile from a urine stain; and

v. Although it is possible to transfer DNA via a chain of contact (i.e. transfer from person A to object, and then from object to person B), the more points of contact on the chain, the less DNA will be transferred to the person at the end of the chain.

[53] The trial judge noted that his analysis was conducted on the basis of “the evidence presented” and that, as the trier of fact, he must rely on the evidence and cannot “speculate”.

[54] He concluded that there was no evidence to support the appellant’s theory of innocent transfer of DNA that matched the appellant’s onto the complainant’s genitalia because,

Any innocent transfer had to have happened before [the complainant] exited the party. They were strangers. The closest they came to one another was they were in the same building. There was no contact between them during the party. I conclude that when [the complainant] retired [the appellant’s] DNA was not affixed to her genitals. AL observed [the appellant] on top of the covers and [the complainant] under the covers when he entered the room. She was unconscious. [The appellant] was trying to spoon [the complainant]. No kissing or other opportunity for exchange of bodily fluid is in evidence. That exchange happened in the blink of thirty seconds. There is no evidence of contact with her genitals or any part of her body in that encounter. The only depiction offered for the presence of [the appellant’s] DNA on [the complainant’s] genitals derives from [the complainant].

[55] He therefore concluded that the only reasonable explanation for the presence of the appellant’s DNA on the complainant’s external genitalia was that the appellant committed the offence.

[56] In so doing, the trial judge did not require the appellant to prove an innocent explanation for the presence of his DNA nor did he reverse the burden of proof.

[57] On the contrary, the evidence adduced at trial supports the trial judge’s conclusion that there was no evidentiary basis to support a reasonable conclusion that the DNA in Profile 1 found on the complainant’s external genitalia could have been the result of benign transfer.

[58] As such, I would also dismiss this ground of appeal.

The Third issue: Did the trial judge err by failing to consider that the appellant was excluded as a source of the DNA found on the complainant’s pyjamas?

[59] The appellant claims the trial judge misapprehended the evidence by failing to give effect to the evidence from the pyjama bottoms. The appellant claims it was incumbent on the trial judge to rule out the possibility that Profile 2 was not the perpetrator, particularly given the evidence of the different methods of transfer rendering it just as likely that the donor of Profile 2 was the perpetrator.

[60] I do not agree.

[61] A trial judge’s reasons must be read as a whole, in the context of the evidence, the issues and the arguments at trial, together with “an appreciation of the purposes or functions for which they are delivered”: R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at para. 16, citing R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16.

[62] A trial judge is not required to expound on uncontroversial evidence, “or detail his or her finding on each piece of evidence or controverted fact, so long as the findings linking the evidence to the verdict can be logically discerned”: R.E.M., at para. 20.

[63] In this case, the complainant testified that the pyjama bottoms on the floor had been “left there from maybe the day before”, she did not remember when she had last worn or washed them, and she likely last washed them at least six days before the assault.

[64] Given that the complainant said she did not know when they were last worn or washed, there was nothing to connect the pyjama bottoms to this assault. (This is contrasted with the evidence of a single DNA profile (Profile 1) on the complainant’s external genitalia which matched the appellant’s DNA.)

[65] As such, the trial judge did not err by failing to discuss the DNA profile on the pyjama bottoms (Profile 2).

[66] While the appellant was under no obligation to testify, in considering the reasonableness of the verdict, this court may infer from his failure to testify that he could not provide an innocent explanation for his conduct leading to the presence of a DNA match on the complainant’s genitalia. The appellant’s failure to provide an innocent explanation at trial undermines the alternative inferences he says were available on the evidence: R. v. Ezechukwu, 2020 ONCA 8, at para. 29; see also R. v. Dell (2005), 194 C.C.C. (3d) 321 (Ont. C.A.), at para. 35; R. v. An, 2015 ONCA 799, at paras. 15-16; and R. v. Wu, 2017 ONCA 620, at para. 16.

[67] For these reasons, I would dismiss this ground of appeal.

The Fourth Issue: Whether the fresh evidence should be admitted and whether trial counsel was in a conflict of interest

[68] The appellant seeks leave to file fresh evidence and submits that the fresh evidence supports his claim that he was denied effective assistance of counsel as a result of his trial counsel being in a conflict of interest that was not properly resolved at trial. The Crown concedes that this court may consider the fresh evidence tendered by the appellant.

[69] The test for conflict of interest on appeal is a) whether there was an actual conflict of interest between the respective interests represented by counsel, and b) whether counsel’s ability to effectively represent the interests of the appellant was impaired as a result of the conflict: R. v. W. (W.) (1995), 25 O.R. (3d) 161 (C.A.), at p. 173. If both criteria are established, then the appellant has been denied the right to make full answer and defence and a miscarriage of justice has occurred: W. (W.), at p. 173. The focus is not on the appearance of conflict, but on whether counsel’s representation was in fact adversely affected: W. (W.), at p. 176.

[70] In R. v. Neil, 2002 SCC 70, [2002] 3 S.C.R. 631, at para. 29, Binnie J. writing for the court established a “bright line rule” preventing a lawyer or law firm from acting against a second client contrary in interest to an existing client without their consent:

The bright line is provided by the general rule that a lawyer may not represent one client whose interests are directly adverse to the immediate interests of another current client — even if the two mandates are unrelated — unless both clients consent after receiving full disclosure (and preferably independent legal advice), and the lawyer reasonably believes that he or she is able to represent each client without adversely affecting the other. [Emphasis in original.]

[71] However, counsel’s duty to a former client is different. The Supreme Court in Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, [2013] 2 S.C.R. 649 held, at para. 23, that:

The law distinguishes between former clients and current clients. The lawyer’s main duty to a former client is to refrain from misusing confidential information. With respect to a current client, for whom representation is ongoing, the lawyer must neither misuse confidential information, nor place himself in a situation that jeopardizes effective representation.

[72] If trial counsel’s representation of a client may be compromised due to a duty to a former client, counsel should advise the new client and obtain their consent: R. v. Faudar, 2021 ONCA 226, 403 C.C.C. (3d) 43, at para. 62. If counsel believes that their duty to the former client will in fact compromise the new retainer, counsel should decline to act for the new client: Faudar, at para. 62.

[73] In this case, the officer was a former client by the time of trial. Therefore, the bright line rule does not apply. The only concern was the possible misuse of confidential information. There is no suggestion that the appellant’s trial counsel misused confidential information in this case.

[74] In any event, the appellant consented to have counsel continue to represent him after counsel informed him that she had previously represented an investigating officer in this case.

[75] Trial counsel swore in her affidavit and testified in cross-examination on the affidavit in fresh evidence that she discussed the issue several times with the appellant. Trial counsel indicated that she communicated with the appellant in clear and simple language, as the appellant’s first language is not English. On a break during pretrial motions, she communicated with him with the assistance of the court interpreter.

[76] The appellant in his affidavit in fresh evidence stated that he had no recollection of any of these conversations but acknowledged in cross-examination that it was possible the discussions had occurred. After these discussions, trial counsel reasonably believed she was able to continue acting for the appellant without adverse effect.

[77] Further, I am not persuaded that trial counsel’s prior representation of the officer resulted in a conflict that compromised representation and impaired trial fairness: see Faudar, at para. 66.

[78] On a review of the full trial record, it does not appear that trial counsel was torn by divided loyalty. Trial counsel cross-examined the officer on the fact that he interviewed A.L. and B.H. together at the same time. Although she did not cross-examine him as to whether the complainant was present during his interview of A.L. and B.H., she swore in her affidavit that this was an oversight on her part. In any event, the trial judge did not find the testimony of A.L. and B.H. determinative on its own of the appellant’s guilt. The trial judge noted, “[t]he fact that AL and BH were interviewed together would be more of an issue if their evidence was contested or if their evidence was dispositive.”

[79] Counsel informed the trial judge that she had represented the officer on a completely unrelated matter, and that the officer and the appellant consented to trial counsel cross-examining the officer.

[80] The trial judge held that he was not sure there was a conflict of interest but nonetheless asked trial counsel to obtain a waiver from the officer consenting to trial counsel’s cross-examination of him, which she did. The trial judge held that, “It’s a conflict if it’s a related matter and there’s been a solicitor/client relation on that matter. But I don’t know that a client owns the lawyer for all time on totally unrelated matters.”

[81] The Crown indicated that she was prepared to proceed to call the officer on the basis of the waiver, and on the basis of trial counsel “advising on the record, [the appellant] is aware of the conflict and given that information he’s still content that she proceed.” Given the appellant’s consent, trial counsel cross-examined the officer.

[82] The trial judge did not err in deciding to permit appellant’s counsel to continue to represent him on this matter. There was no actual conflict of interest that adversely affected trial fairness or resulted in a miscarriage of justice in this case. I would therefore dismiss this ground of appeal.

Conclusion

[83] For the above reasons, the appeal is dismissed.

Released: November 8, 2021 “David M. Paciocco J.A.” “J.A. Thorburn J.A.” “I agree. David M. Paciocco J.A.” “I agree. I.V.B. Nordheimer J.A.”