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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

COURT OF APPEAL FOR ONTARIO DATE: 20230706 DOCKET: C68487

BETWEEN

His Majesty the King Respondent

and

Dalien Ilunga Appellant

Counsel: Marianne Salih, for the appellant Nicholas Hay, for the respondent

Heard: March 2, 2023

On appeal from the conviction entered on December 20, 2019 by Justice Joseph A. De Filippis of the Ontario Court of Justice.

Brown J.A.:

Overview

[1] Following a day and one-half trial before a judge alone, the appellant, Dalien Ilunga, was convicted of one count of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46, and one count of failure to comply with a probation order contrary to s. 733.1(1). By reasons dated June 4, 2020, the sentencing judge imposed: on the sexual assault count, a custodial sentence of four years less 582 days credit for pre-sentence custody, or a total sentence remaining to be served of 2 years, 4 months, and 27 days (i.e., until mid‑November, 2022); and, on the second count, a concurrent custodial sentence of 120 days.

[2] The appellant was not released on bail pending his appeal. By the time of the appellant’s April 13, 2022 cross-examination on the fresh evidence motion, he had been released from custody.

[3] The appellant appeals his conviction. He advances three grounds of appeal:

(i) The trial judge erred in shifting the burden of proof to the appellant;

(ii) The trial judge provided insufficient reasons; and

(iii) The appellant received ineffective assistance from his trial counsel.

[4] The appellant requests that his conviction be set aside and a new trial ordered before a judge and jury.

[5] For the reasons set out below, I would dismiss the appeal.

Outline of Events

[6] On the afternoon of May 14, 2019, the appellant had a group of people over to his apartment. The group included the complainant, T.D., and her friend, L.M., whom the appellant had known for a month or so.

[7] The complainant testified that while she was in the hallway of the apartment on a WhatsApp video call with her boyfriend, the appellant approached her and, without her consent, forced his hand down the back of her legging pants, penetrating her vagina with two fingers. The complainant testified that her boyfriend could not see what was happening on the video call as he was working at a home renovation site and did not appear on the video screen while he worked. The complainant returned to the apartment living room, where her friend, L.M., was sitting. The complainant said nothing to L.M. about the appellant’s conduct.

[8] The complainant later returned to the hallway. She testified that she was continuing the video call with her boyfriend when the appellant covered her mouth, grabbed her around the waist, and dragged her down the hallway to the bedroom. At that time, L.M. was sitting in the living room. According to the complainant, once in the bedroom the appellant disconnected the video call, removed one of the complainant’s pant legs and, without her consent, penetrated her vagina twice with his penis.

[9] L.M. testified she entered the bedroom and saw the complainant with her pants off and her legs in the air. L.M. left the apartment angry. According to the complainant, L.M. sent the complainant some angry text messages, including “I hope you f…’d him good.” However, according to L.M., she did not send the complainant any text messages. Eventually, the complainant left the appellant’s apartment, went downstairs, met up with L.M. again, who drove her home. The complainant and L.M. testified that during the ride home the complainant told L.M. the appellant had raped her. The complainant made a report to the police the same day. The appellant was arrested that evening.

[10] The Crown called the complainant and L.M. as witnesses.

[11] The defence called one witness, A.A., a woman who lived in the appellant’s apartment building. Both the complainant and L.M. testified that upon arrival at the appellant’s apartment building, they first dropped by the apartment of L.M.’s son-in-law, who lived on the same floor as the appellant. By contrast, A.A. testified that she and her husband had let L.M. and the complainant into the building and had taken them directly to the appellant’s apartment.

[12] The appellant did not testify at the trial.

[13] I will review some of the evidence in more detail when considering the ineffective assistance of counsel ground of appeal.

First Ground of Appeal: Shifting the Burden of Proof

[14] The appellant submits the trial judge’s reasons proceeded from the assumption that the complainant’s evidence was prima facie proof beyond a reasonable doubt and, in so doing, the trial judge erred by reversing the burden of proof. The appellant notes that at the start of the defence’s submissions, the trial judge twice asked defence counsel how the evidence of the complainant was undermined. According to the appellant, the repeated use of this question reveals that the trial judge erroneously proceeded on the basis that an onus lay on the defence to demonstrate that the complainant’s evidence should not be accepted.

[15] In my view, when this question by the trial judge is taken in the context of a fair reading of his reasons, no error is disclosed.

[16] Reasons for judgment must be read as a whole. An isolated use of an inappropriate word is not enough to demonstrate an error in law, particularly one involving a fundamental legal principle like the burden of proof: R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758, at para. 32.

[17] As the trial judge made clear, his reasons consisted of three components: what he said at the beginning of the parties’ submissions; what he said during his exchanges with defence counsel; and his statements in the “Reasons for Ruling” portion of the transcript.

[18] Upon the conclusion of the evidence, the trial judge sought to frame the live issues in the case by providing counsel with his understanding of the “essence” of the complainant’s evidence. He recognized that there were “some areas of inconsistency” in her evidence; he did not regard the defence witness’ evidence as adding much “but counsel will correct me if I’m wrong.” He then asked defence counsel for submissions on how the complainant’s evidence was “undermined.”

[19] As defence counsel started to respond to that question, the trial judge interjected and stated:

I recognize the burden on the Crown, I recognize the decision [in] W.D. , if I believe the defence evidence, he's acquitted. If I don't believe the defence evidence, but it raises a doubt, he's acquitted and even if I don't believe the defence evidence, and I've signaled to you - even if I reject the defence evidence and I've signaled to you that it's not a question of rejecting [A.A.’s] evidence I just don't think it adds much. So even if there is no defence evidence or it's rejected, the Crown still has to prove its case beyond a reasonable doubt. So I recognize all that. And so, I'm now going to let you answer. How was her evidence undermined?

[20] The trial judge’s question as to how the complainant’s evidence was “undermined” must be placed in the context of this correct self-instruction on the burden of proof and his accurate articulation of the principles set down in R. v. W.D., [1991] 1 S.C.R. 742.

[21] As well, the ensuing comments and determinations by the trial judge did not signal that by using the word “undermined” he had reversed the burden of proof or presumed the complainant’s evidence was believable. After defence counsel completed his submissions, the trial judge advised Crown counsel that he did not require submissions on several issues; he gave an explanation for each. The trial judge advised that he did not accept the evidence of the only defence witness, A.A., and explained why. He advised Crown counsel: “I just need to hear you as to whether the Crown’s evidence amounts to proof beyond a reasonable doubt”, a correct articulation and application of the burden of proof.

[22] The trial judge then identified two specific points made by defence counsel that “demanded” a response by the Crown:

It might be significant, that the complainant says I had one pant leg on and [L.M.] says, oh, no, she didn’t. Here’s why its significant. The one pant leg on would more readily, more readily support an inference of a violence, a not consensual act of sexual intercourse as opposed to both pants being taken off. Not necessarily, he could’ve ripped both off on her version of events and she just forgot about that, but it’s an issue. And then, I must say I just don’t know what to make from the fact that the complainant said she was repeatedly texted by [L.M.] and [L.M.] says she wasn’t.

[23] Those directions to Crown counsel indicate that the trial judge had not presumed the complainant’s evidence was believable. Instead, he put the Crown to its burden to satisfy him that it had proved the appellant’s guilt beyond a reasonable doubt. Crown counsel made submissions on both points; ultimately, the trial judge accepted those submissions in his reasons.

[24] Although the trial judge repeated his use of the word “undermined” in the “Reasons for Ruling” portion of the transcript – “There’s nothing to undermine the complainant’s assertion that [the sexual activity] was forced and not consensual” – he concluded that portion of his reasons by stating he was “satisfied the Crown has met his high onus of proof.”

[25] Further, the questions posed by the trial judge about whether the complainant’s evidence had been undermined must be assessed in the specific context of the live issue at trial and the evidence adduced on it. As the trial judge noted, the defence did not take the position that no sexual act had occurred; the sole issue was whether the complainant had consented. Since the appellant did not testify, the evidence did not contain conflicting narratives of the events between the complainant and appellant. As a result, the sole issue in dispute turned largely on an assessment of the credibility and reliability of the complainant’s evidence. The defence made numerous submissions about why the complainant’s evidence was not credible or reliable, arguing the Crown had not discharged its burden of proof; the trial judge dealt with each. Given the record and issues before him, when read as a whole the trial judge’s reasons disclose that he did not reverse the burden of proof: R. v. Alisaleh, 2020 ONCA 597, at para. 11.

[26] Accordingly, this ground of appeal fails.

Second Ground of Appeal: Insufficient Reasons

[27] The appellant next submits the trial judge’s reasons failed to explain why the Crown’s evidence was sufficiently credible and trustworthy so as to convince him beyond a reasonable doubt of the truth of the allegations. Specifically, the reasons failed to explain why the trial judge found the complainant to be credible and they failed to explain sufficiently how the trial judge resolved some of the inconsistencies in the Crown’s evidence. The reasons were conclusory, not explanatory, and foreclosed meaningful appellate review.

[28] The key principles regarding the sufficiency of reasons are well-established:

• Appellate review of trial reasons must be functional and contextual: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 32;
• Trial reasons must (i) convey to the parties a decision that is reasonably intelligible to them, having regard to the particular circumstances of the case; (ii) provide the basis for meaningful appellate review of the correctness of the judge’s decision; and (iii) provide public accountability: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55; R.E.M., at para. 15; R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 68;
• Reasons fulfill these functions if, read in context, they show why the judge decided as he or she did: R.E.M., at para. 17. What is required is a logical connection between the ‘what’ — the verdict — and the ‘why’ — the basis for the verdict. The foundations of the judge’s decision must be discernable, when looked at in the context of the evidence, the submissions of counsel, and the history of how the trial unfolded: R.E.M., at para. 17;
• The inquiry into the sufficiency of the reasons should be directed at whether the reasons respond to the case’s live issues: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31;
• In assessing the sufficiency of reasons, regard must be had to the time constraints and general press of business in the criminal courts: Sheppard, at para. 55 (7); and
• Reasons must sufficiently articulate how credibility concerns were resolved: Dinardo, at para. 26. Findings on credibility must be made with regard to the other evidence in the case, which may require at least some reference to the contradictory evidence. The degree of detail required in explaining findings on credibility may vary with the evidentiary record and the dynamic of the trial, as the factors supporting or detracting from credibility may be clear from the record: R.E.M., at paras. 50-51.

[29] The trial judge’s reasons satisfy these key principles.

[30] As mentioned, the trial judge expressly stated that his reasons consisted of what he said at the beginning of the parties’ submissions, what he said during his exchanges with defence counsel, and his statements in the “Reasons for Ruling” portion of the transcript.

[31] The position of the defence at trial was that the Crown had not proved the charges beyond a reasonable doubt because the evidence of their key witness, the complainant, was not credible or reliable. In support of that position, the defence submitted that numerous inconsistencies existed between the complainant’s evidence and that of L.M. and A.A. on material points. As well, the defence pointed out what it considered to be the inherent implausibility of parts of the complainant’s evidence.

[32] At the conclusion of the defence’s submission, the trial judge explained why he did not accept the evidence of A.A. and why he did not regard certain inconsistencies between the evidence of the complainant and L.M. as affecting the complainant’s credibility: Transcript, December 20, 2019, at pp. 16-17.

[33] Prior to the Crown starting its submissions, the trial judge identified two points made by the defence that “demanded” a response. The Crown addressed those points in its submissions, which the trial judge in turn accepted in the balance of his reasons.

[34] As a result, when read in their entirety and taking into account the busy docket environment in which judges of the Ontario Court of Justice deliver their reasons, the trial judge’s reasons responded to the case’s live issues and sufficiently articulated how the trial judge resolved credibility concerns. I am not persuaded that his reasons were insufficient in the circumstances.

Third Ground of Appeal: Ineffective Assistance of Counsel

Overview

[35] The appellant submits that he received ineffective assistance from trial counsel in two main respects:

• Trial counsel deprived the appellant of the right to testify by making that choice for him and, as well, by providing inadequate advice on the matter; and
• Trial counsel failed to advance the appellant’s defence that his intercourse with the complainant was consensual, a failure attributable in part to trial counsel’s lack of preparation.

[36] The parties, on consent, have filed fresh evidence on this ground of appeal. Both the appellant and trial counsel, Jérémie Nadeau, filed affidavits and were cross-examined on them. Additional affidavits contained documentary evidence. The fresh evidence satisfies the criteria for the admission of evidence regarding claims of ineffective assistance of counsel.

[37] This ground of appeal falls to be evaluated within the well-established framework for claims of ineffective assistance of counsel, which was summarized by this court in R. v. Chica, 2016 ONCA 252, 348 O.A.C. 12, at para. 7:

The appellant faces a high hurdle in attempting to demonstrate ineffective assistance of trial counsel. For an appeal to succeed on this ground, the appellant must establish the following: i) the material facts underlying the allegation, on a balance of probabilities; ii) that counsel’s acts or omissions constituted incompetence, measured on a reasonableness standard and in light of a strong presumption that trial counsel’s conduct fell within the wide range of reasonable professional assistance (the “performance component”); and iii) that counsel’s ineffective representation caused a miscarriage of justice by resulting in procedural unfairness or undermining the reliability of the verdict (the “prejudice component”). [Citations omitted.]

[38] The general procedure for considering a claim of ineffective assistance of counsel is for the court to first assess the prejudice component. If the claim fails on this ground, it is unnecessary to assess the adequacy of trial counsel’s performance: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 29; R. v. Archer (2005), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 121. However, some cases have departed from this sequence: see, for example, R. v. K.K.M., 2020 ONCA 736.

First Allegation: Trial Counsel Deprived the Appellant of the Right to Testify

A. Deprivation of the choice to testify

The issue stated

[40] While counsel must provide advice about whether a client should testify, the ultimate decision to testify must be made by the client: R. v. Cubillan, 2018 ONCA 811, 143 O.R. (3d) 376, at para. 14.

[41] The appellant was arrested and charged in May 2019. After failing to secure release on bail, the appellant fired his first counsel. In June 2019 he retained trial counsel to represent him. By September 2019, the appellant was not satisfied with trial counsel’s work and applied to Legal Aid for a change in counsel. In October 2019, the appellant withdrew his change request or Legal Aid denied it; the record is unclear on the point. The appellant went to trial on December 19 and 20, 2019.

[42] There is no dispute that during the course of trial counsel’s retainer the appellant continuously expressed a desire to testify in his defence. The appellant was confident that his narrative – consensual sex – would prevail over the testimony of the complainant and L.M.

[43] On the first day of the trial, December 19, 2019, the complainant and L.M. testified. In his fresh evidence affidavit, the appellant deposed that during a break in the day’s proceedings, he spoke with trial counsel in an interview room and told him he wanted to testify “because I heard the complainant’s testimony, and I knew it to be untruthful.” According to the appellant, trial counsel advised that testifying was not a good idea “as these witnesses were not believable.”

[44] The appellant testified that at the end of the first day he again met with trial counsel in an interview room. He informed trial counsel that he thought he should testify. Trial counsel stated there was no reason to testify or bring other witnesses to testify. The appellant testified that he listened to trial counsel, because “he’s my lawyer”, but acknowledged that trial counsel never said that he would not let the appellant testify.

[45] On the morning of December 20, the defence called A.A. as a witness. The appellant deposes that: “After [A.A.] testified, Mr. Nadeau did not ask me if I wanted to testify. He went into closing argument without saying anything to me.” On cross-examination, this exchange occurred:

Crown counsel: My question was Mr. Nadeau didn’t jump straight into submissions.

Appellant: I don’t know. He didn’t speak with me, that’s all I’m saying … He didn’t talk to me about anything.

[46] Trial counsel disputes this narrative. He acknowledges the appellant expressed a desire to testify from early in the proceedings. Trial counsel advised the appellant to wait to make a final decision until after the complainant had testified as he planned to discredit the complainant and raise a reasonable doubt that way. Trial counsel also advised there were risks to testifying: the appellant would be exposed to cross-examination; as well, his criminal record, including a conviction for sexual assault, would be part of that cross-examination.

[47] According to trial counsel, at the end of the first day of trial the appellant again expressed an interest in testifying. Trial counsel advised him to defer the decision until after the close of the Crown’s case.

[48] Before court started on the second day, trial counsel spoke with the appellant about testifying. According to trial counsel, he told the appellant the cross-examinations of the Crown’s witnesses had exposed inconsistencies that could raise a reasonable doubt: “I again told [the appellant] that it was his choice to testify but explained the risks. He told me at this point that he did not want to testify. I told him I would confirm with him again after [A.A.] testified.”

[49] Trial counsel further deposed:

[A]fter [A.A.] testified, I again confirmed with Mr. Ilunga that he did not want to testify. I asked for a moment from the Court, and told Mr. Ilunga I thought we should finish with [A.A.] – there was no reason to call the other potential witness, Mike. I also confirmed that he was satisfied and did not want to testify. He agreed we did not need Mike and that he did not want to testify. I then told the Court that the defence’s case was concluded.

[50] Trial counsel did not make any notes of those conversations with the appellant. Trial counsel did not obtain written instructions from the appellant about whether the appellant would testify.

Analysis

[51] The determination of this issue first requires making findings of fact regarding the conflicting evidence of the appellant and trial counsel.

[52] I find that the appellant has not established, on the balance of probabilities, that trial counsel deprived him of his right to testify in his defence. I reach this conclusion for two main reasons.

[53] First, the transcript of the trial’s second day belies the appellant’s evidence that upon the completion of A.A.’s evidence trial counsel “went into closing argument without saying anything to me.” Following the completion of A.A.’s evidence for the defence, the transcript records:

Trial Counsel: Your Honour, I believe that concludes my case, if I may have a brief moment.

The Court: Yes, by all means, you may.

Trial counsel: Your Honour, this concludes the defence’s case.

The Court: Alright. Well, [let] me frame the submissions, if I may.

[54] The parties agree that the audiotapes of the trial show a lapse of 29 seconds between the time trial counsel asked for “a brief moment” and his advice the defence had concluded its case.

[55] That break, as recorded, does not support the appellant’s contention that upon the conclusion of A.A.’s evidence trial counsel “went into closing argument without saying anything to me.” To the contrary, the recorded break support’s trial counsel’s evidence that he consulted with the appellant (who was sitting in the dock) before formally closing the defence case.

[56] Second, the trial record discloses that trial counsel consulted with the appellant throughout the trial:

• At the start of the trial on December 19, 2019;
• Upon return from the lunch break on the first day, trial counsel advised the court that since the cells were closed over lunch, he anticipated he would need to speak with his client over the course of the afternoon;
• At the afternoon break, trial counsel requested and the court granted the opportunity for counsel to speak with his client before finishing his cross‑examination of the complainant;
• Trial counsel consulted with the appellant before concluding his cross‑examination of L.M.;
• The appellant acknowledges he met with counsel in an interview room at the end of the first day of trial;
• On the second day, at the conclusion of A.A.’s evidence, but before formally closing the defence’s case; and
• Before completing his reply submissions.

[57] The appellant’s suggestion that trial counsel jumped into closing submissions without first consulting him lacks credibility in light of trial counsel’s practice to the contrary throughout the trial.

[58] Although at one point in his cross-examination on the fresh evidence application the appellant asserted that trial counsel told him he was not allowed to talk during the trial, the transcript discloses that at the start of the trial the appellant asked the presiding judge for an opportunity to speak to his lawyer. As well, the appellant ultimately admitted on cross-examination that he was not afraid to speak up in court and tell the judge when he had something to say.

[59] On the basis of this evidence, I find that trial counsel did not deprive the appellant of the ability or opportunity to decide whether to testify. I conclude that it is more probable than not that upon the completion of A.A.’s evidence, trial counsel consulted with the appellant, briefly reviewed with him the decision to testify, and received instructions from the appellant that he would not testify.

[60] Notwithstanding that conclusion, it is worth recalling for the criminal defence bar the advice given numerous times by this court about the need to adhere to the best practice of obtaining written instructions from a client about the decision to testify. As Trotter J.A. wrote in R. v. Trought, 2021 ONCA 379, 156 O.R. (3d) 481, at paras. 76-78:

In R. v. W.E.B., 2012 ONCA 776, 366 D.L.R. (4th) 690, aff’d 2014 SCC 2, [2014] 1 S.C.R. 34, at para. 10, this court recognized that the failure to obtain written instructions is a question of professional prudence, not incompetence, but noted that the failure to do so is “ill‑advised and contrary to counsel’s best interests”: at para. 10.

The lawyer who fails to obtain written instructions risks exposure to unfounded allegations of unprofessionalism. And although not indicative of ineffectiveness itself, the failure to obtain instructions may undercut trial counsel’s attempts to defend against claims of ineffectiveness.

The failure to obtain written instructions also makes it more difficult for an appellate court to adjudicate claims such as the one advanced on this appeal. Written instructions may resolve competing claims on appeal. [Citations omitted.]

B. Failure to provide competent advice

The issue stated

[61] I have found that trial counsel did not deprive the appellant of his right to choose whether to testify. However, the appellant contends that trial counsel failed to provide him with adequate advice upon which he could make an informed decision about whether to testify.

[62] An accused is denied his right to choose whether to testify not only when counsel actually makes the decision, but also when counsel provides no advice or advice that is so wanting as to preclude the accused from making a meaningful decision about testifying: K.K.M., at para. 91; Trought, at para. 50. Advice to an accused about whether to testify should include a review of the advantages and disadvantages of testifying, using language the accused understands: R. v. D.A., 2020 ONCA 738, 396 C.C.C. (3d) 151, at para. 33. The form and content of such a review will vary from case to case: in some cases, a brief, skeletal discussion may suffice; in others, a more lengthy, detailed review will be required: D.A., at para. 33.

[63] The appellant contends trial counsel’s advice regarding his right to testify was inadequate in two main respects.

[64] First, the appellant submits trial counsel gave flawed advice about the potential use of the appellant’s prior convictions. The appellant had a serious criminal record: one prior conviction for sexual assault (2004); two convictions for assault (2014 and 2018): and one for unlawfully being in a dwelling house (2013), a matter that involved a former domestic partner.

[65] Trial counsel testified on cross-examination that he was concerned the appellant’s criminal record for assault and sexual assault might be used by the trial judge in assessing both the appellant’s credibility and his propensity to commit the sexual assault offence charged:

510. Q. So my last question to you, Mr. Nadeau, was what was it specifically about his criminal record being introduced in cross-examination that you were concerned about?

Trial counsel: There was the -- the issue of credibility and the judge potentially putting weight on his prior conviction to essentially say -- sorry, go ahead.

511. Q. No. Please, go ahead. To essentially say...

Trial counsel: Just that the judge might put some -- some weight on that prior conviction for sexual assault and assault.

512. Q. And what were you concerned he would put weight on it in regards to?

Trial counsel: When it came to credibility and whether or not he was more likely to -- to have committed a sexual assault.

513. Q. And what do you mean by "whether or not he was more likely to have committed a sexual assault" and the use of his records in that regard?

Trial counsel: There was the -- the possibility the judge would have -- would have seen the prior records, and it might have weighed when it came to credibility and propensity to -- to commit the offence. [Emphasis added].

514. Q. Now, did you ever discuss with Mr. Ilunga the ability to bring a Corbett application and what impact that might have on his mode of trial?

Trial counsel: I did not.

515. Q. Do you see any impact a Corbett application might have had on his mode of trial, the ability to bring a Corbett application might have had on his mode of trial?

Trial counsel: In some instances perhaps. The issue was he wanted a trial immediately, a speedy trial, and that was his -- his main consideration. That was -- that was what he was asking for repeatedly.

[66] Trial counsel had not previously conducted a Corbett application and was not familiar with the process: see R. v. Corbett, [1988] 1 S.C.R. 670.

[67] The Crown concedes that trial counsel’s understanding of how the appellant’s criminal record could be used at trial was flawed.

[68] The second inadequacy in trial counsel’s advice identified by the appellant concerns the risk of cross-examination on utterances the appellant made to the transport officer, Officer Storozuk, who conveyed him from his place of arrest to the police station. On cross‑examination, trial counsel stated that one of the risks that factored into the advice he gave the appellant about testifying concerned a potentially inconsistent statement the appellant made to the transport officer. The officer recorded the appellant as saying the complainant had come into his bedroom asking to have sex but the appellant refused. By contrast, following his arrival at the police station the appellant gave a statement that he and the appellant together went to his bedroom and engaged in consensual sex.

[69] The appellant submits trial counsel improperly conceded the voluntariness of the utterances to the transport officer before trial counsel had received disclosure of the utterances and without instructions from the appellant. By so doing, the appellant contends trial counsel limited the steps he could have taken to mitigate or exclude the utterances, such as an application to exclude the utterances on the basis of lack of voluntariness or a violation of the appellant’s rights under s. 10(b) of the Canadian Charter of Rights and Freedoms. As well, by so doing trial counsel improperly limited the advice he could give the appellant about the options available to him to minimize the risk of testifying. However, the appellant’s fresh evidence on this point was limited to denying that he made the statement recorded by the transport officer in his notes. In his fresh evidence the appellant did not provide facts that would support arguments on issues relating to voluntariness or s. 10(b) of the Charter.

Analysis

[70] An assessment of the reasonableness of trial counsel’s advice to the appellant about whether to testify must take place within the context of the larger trial strategy undertaken by trial counsel. His strategy was straight-forward: trial counsel planned to attack the complainant’s credibility and reliability through cross-examination and argue that the Crown could not prove there was no consent to sex. That strategy fell within the range of reasonable professional assistance.

[71] The appellant understood trial counsel was pursuing that strategy for he deposed that during one of the breaks in the trial, “[Trial counsel] told me that testifying was not a good idea. He said there was no need, as these witnesses were not believable.”

[72] Trial counsel’s specific advice to the appellant about whether to testify was consistent with that reasonable strategy. On the second day of trial, counsel told the appellant: he thought the cross-examinations of the Crown witnesses exposed inconsistencies that could be used to raise a reasonable doubt; following the evidence of A.A. trial counsel thought there was no reason to call other potential witnesses; and he explained the risks of testifying to the appellant.

[73] Even though some of trial counsel’s explanation of the risks of testifying was based on a lack of understanding of how criminal records could be used at trial and an improper concession of voluntariness before receipt of disclosure of the utterances to the transport officer, I do not see those missteps by trial counsel as undermining his professional assessment that his cross-examination of the complainant had sufficiently undermined her credibility so as to leave the trial judge with a reasonable doubt regarding the appellant’s culpability; consequently, there was no need to call further evidence, including the appellant’s. In light of that not unreasonable assessment of the complainant’s evidence, I am not persuaded that the appellant has demonstrated, in all the circumstances, that that key advice by trial counsel fell outside the wide range of professional assistance: Chica, at para. 7.

[74] Although that is sufficient to deal with the appellant’s submission that trial counsel failed to provide him with competent advice, I do see some merit as well in the respondent Crown’s submissions that the appellant is unable to satisfy the prejudice component concerning this allegation. First, as the Crown points out, the appellant’s primary argument – which I have not accepted – was that trial counsel prevented him from testifying, not that his advice was wanting. Second, at various points in his cross-examination on his fresh evidence affidavit, the appellant left the impression that trial counsel’s advice about the possibility of cross-examination on his criminal record and on his utterances to the transport officer did not play a role in his decision whether to testify or not: Transcript of appellant’s cross-examination, qq. 357- 362; 438; 567-570.

Second Allegation: Trial counsel failed to advance the defendant’s case

[75] The appellant next contends trial counsel did not provide effective representation because he did not advance the appellant’s case or version of events. This ground of appeal contains four main components: (i) trial counsel did not confront the complainant or L.M. with the appellant’s version of events; (ii) trial counsel did not challenge the complainant’s version of events; (iii) trial counsel did not conduct a proper cross-examination of the complainant; and (iv) trial counsel failed to bring an application for third party records of the text messages sent between the complainant and L.M.

[76] As was stated by this court in K.K.M., at para. 66, “For the purposes of determining an ineffective assistance of counsel claim, the question for this court is not what should trial counsel have said or done, but rather was what trial counsel said or did reasonable in the circumstances?” I shall therefore assess the appellant’s allegations in the context of whether what trial counsel said or did was reasonable in the circumstances.

[77] This was not a complex sexual assault case. The record discloses that trial counsel’s strategy was to raise a reasonable doubt regarding the appellant’s culpability by demonstrating material inconsistencies in the evidence of the Crown witnesses, as well as the implausibility of some of their testimony. As I have mentioned, in the circumstances that was a reasonable strategy to adopt.

[78] In applying that strategy, trial counsel did confront the complainant and L.M. with the essence of the appellant’s version of events:

• He put to the complainant the evidence he anticipated calling from A.A.:

Q. I just once again wanted to make sure that if someone else testifies that they opened the door for you, the entrance door, and went straight to Mr. Ilunga’s - Dalien Ilunga’s apartment are you denying that?

A. I know its not what happened.

• He put to the complainant that the reason the appellant kept the bedroom door closed was to prevent L.M. from interrupting their consensual sex:

Q. And I’m going to put to you that Mr. Ilunga was the one holding the door shut because he didn’t – the both of you had gone into the room together and he didn’t want – the both of you didn’t want to be interrupted. What do you say to that?

A. No. Yeah, I’m going to go into a room with my boyfriend on the phone.

• Trial counsel concluded his cross-examination of the complainant by putting to her the appellant’s version of events:

Q. [Ms. D.], I’m just going to suggest to you that on May 14th, you and Ms. [L.M.] went to Mr. Ilunga’s apartment you had some interactions with him and following that you two engaged in consensual intercourse. When your friend, Ms. [L.M.], found out she was – she became irate and called the police subsequently when getting home. What do you say to that?

A. No.

[79] Trial counsel also satisfied the requirements of the rule in Browne v. Dunn by putting the significant aspects of the appellant’s proposed contradictory version of events to the complainant and giving her the opportunity to respond to the defence position that the sexual events were consensual: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at paras. 80-81; R. v. Chica, at para. 14. Further, at points in the cross-examination of the complainant it was apparent from the manner of trial counsel’s questioning that he did not accept her version of events: Quansah, at para. 82. For example, the transcript discloses the following exchanges:

Q. An[d] even after allegedly someone sexually assaults you, you still won’t try and talk to your friend?

A. My friend left me when this all – like when he got me into the room, my friend left me after she opened that door.

Q. And you’re saying that, um, he went up to a stranger who was having a video chat, put his hand over her mouth and around her waist and dragged her over a two-minute period of time while she’s video chatting to his bedroom, correct?

A. Yes.

[80] The appellant contends a further defect of trial counsel’s cross‑examination of the complainant was his failure to use the video of her police interview. According to the appellant, the video would show that at the time of the hallway incident the complainant was wearing “skin tight” leggings, which would cast doubt on her testimony that the appellant inserted his hands down the back of her pants. However, while the still photo taken from the police interview video included in the fresh evidence shows the complainant was wearing close fitting jeans, they could hardly be described as “skin tight” – folds and baggy sections are seen in the photo.

[81] Trial counsel’s closing submissions also demonstrated that he advanced the appellant’s case and conducted an adequate cross-examination of the complainant to support his theory of the defence. In his closing, trial counsel clearly stated that the defence was not taking the position there was no sexual act. Instead, the defence position was that there were inconsistencies in the Crown’s evidence that should give rise to a reasonable doubt. In his closing submissions, trial counsel identified approximately ten such inconsistencies or instances where the complainant’s testimony was implausible. Trial counsel’s submissions prompted the trial judge to inform Crown counsel that all of the defence’s submissions “were worthy” of a response but two in particular “demand a response”.

[82] Finally, the appellant submits trial counsel failed to bring a third party record application to obtain texts sent between the complainant and L.M. during and after events in the appellant’s apartment. He takes the position that such records “may have confirmed the complainant wanted to stay with the appellant and that [L.M.] was angry at her – thereby giving rise to a motive for the complainant to later lie to [L.M.] and police and claim she was sexually assaulted.”

[83] As the respondent Crown points out in its submission, the record on the fresh evidence application shows the information available to trial counsel prior to trial upon which he could assess the feasibility of a third party records application was as follows:

• the appellant’s police statement said nothing about the contents of the text messages as he told the police that he “didn’t pay attention exactly to read what the message said”; and
• L.M., in describing to the police the events after she left the appellant’s apartment, simply stated: “And [the complainant] was texting. I got the text message and I said, well, you can come down, ‘cause I’m not going back up there.”

[84] Putting to one side whether this thin record would have satisfied the “likely relevant” test for production of third party records, the appellant has not demonstrated that any prejudice resulted from the lack of a third party records application. As matters transpired, during the course of her cross-examination the complainant testified that L.M. sent her angry texts that suggested the complainant had willingly slept with the appellant. In his closing submissions, trial counsel stated that the angry text messages from L.M. to the complainant impacted the complainant’s credibility. And the trial judge asked Crown counsel to address the discrepancies between the complainant and L.M. regarding the text messages. The issue of the impact of the text messages on the complainant’s credibility was before the trier of fact.

Conclusion

[85] For the reasons set out above, I am not persuaded the appellant has demonstrated ineffective assistance by his trial counsel.

Disposition

[86] I would dismiss the appeal.

Released: July 6, 2023 “D.D.” “David Brown J.A.” “I agree. Doherty J.A.” “I agree. K. Feldman J.A.”