WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

CITATION: R. v. McKoy, 2011 ONCA 41

DATE: 20110118

DOCKET: C48358

COURT OF APPEAL FOR ONTARIO

MacPherson, Sharpe and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Darol Joseph McKoy

Appellant

Wayne A. Rumble, for the appellant

Robert Gattrell, for the respondent

Heard and released orally: January 14, 2011

On appeal from the conviction entered on October 9, 2007, by Justice Lorne E. Chester of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant appeals his convictions for three counts of sexual interference. He alleges the assistance he received from his counsel at trial was ineffective, basing his claim primarily on his counsel’s failure to watch video recordings of interviews of the complainants and other witnesses prior to trial and his failure to interview two witnesses suggested to him by the appellant.

[2] We agree. Although trial counsel took several useful steps early in these proceedings, including obtaining an early trial date in accordance with his client’s instructions, he clearly did not properly prepare for the trial, a fact he practically admitted when cross-examined for this appeal because it was a very busy time in his practice. In particular, he failed to respond to a fundamental change in one of the complainants’ mother’s version of how one of the complainants disclosed the alleged sexual assault. The fundamental change would have been readily apparent from viewing the video statement of the mother to the police, or even from the Crown’s summary of that statement. On the record, we conclude that trial counsel’s failure to respond flowed from his almost complete lack of preparation for trial.

[3] Moreover, having agreed that the complainants’ evidence at trial could be introduced by way of their videotaped statements to the police, trial counsel did not review them at all before the trial. As a result, he was not able to consider the best way to structure his cross-examination of the complainants. Moreover, he essentially had to “wing it” when it came to cross-examining the complainants, which is plainly inadequate in relation to the key witnesses against his client in a serious criminal prosecution.

[4] In addition, the appellant provided his counsel with the names of and contact information for two witnesses who would testify in his favour about the events that gave rise to the criminal charges. The fresh evidence establishes that they would have been willing witnesses and would have testified in support of the accused’s position. Counsel did not interview these people and did not call them as witnesses. The trial judge, in his reasons for judgment, drew an adverse inference against the accused for failure to call one of these witnesses.

[5] These three key omissions on the part of trial counsel clearly flowed from failure to properly prepare for trial in the late summer after the trial counsel had successfully obtained a very early trial date for his client. The omissions are sufficiently serious that we cannot say that the appellant did not suffer prejudice. Indeed, in our view, this trial was simply not a fair trial for the appellant.

[6] The appeal is allowed and the convictions for three counts of sexual interference are set aside. The Crown does not seek a new trial. Accordingly, the charges are stayed.

“J.C. MacPherson J.A.”

“Robert J. Sharpe J.A.”

“R. G. Juriansz J.A.”