WARNING The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152,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) MANDATORY ORDER ON APPLICATION — 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.

486.6 OFFENCE — (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.

DATE: March 14, 2023

ONTARIO COURT OF JUSTICE Old City Hall - Toronto

BETWEEN: HIS MAJESTY THE KING — AND — M.A.

For the Crown: D. Carbonneau For the Defendant: A. Moustacalis

Heard: June 23; October 3, 7; November 15, 25; December 20, 21; 2022. January 9, 13; 2023

POST-CONVICTION RULINGS

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] On August 20, 2021 I found M.A. guilty of various crimes committed against his then wife, E.A. In summary, in chronological order, those findings of guilt are with respect to the following counts:

(i) Assault between January 1 and December 31, 2011 in Hamilton, Ontario (ii) Assault between July 23 and 30, 2016 in Toronto, Ontario (iii) Assault between July 23 and 30, 2016 in Toronto, Ontario (iv) Unlawful confinement between July 23 and August 30, 2016, in Toronto, Ontario (v) Attempt to obstruct justice between July 23 and 30, 2016 and between February 1 and September 30, 2019 in Toronto, Ontario (vi) Sexual assault between September 1 and 30, 2016 in Toronto, Ontario (vii) Assault between June 1 and 30, 2017 in Niagara, Ontario (viii) Assault between December 28, 2018 and January 4, 2019 in Niagara, Ontario

[2] February 1, 2022, was eventually set for a sentencing hearing. On January 25, 2022, M.A., with new counsel Mr. Moustacalis, brought an adjournment application based on the following assertions:

1. That the Applicant was found guilty of multiple offences all related to his ex-wife, the Complainant E.A. on August 20, 2021.
2. The Applicant’s case was set to return for sentencing on November 22nd, 2021.
3. The Applicant retained new counsel on October 21st, 2021.
4. New counsel adjourned the Applicant’s sentencing on November 22nd, 2021, to February 1st, 2022.
5. The Applicant did not testify in his own defence or call any defence evidence.
6. The Applicant is going to be seeking to re-open his case to call the evidence of three or four witnesses, including himself.
7. The Applicant submits that in a judge alone trial the judge has the discretion to re-open a case when it is appropriate to do so (see: R. v. Lessard, 1976 ONCA 1417, [1976] O.J. No. 74 (C.A.)).
8. Counsel for the Applicant are also conducting discrete inquiries into the conduct of the trial and original trial counsel are in the process of responding to the Applicant.
9. The Applicant expects to have responses to inquiries and material ready in about 4 weeks.

[3] On the consent of the Crown, I granted the requested adjournment on January 26, 2022.

[4] On June 23, 2022, the parties appeared before me, including trial counsel, Ms. Scardicchio and Mr. Kapoor, representing Ms. Scardicchio. I issued certain directions and M.A.’s application pursuant to s. 11(b) of the Charter was heard on October 3, 2022.

B. THE 11(B) APPLICATION AND RULING

(a) Introduction

[5] The charges against M.A. fall into two chronological groups – (a) the original charges of assault (x2), unlawful confinement and obstruct justice which arose out of an information sworn September 2, 2016; and (b) the second set of charges of assault (x3) and sexual assault, arising out of an information sworn in March 2020. M.A.’s 11(b) application applies only to the first, older group of charges.

[6] It was agreed that the original information and warrant were sworn on September 2, 2016. The period between the issuance of the warrant and the arrest – September 2, 2016, to August 7, 2019 – is approximately 35 months. The period of time from the applicant’s arrest to the end of the evidence – August 7, 2019 to June 11, 2021 is approximately 22 months. The total period of time from the swearing of the warrant to the end of the evidence in the trial – September 2, 2016 to June 11, 2021 – is approximately 57 months (hereinafter referred to as “the total delay”).

[7] It is further agreed that M.A., a citizen of Saudi Arabia, did not reside in Canada between the issuance of the warrant and his arrest, yet returned to Canada to visit on several occasions during this period. He was arrested on his last entry into Canada on August 7, 2019.

[8] It is further agreed that the police notified the complainant on September 2, 2016, that a warrant had been issued for M.A.’s arrest. She told police that M.A. lived in Saudi Arabia and gave M.A.’s cell phone number to them at or around the same time.

(b) The positions of the parties

[9] Mr. Moustacalis argues that none of the delay is attributable to the defence and that M.A.’s absence from the country was not an exceptional circumstance such as to stop the Jordan clock from ticking.

[10] Ms. Carbonneau argues that the Jordan clock in this case didn’t start to tick upon the swearing of the information, but rather upon M.A.’s arrest. As for the remaining delay, she argues that much of it is attributable to the exceptional circumstances created by the COVID pandemic.

[11] In the alternative, she argues that M.A.’s extended absence from the country should be seen as defence delay. In the further alternative she argues that M.A.’s absence, if not defence delay, was an exceptional circumstance and that the police did everything in their power to apprehend M.A.

[12] Mr. Moustacalis argues further that should his 11(b) argument prevail, the findings of guilt on the newer charges must also be set aside. He essentially argues that the staying of the older charges renders the entire trial proceedings unfair. He argues that a stay of proceedings is tantamount to an acquittal, and that my findings of credibility, based as they were in part on the evidence I heard on the older set of charges, can no longer stand. Ms. Carbonneau disagrees.

(c) The evidence of M.A.

[13] An affidavit was filed by M.A. That affidavit was supplemented with viva voce testimony. The salient aspects of M.A.’s evidence are as follows.

[14] M.A. resided in Saudi Arabia between 2016 and the date of his arrest in 2019. He entered Canada as a visitor at least four times between the date of the warrant and his arrest in 2019. He did not know that there were charges against him, nor any warrant for his arrest until he was arrested.

[15] His cell phone number was the same throughout this period, and his wife, the complainant, knew his number throughout this period. He never received a call from the police, nor anyone else, telling him about the charges against him.

[16] He agreed that during this period his life was unaffected by the outstanding charges.

[17] M.A.’s testimony was not successfully challenged either on cross-examination or by other evidence. I accept it.

(d) The evidence of Cheryl Fuller

[18] Officer Fuller of the Canadian Border Services Agency (CBSA) arrested M.A. on August 7, 2019. She was alerted to the warrant for his arrest when she scanned his passport. She could not explain why the warrant did not appear on the prior occasions that he had entered the country even though CBSA’s computer system had been linked to CPIC since 2015. The record she brought to court showed three entries by M.A., but she could not vouch for the record’s accuracy, not having compiled it herself.

[19] Sometimes police go directly to CBSA’s intelligence division to alert them about wanted parties who may seek to enter Canada. It did not appear to Ms. Fuller that the police had taken that step in M.A.’s case.

(e) R. v. Jordan

[20] Section 11(b) of the Charter states: “Any person charged with an offence has the right … to be tried within a reasonable time”. In R. v. Jordan, 2016 SCC 27, the majority of the Supreme Court adopted a new s. 11(b) framework designed to combat the “excessive delays” and “culture of complacency” in the courts.

[21] A majority of the Court emphasized the central importance of a right to trial within a reasonable time in the following terms.

[22] Trials within a reasonable time are an essential part of our criminal justice system’s commitment to treating presumptively innocent accused persons in a manner that protects their interests in liberty, security of the person, and a fair trial. Liberty is engaged because a timely trial means an accused person will spend as little time as possible held in pre-trial custody or living in the community under release conditions. Security of the person is impacted because a long-delayed trial means prolonging the stress, anxiety, and stigma an accused may suffer. Fair trial interests are affected because the longer a trial is delayed, the more likely it is that some accused will be prejudiced in mounting a defence, owing to faded memories, unavailability of witnesses, or lost or degraded evidence.

[23] At the heart of the Jordan model is a ceiling beyond which delay is presumptively unreasonable: 18 months for trials in the provincial courts and 30 months for trials in superior court. The presumptive ceiling is not an aspirational target. Rather, it is the point at which delay becomes presumptively unreasonable. The public should expect that most cases can and should be resolved before reaching the ceiling.

[24] The Jordan analysis begins by taking the total delay from the charge to anticipated end of trial and subtracting defence delay to arrive at net delay. Defence delay is that which is caused “solely” or “directly” by the defence, and includes periods covered by an 11(b) waiver, periods where the Court and Crown are ready to proceed but the defence is not, or delays caused by frivolous applications calculated to delay the trial.

[25] If the net delay exceeds the ceiling, then the prosecution bears the burden of rebutting the presumption of unreasonable delay. This is a “strong presumption” that can only be rebutted in “exceptional circumstances”.

[26] Below the ceiling, delay will be unreasonable if the defence can show that the case took markedly longer than it reasonably should have despite sustained defence efforts to expedite the proceedings. The components of the Jordan analysis are set out in further detail below.

[27] A key change from the pre-Jordan framework is that prejudice no longer plays a specific role in the s. 11(b) analysis. When the presumptive ceiling is breached, prejudice to the accused’s Charter-protected interests — liberty, security of the person, and a fair trial — is presumed. This is not a rebuttable presumption.

[28] In the case at bar, a trial in the provincial court, the 18-month period applies.

(f) When does the 18-month period begin?

[29] Is delay calculated from the date the information is sworn or the date of arrest? The Supreme Court has ruled that the clock starts to tick with the swearing of the information. R. v. K.J.M., 2019 SCC 55, para 88 and R. v. Kalanj, [1989] 1 S.C.R. 1594. The Court of Appeal for Ontario has followed suit R. v. E. (K.), 2013 ONCA 175.

[30] While there are some lower court decisions that have not followed these rulings, e.g., R. v Magiri, 2017 ONSC 2818, [2017] O.J. No. 2504 (S.C.J.) at paras. 8-11 and R. v Millar, 2016 BCSC 1887, [2016] B.C.J. No. 2144 (B.C.S.C.), I disagree with those decisions on that issue. I prefer the reasoning of Coroza J. (as he then was) in R. v. Thind, 2018 ONSC 1337, and that of Blacklock J. in R. v. Sundralingam, 2017 ONCJ 400.

[31] The total delay in this case is thus close to six years. Even if I were to deduct a generous period related to the COVID pandemic the delay is well over 18 months and is presumed to be unreasonable.

(g) Is the defence responsible for any of this delay?

[32] M.A. did not take any steps to avoid prosecution. Unlike the accused in R. v. Burke, 2018 ONCA 594, [2018] O.J. No. 3452 (C.A.), he was not a fugitive from justice. None of the delay in this case can properly be characterized as defence delay.

(h) Has the Crown demonstrated exceptional circumstances?

[33] In Jordan, the majority held that the presumption of unreasonable delay can only be rebutted where the prosecution can show “exceptional circumstances”, meaning circumstances (1) outside the prosecution’s control that are reasonably unforeseen or reasonably unavoidable; and (2) resulting in delay that cannot reasonably be remedied by the prosecution. To justify a delay above the ceiling, the Crown must also show that it took reasonable steps to mitigate any delay caused by exceptional circumstances. Jordan, supra, at paras. 69 – 83.

[34] In my view the Crown has failed to demonstrate that it took reasonable steps to mitigate this delay.

[35] No police witnesses were called to explain what steps they took to bring the charges to M.A.’s attention. Simply putting the warrant on CPIC is not enough, especially since the police had M.A.’s phone number. Officer Fuller’s testimony supports a conclusion that the police did not reach out to CBSA intelligence. M.A.’s testimony supports a conclusion that the police never even bothered to call him. R. v. Lopes, [2008] OJ No 573 (SCJ); R. v. Chan, 2008 BCPC 95; R. v. Boutin, 2016 SKQB 77 (SCA) at para 38, citing R. v. Patrick, 2012 SKQB 331 at paras 14-18; R. v. Arthur, [2021] O.J. No. 3835, paragraphs 41-71; R. v. MacIntosh, 2011 NSCA 111, aff’d 2013 SCC 23, [2013] 2 SCR 200, at para 70.

(i) Conclusion

[36] The four charges on the original information are stayed.

(j) Does the 11(b) stay necessitate a mistrial?

[37] It was at one time the law that because a stay of proceedings is tantamount to an acquittal, evidence underlying the stayed charges was not admissible in a proceeding involving other charges against the accused, whether offered as similar act evidence or not. R. v. Grant, [1991] 3 S.C.R. 139; R. v. Barnes, [1991] 1 S.C.R. 449; R. v. Field, [2004] O.J. No. 1437 (S.C.J.) Grdic v. The Queen, [1985] 1 S.C.R. 810. If that were still the case, there might be some question as to whether my findings of guilt on the newer charges could survive the stay of the older charges. After all, I heard the evidence on all the charges and made credibility findings based on all the evidence.

[38] This approach to issue estoppel was radically modified by the Supreme Court in R. v. Mahalingan, 2008 SCC 63. McLachlin C.J. explains at para 23:

It is thus not every factual issue in the trial resulting in an acquittal which results in an estoppel at a subsequent trial, but only those issues which were expressly resolved or, given how the case was argued, had to be resolved for there to be an acquittal. If a particular issue was decided in favour of the accused at a previous trial, even if the issue was decided on the basis of reasonable doubt, issue estoppel applies. The determination of whether an issue was decided at a first trial, either expressly or necessarily as a prerequisite to an acquittal, must be based on a review of the relevant portions of the transcript of the first trial, in particular, the allegations, the nature of the Crown's case, and the defence's case: Grdic, at p. 826. The accused claiming issue estoppel bears the burden of showing that a particular issue was decided in his or her favour in a previous proceeding.

[39] While a stay for a violation of s. 11(b) of the Charter is tantamount to an acquittal, issue estoppel no longer prevents the Crown from leading the evidence underlying the stayed charges in another proceeding, presuming that evidence is otherwise admissible.

[40] The application for a mistrial of the second set of charges based on the 11(b) stay of the older charges is dismissed.

C. THE MISTRIAL/REOPENING APPLICATION

(a) Introduction

[41] Mr. Moustacalis, on behalf of M.A., requests that I, the trial judge who found M.A. guilty, either reopen the trial or declare a mistrial. Broadly speaking, he argues that (1) because of M.A.’s trial counsel’s ineffective assistance to M.A., he received incompetent advice as to whether to testify (which he did not do), and (2) trial counsel’s conduct of the case was ineffective, especially as concerns her decision not to call witnesses who had strong exculpatory evidence to offer. In the alternative, he argues that even if the threshold of ineffective assistance of counsel is not met, considering the fresh evidence (detailed below), to enter a conviction and sentence M.A. would constitute a miscarriage of justice.

[42] In support of his application Mr. Moustacalis has presented fresh evidence in the form of affidavit and viva voce testimony from M.A. and three other witnesses. These four witnesses have each been cross-examined before me.

[43] In response to the application, Ms. Carbonneau has provided an affidavit from trial counsel, Ms. Scardicchio, who was also cross-examined before me.

[44] Ms. Carbonneau argues that M.A.’s decision not to testify was not based on ineffective advice and that he must live with the consequences of that decision, and Ms. Scardicchio’s decision not to call other evidence. She further argues that trial counsel’s assistance to M.A. was not ineffective, and that the fresh evidence does not meet the requirements of the test in R. v. Palmer (1979), [1979] 2 S.C.R. 841, 50 C.C.C. (2d) 193 (S.C.C.), and thus cannot support the remedies sought.

(b) The law governing the application

[45] Both parties agree that a trial judge, sitting without a jury, is empowered to set aside his finding of guilt anytime prior to the imposition of sentence. Martin J.A., in R. v. Lessard, 1976 ONCA 1417, [1976] O.J. No. 74 (C.A.) at paras. 10 and 12 put it as follows:

A judge exercising the functions of both judge and jury is not functus officio following a finding of guilt until he has imposed sentence or otherwise finally disposed of the case…

I see no reason why a trial judge who has made a finding of guilt on disputed facts is not also empowered to vacate the adjudication of guilt at any time before the imposition of the sentence, although it is a power which, I cannot stress too strongly, should only be exercised in exceptional circumstances and where its exercise is clearly called for.

[46] The power to reopen is founded on “the duty of the court to clear the innocent -- a duty equal or superior in importance to its duty to convict and punish the guilty": R. v. Griffith, 2013 ONCA 510, at para. 16. Indeed, as Rosenberg J.A. further articulated in Griffith at para. 29: “[I]t seems to me that it would bring the administration of justice into disrepute to require a judge to impose sentence when he has come to doubt his own reasons and voiced those concerns to the parties”.

[47] Justice Doherty in R. v. Kowall, 1996 ONCA 411, [1996] O.J. No. 2715 (C.A.) at paras. 31 and 32 set out the test a trial judge should apply on an application to re-open after conviction, or a finding of guilt. He explained:

The test for re-opening the defence case when the application is made prior to conviction has been laid down by this court in R. v. Hayward (1993), 1993 ONCA 14679, 86 C.C.C. (3d) 193. However, once the trial judge has convicted the accused a more rigorous test is required to protect the integrity of the process, including the enhanced interest in finality. It seems to have been common ground in this case that the most appropriate test for determining whether or not to permit the fresh evidence to be admitted is the test for the admissibility of fresh evidence on appeal laid down in Palmer and Palmer v. The Queen (1979), [1979] 2 S.C.R. 841, 50 C.C.C. (2d) 193, at page 205 (S.C.C.) (see: R. v. Mysko (1980), 1980 SKCA 2057, 2 Sask.R. 342 (C.A.)). That test is as follows:

(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases ...; (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (3) the evidence must be credible in the sense that it is reasonably capable of belief; (4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

These criteria provide helpful guidance to a trial judge faced with an application to reopen after conviction. In addition to the Palmer criteria, a trial judge must consider whether the application to reopen is in reality an attempt to reverse a tactical decision made at trial. Counsel must make tactical decisions in every case. Assuming those decisions are within the boundaries of competence, an accused must ordinarily live with the consequences of those decisions. Should the trial judge find that the test for reopening has been met, then the judge must consider whether to carry on with the trial or declare a mistrial.

[48] As concerns the due diligence requirement, the Supreme Court of Canada in R. v. G.D.B., 2000 SCC 22 at para.19 had this to say:

The due diligence criterion exists to ensure finality and order -- values essential to the integrity of the criminal process. R. v. M. (P.S.) (1992), 1992 ONCA 2785, 77 C.C.C. (3d) 402 (Ont. C.A.), [page 529] per Doherty J.A., at p. 411:

The interests of justice referred to in s. 683 of the Criminal Code encompass not only an accused's interest in having his or her guilt determined upon all of the available evidence, but also the integrity of the criminal process. Finality and order are essential to that integrity. The criminal justice system is arranged so that the trial will provide the opportunity to the parties to present their respective cases and the appeal will provide the opportunity to challenge the correctness of what happened at the trial. Section 683(1)(d) of the Code recognizes that the appellate function can be expanded in exceptional cases, but it cannot be that the appellate process should be used routinely to augment the trial record. Were it otherwise, the finality of the trial process would be lost and cases would be retried on appeal whenever more evidence was secured by a party prior to the hearing of the appeal. For this reason, the exceptional nature of the admission of "fresh" evidence on appeal has been stressed: McMartin v. The Queen, supra. ...

However, jurisprudence pre-dating Palmer has repeatedly recognized that due diligence is not an essential requirement of the fresh evidence test, particularly in criminal cases. That criterion must yield where its rigid application might lead to a miscarriage of justice. McMartin v. The Queen, [1964] S.C.R. 484, per Ritchie J. at p. 491:

In all the circumstances, if the evidence is considered to be of sufficient strength that it might reasonably affect the verdict of the jury, I do not think it should be excluded on the ground that reasonable diligence was not exercised to obtain it at or before the trial.

In R. v. Price, [1993] 3 S.C.R. 633, per Sopinka J. at p. 634:

... we agree with the conclusion of the Court of Appeal that the evidence should be admitted as fresh evidence and the conclusion to direct a new trial. While the exercise of due diligence is one of the significant factors, it is not applied strictly in criminal cases and must be applied in light of the other relevant factors. The amount [page530] of weight to be given to this factor depends on the strength of the other factors, in other words, on the totality of the circumstances.

Also Warsing, supra, at para. 51. The due diligence requirement is one factor to be considered in the "totality of the circumstances". The importance of this criterion will vary from case to case.

[49] Proof of incompetence of trial counsel will generally satisfy the due diligence test in Palmer: See R. v. G.D.B., 2000 SCC 22, supra.

[50] When considering whether a mistrial is the appropriate remedy in such circumstances, it must be recalled that a mistrial must only be declared in the clearest of cases. R. v. Arabia, 2008 ONCA 565 at para. 52.

[51] The caselaw on ineffective assistance of counsel (IAC) has developed mostly in the context of appeal decisions. One of the most recent Court of Appeal reviews of the principles involved can be found in R. v. Sararas, 2022 ONCA 58. Rouleau J.A. summarized the law at paras 41-46 as follows:

It is well-established that a represented accused is entitled to receive effective assistance. This right flows, in part, from ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R 520, at para. 24. To succeed on the ground of ineffective assistance of counsel, the appellant must show that trial counsel’s assistance was so ineffective that the appellant’s conviction is the product of a miscarriage of justice: R. v. Joanisse (1995), 1995 ONCA 3507, 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 57, leave to appeal refused, [1996] S.C.C.A. No. 347. Counsel’s conduct can result in a miscarriage of justice either by rendering the trial unfair, referred to as the procedural fairness branch, or by rendering the verdict unreliable, referred to as the unreliable verdict branch: R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at para. 54.

Regardless of the nature of the ineffective assistance or the resulting analytical route, appellants alleging ineffective assistance of counsel must establish three elements. First, they must prove the contested facts underpinning their allegation on a balance of probabilities. Second, they must demonstrate that trial counsel’s acts or omissions amounted to incompetence. Third, they must show that trial counsel’s ineffective performance led to a prejudice in the form of a miscarriage of justice: R. v. Archer (2005), 2005 ONCA 36444, 203 O.A.C. 56 (C.A.), at para. 119.

Appellate courts measure trial counsel’s competence against a standard of reasonableness. The carriage of a defence at trial involves innumerable decisions that no two lawyers will navigate in the same way. In light of the wide range of options open to counsel, reviewing courts presume trial counsel to have acted competently and review counsel’s assistance deferentially without the distortion of hindsight: Joanisse, at p. 61. As Doherty J.A. explained, “[m]any decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction”: Archer, at para. 119.

Where the verdict’s reliability is at issue, appellants must demonstrate that, had they received effective assistance, there is a reasonable probability that the result of the proceeding would have been different: Joanisse at p. 64, citing Strickland v. Washington, 104 S. Ct. 2052 (1984) at p. 2068. A reasonable probability, lying somewhere between a mere possibility and a likelihood, satisfies the reviewing court that the verdict at issue cannot be taken as a reliable assessment of the appellant’s culpability: Joanisse, at p. 64.

The Supreme Court of Canada has opined that the ineffective assistance analysis should normally begin with the prejudice component. “If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow”: G.D.B., at para. 29.

However, notwithstanding the relatively well-settled parameters guiding ineffective assistance claims, determining whether trial counsel’s assistance resulted in a prejudice is an intensely factual enquiry: R. v. Belcourt, 2020 SKCA 73, 389 C.C.C. (3d) 303, at para. 76.

[52] The issue of IAC gets somewhat different treatment in the context of an application for a mistrial. The Court of Appeal said this in R. v. G.C., 2018 ONCA 392 at paras 3 and 4:

The appellant maintains that the trial judge erred in law by failing to apply the same standard as that used to assess claims for ineffective assistance of counsel on appeal. On appeal, the test focusses on whether there is a "reasonable possibility" that a miscarriage of justice resulted from ineffective assistance at trial: R. v. Stark, 2017 ONCA 148, 347 C.C.C. (3d) 73, at paras. 14-15. The test for a mistrial is different. The decision whether to grant a mistrial is a matter that lies within the discretion of the trial judge, "who must assess whether there is a real danger that trial fairness has been compromised": R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 79.

We disagree that the same test to assess ineffective assistance claims on appeal should apply at trial. An incompetence of counsel claim, brought during the course of a trial, should be approached within the principled framework for mistrial applications. Bearing in mind the unique dynamics of each trial, judges need to be left with a broad discretion to manage the trial process. A mistrial is a remedy of last resort, and it falls squarely within the discretion of the trial judge who is in the best position to assess whether such a remedy is needed in order to avoid miscarriages of justice. No new test is required.

[53] I find it difficult to discern whether the Court of Appeal, when referring to a different standard at the trial stage is referring to a different standard in the identification of IAC or a different standard as concerns the likelihood of prejudice. I tend to favour the latter interpretation, but as will become clear in these reasons, I do not find it necessary to resolve this conundrum.

(c) The fresh evidence

1. M.A.’s testimony

[54] M.A. submitted an affidavit, testified in-chief and was cross-examined before me. He provided a detailed denial of all the criminal allegations against him. He also contradicted the complainant’s evidence on many of the more collateral aspects of her testimony. He described a tumultuous relationship with E.A. where she would often extort gifts from him and threaten to deprive him of contact with their children.

[55] M.A. had no criminal record prior to this trial. He was born in Saudi Arabia and was married to the complainant, E.A. at all material times. He has a university education and was employed in Saudi Arabia and in Canada prior to being charged, at which point his Canadian work visa was rescinded.

[56] He explained his decision not to testify as follows: M.A. was told by his trial counsel, Ms. Scardicchio, that whether he testified was his decision to make. He was always prepared to testify but felt it appropriate to take Ms. Scardicchio’s professional advice on the matter. She advised him that it was not a good idea to testify. She explained that the trial judge would not draw an adverse inference from a decision not to testify, and that his testimony was unnecessary because, in her opinion, she had destroyed the complainant’s evidence in cross-examination and, as a result, the Crown’s case was insufficient to prove the allegations beyond a reasonable doubt. He did not want to prolong the case or spend more money if he could win without testifying. M.A. also spoke to Ms. Scardicchio’s associate, who gave him the same advice.

[57] As concerns the many text messages that defence counsel put to E.A. in cross-examination, he testified that if he had testified, he would have been able to clear up all the inadequacies of that evidence as remarked on by the trial judge. When he decided not to testify, he was not aware that the trial judge might find the evidence wanting as regards the text messages. Had he known this he would have testified.

[58] Ms. Scardicchio and M.A. discussed the individuals that he had introduced to her as possible defence witnesses, including those referenced below. She told him she was not going to call them because it was not necessary.

[59] During the trial M.A. was happy with Ms. Scardicchio’s performance and the degree to which she kept him up to date as matters developed.

[60] M.A. was cross-examined at length. Nothing in his cross-examination leads me to consider his testimony unworthy of belief. Parts of it are inconsistent with the evidence of the security guard who said he encountered M.A. and E.A. on one occasion in the hall with two of their children, but by and large, he was not successfully impeached. His testimony is highly relevant and quite capable of belief. If believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

2. The testimony of Ms. M.A.

[61] Ms. M.A. is the accused’s sister. They are extremely close. She provided an affidavit, testified in chief, and was cross-examined by video link before me.

[62] Her testimony centred upon an alleged assault by M.A. on E.A. which E.A. described as having occurred in an apartment shared by E.A. and Ms. M.A. Ms. M.A. denies that M.A. assaulted E.A.

[63] Ms. M.A.’s testimony corroborates that of M.A. and markedly contradicts A.E.’s trial evidence. Her testimony describes E.A. as volatile and manipulative.

[64] Ms. M.A. spoke to Ms. Scardicchio or her associate several times with an interpreter and made them familiar with her potential testimony.

[65] Ms. M.A. was cross-examined at length. In my view, she was not successfully impeached, and her testimony is relevant and quite capable of belief. If believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result, because it directly rebuts E.A.’s evidence as concerns one of the assault counts, and is so significantly at odds with the evidence of E.A. It also paints a picture of E.A. that would tend to undermine her credibility.

3. The testimony of Nasser Dahoui

[66] Mr. Dahoui was born in Beirut and has been friends with M.A. for many years. He owns a restaurant in Niagara Falls. He is also close to E.A. whom he treats as he would his own daughter.

[67] He supplied an affidavit, testified before me, and was cross-examined.

[68] His evidence focussed on a particular telephone conversation he had with E.A. on September 14, 2019. To properly understand the import of his testimony it must be recalled that during the trial, E.A. had testified that Mr. Dahoui had called her and tried to convince her to recant her allegations against M.A. E.A. had recorded this Arabic conversation and had supplied a copy of the recording to the prosecution, who had in turn disclosed it to defence counsel prior to the trial. That recording was not fully translated by either the Crown or the defence prior to E.A.’s testimony at trial.

[69] The recorded conversation was eventually translated in its entirety and was made an exhibit on the application to re-open. Both parties agreed that the translation was accurate. Mr. Dahoui identified the conversation and said it was the only telephone conversation he had had with E.A. in many months. As is clear from the translation, and Mr. Dahoui’s testimony, he never threatened her, nor tried to convince her to recant. He describes the call as his attempt to learn why E.A. had not brought her parents to see him at his restaurant when they were in Canada. His explanation is essentially borne out by the translation of the call. He was not seriously impeached on cross-examination.

[70] In my opinion, Mr. Dahoui’s testimony is relevant and quite capable of belief. If believed it could reasonably, when taken with the other evidence adduced at trial, and in connection with any one of the other fresh evidence witnesses, be expected to have affected the result.

4. The testimony of Mohamad Zahwi

[71] Mr. Zahwi supplied an affidavit, was examined in chief, and cross-examined before me. His testimony focussed on the encounter he had with E.A. in her apartment lobby in 2016. E.A. testified at trial that he had come to see her at the behest of M.A. and had threatened her in the context of trying to convince her to recant whatever allegations she had made to the police earlier that week.

[72] Mr. Zahwi has been a friend of M.A. since 2003. He testified that it was his idea to go speak to E.A. after he had learned that E.A. had refused to board a plane to Turkey as planned with M.A. He denied threatening E.A. He said that E.A. told him in that conversation that she wanted to break M.A.’s heart and make sure he doesn’t see his kids again. Mr. Zahwi asked her why and she kept talking about more money that M.A. was supposed to give her.

[73] Mr. Zahwi discussed the details of his potential testimony with Ms. Scardicchio.

[74] Mr. Zahwi was not impeached on cross-examination. In my opinion his testimony is relevant and quite capable of belief. If believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result, especially as concerns the alleged obstruction of justice.

5. The testimony of Ms. Scardicchio

[75] Ms. Scardicchio provided an affidavit, testified, and was cross-examined before me.

[76] Ms. Scardicchio was called to the Ontario Bar in 2012. She practised criminal law exclusively until 2014 and has had a mixed practice since then. She is a member in good standing of the Law Society of Ontario as well as numerous other lawyers’ associations.

[77] Ms. Scardicchio’s trial strategy was to undermine the complainant’s evidence through cross-examination and then call M.A. as a witness if he chose to testify. Had he chosen to testify, other witnesses would also have been called for the defence.

[78] Ms. Scardicchio’s affidavit sets out numerous reasons why she believed at the end of the Crown’s case that the complainant’s credibility and reliability were sufficiently lacking such that the Crown had failed to prove its case beyond a reasonable doubt. According to Ms. Scardicchio, she shared her opinion with M.A., and he agreed with her assessment of the weakness of the complainant’s testimony.

[79] In cross-examination Ms. Scardicchio agreed that in a case such as M.A.’s, unless the complainant’s evidence has been destroyed on cross-examination or she has recanted, denial evidence needs to be called. She believed, however that she had succeeded in destroying E.A.’s testimony through her cross-examination.

[80] Ms. Scardicchio met with M.A. seven or eight times to discuss with him his option of testifying. She made it clear to him that it was his decision to make. She made clear to him how the trial judge would treat his evidence if he did testify. She also made it clear to him that the trial judge would not use his decision not to testify as evidence of his guilt.

[81] During his preparation Ms. Scardicchio was concerned about his lack of focus which she brought to his attention.

[82] Ms. Scardicchio was cross-examined in detail regarding her decision not to call any evidence regarding the integrity of the set of text messages that she had put to the complainant, even though she knew that such evidence was available from M.A. She believed that because the complainant had agreed that all the texts purporting to come from her did indeed come from her, no such evidence was required. She chose not to seek to re-open when the trial judge expressed concern about whether the entirety of the text exchanges was before the court, believing that she had sufficiently assuaged the trial judge’s concerns through her submissions.

[83] After M.A. chose not to testify, Ms. Scardicchio decided not to call any of the other available defence witnesses. In her affidavit she explains why as follows: “Given that the Applicant made the decision not to testify, I felt that calling other witnesses would only be necessary if it were clearly exculpatory and did not rely in any way upon the Applicant.” She discussed this with M.A., and he agreed with her decision not to call any defence witnesses. She did not believe that M.A.’s decision not to testify was motivated by any desire on his part not to prolong the proceedings. He had never articulated such a concern to her.

[84] As concerns Ms. M.A., Ms. Scardicchio believed that because she was M.A.’s sister her evidence would not carry much weight. She was also concerned that she would have had to testify remotely from Saudi Arabia because she was eight months’ pregnant at the time.

[85] Ms. Scardicchio did not think that Mr. Zahwi’s evidence would be material without M.A.’s testimony.

[86] She did not believe that Mr. Dahoui’s evidence would carry any weight without M.A.’s testimony. She mistakenly believed that the entire conversation between him and the complainant, that was the subject of her trial testimony, was translated and before the trial judge.

(d) Applying the law to the fresh evidence

1. Is the Palmer test met?

[87] Setting aside for the moment the question of due diligence, as can be gleaned from my comments in setting out his evidence (supra), in my view, M.A.’s evidence alone satisfies the other three criteria for its admission as fresh evidence. The evidence of Ms. M.A., even standing alone meets these three criteria. Mr. Zahwi’s evidence alone satisfies the three criteria as concerns the alleged obstruction of justice. Mr. Dahoui’s testimony alone would not be reasonably expected to alter the result, but in conjunction with any of the other witnesses’ testimony, it would.

[88] It follows that the fresh evidence, taken as a whole, meets the three criteria. In my view it is appropriate to treat it all as one package, especially since it all flows from Ms. Scardicchio’s advice to M.A. concerning whether he should testify, and her decision not to call the other three witnesses.

2. Due Diligence and the allegations of incompetence

[89] The entirety of the fresh evidence was available at trial and could have been adduced. But the due diligence enquiry is not that simple. It requires, among other things, an examination and evaluation of trial counsel’s competence.

[90] M.A.’s allegations of incompetence can be summarized as follows:

1. Ms. Scardicchio grossly overestimated the success of her cross-examination which led her to give M.A. bad advice as to whether to testify.
2. Ms. Scardicchio’s decision not to call Ms. M.A., Mr. Zahwi and Mr. Dahoui was patently wrong.
3. Ms. Scardicchio failed to appreciate the deficiencies in the text messages, which further contributed to her bad advice to M.A. as to whether to testify.

[91] I begin my analysis of Ms. Scardicchio’s performance by saying that, in my opinion, Ms. Scardicchio worked extremely hard on this file. That is apparent from her file notes, and her performance before me during the trial. I have no doubt that she always had M.A.’s best interests in mind.

[92] I am critical of Ms. Scardicchio’s failure to prepare a translation of the recorded conversation between E.A. and Nasser Dahoui. Had she done so, she could have used it to good effect in the cross-examination of E.A.

[93] I am also critical of Ms. Scardicchio’s failure to appreciate the importance of calling evidence to prove the entire context of the text messages put to E.A. in cross-examination.

[94] As concerns Ms. Scardicchio’s advice to M.A. not to testify, it must be recalled that the right to testify at one’s trial is constitutionally guaranteed. An accused may be unfairly deprived of the opportunity to make an informed and voluntary decision whether to testify when he receives demonstrably incompetent advice from counsel about whether to testify.

[95] As Justice Hill explains in R. v. Ukwuaba, 2015 ONSC 8044 at para. 54:

[T]he expectation is that counsel who advises a client should know and understand the law relevant to the task at hand: R. v. Shabani, [2015] EWCA Crim 1924, at para. 15. Counsel's legal advice should fall within the range of advice of a reasonably competent lawyer presented with the relevant facts of the situation. Different counsel, based on experience, judgment or tactics, may well make different recommendations, reasonably and competently so, to an accused in similar circumstances. There is a strong presumption that trial counsel's assistance was competent: R. v. Trudel, 2015 ONCA 422, at para. 32. The benefit of hindsight cannot become the measure of the competence standard.

[96] That Ms. Scardicchio believed that she had succeeded in “destroying” the Crown’s case was not, in my opinion, incompetent as defined in the caselaw, although of course I think her assessment of the success of her cross-examination was wrong. The impact of this wrong assessment was exacerbated by not properly preparing for a situation where her assessment was not shared by the trial judge. Calling the four witnesses would have insulated M.A. from this risk, and at no cost.

[97] This was not a jury trial where, as most experienced counsel appreciate, there is sometimes a price to pay for calling a defence witness whose evidence is rejected by the jury. The jury might not simply reject and ignore the evidence. Even after being instructed not to, they might draw damaging inferences against the accused. M.A.’s trial was a judge alone trial. The worst that could have happened was that the trial judge might disbelieve the defence evidence in its entirety. In that case, the trial judge would simply ignore it.

[98] In R. v. Maciel, 2007 ONCA 196 at para. 51 Doherty J.A. while discussing the notion that an accused must live with the tactical decisions made at trial, offers a definition of “tactical” in this sentence: “Where the proffered evidence was not led at trial because of a calculated decision made by an accused, the integrity of the criminal justice system will suffer if the evidence is received on appeal and a new trial is ordered”. (emphasis added).

[99] The evidence of the four witnesses is extremely exculpatory. Ms. Scardicchio did not fear that any of the witnesses would inculpate M.A., which, had she felt that way, would have raised tactical issues i.e., would calling them pose too much of a risk. Such tactical decisions are the type of decision that the Court of Appeal has warned that an accused must live with. But in the case of M.A., nothing in the testimony of Ms. Scardicchio suggests that her decision not to call this evidence was a tactical or calculated decision. The only reason given for not calling these witnesses (or in the case of M.A., advising him not to testify), was because Ms. Scardicchio believed that their evidence was unnecessary. This is in stark contrast to the situation in Maciel, where the accused chose not to testify at his jury trial knowing that on cross-examination, he would have to reveal his involvement in a separate shooting. See too R. v. Kaczmarek, 2021 ONCA 771.

[100] The jurisprudence makes clear that accused individuals whose counsel make tactical decisions and are then convicted must live with the results of those tactical decisions if those decisions fall within the wide range of competent advocacy and representation. Such tactical decisions will usually doom the fresh evidence application on the criterion of due diligence. Our appeal courts are the appropriate venue for challenging such convictions.

[101] A trial judge dealing with an application to reopen where there have been errors made by counsel that are not tactical decisions, must temper the application of the due diligence criterion commensurate with the seriousness of counsel’s error and inquire into whether the entirety of the circumstances, including the strength of the evidence, supports the conclusion that sentencing the accused to prison would be a miscarriage of justice.

3. Would excluding the fresh evidence and imprisoning M.A. constitute a miscarriage of justice?

[102] I am in a difficult position. As the trial judge, I found the uncontradicted testimony of the complainant credible and convincing. The entirety of the evidence I heard on the trial convinced me beyond a reasonable doubt of M.A.’s guilt. As the judge hearing the application to re-open, I have heard a significant body of new evidence which, even after cross-examination, seriously undermines the strength of the Crown’s case. It is my opinion that this is an exceptional case and that it would indeed be a miscarriage of justice to dismiss the application and proceed to sentencing, which sentencing would surely result in M.A.’s imprisonment. I repeat the dicta of Rosenberg J.A.: to reopen is founded on “the duty of the court to clear the innocent -- a duty equal or superior in importance to its duty to convict and punish the guilty": “[I]t seems to me that it would bring the administration of justice into disrepute to require a judge to impose sentence when he has come to doubt his own reasons and voiced those concerns to the parties”: R. v. Griffith, 2013 ONCA 510, at paras. 16 and 29.

[103] The fresh evidence is admitted, and the findings of guilt are set aside.

4. What is the appropriate remedy?

[104] Having set aside the findings of guilt I can either render a new verdict, after considering all the evidence, or I can declare a mistrial, which would allow the Crown to convene a new trial before a new judge.

[105] Ms. Carbonneau urges me to render a new verdict. Mr. Moustacalis candidly points out that if I were to reweigh all the evidence and then maintain the conviction, there would be an overwhelming appearance of unfairness, since I have already made favourable findings regarding the credibility of E.A. See R. v. Drysdale, 2011 ONSC 5451. He thus asks that I re-open and render a new verdict only if it is a verdict of acquittal. Otherwise, he asks for a mistrial.

D. CONCLUSION

[106] Having admitted the fresh evidence and having set aside the finding of guilt, I now turn to re-evaluating the case. Because M.A. testified and denied committing the alleged offences, I must apply the principles of R. v. W.D., [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26.

[107] If I accept M.A.’s testimony, he must, of course, be acquitted of the charges. Even if I do not accept his testimony, if his testimony, alone, or along with other evidence, leaves me with a reasonable doubt as to his guilt on any of the charges, he must be acquitted of those charges. Lastly, even if I do not accept his testimony and it does not, when viewed in the context of all the evidence, leave me with a reasonable doubt, I must examine the remaining evidence that I accept to see if any of the charges are proved beyond a reasonable doubt. If so, I must convict of those charges. If not, I must acquit.

[108] Applying the W.D. approach in the case at bar presents quite a challenge. In my role as the original trial judge, I believed the unopposed testimony of E.A. Having decided to set aside the original verdict and reopen the trial and receive the testimony of M.A. and his witnesses I must re-evaluate the testimony of E.A. in the context of all the evidence and I must evaluate the defence evidence in the context of E.A.’s testimony.

[109] For the reasons expressed in my original judgment, I find E.A.’s testimony to be credible on its face. However, I also find the defence testimony credible on its face. There is no doubt that E.A. and M.A. cannot both be telling the truth. I cannot, however, come to any conclusion as to who between them, if either of them, is telling the truth. A careful review of the new evidentiary matrix leaves me with a reasonable doubt as to the guilt of M.A.

[110] The remaining charges (those that have not been stayed) are dismissed.

Released on March 14, 2023 Justice Russell Silverstein