R. v. Prebtani, 2008 ONCA 735

CITATION: R. v. Prebtani, 2008 ONCA 735

DATE: 20081027

DOCKET: C39591

COURT OF APPEAL FOR ONTARIO

Rosenberg, Feldman and MacPherson JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Ally Prebtani

Appellant

Mark J. Sandler for the appellant

Sandra Kingston for the respondent

Heard: May 26, 2008

On appeal from conviction by Justice Tamarin M. Dunnet of the Superior Court of Justice dated January 24, 2003.

Rosenberg J.A.:

[1] The appellant’s principal ground of appeal from his convictions for assault, assault with a knife and uttering a death threat is an allegation that he received ineffective assistance of counsel at his trial. The appellant also submits that the trial judge erred in excluding certain defence evidence, misapprehending important Crown evidence, and using inadmissible hearsay for the truth of its contents.

[2] For the following reasons, I would dismiss the appeal.

INTRODUCTION: THE COURT’S APPROACH TO INEFFECTIVE ASSISTANCE OF COUNSEL

[3] An appeal based upon alleged ineffective assistance of counsel has a performance component and a prejudice component. For an appeal to succeed, the appellant must show “that counsel’s acts or omissions constituted incompetence and second, that a miscarriage of justice resulted”: R. v. G.D.B. (2000), 2000 SCC 22, 143 C.C.C. (3d) 289 (S.C.C.), at para. 26. The test for establishing incompetence is a strict one; the appellant must show that the acts or omissions of counsel could not “have been the result of reasonable professional judgment”: G.D.B., at para. 27.

[4] The approach laid down by the Supreme Court of Canada in G.D.B. requires this court to first determine whether a miscarriage of justice has occurred. If not, the performance component will not need to be considered. In G.D.B., the court suggested two ways in which counsel’s performance may have resulted in a miscarriage of justice: procedural unfairness or an unreliable verdict. An example of procedural unfairness is where counsel failed to obtain instructions before embarking on a course of defence in circumstances where counsel was bound to obtain instructions. The unreliability of the verdict is made out where the appellant can establish that there is a reasonable probability that the verdict would have been different had the appellant received effective legal representation: R. v. Davies, 2008 ONCA 209, at para. 37:

[O]ur initial task is to consider the record, as augmented by the fresh evidence, to determine whether the appellant was prejudiced by reason of his counsel’s alleged incompetence. To succeed in that regard, the appellant must establish either that there is a reasonable probability that the verdicts would have been different had he received effective legal representation, or that his counsel’s conduct deprived him of a fair trial: see R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520.

[5] In pursuing the ineffective assistance of counsel ground of appeal, appeal counsel has gathered considerable material including trial counsel’s entire file, which relates to the criminal trial and the divorce. Trial counsel, Arthur Sidney Pollack, represented the appellant for both proceedings. Mr. Pollack was examined and cross-examined by appellate counsel over seven days.

[6] The appellant makes a number of allegations of ineffective assistance of counsel against trial counsel. He submits that counsel’s understanding of the law was profoundly deficient and that this lack of legal knowledge, especially about the principles of recent fabrication, admissibility of prior consistent statements, the collateral fact rule and the permissible limits of examination and cross-examination, impacted on the trial. Further, counsel had available evidence that he could have led at trial that would have undermined the credibility of the complainant and bolstered the credibility of the appellant, but he did not lead this evidence. He submits that counsel’s incompetence deprived him of a fair trial and that the verdict is unreliable.

[7] Because of the nature of the allegations it is necessary to examine in considerable detail every facet of the trial.

[8] In the discussion below, I refer to the various parts of the trial and relate them to the trial judge’s reasons and the fresh evidence. I also make some brief reference to trial counsel’s explanations for the steps he took. It should be borne in mind that counsel was cross-examined in 2007, over four years after the trial. Further, counsel was almost 69 years of age in 2007, and it is apparent that he was having difficulties with his health during the examination. In general, I did not find his explanations for his actions before and during the trial very helpful. He readily conceded his failings during examination by counsel for the appellant, but then just as easily adopted alternative explanations offered during cross-examination by Crown counsel.

THE TRIAL EVIDENCE

[9] The allegations against the appellant relate to his wife, Shelina Salehmohamed. While evidence was led of a number of incidents, the Crown relied upon an incident in August 1999 as the basis for the charges of assault with a weapon and threatening death, and an incident in November 1999 for the assault charge.

The Background

[10] The appellant and the complainant met in late 1997 or early 1998 through friends at a mosque that they both attended. They married in June 1999. At the time, the complainant was a pharmacist and the appellant was completing his studies to be a physician. The day following their marriage, the couple moved into a condominium apartment. Below, I have set out a summary of the events covered at the trial, together with the findings made by the trial judge, the allegation of incompetence, and the fresh evidence relating to that allegation.

The Furniture Question

The Trial Evidence

[11] The complainant testified that she was surprised to find that the condominium had no furniture. She claimed that the appellant told her that in Islam a bed, utensils or a dining table were not needed. As a result, she slept on an air mattress for 6 to 8 weeks before a bed arrived. The appellant gave no evidence about furniture in the apartment.

The Trial Judge’s Reasons

[12] The trial judge referred to the complainant’s evidence about the lack of furniture as part of her review of the complainant’s testimony.

The Fresh Evidence

[13] In trial counsel’s file was a receipt showing that a bed and double-sized luxury mattress had been purchased 16 days after the couple moved into the condominium, but was not paid for until 23 days after the marriage. The documents do not show when the bed was delivered. There was no fresh evidence from the appellant as to when the bed was delivered, nor why he waited over two weeks before ordering the bed.

[14] Trial counsel acknowledged that it was an oversight not to have confronted the complainant with the receipt. However, he did not consider it to be a serious oversight because he had led this evidence through the appellant. In fact, he had not done so.

Ownership of 55 Chapletown; The August Assault with Weapon and Threatening Incident; The Ripped Wedding Invitation

The Trial Evidence

[15] The complainant testified that sometime before they were married, the appellant told her that the house at 55 Chapletown, where he lived with his parents and sister, was his. He stated that he was paying the mortgage on the house, and that they would live there once they were married. However, she did not want to live with his parents and so they moved into the condominium. Shortly after the marriage, however, she began asking about the house at 55 Chapletown, and the appellant said that it was not his house, that it belonged to his father. She therefore asked her father, a lawyer, to do a property search. According to her, the property search disclosed that a few days before the marriage, the appellant had transferred ownership from his name to his father’s name. She testified that the house had been in the appellant’s name alone before the transfer.

[16] The complainant testified that she was afraid to discuss the matter with the appellant, for fear that he would throw things and grab her, but she decided she had to. In August 1999, she asked the appellant if there was anything he needed to tell her about the house. He said no, but she continued to press the matter and finally told him that she knew he had transferred the house. The appellant became very angry, saying that she was just a woman and had no right to question him. He started to hit the wall. The appellant then grabbed the complainant, pushed her up against the wall, and tried to punch her. He ended up hitting the wall instead, making dents and holes. He then took a knife from the kitchen and held it up to her neck. He said to her: “You’re ruining my life. You know Shelina, I’m a doctor. I know every part of the human body. You know what I’m capable of doing to you.” He said that he wanted to kill her and himself. He also said that she was “untraditional in Islamic for questioning him”. She apologized and said she would be more Islamic. He then left the apartment. She testified in chief that she had bruises on her neck but did not show them to anyone. She called her parents and told them what had happened, but said she was alright and for them not to come over. There was no objection by trial counsel to the complainant testifying to the contents of her conversation with her father.

[17] That night, the appellant called her from his office at Toronto General Hospital and asked her to meet him at College Park. He said everything would be fine, that they needed to talk. However, when she arrived he grabbed her again, telling her that she was ruining his life. He said she was a bad woman and “unIslamic”. Eventually, they went back to the condominium where she slept in the bed and he slept on the couch.

[18] The next day, after the appellant had gone to work, the complainant’s father, brother and a friend of her brother, Randall Thorne, came to the apartment. They saw the damage, and her father said he could not leave her there. She decided to go with her father, and ended up staying at her parents’ home for about a week.

[19] Trial counsel cross-examined the complainant on whether any of her co-workers noticed anything. She testified that on one occasion someone noticed some marks, and that one of her co-workers thought it was a hickey. The complainant laughed it off because she did not know what to do.

[20] The appellant had quite a different version of this incident. He testified in chief that upon arriving home late from work one day, the complainant began yelling at him, using foul language, complaining that he never took her anywhere, and did not buy her flowers like her father did for her mother. The appellant eventually left, and returned to his office at the Toronto General Hospital. He stayed there for a few hours before returning to the condominium. The complainant was asleep in the bedroom so he slept on the sofa. He went to work in the morning but when he returned that evening the complainant was gone and the apartment was in shambles. Various wedding gifts were on the floor and there were some holes in the wall. As well, the couple’s wedding invitation had been ripped up. The appellant testified that he was in shock and tried to reach his parents. When he could not find them, he called his aunt. At some point, the complainant’s father called him and used abusive language. The appellant assumed that the complainant must have been with her parents. The appellant denied using a knife or threatening to kill the complainant or harm himself.

[21] In cross-examination, the appellant was asked whether he had ever discussed the home at 55 Chapletown with the complainant. At first he denied it, but then admitted that the complainant did bring up the subject of his transferring title to his father before the marriage. He could not remember exactly when she brought it up except that it was in August or September. When she brought it up she was screaming at him, using foul language, and throwing things. He denied that he was angry at her for having searched the title.

[22] In cross-examination, the appellant explained that 55 Chapletown was his father’s home, and that his name had been on the deed to assist his father in getting a mortgage. However, when he was about to get married and the couple was not going to live at the house, there was no reason for his name to be on the property.

[23] The appellant was cross-examined on what he did when he came home and found the condominium in disarray. In particular, he was questioned about why he did not do anything to try to locate the complainant. He testified that he assumed that she had gone to her parents’ home, which was confirmed when her father called the next day. The appellant said that he was in shock and terrified.

[24] Randall Thorne testified for the Crown that he went to the condominium with the complainant’s brother and father. The complainant was very upset and crying. There were clothes and picture frames scattered on the floor and some dents in the walls. In cross-examination, Thorne testified that the complainant said that the appellant had become very angry and threatened her. He did not see any bruises on the complainant.

[25] The complainant’s father testified for the Crown that he went to the condominium after receiving a call from his daughter. She was in distress, saying that the appellant had threatened to kill her and had beaten her. When he arrived at the apartment he saw that the complainant was crying. She looked distraught and dishevelled. She told him that she had a problem with the appellant over money. The appellant had accused her of hiding money, and she had confronted him about transferring the house to his father’s name before they were married. The complainant showed him the holes in the wall that were caused when the appellant attempted to hit her. She told him that the appellant had threatened to kill her, and had put a knife to her throat. In direct examination, the father was asked whether he had called the police. He said that he had not because the complainant wanted the marriage to work. He was also concerned that a complaint to the police would seriously affect the appellant’s profession. There was no objection to any of the father’s testimony of what the complainant told him.

[26] In cross-examination, the complainant’s father agreed that he had done a title search of the property at 55 Chapletown. The search showed that the property had been in the names of the appellant and his father. The property was then transferred into the appellant’s father’s name alone a few days before the wedding. He denied that he was the one who ripped up the wedding invitation. Defence counsel told the witness that there would be evidence that he tore up the invitation. The father confirmed in cross-examination that he had not called the police, even though he was told that the appellant had put a knife to his daughter’s throat and threatened to kill her. He also testified in cross-examination that he did not attempt to persuade the complainant to return to the appellant; that it was her decision. He was then confronted with his testimony at the divorce proceedings in which he said that he did persuade her to go back to the matrimonial home.

[27] Mumtaz Devji, the appellant’s aunt, testified for the defence. She testified about the appellant’s telephone call to her when he returned home and found the condominium in disarray. She was allowed to testify without objection from Crown counsel about the contents of the telephone call. She confirmed that the appellant told her that he had just arrived home to find things thrown on the floor and what looked like punch marks in the wall. He told her that it seemed like the apartment had been ransacked.

[28] Ms. Devji also testified that the complainant’s father telephoned her a few days later. He said that the complainant had returned to live with her parents, and that he wanted to talk about the relationship between the appellant and the complainant. He also made what seemed to be a threat: “you know how educated I am and you know I -- what I can do, what I’m capable of doing”. Crown counsel did not cross-examine Ms. Devji.

The Trial Judge’s Reasons

[29] The trial judge reviewed all of the evidence relating to the August incident, including the various versions of events as related by the complainant to her father and Mr. Thorne. The trial judge said this about that evidence:

The evidence demonstrates that she told her father about the assaults and the threat, and she told Mr. Thorne about the threat. Further, she described these events in her counter petition months before going to the police. Therefore, there is no credible evidence of recent fabrication. I accept her evidence in its entirety.

[30] The trial judge referred to the evidence of the complainant and her father. She noted that the complainant’s father testified that he discovered that the appellant “had transferred his interest in the house to his own father before the marriage”.

[31] The trial judge rejected the appellant’s version of these events. In particular, she noted that the appellant did not report the damage to the police or condominium security, and did not attempt to find out where the complainant was when he returned to the condominium and found it in disarray. She found that he did not report the damage because he had caused it. She found his version of the August events to be “completely incredible”.

The Fresh Evidence

[32] The appellant’s trial counsel did not confront the complainant with the deed showing that the house at 55 Chapletown had originally been held in the name of the appellant and his father. He explained that he did not do so because the appellant and his father never provided the deed to him. However, when he was shown his file, which contained a copy of the deed, counsel said that he believed that he could only show the complainant the original of the deed, not a copy.

[33] It will be recalled that trial counsel had put to the complainant’s father that there would be evidence that he tore up the wedding invitation. In cross-examination, trial counsel acknowledged that he had expected Ms. Devji to testify that the father had admitted to her in the telephone conversation a few days after the ransacking of the apartment that he had torn up the invitation. Counsel stated that he could not lead the witness, and so had been unable to obtain this evidence from her. He did not think to ask Ms. Devji a follow-up question when she testified that the complainant’s father said, “you know how educated I am and you know I -- what I can do, what I’m capable of doing”, and ask him what he told her about what he was capable of doing. In hindsight, he agreed that it would have been a permissible question and might have drawn out the evidence he was seeking.

[34] Counsel testified that he had not obtained a statement from the witness prior to trial to use to refresh her memory. He was then shown what appears to be a statement from Ms. Devji, dated May 31, 2002, which refers to the telephone call from the complainant’s father and includes reference to his admission that he ripped up the wedding invitation. It is unclear where this statement came from. Trial counsel was unable to say whether he had it during the trial.

[35] Trial counsel was asked why he did not object to the evidence of the complainant and her father as to her prior consistent statements. Trial counsel stated that he regarded this as admissible evidence as “a statement made by the complainant” that was not hearsay. He testified that he was not concerned about the prior consistent statements being admitted. He also stated that he was unaware of any legal issue about the admissibility of prior consistent statements.

[36] Later, counsel conceded that it was an oversight on his part not to object to the father’s testimony as to what the complainant told him, and the complainant’s recitation of the admission allegedly made by the appellant to the complainant’s mother.

[37] Trial counsel testified that he was aware from the disclosure that the complainant had not shown the bruises to anyone, but that a co-worker had made a remark about a “hickey”. He was therefore asked why he cross-examined the complainant about whether she had shown the bruises to anyone, when the complainant had already admitted she did not, without referring to the “hickey” issue. Trial counsel appeared to agree that this was a dangerous area to get into.

[38] Trial counsel was also asked why he cross-examined Mr. Thorne on what the complainant had said about the reason for the disarray in the apartment. Counsel said he was hoping that this might disclose an inconsistent account from the complainant, although he agreed that he had no reason to believe from the disclosure or the preliminary inquiry that she had given an inconsistent account to Mr. Thorne.

The First Security Guard Issue

The Trial Evidence

[39] The complainant testified, without objection, that when she left the condominium after the August incident the head of security, Moses Aruliah, pulled her aside and told her that the neighbours were complaining that they had heard a woman screaming and crying for help. She told Aruliah to mind his own business.

[40] Mr. Aruliah gave a different version. He testified that sometime in August or September there was a complaint from neighbours of a woman in distress, who was crying loudly. He went upstairs and knocked on the door. The woman said in a crying voice that it was okay and that they would be quiet. The following day he talked to her and asked her if everything was okay; she said there was some problem with her husband. He advised her to go for counselling because there were “numerous complaints from the neighbours”; that people “were complaining about screaming and knocking down noises coming from this unit”. The complainant said she did ask the appellant to go for counselling but he refused, “because he’s a doctor or whatever”. Mr. Aruliah never noticed any injuries on the complainant.

[41] At some point, Mr. Aruliah did attend the apartment and apparently took pictures of the damage to the wall. By the time of trial the pictures had gone missing.

The Trial Judge’s Reasons

[42] The trial judge referred to Mr. Aruliah’s evidence of receiving numerous complaints of screaming and knocking down noises, of his attending at the apartment and hearing a woman crying and saying that everything was okay, and of not noticing any bruises when he saw the complainant the next day.

The Fresh Evidence

[43] The appellant’s trial counsel stated that it was an oversight on his part not to object to the hearsay evidence from Mr. Aruliah. However, in answer to questions from Crown counsel, trial counsel stated that he did not consider this evidence particularly prejudicial since it was not being admitted for its truth to prove that there was a woman in distress.

The Black Dress and Memorial Service Incidents

[44] The complainant testified that about a week after she left the apartment she agreed to meet the appellant at Queen’s Park. The appellant promised that things would get better, so she returned to the apartment. However, things became worse. For example, on one occasion they were planning to go to the mosque and he became very upset when she put on a black dress. He said that only the devil wears black. He started hitting himself and his head against the wall, saying that he would be unable to pray. She had to intervene to prevent him from injuring himself. He grabbed her wrists and she promised not to wear the dress again.

[45] The appellant was not asked specifically about this incident during examination-in-chief. However, he did testify that he did not and would not injure himself. He testified in cross-examination that the complainant returned to their condominium after she promised to be calmer, and after saying she really wanted to make the marriage work.

[46] In cross-examination, the complainant testified to a similar incident in November 1999, when they were supposed to go to a memorial service at the mosque for her grandmother. The appellant became very angry for no apparent reason, and began hitting his head on the bathtub to the point that he seemed to pass out. She was calling 911 when he grabbed the telephone away from her. He stood up and said, “Look what you’re making me do to myself.” He then started slamming the door against his head and arms.

[47] The appellant was asked about this incident in cross-examination and denied hitting himself. He said that, in fact, the complainant did not want to go to the memorial service, so they ended up not going.

The Trial Judge’s Reasons

[48] The trial judge referred to the Memorial Service incident in her review of the complainant’s evidence although she seems to have mixed it up in part with the Black Dress Incident. She referred to the testimony of both the appellant and the complainant.

The Future Shop Incident (The November Assault Incident)

The Trial Evidence

[49] The complainant testified that in November 1999, the appellant said that he needed a computer for his work and that he wanted her to buy it for him. She told him that she did not have enough money, and that he would have to contribute to the purchase. They argued over money on the way to Future Shop. The complainant testified without objection that she learned during the divorce case that his pay cheque went to his father. They continued to argue after attending Future Shop, without purchasing the computer. According to the complainant, the appellant then grabbed her neck in a rage and started choking her. When he let her go, she tried to get out of the vehicle, but he pulled her back in. At one point he started hitting the dashboard and saying, “Wait until we get home. You know me”, and “I’m going to show you.” She testified that she knew this meant he was going to kill her. Therefore, when the appellant stopped the vehicle to use his card to get into the underground parking, she opened the car door, said, “I’m leaving”, and ran away. She went to the subway and eventually made her way to the Don Mills Shopping Centre, where she telephoned her father who came and picked her up. This was the last time she lived with the appellant, although they did see each other on several more occasions. The complainant testified without objection that her mother told her the appellant had called their home and said: “Honest, I’m not violent. I didn’t mean to do that to her.”

[50] The complainant’s father testified about receiving the telephone call from the complainant and picking her up from the shopping centre. The following day, he telephoned the appellant to confront him about his treatment of the complainant. During the conversation, the complainant’s father said that he had zero tolerance for violence. At this point the appellant “really lost it” and became verbally abusive to him. The complainant was listening to the call on the speaker phone, and when she heard this she decided that she was not going back. The complainant’s father confirmed that he did not call the police.

[51] The appellant was not asked in examination-in-chief about the Future Shop incident, but he did deny ever threatening the complainant. Crown counsel cross-examined the appellant on the incident. His version of events was that they both agreed to pitch in to purchase the computer. However, when they were in the car returning from Future Shop, the complainant started screaming at him saying, “How can I help you with a computer? How are we going to buy a BMW?” The appellant confirmed that the complainant left the car as they were about to enter the garage. She said, “Have a good life” and left. That was the last day they lived together. Crown counsel did not ask the appellant about the admission to the complainant’s mother.

The Trial Judge’s Reasons

[52] The trial judge reviewed the evidence given by the complainant and the appellant about the Future Shop incident. She accepted the complainant’s version of the events. In doing so she stated that the appellant, “could not recall any details other than the fact that the complainant screamed about paying for a BMW and got out of the car telling him to have a nice life”. The trial judge made no mention of the admission the appellant was said to have made to the complainant’s mother.

The Edwards Garden Incident

[53] The complainant testified that in early December the appellant asked to meet with her. He said he loved her and wanted to work things out. She agreed to meet him at Edwards Gardens. When the appellant arrived, he began to verbally abuse her. At one point, he grabbed a chain she was wearing around her neck and twisted it demanding to know whether she loved him or her parents more. She was scared and having trouble breathing. They then went to a fast-food restaurant and had something to eat. However, he continued to verbally abuse her and eventually threw out the food. He then dropped her off at her parents’ home.

[54] The appellant was not asked about this incident in chief. In cross-examination, he testified that he went to Edwards Gardens with the complainant before they were married, but not afterwards.

The Trial Judge’s Reasons

[55] The trial judge made no reference to this incident.

The Fresh Evidence

[56] Trial counsel testified that it was an oversight on his part not to ask the appellant about this incident and the many other incidents. However, he also stated that he did not think many of the allegations were that important. He thought it more important to elicit from the client that he had not threatened or assaulted the complainant.

The Second Security Guard Incident

[57] Later in December, the appellant again called the complainant and asked her to come to the condominium. Although she was reluctant to do so, he insisted, so she went. He again began to verbally abuse her, telling her how unIslamic she was. He said that he did not handle rejection well, and that if her parents did not stay out of their lives, “you know what I’m capable of. I will ruin their lives. I promise you, I will ruin their lives. I will ruin your life. I will kill them, and I will kill you.” He also pulled a knife out and put it against her throat. She started screaming and the security guard, Andrea, came upstairs. The security guard knocked on the door and asked if everything was okay. She said everything was fine. She was then able to get free and run out of the apartment and return to her parents’ home. The complainant admitted in cross-examination that initially she did not tell her parents about the appellant’s threat to kill them, and also did not tell the police at the time.

[58] The security guard, Andrea, was not called to testify. It will be recalled that the head of security, Mr. Aruliah, testified to a similar incident but he placed his attendance at the apartment in August or September.

[59] In examination-in-chief, the appellant was not asked expressly about this incident, but he did testify that he never took a knife to the complainant and never threatened to kill the complainant, himself or her parents. In cross-examination, the appellant testified that he did recall an incident when a security guard came up because the complainant was screaming. He could not remember if the guard was male or female, only that when the guard came the complainant stopped screaming and yelling.

The Trial Judge’s Reasons

[60] The trial judge reviewed the evidence of the complainant about this incident. She noted that the appellant recalled a security guard coming to the apartment because of the noise the complainant was making in yelling at him about being late and not buying her flowers (which would seem to relate to the August incident). The trial judge did not make any express finding about this incident and it was not one of the charged events. However, she made this general comment about the appellant:

In short, the evidence of the accused was extremely vague and replete with inconsistencies. He maintained that every argument in the marriage was completely unprovoked, and he never raised his voice. I do not find his evidence worthy of belief.

The Port Perry Incident

The Trial Evidence

[61] The appellant testified during cross-examination that in late December of 1999 or early 2000, the complainant kept trying to contact him by having him paged at the hospitals where he was working. On one day in particular, he was paged several times and eventually went down to the hospital cafeteria to meet the complainant. She was crying and saying that she really wanted things to work out, that she wanted to get back together. He finally agreed to give the marriage one more try, and so they decided to go on a trip to Port Perry. During the car ride the complainant was very calm and there were no arguments.

The Trial Judge’s Reasons

[62] The trial judge did not refer to this incident.

The “Niece” Incident

The Trial Evidence

[63] Trial counsel cross-examined the complainant on whether she went with the appellant and his “niece” in the car to get ice cream in the summer of 1999. She said she may have done so. She was then asked if she recalled having an argument with the appellant in the car and swearing at him. The complainant denied this, saying that she would not swear at him because she knew what he was capable of, and that she would not want to “trigger him off”. She testified that she would never say anything to aggravate him, that she always chose her words very carefully “because I knew the price that I would have to pay”. The appellant was not questioned about this incident.

[64] Trial counsel called Tahira Devji as a defence witness. She is 12 years old and the appellant’s cousin. Counsel asked her if she recalled an incident in the summer break of 1999 when she went on a car ride with the appellant and the complainant. She replied “yes”. Crown counsel then objected on the basis that counsel was trying “to prove a collateral fact apparently”. Trial counsel said that he was attempting to show “the nature of the complainant”. The trial judge asked counsel if this related to any of the “car incidents that we’ve heard about in this trial”. Counsel said it had not yet been mentioned. Trial counsel explained that the complainant had portrayed herself as a non-violent person and this incident would show “that she is capable of some type of violence”. Crown counsel then reminded the court that the complainant had been cross-examined about an ice cream trip but took the position that it was, “Collateral, completely collateral.” The following interchange then took place:

The Court: If it has to do with an incident that doesn’t concern any other incidents testified to by either the accused or the complainant, then how is it relevant? It’s simply another ride in another car that’s clearly collateral to the issues in this case.

Trial counsel: Well, my friend was allowed a wide degree of latitude in his cross-examination, going through the whole divorce proceeding. That’s certainly collateral to this issue.

The Court: Well, that’s the difficulty with this trial. This is not the divorce trial, and many of the references to the divorce are clearly irrelevant to the criminal matter before this Court, so to the extent that he was given any latitude in the divorce trial, the Rules of Evidence in the criminal courts are very different and –

Trial counsel: Well, okay.

The Court: -- that is clearly a collateral matter.

Trial counsel: Fine. If Your Honour feels that way, then I have nothing further for this witness, and my other witness also my friend will say is collateral as well, so I won’t be calling her.

[65] After the trial judge ruled that the cousin’s evidence was collateral and inadmissible, trial counsel stated that he would not call another witness, presumably because that witness’s evidence would have been caught by the same ruling. Trial counsel did not otherwise put on the record the nature of the evidence he wanted to obtain from the other witness.

Fresh Evidence

[66] Trial counsel testified that it was an oversight on his part not to have referred to the incident with the niece in the appellant’s testimony in chief. He could not recall who the other witness was, and agreed that it was an oversight not to put on the record the nature of the other witness’s proposed testimony. On appeal, the appellant adduced no evidence as to who this other witness was.

The Divorce

The Trial Evidence

[67] The complainant testified that the appellant filed a petition for divorce in October 2000, seeking a divorce on the basis of cruelty, even though if he had waited a few weeks he could have obtained an uncontested divorce on the basis of one-year separation. The complainant filed a counter petition in November, also seeking a divorce on the basis of cruelty. Trial counsel cross-examined the complainant about the counter petition and suggested that there were only allegations of mental cruelty, not physical cruelty. After some further questions, the following took place:

Complainant: And the Family Court awarded me divorce based on cruelty.

Trial counsel: They didn’t base it on cruelty. It was based on separation.

Complainant: It was not.

Trial counsel: There was no allegation in the divorce based on cruelty.

[68] At this point Crown counsel objected that trial counsel was giving evidence. The trial judge asked what the relevance was. Trial counsel did not reply but went on to ask questions about the complaint to the police. The complainant returned to the divorce issue, however. She testified that the appellant filed the petition based on cruelty to attempt to demean her in the community and to say that she was a bad wife. She also claimed that there was a lot of stigma in her community about divorce.

[69] The appellant testified that people in his community are not stigmatized by divorce. He testified that there is a divorce rate of between 35 and 40 percent.

[70] Crown counsel cross-examined the appellant at considerable length about the contents of the petition and counter petition, and his testimony at the divorce hearing. He admitted that he had not referred to the damage to the condominium walls in those proceedings.

[71] Crown counsel also cross-examined the appellant on the fact that he could have obtained a divorce based on separation if he had waited one more month before issuing the petition. The appellant testified that he was trying to expedite things because he was being harassed by the complainant’s father in telephone calls. The complainant’s father was abusing him verbally, but also urging him to get back together with the complainant. The appellant also testified that he was unaware of this way to get a divorce before he filed his petition. He then testified that, in fact, the divorce was granted on the basis of separation. Crown counsel then cross-examined the appellant on the reasons of the judge who granted the divorce to demonstrate that the divorce was based on the allegations of cruelty by the complainant in the counter petition. He read the reasons to the appellant who replied that there was a lot of lingo and that he relied upon his counsel; that he had been told the divorce was granted on the basis of separation.

[72] Crown counsel also engaged in cross-examination of the appellant on the “Maher” or marriage contract. The appellant said that he signed a Maher in which he agreed to give his wife $10,000 if they divorced. He agreed that the family court judge gave judgment against him for this amount and he paid it. He was also asked about the Hindu custom of “sati” in which a wife commits suicide at her husband’s cremation. He denied discussing this with the complainant. Trial counsel did not object to these questions.

[73] Trial counsel had also represented the appellant during the divorce proceedings. In re-examination, he asked the appellant why he wanted to proceed with the divorce so quickly. The appellant again talked about the abuse from the complainant’s father, and added that he had also called the appellant’s father and aunt. Then, the following took place:

Trial counsel: But, you were aware, and I explained to you, that there were grounds for separation if you wanted to wait another couple of months. You were aware of that?

Appellant: I can’t remember.

The Trial Judge’s Reasons

[74] The trial judge referred to the fact of the divorce proceedings and particularly the appellant’s evidence that he could not remember what was in the counter petition. The trial judge noted that the complainant had told her father about the assaults and the threats, and described the events in the counter petition “months before going to the police”. The trial judge then said:

Therefore, there is no credible evidence of recent fabrication. I accept her evidence in its entirety.

[75] As part of her reasons for disbelieving the appellant, the trial judge said this:

In cross-examination, when confronted with the fact that the complainant’s counter petition was granted based upon her allegations of cruelty, he agreed that he was present in court when the judgment was rendered, but he assumed that it was based upon a one-year separation. He said he did not understand legal terminology.

The Fresh Evidence

[76] Trial counsel agreed that he had not given the appellant a copy of the transcript of the divorce proceeding in preparation for the trial. He agreed that this was an oversight on his behalf. Trial counsel testified that although he did not see the relevance of Crown counsel’s cross-examination on the Maher and sati, because it was cross-examination he believed the Crown was entitled to ask the questions. He also did not think the cross-examination was prejudicial. Counsel could not remember why he suggested to the appellant in re-examination that he told the appellant he could have obtained a divorce by waiting a few months.

The Complaints to the Police by the Appellant and the Complainant

The Trial Evidence

[77] Trial counsel cross-examined the complainant about whether her parents had assaulted the appellant at the mosque. After many questions about this incident (although the complainant was not present at the mosque), Crown counsel objected that the questions called for speculation and were not relevant. The trial judge stated that she did not see how any of it was relevant.

[78] Trial counsel returned to this issue with the complainant’s father. He confirmed that he did confront the appellant at the mosque about his abuse of the complainant and his abusive language. According to the father, the appellant told him to go away, and he complied. He was later charged with assault. The father in turn charged the appellant’s aunt and male cousin for threatening to kill him. The cousin had told the father that he was a member of a Sri Lankan gang. It is unclear if this incident occurred at the same time as the alleged assault by the father on the appellant. The father confirmed that the charges were dropped on both sides when he entered into a peace bond.

[79] The appellant testified that in December 2000, while attending the mosque, the complainant’s father came up to him, and, in front of a large group of people, pushed him. The appellant asked him to leave him alone, and the father responded by saying, “I’m going to get you. I’m going to get you. You’re finished.” Eventually the complainant’s father walked away. The appellant said he was shocked and went looking for his own father. While he was speaking to his father, out of nowhere the complainant’s mother jumped on him from behind. The appellant later saw that he had a bruise on his arm. As the appellant continued his explanation of this incident, Crown counsel objected that the matter was collateral. Without a ruling from the trial judge, trial counsel left the incident.

[80] The complainant testified in chief that she went to the police in January 2001, after realizing that the appellant was going through with his threat to ruin her parents’ lives. Specifically, in December 2000, the appellant charged the complainant’s parents with assault. In cross-examination, trial counsel suggested to the complainant that the reason she went to the police was because the appellant had laid these charges. She denied this. She said that the reason she had the courage to go to the police was because the appellant was following through with his vendetta against her and her family, his promise that he would ruin her life and her parents’ lives, and that he would kill her and her parents. She denied that her parents had assaulted the appellant, although she conceded that her father had agreed to enter into a peace bond. She also admitted that her father charged the appellant’s aunt and cousin with various offences.

[81] The complainant was also cross-examined to confirm that she never called the police in 1999 when she was allegedly being assaulted by the appellant. She said that she did not call the police the first time because she wanted the marriage to work.

[82] The appellant testified in chief that he first learned about the allegations against him when he returned from India in April 2001, where he had been working with Doctors Without Borders. There was considerable cross-examination about this aspect of the appellant’s testimony. Crown counsel attempted to get the appellant to admit that he became aware of the allegations when he read the counter petition filed by the complainant in November. The appellant testified that he was not sure that the allegations in the counter petition were the same as those made in the criminal proceedings.

The Trial Judge’s Reasons

[83] The trial judge appeared to accept the complainant’s explanation for why she went to the police. The trial judge said this:

The complainant viewed police involvement as the end of the marriage. She only went to the police after her parents were charged in December 2000, an event which she saw as the last straw.

The Fresh Evidence

[84] Trial counsel testified that he was unaware of the doctrine of recent fabrication. He was however “vaguely” aware of the principle that making an allegation of recent fabrication could allow the Crown to elicit statements that the complainant made to other people.

[85] Trial counsel was asked whether he considered the mosque incident collateral. He said that he did not. He was then asked why he did not attempt to pursue the issue in the face of Crown counsel’s objection. He did not appear to have an explanation, and did not seem to have an understanding of the collateral fact rule.

[86] Counsel had in his file a photograph of the appellant that allegedly showed an injury caused by the assault by the complainant’s mother at the mosque. While he mentioned having the photograph in his cross-examination of the complainant at the preliminary inquiry, he never produced the photograph at the preliminary inquiry or later at the trial. A copy of the photograph was produced as part of the fresh evidence application. It shows a bruise to the appellant’s left arm; the photograph is undated and there is no evidence from the appellant as to when the photograph was taken or by whom.

The Character Letters

[87] At the conclusion of the testimony, the court adjourned for the day. The following day was set for submissions. Just before defence counsel began his submissions, the trial judge noticed that trial counsel had handed something to the registrar. She asked him about it and he said that they were letters of reference relative to the appellant’s character. The trial judge said that those might be relevant to any sentence hearing but were not relevant to submissions. She directed the registrar to return the letters to counsel.

Fresh Evidence

[88] Trial counsel testified that he did not intend to use the character letters at that time; he was giving them to the Registrar to hold for use on sentencing. Trial counsel did not give any consideration to calling character evidence on the trial proper. He was not aware of any case law concerning the use of character evidence.

The Defence Submissions at Trial

[89] Trial counsel submitted that the complainant’s evidence was not credible. He pointed out that the complainant did not go to the police until over a year after the separation, on the same day that her father was arrested for assault of the appellant. He submitted that this delay was unexplained. He also referred to the issue of title to 55 Chapletown, and pointed out that the evidence showed that the property had originally been in the name of both the appellant and his father, contrary to the complainant’s testimony in chief. He pointed out that the complainant and her father said that there were “numerous holes” in the walls when the independent witness, Mr. Thorne, had testified that there were only dents.

[90] Counsel referred to the evidence of Mr. Aruliah being called to the apartment because of reports of crying or yelling or screaming, but that when he saw the complainant the next day he did not see any bruises. Also, Mr. Thorne did not see any bruises. Counsel pointed out that there was no physical evidence to support the complainant’s story.

[91] Counsel also pointed out that the complainant admitted never telling her parents about the death threats against them. As he said, if she was truly frightened she would have informed her parents, even though after the separation the appellant had said he would get the parents.

[92] Counsel briefly referred to the appellant’s evidence and submitted that he should be believed; that he had testified in a truthful and forthright manner. He pointed out that the appellant’s version of the August incident when he returned to the apartment and found it in disarray was confirmed by the evidence of his aunt.

The Crown’s Submissions at Trial

[93] Crown counsel submitted that the complainant should be believed, that she gave her evidence in a clear, forthright and cogent manner and was untouched in cross-examination. He submitted that her evidence about the damage was corroborated. He submitted that the complainant had explained why she did not go to the police – that she wanted to try to make the marriage work, and was encouraged in that belief by her family. Crown counsel referred to the complainant’s testimony of the relationship as one being rife with abusive and controlling behaviour by the appellant.

[94] Crown counsel stated that “it cannot possibly be asserted that there’s anything even close to recent fabrication with respect to her allegations.” (It should be pointed out that defence counsel had never used the term “recent fabrication”.) Crown counsel then went on to point out that the complainant made her allegations known to her family and Mr. Aruliah, and in her counter petition. He submitted that “[i]t’s not a situation where her parents were charged, and then all of a sudden the allegations arise for the first time; far from it.”

[95] Crown counsel reviewed the evidence at length about 55 Chapletown as the precursor to the August assault and threat. Crown counsel conceded that there was no corroboration of the complainant’s physical injuries. He submitted that the explanation for that was that she did not want anybody to know, as she was trying to hide what was happening in the marriage. She also wanted the marriage to work, did not want to worry her parents, wanted to avoid embarrassment to herself and to her family, and was even concerned about the appellant’s job prospects.

[96] Crown counsel then reviewed the complainant’s evidence of the November incident ending with the call to her father, which was the end of the relationship. Crown counsel conceded that there were further meetings between the appellant and the complainant, as well as attempts at reconciliation.

[97] Crown counsel referred to the evidence of Mr. Aruliah, including the hearsay evidence that he had heard complaints about a woman in distress. Crown counsel reviewed the evidence of the complainant’s father and how that supported the complainant’s evidence.

[98] Finally, Crown counsel reviewed the appellant’s evidence at considerable length to show that the appellant was evasive and self-serving in his answers, and that his testimony was “rampant with contradictions both factually and logically.” Crown counsel referred in particular to the following:

• Every single argument was unprovoked and the appellant never so much as raised his voice;

• The appellant returns to the apartment to find it in disarray and his wife gone but does nothing to find out where his wife is or what happened; yet when he is merely poked by the complainant’s father at the mosque he calls the police;

• The appellant’s version of the August incident was inconsistent with his testimony in the divorce proceedings;

• The appellant’s evidence as to when he first learned about the allegations of violence was contradictory;

• The appellant’s evidence as to why he continued with the divorce petition based on cruelty when he could have obtained an uncontested divorce based on separation did not make any sense; the real reason he continued with the cruelty allegations was that it was symptomatic of his controlling nature, and his attempt to blame the complainant for the divorce;

• The appellant did not recall the reasons for the divorce even though he was in court at the time judgment was given;

• The appellant’s evidence about when 55 Chapletown was discussed with the complainant was inconsistent and his version made no sense;

• The appellant’s evidence that he never raised his voice despite the yelling and screaming by the complainant was not credible; and

• The appellant’s evidence was extremely vague about the various incidents despite the fact that they were not trivial, such as coming home and finding his wife gone and the apartment in disarray, and security guards attending at the apartment.

Trial Counsel’s Reply Submissions

[99] Trial counsel’s submissions in reply to the Crown were very brief. He pointed out that the appellant had an explanation for why he did not call the police when he returned to the apartment in August; that there was no reason to call the police because he was convinced his wife had caused the mess, and the complainant’s father had called him and told him that the complainant was at her parents’ home. He also pointed out in relation to the 55 Chapletown issue that the appellant had always maintained that it was not going to be the matrimonial home.

Other Reasons of the Trial Judge

[100] I have referred to most of the trial judge’s reasons above as they relate to the specific issues raised at the trial and on appeal. The trial judge also referred to the manner in which the parties gave their evidence. She found that the complainant gave her evidence in a “clear, forthright, cogent and emotional manner. She recalled the incidents in exquisite detail, and she was not shaken on cross-examination.” In contrast, the trial judge accepted Crown counsel’s characterization of the appellant’s evidence as extremely evasive and self-serving. He gave rambling answers to the simplest of questions.

The Preliminary Inquiry Issues

[101] At the preliminary inquiry, trial counsel submitted to the presiding judge that the appellant should be discharged on the basis that the complainant was not a credible witness and her evidence was not corroborated. Counsel testified that he believed that it was open to a judge to discharge in those circumstances. He had earlier advised the appellant’s family that he was hoping to have the charges dismissed.

Other Evidence from Trial Counsel

[102] Trial counsel testified that he did not feel it was necessary to prepare a written outline in advance of the points he wanted to make in examining his own witnesses. He did not feel it was necessary since he had gone over their testimony with the witnesses several times in his office.

[103] Trial counsel was asked about his use of the preliminary inquiry to cross-examine witnesses. He agreed that it should be used to contradict the witnesses in their trial evidence. He also agreed that in many instances in cross-examining the Crown witnesses, he was simply putting to them testimony from the preliminary inquiry that was the same as their trial testimony, and that the trial judge pointed that out to him.

[104] In her examination of trial counsel, Ms. Kingston obtained evidence as to the preparation that trial counsel did do, including reviewing the disclosure with the appellant and his family, extensively reviewing the complainant’s videotaped statement, considering the options for mode of trial, and having regular meetings with the appellant to discuss the case.

ANALYSIS OF THE ACTS OF ALLEGED INCOMPETENCE

Failure to Adduce Evidence

[105] The appellant submits that trial counsel had available evidence that could have been introduced to discredit the complainant and bolster his credibility. I will deal with that evidence.

The Furniture

[106] Trial counsel had in his file receipts showing that 16 days after the marriage he purchased a bed, and that the bed was fully paid for 23 days after the marriage. It is argued that this evidence could have been used to undermine the complainant’s claim that she slept on an air mattress for six weeks, and that the appellant was attempting to impose upon her a strict form of Islam. However, the appellant has adduced no evidence on the appeal as to when the bed or any other furniture was delivered. The appellant has therefore not shown that the failure to adduce this evidence would have contradicted the complainant’s claim at trial.

The Deed

[107] According to the complainant, the first assault in August was sparked when she confronted the appellant with the fact that he had transferred ownership of the house at 55 Chapletown. She testified that at her request her father had searched the title and discovered that days before the wedding the appellant had transferred title to his father. The complainant refused to concede that in fact that property had been jointly owned by the appellant and his father. The appellant’s explanation for the transfer was that his name was only on the property for mortgage purposes, and since he did not intend to live there after the marriage, he transferred his interest to his father. Trial counsel had a copy of the documents in his file to show that the property had indeed been in the name of the appellant and his father, but he failed to confront the complainant with this material.

[108] However, by the end of the trial there could be no serious dispute that the property had been in the name of both the appellant and his father. The complainant’s father, who had actually done the title search, confirmed this. To the extent that the pre-marriage state of title was important, it was established.

The Photograph of the Bruise

[109] As indicated, trial counsel had in his file a photograph of a bruise on the appellant’s arm. Trial counsel did not use the photograph at the preliminary inquiry or at the trial but made some reference to it at the preliminary inquiry, the suggestion being that the bruise resulted from the assault by the complainant’s mother. The photograph is undated and there is no evidence from the appellant as to when the photograph was taken or by whom. In the absence of such evidence it is impossible to tell whether the photograph has any probative value, and therefore to find that failure to produce the photograph at the trial affected the reliability of the verdict. In any event, even if the photograph could be tied to the assault, the failure to produce it could not have affected the verdict. The complainant’s mother was not a witness. Although the complainant was cross-examined about the assault, she was not present at the mosque. Her belief that the appellant, by charging her parents, was carrying out his plan to ruin her life and the life of her parents was not dependent on whether or not her mother actually assaulted the appellant.

The Character Evidence

[110] There is no doubt that trial counsel could have called evidence to show that the appellant was of good character. This is apparent from the fact that counsel had a number of character letters that were used on sentencing. However, evidence of good character was of limited value in this case. There is no suggestion that the proposed character evidence would have shed light on the way in which the appellant interacted with the complainant in private. In R. v. Profit, 1993 CanLII 78 (SCC), [1993] 3 S.C.R. 637, the Supreme Court of Canada observed, at p. 637, that “sexual misconduct occurs in private and in most cases will not be reflected in the reputation in the community of the accused for morality”. The same may be said in this case. The physical abuse to which the complainant testified took place when she was alone with the appellant.

[111] The one piece of evidence that might have shed light on the way the appellant acted towards the complainant was from his 12-year-old cousin. However, counsel did attempt to call this evidence, and the trial judge ruled that the evidence was inadmissible.

[112] While character evidence might have been helpful to show that the appellant was a truthful person, I think it highly unlikely that this evidence would have affected the verdict in any way.

Evidence from Neighbours

[113] The appellant submits that trial counsel should have investigated what the neighbours had to say about noise coming from the apartment. The difficulty with this submission is that the appellant has produced no evidence on this appeal that there was any such evidence. In any event, it was never the appellant’s position that there was no noise emanating from his apartment. To the contrary, he claimed that the complainant was screaming and swearing at him on a regular basis.

The Torn Invitation

[114] Trial counsel failed to adduce from Ms. Devji that the complainant’s father had told her that he ripped up the wedding invitation. Failure to adduce this evidence could not have affected the reliability of the verdict. If Ms. Devji had given the evidence sought and had been believed, this would have contradicted the complainant’s father on a relatively minor matter. There was abundant other evidence that the complainant’s father was not an independent witness. The animosity between the appellant and the complainant’s father was apparent. Both claimed to have been verbally abused by the other, and the appellant claimed to have been assaulted by the complainant’s father.

The Conduct of the Trial

[115] While the appellant makes a large number of complaints about trial counsel’s handling of the case, in addition to the failure to adduce evidence, I only intend to deal with what I perceive to be the most serious.

Recent Fabrication

[116] The appellant submits that trial counsel profoundly misunderstood the law of recent fabrication. As a result, counsel unwittingly made an allegation of recent fabrication by alleging that the complainant went to the police in response to her parents being charged. This allegation paved the way for admission of what would otherwise have been inadmissible evidence of the complainant’s prior consistent statements. In my view, some kind of allegation of recent fabrication was inevitable in this case. The one piece of independent physical evidence in this case was the holes or dents in the wall. They were seen by two people, Mr. Thorne and Mr. Aruliah, who had no motive to fabricate. For the appellant to raise a reasonable doubt as to whether the August incident occurred, he had to discredit the version of events from the complainant as to how that damage occurred.

[117] The defence strategy at trial was to demonstrate that the complainant was not credible because her version of events, even as supported by the other Crown witnesses, was inherently unlikely. For example, despite the violence and threats that were said to have accompanied the August incident, neither the complainant nor her father called the police, and no independent witness saw the bruises that should have been apparent from the assault. This attempt was somewhat undermined when the complainant testified that a co-worker had seen a bruise which she referred to as a “hickey”. On the other hand, the Crown made no attempt to call this co-worker.

[118] The defence position was bolstered by the fact that despite the serious violence reported by the complainant, she not only returned to the relationship a few days later but her father, who had “zero tolerance” for violence, eventually conceded in cross-examination that he had persuaded her to return. It could be argued that the explanation that the complainant still wanted the marriage to work in the face of the extreme violence described by the complainant in her testimony, and as reported to her father, was incredible. Counsel was also able to discredit the complainant because although she claimed that the appellant had threatened to kill her parents, she never told them about the threats until well after the threats were allegedly made.

[119] This was a reasonable tactic in the circumstances, but it necessarily depended on the complainant and her father relating the entire chronology, including the history of complaints by the complainant to her father. It was only through an examination of this chronology that it could be argued that the complainant must have exaggerated what the appellant did. Otherwise why did she return to him, why did her father persuade her to return, and why did she not tell her father of the death threats? The only downside of this strategy was that it made Mr. Thorne’s evidence of what the complainant said to her father admissible. On the other hand, this was a relatively minor risk. The complainant told a story of extreme violence, including attempts to punch her and the holding of a knife to her throat. Mr. Thorne merely testified that the complainant said the appellant threatened her. He saw no bruises, made no mention of attempts by the appellant to assault the complainant, and made no mention of the use of a knife. Finally, Mr. Thorne’s description of the damage was minor compared to the picture presented by the complainant and her father. On balance, it was reasonable to view Mr. Thorne’s evidence as not inconsistent with the defence theory.

[120] A second theme that emerges from the trial is that the complainant’s report to the police was a reaction to her parents being charged with assault, and not a response to actual abuse. The theory was a reasonable one given the chronology. This theory also depended on an exploration of the chronology and what the complainant told her father. On the other hand, it could be that the strategy was nothing more than an attempt to show that the complainant’s complaints about the appellant’s conduct were exaggerated; otherwise why did she and her father not go to the police earlier?

Failure to Object to Inadmissible Evidence

[121] The appellant submits that the verdict is unreliable because counsel failed to object to inadmissible evidence including hearsay evidence, prior consistent statements, and irrelevant evidence. For reasons set out above, it is my view that the prior consistent statements were admissible.

[122] As to the hearsay evidence, the most problematic evidence was from Mr. Aruliah that he had received complaints from the appellant’s neighbours of a screaming woman in distress. This evidence was admissible for the limited purpose of explaining why Mr. Aruliah went to the apartment. The evidence was not tendered as proof that there were complaints from other neighbours. In a jury trial, a trial judge might well find that the prejudicial effect of the evidence outweighed its probative value and exclude it. In other words, the risk that the jury would use it for its truth as evidence that there was screaming coming from the apartment (the prejudicial effect) would outweigh its value in explaining Mr. Aruliah’s conduct (the probative value).

[123] However, this was a judge alone trial and thus the issue is whether the trial judge misused the evidence. In her reasons, the trial judge reviewed Mr. Aruliah’s evidence and referred to the fact that he had received “numerous complaints of screaming and knocking down noises from Apartment 1207, and he observed the complainant leaving the building a few times crying”. However, when the trial judge came to her analysis of the evidence and, in particular, the credibility of the complainant’s evidence, she did not refer to this evidence. Finally, even if it was used for its truth, this hearsay evidence was not inconsistent with the appellant’s version of events. He claimed that he was constantly verbally abused for no reason by the complainant. For example, the appellant testified as follows in relation to the August incident:

I can’t remember exactly what happened, what she said at that time, but it was the same thing again, screaming, shouting, foul language again, and I – there was one incident, I don’t know if it was that time, but when she took off her ring and she threw it against the wall. I can’t remember if it was that time because she threw things on [sic] times.

[124] The appellant also submits that trial counsel should have objected to the evidence of the complainant as to her conversation with her mother in which the appellant appeared to make an admission following the Future Shop incident. Crown counsel did not rely upon this evidence in his submissions and the trial judge did not refer to this incident. It is reasonable to assume that the trial judge recognized this testimony for what it was: inadmissible hearsay.

[125] The appellant submits that because of trial counsel’s mistaken understanding of the scope of cross-examination, Crown counsel was permitted to cross-examine the appellant on irrelevant evidence. He points in particular to the cross-examination of the appellant on the Maher and the Hindu tradition of Sati. Cross-examination on these issues was irrelevant and counsel should have objected. On the other hand, I fail to see how the cross-examination prejudiced the appellant. The cross-examination consisted of a few questions and played no part in the trial judge’s assessment of the appellant’s credibility. For example, with respect to the Maher, the appellant acknowledged that the complainant obtained judgment against him in the divorce proceedings for the amount of the Maher, and testified that he had paid the judgment.

[126] The appellant submits that trial counsel should have objected to cross-examination on the Port Perry incident. In my view, cross-examination on this incident was not improper. The appellant attempted to portray himself as a mild mannered, much abused husband. His defence was that it was the complainant who initiated all the arguments and she was the one who was initiating the attempts at reconciliation. It was open to Crown counsel to challenge the appellant’s version of events, even if the Crown did not rely on this incident during its case in chief. In the result, the court heard only the appellant’s version of this event, which entirely favoured the defence position.

Failure to Lead the Appellant through all of the Incidents

[127] The appellant submits that trial counsel should have led the appellant in chief through each of the incidents to obtain his explanation for each of them, and not just the August incident. I agree that trial counsel should have at least obtained the appellant’s version of the Future Shop incident, since that was the basis for the assault charge. The issue, however, is whether the failure to do so affected the reliability of the verdict. Trial counsel did obtain from the appellant his express denial that he assaulted or threatened the complainant. And, in cross-examination, the appellant was given the opportunity to provide his version of all of the events. For some, like the Edwards Garden incident, the appellant simply denied that there was such an incident.

Use of the Preliminary Inquiry and Divorce Trial Transcript

[128] The appellant submits that trial counsel did not use the preliminary inquiry transcript effectively because his method was to read long passages from the transcript that were generally not inconsistent with the witness’s trial testimony. I agree that trial counsel should have been more precise in his use of the transcript, but this use of the transcript could not have affected the reliability of the verdict. There is no suggestion that there were areas of inconsistency in the preliminary hearing transcript that trial counsel could have but failed to use to undermine the evidence of the Crown witnesses. Further, trial counsel was able to make effective use of the divorce trial transcript, especially in cross-examination of the complainant’s father.

The Collateral Fact Rule

[129] The appellant submits that trial counsel did not understand the collateral fact rule and was therefore unable to make appropriate submissions when Crown counsel objected to the evidence of the appellant’s young cousin. She would have testified to an incident when the complainant apparently swore at the appellant in her presence. This evidence, if believed, would have contradicted the complainant on her assertion that she would never do any such thing for fear it would “trigger him off”.

[130] I agree with the appellant that admission of this evidence would not offend the collateral fact rule. As this court explained in R. v. P. (G.) (1996), 1996 CanLII 420 (ON CA), 112 C.C.C. (3d) 263, at p. 275, subject to certain exceptions, the collateral fact rule prohibits a party from adducing extrinsic evidence to contradict a witness unless the extrinsic evidence is relevant to some issue in the case other than merely to contradict the witness. In this case, the cousin’s evidence would not merely contradict the complainant’s assertion that she did not swear at the appellant on the occasion in question. The evidence, if believed, could undermine the complainant’s assertion that the appellant, rather than she, was the verbally abusive party in the relationship. It could also undermine her broad assertion that she would never swear at the appellant for fear that he would abuse her.

[131] However, in considering the impact on the reliability of the verdict, the issue is not simply whether more effective submissions could have been made; clearly they could have been. The issue, it seems to me, is the impact on the reliability of the verdict because of the absence of this evidence, due to counsel’s failure to make appropriate submissions. I am not persuaded that the appellant has shown that the absence of the cousin’s evidence affected the reliability of the verdict. The appellant has not produced on appeal any evidence from the cousin, and so the exact nature of her proposed testimony is unknown. It is not possible to know whether the cousin’s testimony was credible nor how serious the alleged swearing incident was, and therefore the extent to which it would have undermined the complainant’s assertion. It is theoretically possible that the appellant’s defence at trial would have been better had the cousin’s evidence been admitted, but that is not enough to show that the verdict is unreliable.

[132] This court dealt with a similar problem in Davies, where it was alleged that defence counsel was incompetent in his defence of the accused on charges of impaired driving causing death and criminal negligence causing death. A particularly damaging piece of evidence was the results of a blood sample taken from the accused. On appeal, it was argued that defence counsel was incompetent for failing to challenge the admissibility of this evidence. This court held that the necessary prejudice was not made out solely on the basis of an assertion that the evidence should have been excluded. As Moldaver J.A. said at para. 55:

Put differently, absent an evidentiary foundation, it is not enough for the appellant to claim that the blood sample evidence might theoretically have been excluded on the basis of some unidentified Charter breach; nor is it enough to speculate that the hospital staff may have taken the sample improperly or that it somehow became contaminated thereafter and that these hypothetical breaches would have been uncovered by more diligent counsel.

[133] Similarly, in this case, the evidentiary foundation for the submission is not sufficient for this court to determine that the appellant was prejudiced by counsel’s conduct.

The Appearance of Fairness

[134] The appellant submits that a miscarriage of justice was occasioned because counsel’s ineffective representation undermined the appearance of fairness of the trial. This submission turns principally on trial counsel’s standing with the Law Society of Upper Canada. Trial counsel acted for the appellant at his preliminary inquiry in February 2002, the divorce proceedings in May 2002, and the trial in January 2003. At the time, counsel was not entitled to practice, having given an undertaking not to practice. The undertaking was given in relation to his failure to maintain proper books and records. Trial counsel never disclosed to the appellant that he was not entitled to practice.

[135] In July 2005, counsel was found guilty of professional misconduct for practicing in the period from June 2001 to December 2004 while not entitled to do so. In the hearing in June, trial counsel told the discipline panel that he had only acted for two clients during this time and did not inform them that he had acted for the appellant. The panel ordered that counsel be suspended for four months. When he was cross-examined in relation to this appeal, trial counsel testified that for medical reasons he had not practised since his suspension. Counsel on this appeal later learned that trial counsel had been practicing for about a month in the fall of 2006, again at a time when he was not entitled to practice. Counsel was again disciplined in July 2007 for practicing while under suspension.

[136] The appellant submits that the appearance of fairness was also affected by the trial counsel’s profoundly deficient knowledge of the law and obvious lack of credibility with the trial court. The deficient knowledge of the law focuses on several areas: the rules of evidence concerning recent fabrication, character evidence and collateral facts; the limited jurisdiction of the preliminary inquiry judge; the use of the deed to 55 Chapletown; and cross-examination on prior testimony. Lack of credibility with the trial court relates to an admonition from the trial judge about cross-examination on the preliminary inquiry transcript, and the handing up of the character letters prior to sentencing.

[137] I am satisfied that trial counsel’s lack of legal knowledge did not affect the appearance of fairness. I have already dealt with recent fabrication in the context of the reliability of the verdict. Since any reasonable strategy would inevitably have required disclosure of the complainant’s statements to other persons, any deficiency in this respect could not have affected trial fairness. Trial counsel’s mishandling of the deed issue similarly could not have affected trial fairness, since counsel was able to put the relevant evidence before the trial judge through cross-examination of the complainant’s father. The admonitions from the trial judge about the use of the preliminary inquiry evidence and the character letters do not demonstrate such a fundamental breakdown in the trial judge’s trust of trial counsel as to render the trial unfair. It is hardly unusual for trial judges to admonish counsel about the manner in which they are questioning witnesses.

[138] This leaves counsel’s lack of familiarity with the collateral fact rule and his misunderstanding of the role of the preliminary inquiry judge. The misunderstanding of the limited role of the preliminary inquiry judge could not affect the fairness of the trial. His lack of knowledge of the collateral fact rule, which it would seem he shared with trial Crown counsel, does not demonstrate such a pervasive incapacity as to affect the fairness of the trial. In my view, this allegation is more properly analyzed as a component of the allegation of ineffectiveness leading to an unreliable verdict, a matter I have already dealt with.

[139] The most troubling aspect of this submission concerns trial counsel’s lack of capacity to practice because of his suspension by the Law Society of Upper Canada. This court has overturned verdicts where trial counsel was unable to provide effective representation due to intoxication and a disqualifying conflict of interest, irrespective of the impact on the reliability of the verdict. An allegation of a miscarriage of justice based upon counsel’s status with the Law Society would appear to be a matter of first impression in this court. In my view, however, the approach taken by this court where the related allegation of a disqualifying conflict of interest is first made on appeal is appropriate.

[140] In R. v. Widdifield (1995), 1995 CanLII 3505 (ON CA), 25 O.R. (3d) 161 (C.A.), Doherty J.A. held that the appellant must demonstrate an actual conflict of interest between the respective interests represented by counsel, and some impairment of counsel’s ability to effectively represent the appellant’s interest as a result of the conflict. If both criteria are established, “then the appellant has been denied the right to make full answer and defence and a miscarriage of justice has occurred. The appellant need not demonstrate that, but for the ineffective representation of counsel, the verdict could have been different” (p. 173).

[141] Adapting that approach to this case, the appellant must show that counsel was actually disqualified from practice and that his ability to effectively represent the appellant was impaired as a result of that disqualification. The appellant has clearly made out the first criterion: the appellant has shown that, unbeknownst to him, his lawyer was suspended from practice. The appellant has not made out the second criterion. Counsel’s suspension related to his failure to maintain records in accordance with Law Society regulations. It is unnecessary to review counsel’s explanation for this failure since in general I find his testimony unconvincing. But, this suspension did not relate to his competency and did not compromise his ability to provide competent representation. Although he was suspended, trial counsel met with the appellant, his family and his witnesses on numerous occasions; he reviewed the disclosure including the complainant’s videotaped statement, which he watched several times; he obtained the transcript of the preliminary inquiry and the divorce trial; and he prepared the appellant and his witnesses to testify.

[142] Having said that, it is a matter of serious concern that a lawyer who has been suspended from practice by the Law Society continued to represent an accused before the court. Had the trial judge been aware of the suspension, she would not have proceeded with the trial until the accused had the opportunity to retain and instruct other counsel. Clearly, judges or Crown counsel will act in cooperation with the Law Society to protect the public should they learn that a suspended or disbarred lawyer is representing an accused.

[143] Accordingly, I would not give effect to the ineffective assistance ground of appeal.

The Trial Judge’s Errors

[144] The appellant submits that the trial judge erred in law in excluding the evidence of the appellant’s cousin for violating the collateral fact rule. I have already dealt with this issue in the context of effectiveness of counsel. I agree with the appellant that the trial judge erred in refusing to admit this evidence. I am satisfied, however, that the error did not occasion any substantial wrong or miscarriage of justice. On this record, all that is known is that the cousin would have testified that on one occasion the complainant swore at the appellant in her presence. When regard is had to the trial judge’s reasons for accepting the complainant’s evidence and rejecting the appellant’s evidence, exclusion of this minor piece of evidence would not have affected the verdict.

[145] The appellant submits that the trial judge misapprehended Mr. Aruliah’s evidence. In her reasons, the trial judge stated that Mr. Aruliah “heard a woman crying loudly and in distress”. In fact, Mr. Aruliah testified that other tenants had heard a woman was in distress and crying loudly, and as a result he went to the apartment. In my view, this was not a serious error by the trial judge. Mr. Aruliah did testify that the complainant replied to his knock “in a crying voice”. The difference between Mr. Aruliah’s actual testimony and the trial judge’s review of it was not significant.

DISPOSITION

[146] Accordingly, I would dismiss the appeal.

Signed: “M. Rosenberg J.A.”

“I agree “K. Feldman J.A.”

“I agree J. C. MacPherson J.A.”

RELEASED: “MR” October 27, 2008