Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20230911 Docket: C67962

Before: Trotter, Thorburn and Favreau JJ.A.

Between: His Majesty the King, Respondent And: N.H., Appellant

Counsel: N.H., acting in person Erica Whitford, for the respondent

Heard: September 5, 2023 by video conference

On appeal from the conviction entered on December 13, 2019 and the sentence imposed on December 19, 2019 by Justice Louise L. Gauthier of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] On September 13, 2019, after a judge alone trial in the Superior Court of Justice, the appellant was convicted of four counts of assault and one count of sexual assault. The appellant’s former wife was the victim of all of these offences. On December 19, 2019, the appellant was sentenced to three years in custody.

[2] The appellant advances numerous grounds of appeal. He submits that his trial was unfair and that exculpatory evidence was not properly preserved by the Crown and the police. There is no basis to support these claims. The appellant also complains about the conduct of another judge who may have conducted his preliminary inquiry. Those proceedings are not the subject of, nor are they relevant to, this appeal. There can be no complaint whatsoever about the conduct of the trial judge.

[3] The appellant’s main ground of appeal involves an allegation of ineffective assistance of counsel. We are not persuaded that the appellant received ineffective assistance. To begin with, we note that defence counsel who appeared at trial had a limited role, having been appointed under s. 486.3 of the Criminal Code to cross-examine the victim and two children of the marriage, all of whom were called as Crown witnesses. Despite this limited appointment, this s. 486.3 counsel attempted to assist the appellant as well as he could.

[4] The appellant claims that s. 486.3 counsel failed to follow up on potential exculpatory evidence that the appellant brought to his attention. For example, the appellant claims that counsel failed to track down multiple police statements given by Crown witnesses. However, the record does not establish that these other statements existed.

[5] The appellant submits that s. 486.3 counsel failed to tender an audio recording made by the appellant that he says proves his point that he did not destroy a digital recording device in a fit of anger during the course of one of the assaults, as alleged by the victim. That recording was made available to the panel on appeal. The appellant submits that the recording was made on the same device that his wife said he destroyed. As s. 486.3 counsel explained during the cross-examination on his affidavit, the provenance of the recording could not be verified – i.e., the device on which the recording was made, as well as the time that it was made. Counsel was also of the view that the recording displayed the appellant in an unfavourable light. This was a reasonable appraisal.

[6] The appellant faults s. 486.3 counsel for failing to follow up on evidence of two of his neighbours who told the appellant that they saw his children crying; when asked why they were crying, the children said they had been told by the victim to lie at the appellant’s trial. Counsel said that he was never asked to find these witnesses. In any event, the two witnesses could not be tracked down by the time of trial. The appellant has still not tracked them down. It is difficult to see how this reflects any shortcoming on counsel’s part. The appellant further says that the police should have been engaged to find these witnesses. However, the record does not establish that the police were asked to assist, nor whether they would have been successful in locating these individuals.

[7] In general, s. 486.3 counsel explained in cross-examination on his affidavit that the appellant would tell him that he had exculpatory evidence (in the form of emails, for example), and assure counsel that he would follow up and provide more details but would never follow through with the necessary information.

[8] The record reveals that s. 486.3 counsel was competent in his representation. In his cross-examination of the victim, he challenged her on the broken recording device, among other issues that arguably impacted on her credibility. He also challenged the appellant’s two children on their observations, suggesting that they were inconsistent in certain respects. He made effective submissions to the trial judge in which he highlighted these shortcomings in the Crown’s case. The trial judge ultimately concluded that these features of the evidence were insignificant.

[9] The appellant further submits that his trial was rendered unfair because he was not permitted to sit at counsel table. This, he submits, hampered his ability to confer with counsel on a timely basis to identify shortcomings in the evidence. However, it was up to the trial judge to decide where the appellant was seated during the trial. The record reveals that the appellant had many opportunities to communicate with counsel, in between witnesses, and during breaks in the proceedings. We see no unfairness.

[10] Reviewing the fresh evidence record, the appellant has not established that the performance of s. 486.3 counsel fell below the standard of reasonable professional competence. Indeed, it suggests the opposite – that is, that s. 486.3 counsel discharged his obligations competently and went well beyond the scope of his appointment in trying to assist the appellant. There was no miscarriage of justice occasioned at the appellant’s trial.

[11] Lastly, the appellant complains that the hearing of his appeal was unnecessarily delayed. We disagree. The appeal was ready to be argued on April 21, 2021. It was delayed by the appellant’s insistence on pursuing his ineffective assistance of counsel claim, which we have concluded has no merit.

[12] The appeal is dismissed.

“Gary Trotter J.A.”

“Thorburn J.A.”

“L. Favreau J.A.”