CITATION: R. v. McKenzie, 2007 ONCA 470

DATE: 20070828

DOCKET: C45102

COURT OF APPEAL FOR ONTARIO

GOUDGE, BLAIR AND MACFARLAND JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

• and -

CARLINGTON McKENZIE

Appellant

Delmar Doucette for the appellant

Lucy Cecchetto for the respondent

Heard: February 7, 2007

On appeal from the conviction entered by Justice Harry S. LaForme of the Superior Court of Justice (as he was then), sitting without a jury, dated May 14, 2004 and from the sentence imposed by Justice LaForme dated September 13, 2004.

MACFARLAND J.A.:

[1] The appellant appeals his conviction on two counts of robbery, one count of forcible confinement, and one count of use of an imitation firearm. He also seeks leave to appeal the sentence imposed.

[2] The appellant raises three grounds of appeal:

1. The trial judge fell into reversible error in his analysis of the identification evidence;
2. The trial judge failed to appreciate and apply the Vetrovec concerns surrounding the witness M.L.T, a co-accused, and even if properly analyzed, subsequent proceedings against M.L.T undermine that analysis;[^1] and
3. He was denied effective assistance of counsel.

[3] However, for the reasons that follow, I would not give effect to any of these grounds of appeal.

OVERVIEW

[4] The charges against the appellant arise out of a home invasion by three men, during which Jacqueline Glassford ("Mrs. Glassford") and her seventeen-year-old son, Justin, were confined, their house ransacked, and their property stolen. At trial, the fact of the home invasion, theft and use of the firearm in the course of the invasion, were not disputed. The sole issue was the identification of the appellant as one of the robbers.

THE FACTS

The Home Invasion

[5] In the early evening of July 25, 2003, three young black men forced their way into the residence of Mrs. Glassford and her two sons. Only Mrs. Glassford and her older son, Justin, were at home at the time.

[6] Mrs. Glassford and Justin essentially agree on the facts relating to the home invasion. According to Mrs. Glassford, the three men who ultimately invaded her home had come to the house earlier that evening, and her son had spoken to them at the backdoor of the house. Thereafter, the three men left.

[7] About a half hour later, the same three men returned to the Glassford residence, and Justin again answered the door. Justin says that one of the men, M.L.T., asked him if he had any marijuana to sell.[^2] When Justin said "no", another one of the men brandished a gun and Justin was taken down to the basement of the house. Meanwhile, Mrs. Glassford, who could hear scuffling in the kitchen, attempted to call 911. She was not sure if she had succeeded before one of the three men came suddenly toward her with a gun and told her to hand over the phone, which she did. Mrs. Glassford was led at gun-point to the basement where she found her son and the other two men.

[8] She and her son were left with M.L.T. while the gunman and the other man searched the house. They demanded money and marijuana; Mrs. Glassford told them where they could find both.[^3]

[9] While Mrs. Glassford and Justin were being held in the basement, Mrs. Glassford, who was worried that her youngest son would return home during the invasion and in the confusion be shot, stood up and got "in the face" of M.L.T. M.L.T. threatened to tie her down, and produced two black straps from his knapsack to demonstrate the seriousness of his threat. According to Justin, M.L.T. threatened to pull a gun, which he demonstrated that he had in his bag, and shoot him in the head if Mrs. Glassford did not stop.

[10] Ultimately, the three men stole marijuana, money, a Playstation console, a Nintendo, a VCR, and some games. Before leaving, the gunman told Mrs. Glassford and Justin to get into the bathroom; he closed the door and told them not to come out. Thereafter, Mrs. Glassford heard the three men leave the house.

[11] She immediately ran upstairs, locked the backdoor, and searched for the phone. The 911 operator was already on the line when she picked up the phone. Justin spoke to the operator and described where the men were headed. The police arrived soon thereafter.

[12] Justin went to the police station, and Mrs. Glassford followed some time later, after she had made arrangements for her youngest son. Justin had already departed the police station by the time she arrived

Identification of the Three Home Invaders.

[13] Both Mrs. Glassford and Justin provided the police with descriptions of the home invaders. As the appellant notes in this appeal, there were some differences between the identification evidence that they provided.[^4]

Mrs. Glassford's Identification Evidence

[14] Mrs. Glassford said that she did not recognize any of the three men who had invaded her home. On the night of the robbery, at the police station, she was shown two sheets, each with six photographs, but she could not identify any of the photos as being one of the home invaders.

[15] Mrs. Glassford described the home invader who turned out to be M.L.T. as being the youngest of the three men (sixteen or seventeen years old), taller than her (maybe 5'5''), thin, and black. She said that he wore a hat and jeans.

[16] She described the gunman as being older (about twenty years old), very black, the shortest of the three men (he was approximately the same height as her, maybe 5'2'' or 5'3''), and bigger than the other two men. He wore a blue and white fishnet type of top and jeans. He spoke Jamaican slang. Mrs. Glassford did not notice any scars on the gunman.

[17] She described the third man as being tall, very thin, and black (although lighter skinned than the other two men). He wore a knitted type of hat with a visor, sunglasses, and jeans.

[18] Some six days after the robbery, a photo line-up was conducted at the Glassford residence. Mrs. Glassford identified the appellant's picture as being the gunman in a matter of seconds, without hesitation. Justin was not present when Mrs. Glassford looked at the line-up and made this identification.

Justin's Identification Evidence

[19] As for Justin, he said that he recognized M.L.T. because he had gone to school with him for a short time. M.L.T., said Justin, had also been to his house the week before the invasion, when they had an argument. Justin suggested, contrary to his mother's evidence, that his mother knew M.L.T. from this visit.

[20] Like his mother, Justin was shown a photo line-up at the police station on the night of the robbery. He identified M.L.T. from this line-up.

[21] He described M.L.T. as being about eighteen years old, black, and 5'8" or 5'9". He had a fairly small build and short puffy hair.

[22] He described the gunman as being the oldest of the robbers, approximately 160 pounds, and pretty short (shorter than the other two men or Justin, maybe. 5'7") with a dark complexion. He wore a light blue Toronto Blue Jay's cap, a blue mesh T-shirt, and black pants. Justin did not notice any scars on the gunman.

[23] Justin described the third male as being approximately eighteen years old, skinny, and taller than the other two robbers (maybe 5'9" or 6'). He wore large sunglasses and a religious type of hat.

[24] Like his mother, Justin was also shown a photo line-up at his house approximately six days after the robbery. Also like his mother, Justin identified the appellant's picture as being the gunman. Justin's evidence in relation to this second photographic line-up confirms that of his mother in important respects, although it differs in some of the details. Importantly, he confirms that he and his mother viewed the line-ups separately and that neither could see nor hear what the other did or said while reviewing the photographs.[^5]

[25] Notably, the appellant has suggested that the Glassfords' identification of the appellant on July 31, 2003 was tainted because prior to the photo line up, Justin and his mother had both heard from various persons that the police had a suspect by the name of "Carlington" or "Clarington", with the street name "Moonie".

Detective Reid's Description of the Appellant

[26] Detective Ronald Reid, was involved in the investigation of the offences under appeal, and, at the time of trial, had been a police officer for thirty-three years. His notes, made at the time, indicate that appellant has a scar below his right eye. At trial, Detective Reid described this scar as "noticeable":

Like it's not real big but it's noticeable when you are sitting there looking at it.[^6]

[27] At trial, Detective Reid also agreed with Crown counsel that there also appeared to be "something" under the appellant's left eye. He said that he may have noticed this marking on arrest, but did not make a note of it; the mark under the right eye was larger.

[28] Finally, (based on looking at the appellant) Detective Reid was able to agree with defence counsel that the appellant appeared to have a scar on his left upper arm as well as on his right thumb. He described these two scars as being "quite noticeable", although they are not recorded in his notes.

Testimony of M.L.T.

[29] As I have noted, M.L.T., was a co-accused in relation to the offences on appeal. M.L.T. also had a criminal record, which included crimes of violence. He participated in the appellant's trial as a Crown witness.

[30] In this capacity, M.L.T. testified that he took the appellant and another man, identified as "Jerome", to the Glassford residence to buy marijuana from Justin, although he denied that the appellant and Jerome had come to the house earlier that day as suggested by Mrs. Glassford. While at the house, the appellant produced a gun. M.L.T. said that he had not seen the gun before, and was shocked when the appellant produced it. He said that neither he nor Jerome ever had a gun. The appellant told M.L.T. to stay downstairs while he and Jerome went upstairs to search the house. The appellant asked where the marijuana and money were. Mrs. Glassford said that she did not have any, but the appellant and Jerome found marijuana in their search. M.L.T. said that Mrs. Glassford asked him why he was doing this; she knew him, he said, because he used to go to her house. He told her that he had nothing to do with the robbery; he had just come to get marijuana.

[31] According to M.L.T., after the robbery, the appellant and Jerome accused him of "messing up" and Jerome suggested to the appellant that they shoot him. He claimed that all he got out of the robbery was about a "half quarter of weed". The rest of the stolen items were kept by the appellant and Jerome.

[32] M.L.T. flatly denied pulling a gun or producing ties from his knapsack with which he threatened to use to tie Mrs. Glassford down. In fact, M.L.T. denied that he had a bag or knapsack with him at all. He said that he never threatened Justin or told him he was going to put a bullet in his head.

[33] Clearly, M.L.T.'s evidence attempted to minimize his role in the invasion by suggesting that he had nothing to do with it and was not an active participant. He described the appellant as the one in charge. However, he had no explanation for why he did not leave or protest after the gun was produced and he learned it was robbery.

[34] The appellant has filed fresh evidence in this appeal as to statements that M.L.T. made during his guilty plea to charges arising out of the home invasion. Importantly, when M.L.T. ultimately plead guilty for his role in the home invasion, he admitted to having played a greater role than he suggested that he played in his testimony at the appellant's trial. In particular, he admitted to having guarded the Glassfords while his accomplices searched the house and to threatening to tie up Mrs. Glassford with ties from his bag.

LAW AND ANALYSIS

The Identification Issue

[35] Essentially, the appellant says that the identification evidence in this case was frail, insufficient, unreliable, and ought not to have been accepted by the trial judge.

[36] He points to the following in support of his argument:

• neither Justin nor Mrs. Glassford noticed any scars on the man said to be the appellant, whereas Detective Reid said that the scars below the appellant's right eye, on his left arm and on his thumb were noticeable, and agreed that there was a scar under the appellant's left eye;
• Justin and his mother disagreed as to the height of the man said to be the appellant and, in reality, the appellant was actually shorter than either of them estimated;
• the appellant was, in reality, approximately thirty-five pounds lighter than the weight that Justin attributed to the man said to be the appellant; and
• while both Justin and M.L.T. said that M.L.T. had been to the Glassford residence before the robbery, and that Mrs. Glassford knew M.L.T. from these visits, Mrs. Glassford denied ever having seen him before the day of the robbery.

[37] I do not agree, however, that the trial judge erred in his analysis of the identification evidence in this case. While the trial judge did not analyze each of the discrepancies between the evidence of Justin and his mother, he highlighted the ones that he considered to be important in his reasons. Specifically, he considered that:

• Justin and M.L.T. said that Mrs. Glassford knew M.L.T. from his previous visits to the house, while Mrs. Glassford denied ever having seen him before the robbery;
• Mrs. Glassford had only seen the appellant with a gun, while Justin said that M.L.T. also had a gun;
• Justin said the gunman wore a ballcap, while his mother said the gunman wore no cap;
• neither Justin nor his mother observed scars on the gunman's face and arms; and
• Justin and his mother had heard from various sources that the police had a suspect by the name of "Carlington" or "Clarington", with the street name "Moonie", before they picked the appellant's photo from the line-up, but both said that they had never seen the appellant before or after the robbery, and that they had never seen a photograph of the appellant before they picked his photo out of the line-up.

[38] In addition, the trial judge noted that M.L.T. corroborated the evidence of Justin and his mother in four important respects:

• that the appellant was the one who brandished a handgun throughout the home invasion;
• that the appellant was the shortest of the three home invaders;
• that the appellant was the oldest of the three home invaders; and
• that the appellant was the one who did virtually all the talking during the home invasion.

[39] The trial judge concluded that the inconsistencies in the evidence of Justin and his mother were insignificant in the long run and, specifically, in relation to the identification evidence. He found their evidence both truthful and reliable in their identification of the appellant as the gunman. These conclusions were amply supported by the evidence and I can see no error with respect to them.

The Vetrovec Issue

[40] It is clear from his reasons that the trial judge was well aware of M.L.T.'s criminal record, the fact that he was a co-accused in relation to this robbery, and his potential self-interest in testifying as he did. The trial judge specifically noted that M.L.T.'s evidence required "close scrutiny and caution".

[41] Nevertheless, he held that while M.L.T. tended to minimize his own role in the robbery, it did not impact on his credibility or the reliability of his evidence on the identification of the appellant.

[42] It is for the trial judge to assess and weigh the evidence that he or she accepts. I see no error in the manner by which the trial judge gave effect to any Vetrovec concerns in this case.

[43] Furthermore, in my view the admissions made by M.L.T. when he entered his guilty plea do not assist the appellant. In saying this, I acknowledge that, without question, the facts to which M.L.T. admitted were at odds with his evidence at the appellant's trial. However the trial judge at the appellant's trial expressly considered M.L.T.'s evidence on the basis that he was trying to minimize his involvement. In my view, therefore, there is no basis on which to suggest that the events surrounding M.L.T.'s guilty plea in any way undermined the trial judge's analysis. These later events simply affirmed the trial judge's approach to M.L.T.'s evidence.

The Ineffective Assistance of Counsel Issue

[44] I turn now to the more troubling ground of appeal raised. I say troubling because, as we noted at the hearing of this appeal, this court is faced with affidavits from three lawyers, officers of this court, where it is apparent that one or more of them are deliberately misleading the court. The affidavits, which were provided by the appellant's trial counsel and two senior members of the firm where trial counsel was employed at the time of the appellant's trial (the "senior members"), cannot on any basis be reconciled. The affidavits of the senior members stand in stark contrast to the affidavits of trial counsel.

[45] The appellant's position is that he wanted to testify in own defence, but was told by his trial counsel that this was not his decision to make; it was a decision for counsel and he (trial counsel) had decided that the appellant would not testify.

[46] As the Crown puts it in her factum:

At its core, what this ground of appeal is legitimately about is whether trial counsel refused to allow the appellant to testify. The appellant asserts that he did. Trial counsel denies that assertion.

[47] In my view, the affidavits of the senior members are irrelevant to this issue. They concern conversations that the senior members had, or did not have, with trial counsel before and after the appellant's trial and conviction. Neither of the senior members was present at the trial nor privy to any of the conversations trial counsel had with the appellant. The only two people who know what was said in relation to the decision that the appellant would not testify are the appellant and trial counsel.

The appellant's affidavit evidence

[48] The appellant denies his guilt for the offences for which he was convicted. He says he was not at the Glassford residence on the night these offences were committed. He also says that the senior member who had handled his file before trial counsel told him that he could testify in his own defence with respect to his innocence.

[49] After the appellant's case was assigned to trial counsel, the appellant says he told trial counsel that he wanted to testify in his own defence and that trial counsel told him he would talk to the senior member who had previously handled his case about this issue.

[50] On the morning that his trial started, the appellant says that trial counsel told him that he had decided that the appellant would not testify. Trial counsel told him that this decision was one for trial counsel to make and not the appellant.

[51] The appellant says he has no legal training and did not know that it was his right to testify, even if his lawyer did not want to call him. He says if he had known that the decision was his to make, he would have testified.

[52] In a supplementary affidavit, the appellant responds to the following statement made by his trial counsel when he was cross-examined:

And given some of the things he said to me, he never once ... said that he was guilty. But he took issue with the witnesses' descriptions as to the length of the hallway in the house and whether they could have heard him from discussions with other people in the kitchen. So I came to the conclusion again because he wavered about [M.L.T.] and how he knew him and whether the guy had a beef against him on the street and all sorts of things, that it was not in Mr. McKenzie's best interest nor in my duty to represent him without I guess suborning perjury to call him, that if he testified he would do so without my asking him questions.

[53] The appellant responds that he had never been in the house where the robbery took place and he claims that he never told trial counsel anything about the length of the hallway in the house.

[54] Further, the appellant says that he knew who M.L.T. was and that they knew some of the same people. But he says that he only ever spoke to M.L.T. about three months before his arrest, at which time M.L.T. approached the appellant and challenged him to a fight. The appellant says that M.L.T. was upset because the appellant had been acquitted in an earlier trial. The appellant says that he tried to explain this to trial counsel, but that he seemed uninterested and told the appellant not to worry because he knew how to defend the charges against him.

Trial counsel's affidavit evidence

[55] When trial counsel assumed carriage of the appellant's file, he says that the appellant initially told him that he was not involved in the offences under appeal and that his sister knew where he was at the time of the Glassford home invasion.

[56] Trial counsel was surprised by this revelation as there were no notes in the file to indicate that any notice had been given with respect to an alibi or that any alibi had been investigated. The appellant told trial counsel that he had provided this information to the senior member who had previously handled his file.

[57] In response to questions from trial counsel two weeks before the trial was scheduled to begin, the senior member told trial counsel that he had interviewed the appellant's sister and that the appellant's alibi was flimsy, likely fabricated, and would be revealed as such. No notice had been given because the alibi could not be relied on.

[58] The senior member and trial counsel also discussed whether to call the appellant, or any other witnesses who might be able to support the appellant's testimony. The senior member is said to have expressed the view that such evidence could create the impression that the testimony was fabricated. The senior member expressed the view that the appellant would do poorly as a witness and that calling him to provide a blanket denial of his guilt was probably not worth the risk.

[59] At no point did the senior member urge trial counsel to call the appellant; he made it clear that this decision was between trial counsel and the appellant, but that if it were up to him (the senior member), he would not call the appellant.

[60] Trial counsel conveyed the senior member's views to the appellant who was "then concerned with whether he would have to testify". At this point, the appellant is said to have told trial counsel that he did not wish to testify, but would if necessary. Trial counsel says that he told the appellant that it was his advice that the appellant not testify, but that this advice could change depending on the evidence.

[61] Following the completion of the Crown's evidence, trial counsel testified that he again spoke to the appellant about testifying. At that time, trial counsel had decided that the appellant should not testify. He spoke to the appellant about his position and the appellant acceded to it. However, trial counsel says that he never told the appellant that he could not testify or that whether the appellant would testify was counsel's decision, not the appellant's. Rather, trial counsel urged the appellant not to testify and the appellant agreed.

[62] I note that it is apparent from the record that this discussion could not have taken place after the close of the Crown's case. The record shows that trial counsel informed the court that the defence was calling no evidence immediately after the Crown's case was completed, before court adjourned.

[63] I have not detailed any particulars of the responses made by trial counsel or the senior members to statements made by one another in their affidavits. As noted earlier, all of this contradictory evidence concerns events and conversations that either precede or post-date the appellant's trial and is, in my view, irrelevant.

Analysis

[64] The test for ineffective assistance of counsel is set out in this court's decision in R. v. Archer (2005), 202 C.C.C. (3d) 60 at 96 where Doherty J.A. summarized the applicable legal principles:

An accused who is represented at trial is entitled to effective representation by counsel. Ineffective representation may result in a miscarriage of justice necessitating the quashing of the conviction on appeal. Evidence relating to the alleged ineffective assistance of counsel will be received on appeal pursuant to s. 683(1) so that the appellate court may determine whether the representation was ineffective and ultimately whether it resulted in a miscarriage of justice[.] [Citations omitted.]

An appellant seeking to quash a conviction on the basis of ineffective assistance of counsel must demonstrate three things. First, where the claim is based on contested facts, the appellant must establish the material facts on the balance of probabilities. Second, the appellant must demonstrate that counsel's acts or omissions amounted to incompetence. Incompetence is measured against a reasonableness standard. That assessment is made having regard to the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role in the assessment. Allegations of incompetent representation must be closely scrutinized. Many decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction. The reasonableness analysis must proceed upon a "strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance"[.]

Third, the appellant must demonstrate that counsel's ineffective representation caused a miscarriage of justice. A miscarriage of justice occurs if the appellate court is satisfied that counsel's ineffective representation undermined the appearance of the fairness of the trial, or the reliability of the verdict. A verdict is rendered unreliable where the appellant demonstrates that had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different[.]

[65] To recap: the appellant's central ground of appeal is that, contrary to his wishes, trial counsel refused to permit him to testify in his own defence. Further, the appellant alleges that trial counsel told him that the decision of whether to testify was one for trial counsel, not the appellant, and that he (trial counsel) had decided that the appellant would not testify. The appellant argues that he did not realize that he had a right to testify, even if his lawyer did not want to call him as a witness. He asserts that he would have testified if he had known that the decision was his to make.

[66] Trial counsel maintains that he advised the appellant against testifying in the strongest terms, but made it clear to him that this decision was his to make.

[67] The law is clear:

If the appellant can show that it was trial counsel and not the appellant who decided that the appellant would not testify, and that the appellant would have testified had he understood that it was his decision, it seems to me that it must be accepted that his testimony could have affected the result, thereby establishing that a miscarriage of justice occurred ... The crucial question becomes – who made the decision? (Archer, supra at 102.)

[68] I must, however, consider that the appellant has a very strong motive to fabricate the claim that he was denied the right to decide whether to testify. As this court noted in Archer at p. 102:

The appellant is no longer presumed innocent. He makes his allegation against trial counsel as a convicted felon facing a lengthy penitentiary term. No doubt, the appellant understands that if he can convince the court that his own lawyer denied him the opportunity to testify, he will receive a new trial. Common sense dictates a cautious approach to allegations against trial lawyers made by convicted persons who are seeking to avoid lengthy jail terms. It must also be recognized that the confidential nature of the relationship between a lawyer and his client can make it easy for the client to make all kinds of unfounded allegations against his former lawyer.

Furthermore, and apart entirely from the possibility that the appellant has fabricated these allegations, it is not uncommon that a person who has been convicted after having received strong advice from his counsel that he should not testify comes to believe, while awaiting his appeal, that counsel's strong advice was in fact a decision by counsel that the client should not testify. Looking backwards through the bars of a jail cell is not the most reliable of vantage points from which to see events that culminated in the conviction.

[69] Whether the appellant's claims against his trial counsel can be believed on a balance of probabilities is, in effect, an assessment of credibility. An appellate court is not in a good position to conduct such an exercise. However, the following factors are significant. First, the appellant is not a newcomer to the criminal justice system. He has testified before in a number of other, unrelated, criminal proceedings. His record is relevant to the assessment of his credibility. Second, the appellant was told by one of the senior members that he could testify in this matter. Third, his first Notice of Appeal in this case, which he dictated to another inmate at the Don Jail after his conviction but before sentencing, does not refer to the conduct of trial counsel although the appellant claims that it was at the Don Jail that he learned that trial counsel's alleged failure to call him as a witness when he wanted to testify was a ground of appeal. Finally, trial counsel continued to represent the appellant when he was sentenced some four months after his conviction. This despite the fact that, according to the appellant, he had complained, both to trial counsel directly and to the senior member who had handled his file previously, about trial counsel's failure to follow his instructions.

[70] Admittedly, trial counsel's evidence is not without its own difficulties. First, although the trial did not begin until May 11, 2004, trial counsel's affidavit, docket entries and account to Legal Aid all state that the trial commenced one day earlier, on May 10, 2004. In fact, trial counsel was ill on May 10, 2004 and did not show up in court at all on that date. Second, trial counsel attested that he only became aware of the identity of the trial judge on the day that the trial actually commenced, and that he learned that fact from the trial co-ordinator. In fact, the record is strongly persuasive that Crown counsel informed trial counsel on May 10, 2004 (the day trial counsel was absent) of the identity of the trial judge.

[71] Despite these difficulties, in my view, the appellant has failed to satisfy the burden that rests on him to make out his claim of ineffective assistance of counsel. Clearly his claim in relation to this ground is based on contested facts. The appellant is not a credible witness and has not established – as he must – the material facts on a balance of probabilities, nor has he demonstrated that trial counsel's acts or omissions amounted to incompetence.

[72] While the appellant always asserted his innocence, he had no alibi evidence and trial counsel was of the view that he would not make a good witness. Further, trial counsel claims that he had reason to believe that the appellant had information about the Glassford residence that he could only have obtained if he had been in that residence. Trial counsel also states that the appellant's explanation for why M.L.T. would falsely accuse the appellant was farfetched and incredible.

[73] On this record the appellant cannot establish that trial counsel's failure to call him to testify amounted to incompetence. In the circumstances, it cannot be said that the verdict is unreliable.

[74] I would dismiss this ground of appeal.

[75] In the result, the appeal is dismissed.

"J. MacFarland J.A."

"I agree R.A. Blair J.A."

GOUDGE J.A. (Dissenting):

[76] I have had the benefit of reading the thorough and persuasive reasons of my colleague MacFarland J.A. and agree with them, with one important exception. In my respectful view, the appellant has established that he received ineffective assistance of counsel at his trial sufficient to warrant a new trial.

[77] The charges against him arose out of a home invasion in July 2003. The main issue at trial was identification. That is, was he one of the perpetrators? The appellant has always maintained that he was not present at and therefore not a participant in the crime. He says that his counsel prevented him from testifying in his own defence despite his desire to do so. In other words, he says the decision that he not testify was that of the lawyer, not the accused. Particularly given the issue at trial, I accept that the appellant's evidence could have affected the result.

[78] The framework for analysis of a claim of incompetent representation of this kind was described by Doherty J.A. in R. v. Archer (2005), 202 C.C.C. (3d) 60 at para. 139 (Ont. C.A.):

[139] While counsel owes an obligation to advise his client as to whether he or she should testify, the ultimate determination must be made by the client: G.B.D., supra, at p. 300; M. Proulx & D. Layton, Ethics and Canadian Criminal Law (Toronto: Irwin Law, 2001) at pp. 114-30. If the appellant can show that it was trial counsel and not the appellant who decided that the appellant would not testify, and that the appellant would have testified had he understood that it was his decision, it seems to me that it must be accepted that his testimony could have affected the result, thereby establishing that a miscarriage of justice occurred: see R. v. Moore (2002), 2002 SKCA 30, 163 C.C.C. (3d) 343 (Sask. C.A.) at 371. The crucial question becomes – who made the decision?

[79] In this court, the appellant filed an affidavit of his own setting out his position, together with a short supplementary affidavit. He was cross-examined on both by the Crown. He also filed supporting affidavits of two senior defence counsel at the firm where his trial counsel was an associate at the time of the trial. Both were also cross-examined by the Crown.

[80] For his part, trial counsel filed two affidavits in which he contests the assertions of both the appellant and his former colleagues. In essence, he says that while he urged his client not to testify, the ultimate decision was that of the appellant. He also disputes much of the evidence given by his former colleagues. Trial counsel had no corroborating evidence to tender, such as a direction sign by the client. Thus, this court is left to resolve these conflicts.

[81] Archer, supra, provides the following helpful guidance for this task. First, the appellant has the onus of establishing the material facts on a balance of probabilities. Second, the analysis must begin with a strong presumption of competence in favour of counsel. Third, common sense dictates a cautious approach to allegations against trial lawyers made by convicted persons who are seeking to avoid lengthy jail terms. Finally, we must be alert to the risk that with hindsight skewed by a conviction, an appellant may come to believe that trial counsel's strong advice was in fact a decision that he or she not testify.

[82] I turn first to an assessment of the evidence tendered by trial counsel. In his main affidavit he swears to the following:

• During his preparation for trial, the appellant stated to him that he was not involved in the commission of the offence as charged.
• Mr. Royle, the senior colleague from whom he took over the file, told him that the appellant would do poorly as a witness and that calling him was probably not worth the risk, since the appellant could not remember precisely where he was on the night in question, and could only offer a blanket denial.
• When trial counsel relayed this to the appellant, the latter said he did not wish to testify but would if it were necessary.
• Trial counsel told the appellant that he was leaning towards advising him not to testify, but that that could change depending on the Crown's evidence and, in particular, on whether his alleged accomplice testified and, if so, what he said.
• On the morning of May 10, 2004, the first day of trial, trial counsel learned that Justice LaForme was to be the trial judge. He then solicited opinions by cell phone from lawyers in his office about re-electing to be tried before the judge alone.
• He broached the subject of re-election with the appellant, who ultimately indicated that he would allow trial counsel to decide.

[83] On the main question in this appeal, trial counsel concludes his primary affidavit with this paragraph:

14. Following the completion of the Crown's evidence, I again spoke to Mr. McKenzie about testifying. At that time I decided that he should not testify. I spoke to him about my position and he acceded to it. At not [sic] time did I tell him that he could not testify or that it was my decision. I did urge him not to and he ultimately agreed.

[84] All of these points are contradicted by the appellant or by Mr. Royle, one of the two senior counsel. Moreover, there are a number of assertions on collateral matters in the cross-examination of trial counsel that are also flatly contradicted both by Mr. Royle and his law partner.

[85] However, it is the contradictions and explanations offered by trial counsel himself in his cross-examination that are of primary importance in my conclusion that his evidence should be disregarded. There are a number of these.

[86] First, in his affidavit and on cross-examination, trial counsel gave evidence that the first day of the appellant's trial was Monday, May 10, 2004. He described in precise detail arriving at the courthouse, discovering from the trial co-ordinator who the trial judge would be, making cell phone calls to other lawyers in his office about the trial judge, discussing re-election with the appellant and commencing the trial. When it was suggested to him that he was not at the courthouse that day, his response was that he believed he was there, that he was ill one day, but as far as he could recall, it was not the first day of trial. Then, when confronted with the transcript showing clearly that he was ill and not in attendance that day, he had to acknowledge that while he did not think it was the first day, that he was ill, apparently it was and, to that extent, his affidavit was incorrect. Rather, he said that the events he testified to occurred on May 11.

[87] Second, on cross-examination, trial counsel was shown the account submitted by his firm to Legal Aid Ontario for the trial, together with his dockets on which it was based. He acknowledged that his usual practice was to input his own dockets except for a short period of time when he provided his handwritten dockets to a staff member who entered them and which he then checked. When confronted with the account and his own dockets, he was forced to agree that he billed for 10.25 hours on May 10, 2004 that never took place. He then immediately suggested that the whole account was simply off by one day until he was forced to acknowledge that he had also put in full dockets for May 11, 12 and 13 when the trial took place, and May 14 when judgment was delivered. While on re-examination he denied that he intended to bill for time that he did not put in, there is no doubt that his dockets were wrong and the Legal Aid account was in error.

[88] Third, in his affidavit, trial counsel testified that he learned that Justice LaForme was to be the trial judge on the morning of May 10, 2004. In cross-examination, he added that he learned this from the trial co-ordinator. After being confronted with the discrepancy about dates, he said that all this happened on May 11. However, in the transcript for May 10, Crown counsel put on the record that she had received a message at 9:10 a.m. that trial counsel was ill and would not be attending. She then discussed with Justice LaForme his concerns that the trial be completed in one week which was all he had available. Justice LaForme offered the suggestion that this timeframe could certainly be met with a re-election. Crown counsel indicated that she wanted to discuss this with trial counsel and, after a break, returned to say that she had done so. She said this:

I expressed your concerns about being finished this week, and he assures me it should be done by Friday. We have had brief discussions, but he is quite confident that we can finish by Friday.

[89] When confronted with this transcript in cross-examination, trial counsel first said that he did not recall the conversation. He then said that Crown counsel may have said she was concerned about being finished that week, but he was adamant that there was no conversation on May 10 about who the trial judge was. I find that difficult to accept. Crown counsel was relaying the concerns of Justice LaForme about timing. The judge had suggested re-election as a possible solution. Given the invariable interest of defence counsel in knowing who the trial judge will be, and in the context of this specific discussion, I think it is unlikely that trial counsel would not have learned the identity of the trial judge in the phone conversation with Crown counsel on May 10. I cannot accept trial counsel's evidence about when and how he first learned who the trial judge was.

[90] Fourth, and most importantly, I also cannot accept trial counsel's evidence about the circumstances in which he says the appellant agreed not to give evidence pursuant to his recommendation. His main affidavit was unequivocal: his own recommendation could not be finalized until the Crown completed its evidence, but once that occurred, he decided that the appellant should not testify and the appellant acceded to this position. In cross-examination, he was even clearer that his final position could not be reached until the Crown's case was in, and that the discussion in which the position was put to the appellant and the latter's agreement given took place in the interview room beside the cells in the basement of the courthouse after the close of the Crown's case.

[91] He was then shown the transcript indicating that, after lunch on May 12, he completed his cross-examination of the alleged accomplice, clearly an important witness. The Crown then called its last witness, Detective Reid, who also had important evidence to give about the identification of the appellant. When trial counsel concluded his cross-examination, the Crown closed its case. The transcript then shows trial counsel immediately indicating to the court that he was not calling any evidence.

[92] When confronted with this, trial counsel's story changed. He said that, at the close of the Crown's case, he simply went to the appellant in the box and confirmed to him that he was not going to testify. Trial counsel said that he had told the appellant in the morning that he would have to testify in a narrative manner and, if he did so, everyone would think that he was guilty and that he ought not to do so. In this version, trial counsel felt no need to await the close of the Crown's case before taking his final position, nor was there any discussion or explanation offered to the appellant later at the close of the Crown's case. Nor was there any meeting with the appellant at that point in the basement of the courthouse.

[93] Moreover, trial counsel was now suggesting that the most important meeting took place that morning. However, he had previously agreed in cross-examination that his dockets for May 12 showed no morning meeting with the appellant in the cells, explaining"I probably went down five, ten minutes and said, you know, this is what I expect to happen today, et cetera, et cetera." In short, I cannot accept trial counsel's affidavit describing the appellant's acceptance of his recommendation. Nor do I find the new version on cross-examination any more believable.

[94] Fifth, in his main affidavit, trial counsel was not explicit about his reason for concluding that the appellant should not testify. The clear inference is that an important consideration for him was that Mr. Royle, who had acted for the appellant before, felt the appellant would do poorly as a witness. Mr. Royle denied holding this view of the appellant or saying so to trial counsel. In fact, Mr. Royle had called the appellant in his own defence on a prior occasion and, while the appellant had not been the best imaginable witness, he had done well enough and indeed was acquitted. Trial counsel maintained his position in the first part of his cross-examination and reiterated that he did not reach any firm conclusion until after the Crown had completed its case.

[95] However, as part of the changed version about the final decision not to testify, trial counsel volunteered that he had concluded on the basis of certain specific things the appellant had told him that, to avoid suborning perjury, the appellant could testify only if trial counsel asked him no questions, which would be fatal. While he had made no mention of this in his affidavit or in his cross-examination to that point, he said that he had alluded to it in an earlier letter to appellant's counsel. That earlier allusion said simply"I indicated that based on some of what the client had said, I was unable to call him." In his reply affidavit, the appellant categorically denied knowing those things or telling trial counsel of them.

[96] This sequence presents a number of problems. If trial counsel felt that, because of what the appellant had told him, he could not call the appellant, his final conclusion did not need to await the close of the Crown's case and his earlier evidence to that effect was incorrect. If trial counsel felt he could call the appellant but not ask him any questions and that he therefore ought not to testify, and trial counsel had in fact communicated that to the appellant that morning, the same is true. In either case, competent trial counsel should know that this information should be in his affidavit. This court's protocol concerning allegations of incompetent counsel contemplates that trial counsel will fully address the allegations of the appellant so that the court has before it all the available and relevant information.

[97] Finally, another example of trial counsel's approach to his evidence arose when he volunteered on cross-examination that he had alluded to the risk of suborning perjury not just in a letter to the appellant's counsel, but when he spoke about it to Ms. Cecchetto, Crown counsel on appeal. As a responsible officer of the court Ms. Cecchetto had to get him to disavow this on re-examination.

[98] In my view, these matters all reflect badly on trial counsel's evidence. His affidavit is obviously wrong in several respects bearing directly on what happened at trial and relevant to the decision that the appellant not testify. His evidence on cross-examination is equally unreliable on this subject. And, when confronted, again and again he would change his evidence. Thus, even without looking to the many contradictions between his evidence and that of his two former colleagues on collateral matters, I can give no weight to his evidence on the fundamental question of who made the decision that the appellant not testify, and I would disregard it.

[99] This finding does not end the matter. The appellant must still establish that on a balance of probabilities trial counsel made the decision that he should not testify. However, the finding does clear the path for the appellant.

[100] To begin with, his evidence on this issue is unopposed by any credible evidence.

[101] In addition, it seems to me that the strong presumption of competence of counsel is fatally undermined in these circumstances. Here, trial counsel swore an affidavit that was wrong in material respects, gave evidence on cross-examination that was unreliable, changed his evidence on cross-examination, was responsible for an erroneous account to Legal Aid, and appears not to have followed this court's protocol for this kind of case.

[102] For his part, the appellant's affidavit and evidence on cross-examination were consistent and unshaken. He maintained throughout that trial counsel told him the decision was trial counsel's, and acted accordingly.

[103] The Crown attacks his credibility on three bases. First, it says that the appellant is no novice to the criminal justice system and must have known he had the legal right to insist on giving evidence. The Crown says that since he did not do so he must have agreed not to testify.

[104] The appellant's evidence was that, prior to his conviction in this case, no one ever advised him of his legal right and, in his prior criminal proceedings, he and his lawyer had always agreed that he should testify. Mr. Royle confirmed that this was what happened when he acted for the appellant and that the question of the appellant's right to override counsel's opinion never arose. Indeed, absent the circumstances of counsel being of the opinion that the client should not give evidence but the client wishing to do so, it is easy to imagine that the question would never come up. Thus, in my view, the Crown's first argument does not undermine the appellant's credibility.

[105] Second, the Crown argues that the appellant's criminal record undermines his credibility. The simple answer to this is that, while the appellant has two prior convictions, neither are for crimes of dishonesty. In my view, his record is not enough to weaken his evidence.

[106] Third, the Crown says that if the appellant truly believed that trial counsel had taken his right to testify away from him, he would have raised this in his notice of appeal. However, the appellant has little formal education and cannot read. His in person notice of appeal was prepared for him by another inmate two days after he was sentenced. And, while he learned at some point that this issue could be a legal ground of appeal there is no evidence that he knew that when the notice of appeal was prepared. Moreover, Mr. Royle's evidence confirmed that the appellant maintained his position that he wanted to testify both up to the point that Mr. Royle turned the file over to trial counsel and when Mr. Royle next spoke to the appellant after his conviction. Thus, I do not think the appellant's credibility is undermined by the fact that the notice of appeal does not expressly raise counsel's denial of the appellant's right to testify.

[107] In summary, I do not think that the Crown's attacks on the appellant's credibility succeed. His evidence remained consistent and was unshaken on cross-examination. It is not inherently improbable, and must be considered to be uncontradicted. Keeping in mind the caution with which it must be approached, I can nonetheless find no basis on which to question it. I would therefore conclude that the appellant has established that trial counsel denied him the right to testify by deciding he should not do so.

[108] I would therefore allow the appeal and order a new trial.

RELEASED: August 28, 2007 "STG"

"S.T. Goudge J.A."

[^1]: M.L.T. was a young person as defined by the Youth Criminal Justice Act, S.C. 2002, c. 1. [^2]: In the past, Justin had sold small amounts of marijuana to friends whom he knew. He would not sell on this occasion because he did not know the two men who accompanied M.L.T. [^3]: Mrs. Glassford had marijuana for medicinal purposes. [^4]: However, Justin and his mother provided matching descriptions of the gun held by the gunman. [^5]: Detectives Ronald Reid and Tanya Johnson also confirmed that the Glassfords viewed the line-ups separately, and that neither could see nor hear the other when they made their identifications. [^6]: Transcript of Trial Proceedings May 12, 2004 at 108.