Court of Appeal for Ontario

Date: 20221201 Docket: C67997

Pepall, Harvison Young and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

Jayden McDonald Appellant

Counsel: Riaz Sayani, for the appellant Elena Middelkamp, for the respondent

Heard: September 21, 2022

On appeal from the conviction entered on April 18, 2019 by Justice Katherine B. Corrick of the Superior Court of Justice, sitting without a jury, with reasons reported at 2019 ONSC 2472.

George J.A.:

Overview

[1] The appellant was found guilty of aggravated assault and uttering a threat to cause death. The case turned on the trial judge’s credibility findings, particularly in relation to the testimony of three witnesses – the appellant, the complainant, and their mutual friend, Melody.

[2] The trial judge, while recognizing the deficiencies in the complainant’s testimony, preferred her evidence over that of the appellant. She further found that the appellant’s testimony did not raise a reasonable doubt.

[3] This appeal arises from the allegedly incompetent conduct of defence counsel, and how her improper disclosure of the appellant’s statement to the Crown, without the appellant’s knowledge or consent, impacted the trial judge’s assessment of his credibility. The appellant also submits that the trial judge erred in her assessment of the credibility of other witnesses.

Evidence at Trial

[4] The appellant and complainant were romantically involved for approximately two years prior to the events in question. During the last year of their relationship, they lived together in a condominium unit. They each have a young son with different partners. On November 5, 2016, Melody attended their residence to celebrate the complainant’s birthday. Melody spent the night, left for work early in the morning of November 6, and reattended later that evening sometime between 9:00 p.m. and 10:00 p.m.

[5] The appellant, the complainant, and Melody each testified about what transpired on November 6.

Complainant

[6] The complainant testified that at around midday on November 6 she and the appellant began to argue about the security fob to their unit. According to her, the appellant – who did not have the fob in his possession – was upset because he and his son had to wait too long before the concierge allowed them access to their unit. According to the complainant, their argument began in the kitchen and continued in her son’s bedroom where the appellant grabbed her head and slammed it into a wall. She testified that the appellant punched her several times on the right side of her face with a closed fist, and that he stood over her while she was down and said, “next time, I’ll fucking kill you”. The complainant did not seek medical attention until November 8, two days later. Upon doing so, she learned that her jaw was broken. She had surgery to repair the broken jaw on November 12. She reported the incident to the police a month later, on December 12.

[7] It is not disputed that the complainant provided several different explanations for how she suffered her injuries. She told her parents that she had been in a fight with another woman, which she repeated to the nurse who admitted her to the hospital on November 12, and to a social worker who interviewed her during her stay. She told the nurse who discharged her from the hospital that the appellant had not struck her. And, later in December 2016, before she provided a police report, she told the appellant’s aunt that she had been injured in a car accident. The complainant testified that the appellant instructed her to offer the car accident explanation should any family members inquire about her injuries.

Melody

[8] As mentioned, the appellant and complainant’s mutual friend, Melody, testified. She confirmed her attendance at the couple’s condominium unit on November 5 to celebrate the complainant’s birthday. She stayed the night and left early the following morning. Melody testified that at around 2:00 p.m. on November 6, the complainant sent her an “SOS” text message. She then called the complainant, who was upset and crying. The complainant advised her that she had been “in a fight”, that her jaw was broken, and that she was in considerable pain. The complainant also sent Melody a photograph via text depicting her injuries. The complainant eventually told her that it was the appellant who struck her and caused the injuries. The complainant, however, implored Melody to not confront the appellant about this or to let him know that she had disclosed this to her.

[9] Melody reattended their residence later that evening. When she returned both the appellant and complainant were there. Melody observed that the complainant’s injuries were as shown in the photograph she received earlier. As the complainant requested, Melody pretended that she did not know who, or what, had caused the injuries, and on several occasions asked the complainant (in the appellant’s presence) what happened and who injured her. Melody testified that the bed frame in the second bedroom – where the complainant said the appellant assaulted her – was disassembled and appeared to be damaged.

[10] Melody testified that she did not discuss these events with the appellant until sometime in 2017, when, according to her, he said it was the complainant who had assaulted him.

Appellant

[11] The appellant testified that there was no dispute with the complainant about a security fob to their unit. He testified that at around noon on November 6, the complainant left the residence to run some errands with an unknown friend. According to the appellant, the complainant called him at 4:30 p.m., crying hysterically. He said the complainant told him that she had just been involved in a motor vehicle accident and that she had hit her face on the car’s dashboard and side window. He testified that when she finally returned home the complainant had visible injuries. The appellant said that while he encouraged the complainant to attend the hospital, she refused. He denied striking or threatening the complainant, and denied ever instructing the complainant to tell people she had been in a car accident. He also denied telling Melody that the complainant had assaulted him.

Ineffective assistance of trial counsel

[12] Before receiving Crown disclosure, the appellant’s trial counsel told him he “needed” to prepare a “statement” describing his background, relationship with the complainant, and his response to the allegations. The appellant followed his counsel’s instructions. Then, in the hope of securing an agreement to resolve the case by way of a peace bond, and after making some minor revisions, trial counsel disclosed this statement to the Crown. Counsel did not obtain written instructions from the appellant authorizing the disclosure, nor does her file contain any note, memo or docket capturing any discussion between her and the appellant about the statement’s purpose and what she was going to do with it. In fact, examination of trial counsel revealed that she did not discuss any of the following with the appellant: 1) settlement privilege; 2) the unlikelihood of a resolution (in a domestic assault case) that would allow him to enter into a bond in exchange for the charges being withdrawn; 3) how disclosing the statement to the Crown amounted to a waiver of his right to silence; 4) the specific risks associated with being cross-examined on the statement’s contents; and 5) the risks associated with preparing a statement before reviewing disclosure.

[13] In August 2018, and again close to trial in January 2019, counsel asked the appellant to prepare a second statement. He did so, covering essentially the same topics as his earlier statement, but with more detail. At trial, counsel handed up a copy of the statement to the bench and gave the appellant a copy to have with him on the stand as he testified. It was then that she alerted him, for the first time, that he would be cross-examined on its contents. Once Crown counsel realized that the appellant was reading from the statement, they objected, which led to the appellant returning it to counsel.

[14] During cross-examination the Crown relied heavily on the appellant’s initial statement, using it to draw the court’s attention to inconsistencies between its contents and his testimony. It appears as though the statement informed, and became an integral part of, the Crown’s theory that the appellant had concocted an exculpatory account and was therefore not credible.

Decision Below

[15] The trial judge – after citing the principles set out in R. v. W.(D.) – rejected the appellant’s testimony and found that it did not raise a reasonable doubt. She described the appellant’s evidence as “self-serving” and “internally inconsistent”. She acknowledged the frailties with the complainant’s evidence and how she had lied to several people about what had transpired, but concluded it was only in respect of peripheral matters and did not, therefore, detract from her overall credibility.

Fresh Evidence

[16] The appellant seeks to introduce fresh evidence to support his claim of ineffective assistance of counsel, including his affidavit sworn September 29, 2020; an affidavit from his appeal counsel’s legal assistant sworn September 25, 2020; an affidavit from the appellant’s trial counsel sworn February 16, 2021; an agreed statement of fact; and the transcripts of both the appellant’s and his trial counsel’s cross-examinations.

Issues

[17] This appeal raises three issues:

i.) Whether to admit the proposed fresh evidence;

ii.) Whether the appellant received ineffective assistance from his trial counsel, and if so, whether it caused a miscarriage of justice; and

iii.) Whether the trial judge erred in assessing the credibility of the Crown witnesses.

[18] I will address each in turn.

Analysis

A) Whether to admit the proposed fresh evidence

[19] The test for the admission of fresh evidence is set out by the Supreme Court in Palmer v. The Queen, [1980] 1 S.C.R. 759. This test is purposive, fact-specific, and driven by an overarching concern for the interests of justice. Its objective is to strike a balance between, on the one hand, finality, and on the other, ensuring a just result: Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at para. 32. Additional evidence can only be admitted on appeal if the proposed evidence: 1) could not have, by the exercise of due diligence, been available at trial; 2) is relevant in that it bears upon a decisive or potentially decisive issue; 3) is credible in the sense that it is reasonably capable of belief; and 4) is such that, if believed, it could have affected the result at trial.

[20] In my view, all of these elements are met. As for the due diligence requirement, given the nature of the evidence, it was not, and could not have been, available at trial. It speaks to events that transpired as the proceeding moved through the system, up to and including the trial itself. Furthermore, the appellant was an unsophisticated, youthful defendant, with no prior experience in the criminal justice system and no legal training. It is not reasonable to expect that he knew, or could have known, about the perils of effectively waiving his right to silence or the use that could be made of his statements. Not only that, but the extent of counsel’s incompetence, including what she did or did not discuss with the appellant, could not have been known until after the trial concluded and she produced her complete file.

[21] The last three elements of the test – which have to do with the nature of the evidence itself – are also satisfied. Credibility assessments, the conduct of counsel, and overall trial fairness are all potentially decisive issues and of the utmost importance. The proposed evidence is clearly credible in that trial counsel herself confirms that she did not discuss with the appellant any of settlement privilege, the typical Crown posture when prosecuting domestic violence cases (and the unlikelihood of a resolution in such circumstances), the waiver of the right to silence, and the risk of cross-examination. Lastly, the evidence, if believed, goes to the heart of the appellant’s ineffective assistance of counsel claim and speaks directly to whether his was an informed waiver of the right to silence.

[22] I would therefore grant the application and admit the fresh evidence.

B) Whether the appellant received ineffective assistance from his trial counsel

[23] The appellant bears the burden of establishing, first, the facts underlying the allegation; second, whether the facts, as found, establish that counsel provided ineffective assistance; and third, whether that assistance led to a miscarriage of justice: R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 91.

Facts underlying the claim of ineffective assistance of counsel

[24] Very few facts are in dispute. As mentioned, trial counsel does not recall, and her file notes do not reflect, that she spoke to the appellant about settlement privilege or the waiver of the right to silence. Further, trial counsel confirms that at the Superior Court judicial pretrial she conceded the admissibility of the appellant’s initial statement, on his behalf but without his instructions, and never turned her mind to the correctness of the Crown’s position on privilege. She further acknowledges that, in preparation for trial, she did not “specifically [talk] about cross-examination on [the] statement” with the appellant.

[25] The evidence of the appellant and trial counsel do diverge at various points, including whether trial counsel presented the preparation of a statement as a choice. Trial counsel maintains the final decision was the appellant’s. The appellant says trial counsel told him, in no uncertain terms, that he needed to prepare a statement to aid her resolution discussions with the Crown. He was a young, relatively unsophisticated defendant, with minimal experience with the legal system. As such, and in light of the admission by trial counsel that she conceded the admissibility of the initial statement without instructions, any choice the appellant might have had was unencumbered by any legal advice and illusory.

[26] Moreover, trial counsel not only instructed the appellant to prepare the initial statement before he reviewed the Crown’s disclosure, at no point did she compare its contents with the disclosure, once it was received. The appellant’s evidence, which I prefer, is that counsel did not, before trial, advise him that he could be cross-examined on his statement, and only did so just before he took the stand. While trial counsel maintains otherwise, no materials in her trial file mention any such advice. I note also that the last-minute caution counsel did provide was only in respect of the second statement, and not the first, which is what the Crown used.

Do the facts support a finding that trial counsel’s assistance was incompetent?

[27] I agree with the appellant that his trial counsel’s representation fell well below the standard of a reasonable professional. She either did not appreciate – or did not want to take the time to investigate and inform herself about – the protection settlement privilege might afford the appellant.

[28] Perhaps more importantly, she made fundamental decisions without instructions. It was essential that the appellant understand that he enjoyed the right to silence and that he did not have to provide any information to the Crown. The appellant did not (and could not reasonably have been expected to) understand this, and trial counsel took no steps to ensure he did.

Did the appellant suffer a miscarriage of justice?

[29] The appellant submits that there are two clear instances of prejudice that arose from the ineffective assistance from his counsel. First, counsel’s failure to discuss with him the applicability of settlement privilege, waiving his right to silence, and his exposure to cross-examination; and second, her concession at the Superior Court judicial pretrial that the appellant’s statement was admissible.

[30] The respondent argues that any incompetence did not render the trial unfair, and that the appellant has not established a reasonable probability that the verdict would have been different absent counsel’s incompetence. Crown counsel points to the trial judge’s findings that the appellant’s evidence was self-serving and internally inconsistent, which were made without reference to his cross-examination on the statement.

[31] A miscarriage of justice can be the product of either trial unfairness or an unreliable result. Amongst other things, trial unfairness arises when counsel “[makes] certain decisions that should have been made by the accused person”. This typically relates to the core elements of a proceeding such as whether to plead guilty or not guilty, waiving the right to a jury trial, or whether to testify: R. v. Stark, 2017 ONCA 148; 347 C.C.C. (3d) 73, at paras. 16 and 17; R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at paras. 55-56. An accused must show more than simply the denial of a choice; they must also demonstrate a “reasonable possibility” they would have acted differently: R. v. White, 2022 SCC 7, 411 C.C.C. (3d) 419; R. v. McDonald, 2022 ONCA 574, at paras. 55-56. However, on this branch there is no need to establish an unreliable result: Fiorilli, at para. 57. As Doherty J.A. wrote in R. v. Joanisse, (1995) 102 C.C.C. (3d) 35 (Ont. C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347, at p. 62, “[a] reliable verdict may still be the product of a miscarriage of justice if the process through which that verdict was reached was unfair”. Conversely, the “unreliable result” branch requires that an appellant establish a “reasonable probability that, but for counsel’s unprofessional errors, the result would have been different”: Joanisse, at p. 64, citing Strickland v. Washington, (1984) 466 U.S. 668, at p. 698.

[32] I am of the view that counsel’s ineffective assistance led to a miscarriage of justice on both branches.

[33] To start, there can be no question that trial counsel unilaterally waived the appellant’s right to silence, and that the waiver led to the Crown having available the appellant’s statement, which better equipped its counsel to cross-examine the appellant. Put simply, the mere fact trial counsel did this, which impacted two core elements of the proceeding – i.e., waiving the right to silence by preparing and disclosing the statement, and the appellant making the decision to testify without understanding that the statement could be used to impeach him – is sufficient to allow the appeal.

[34] The right to silence is fundamental and intrinsically linked to the presumption of innocence, the right to make full answer and defence, and the right to a fair trial. It has been described as the “single most important organizing principle in criminal law”: R. v. P. (M.B.), [1994] 1 S.C.R. 555, at p. 577. As the Supreme Court has stated, “[I]t is up to the state, with its greater resources, to investigate and prove its own case, and … the individual should not be conscripted into helping the state fulfil this task”: P. (M.B.), at p. 579. Trial counsel did precisely that: she conscripted the appellant into assisting in his own prosecution. She did this on the appellant’s behalf, but unbeknownst to him. In doing so, she deprived him of a fair trial.

[35] The bottom line is this. Trial counsel made decisions that had to be made by her client. Waiving the right to silence, and making an informed decision about whether to testify or not, were for the appellant to decide, and no one else. It is clear that there is at least a reasonable possibility the appellant, if given a real choice, would have taken a different course. Here, counsel’s incompetence was so pervasive, and her unilateral decisions on behalf of the appellant so contrary to any notion of trial fairness, that appellate intervention is necessary. The appellant’s trial was in fact, and in appearance, unfair.

[36] As for the reliability of the verdict, consider this portion of the Crown’s closing address:

First, in the Crown’s submission, [the accused] painted himself in an absurdly good light, almost without flaw. His testimony, in the Crown’s submission, lacked insight or honesty and struck the Crown as self-serving. Where [the complainant] was unafraid to answer questions honestly, even if they cast her in a negative light, such as with respect to her drug use, [the accused] was unwilling to be so upfront. Every problem in the relationship was because of [the complainant]. And all he ever did was help her, pay for her, take her to the doctor. The implication really being that he’s just too nice a guy to have done this.

Second, and related, in the Crown’s submission, [the accused] was evasive and defensive under cross-examination. His explanation for why his statement differed from his testimony in several respects did not strike [me] as honest. The Crown also submits that his testimony evolved as it went on. He said that he recalled things spontaneously, but in some cases these things came up after a more direct question or even after a break in court. In the Crown’s submission, [the accused’s] testimony did not present as an honest and forthright recall but, rather, a carefully crafted story.

[37] The trial judge, while not specifically citing the 2017 statement, accepted the Crown’s submission and rejected the appellant’s evidence altogether. The Crown argues this conclusion is reliable, notwithstanding trial counsel’s ineffective assistance, because the trial judge was entitled to believe the complainant over the appellant, and because of internal inconsistences in the appellant’s trial testimony. I disagree. The above passage from the Crown’s submissions places the nature, and impact, of trial counsel’s conduct into sharp focus. It encapsulates perfectly the Crown’s position, which was the appellant concocted his entire story. This makes even the peripheral aspects of the Crown’s inquiries about the 2017 statement more important than they otherwise might have been, and diminishes the Crown’s argument on appeal. In other words, the appellant was subjected to cross-examination that went exclusively to the critical issue at trial (his credibility), which was in large measure the fruits of an uninformed waiver of his right to silence.

[38] While it is a relatively high burden to establish a reasonable probability that the result would have been different, we must remember that a ‘reasonable probability’, in this context at least, means a probability sufficient to undermine confidence in the outcome: Strickland, at p. 698. This of course is more than a mere possibility, but far short of certainty. In Joanisse, Doherty J.A. described it as “less than a likelihood”. That being the case, the question to ask is not whether it is probable that the trier of fact would have believed the appellant but for his trial counsel’s conduct but, rather, whether his evidence, without the disclosure of the statement, could have led to its acceptance or given rise to a reasonable doubt.

[39] For these reasons, I accept that the appellant’s trial was unfair, that the verdict is unreliable, and that the ineffective assistance of the appellant’s trial counsel gave rise to a miscarriage of justice.

C) Did the trial judge err in assessing the credibility of Crown witnesses?

Complainant’s inquiry about withdrawing the charges

[40] The appellant argues that the trial judge’s treatment of the Crown’s evidence at trial was flawed such that, independently of his ineffective assistance claim, a new trial is warranted. He points, first, to the trial judge’s finding that the complainant lied about never inquiring into withdrawing the charges. This, he argues, should have bolstered his theory that the complainant felt bad about falsely implicating him, and so took steps to recant. He says the problem lies in how the trial judge neutralized the significance of this lie by accepting Melody’s evidence about why the complainant wanted to withdraw the charges. The submission goes something like this: As the complainant’s evidence was that she never wanted to withdraw the charges, by accepting Melody’s account that the complainant felt bad about the consequences of a conviction on the appellant, the trial judge erroneously admitted and relied upon the complainant’s out-of-court prior inconsistent statement for its truth, with no request by the Crown to admit it for that purpose. In other words, because prior inconsistent statements that are not adopted by a witness cannot be used for the truth of their content, the trial judge erred by using it in that way.

[41] I believe para. 63 of the trial judge’s reasons adequately addresses the conflicting evidence about whether the complainant inquired about withdrawing the charges:

63. [The complainant] denied asking [Melody] about the process for withdrawing the charges. On the contrary, [Melody] testified that she did. [Melody] called her godmother, a retired police officer, to obtain this information for [the complainant]. Although [Melody] testified at the preliminary hearing that [the complainant] was with her when she called her godmother, at trial she testified that she was no longer sure if that was the case. [The complainant] told [Melody] that she wanted to withdraw the charges because she had learned the potential punishment [the accused] was facing and she did not want to affect his life in that way. She also felt sorry for his son, who would be without his father. I accept [Melody’s] evidence that [the complainant] wanted to know the process for withdrawing charges, driven by feelings of guilt over the possible consequences to [the accused]. I have considered [the complainant’s] denial about this in assessing her overall credibility.

[42] The trial judge explains why she accepted Melody’s testimony that there was such a discussion, while at the same time being alive to the complainant’s denial. Further, this passage reveals that the trial judge understood the evidence, its conflicting nature, and confirms that she used it only to assist in her assessment of the complainant’s credibility. Stated otherwise, she did not rely on Melody’s evidence about the complainant’s motivation for seeking a withdrawal as evidence of the appellant’s guilt. The trial judge considered all of the evidence on this question, and her reasons are responsive to the defence submission that, because of the contradiction, the complainant was not credible. The trial judge resolved that question, just not in the way the appellant had hoped, which is not a basis for appellate intervention.

Presence of the complainant’s son

[43] The appellant further argues that the trial judge erred by failing to resolve a material contradiction between the testimony of the complainant and Melody, namely whether the complainant’s son was present during the assault. The appellant submits that the complainant’s account of the assault was only coherent, and could only be believed, if her son was in fact present. According to the appellant, the presence of the complainant’s son was central to her account. For instance, she testified that her son was scared while she and the appellant were yelling; that he observed her injuries immediately after the assault; and that she could not go to the hospital right away because she did not want to take him with her. The complainant also used her son’s presence to pinpoint the timing of the assault. Melody, on the other hand, testified that the complainant texted her about her broken jaw around 2:00 p.m. on the date in question, which necessarily means the assault occurred either that morning or earlier in the afternoon, and that the complainant refused her offer to take her to the hospital because she was waiting for her son’s father to drop him off (as opposed to pick him up), meaning her son could not have been there during the assault.

[44] With respect to the conflicting evidence about whether the complainant’s son was present or not, I would defer to the trial judge’s findings, which are adequately explained at paras. 65 through 67 of her reasons:

65. [Defence counsel] argued that there were many other problems with [the complainant’s] evidence. Her evidence was not internally consistent nor was it consistent with other evidence. Her memory was not good. She pointed to many examples, including the following: (f) whether her son was present during these events.

66. Most of these examples relate to peripheral details, rather than the core of [the complainant’s] evidence as it relates to the offences before the court. The events occurred two and one-half years ago. It is not surprising that her memory of peripheral details has declined with the passage of time.

67. It is unclear on the record before me whether [the complainant’s] son was present during these events. Usually, he would have been with his father for the weekend. [Melody] testified that he was not at the condominium when she was there on Saturday or Sunday. [The complainant] testified that he was there. I am unable to resolve this issue. However, it does not cause me to reject [the complainant’s] evidence. As we instruct juries, the evidence in a trial does not have to answer every question.

[45] The trial judge’s determination that the son’s presence was a peripheral detail is to be afforded deference. The question on appeal is not whether another judge might have treated this contradiction differently but, rather, whether it was open to the trial judge to treat it in the way she did. And on this record, it was. It is rare indeed for deficiencies in a trial judge’s credibility analysis to warrant appellate intervention, and this is not one of those rare instances. While significant inconsistencies should be addressed so that an accused knows why they do not leave the judge with a reasonable doubt, on matters that do not go to the core of an allegation – which the trial judge reasonably concluded this was – there is no such obligation. Here, the trial judge’s determination that the cogency of the complainant’s testimony did not depend on the presence of her son was reasonable.

[46] I would therefore reject this ground of appeal.

Disposition

[47] For these reasons, I would allow the appeal, set aside the convictions, and order a new trial.

Released: December 1, 2022 “S.E.P.” “J. George J.A.” “I agree. S.E. Pepall J.A.” “I agree. A. Harvison Young J.A.”