WARNING
THIS IS AN APPEAL UNDER THE
YOUTH CRIMINAL JUSTICE ACT
AND IS SUBJECT TO:
110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. L.B., 2014 ONCA 748
DATE: 20141029
DOCKET: C59096
Simmons, Rouleau and Tulloch JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
L.B.
Appellant
Breese Davies and Owen Goddard, for the appellant
Joanne Stuart, for the respondent
Heard: October 15, 2014
On appeal from the finding of guilt made by Justice Norman S. Douglas of the Ontario Court of Justice on April 13, 2011.
By the Court:
[1] On July 24, 2009, the 17-year-old complainant and the 16-year-old appellant engaged in consensual oral sex. At trial, both testified that they had vaginal intercourse after an unsuccessful attempt at anal intercourse. According to the complainant, she told the appellant that she did not wish to lose her virginity and that she did not consent to intercourse. Although the appellant acknowledged that the complainant told him that she did not wish to lose her virginity, he testified that she went along with it and did not object or show any “sign of not wanting it.”
[2] The trial judge found the appellant guilty of sexual assault. The appellant raised two issues on his appeal from that finding.
[3] First, the appellant argued that the trial judge erred by applying differing levels of scrutiny to his evidence and that of the complainant.
[4] We did not call on the Crown to respond to this argument. As this court noted in R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480, at para. 59, “[t]his is a difficult argument to make successfully.” That is because, as Doherty J.A. stated:
It is not enough to show that a different judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.
[5] In this case, the appellant did not meet this high threshold. Rather, in our view, his arguments were an attempt to have us reweigh the evidence that was before the trial judge. That is not our function.
[6] Second, the appellant argued there has been a miscarriage of justice due to ineffective assistance of counsel. In this regard, he acknowledged that an appeal based on ineffective assistance of counsel has a performance component and a prejudice component.
[7] For an appeal to succeed on this ground, an 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 SCC 22, [2000] 1 S.C.R. 520, 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”: R. v. Prebtani, 2008 ONCA 735, 240 C.C.C. (3d) 237, leave to appeal to S.C.C. refused, [2009] S.C.C.A. No. 153, at para. 3 (internal quotation marks omitted).
[8] In assessing a claim for ineffective assistance of counsel, this court must first determine whether a miscarriage of justice has occurred. If not, then the performance component generally ought not to be considered: G.D.B., at para. 29; R. v. Prebtani, at para. 4. In G.D.B., the Supreme Court of Canada suggested two ways in which counsel’s performance may result in a miscarriage of justice: procedural unfairness or an unreliable verdict: at para. 28. As Rosenberg J.A. wrote for this court in Prebtani, at para. 4:
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.
[9] Here, the appellant asserts that trial counsel’s decision not to pursue a s. 11(b) Charter application for a stay of proceedings could not have been the result of reasonable professional judgment. The appellant argues that this resulted in a miscarriage of justice, because, first, it deprived the appellant of a remedy to which there is a reasonable possibility he would have been entitled – namely, a stay of the proceedings – and, second, because the appellant suffered procedural unfairness when trial counsel embarked on a course of conduct – namely, not pursuing a s. 11(b) application – without his instructions. The appellant submits that he suffered actual prejudice as a result of the delay in this matter because of the stress and depression that he claims to have experienced while awaiting his trial.
[10] In response to the appellant’s allegations, trial counsel asserted that he made a strategic decision not to rush to a trial date because, in his experience, young complainants sometimes recant their evidence as memories of an incident fade. He was therefore of the view that it was not in the appellant’s interest to seek an early trial date. Accordingly, he did not attempt to lay a foundation in the record for a s. 11(b) application. In these circumstances, he considered that bringing such an application would appear frivolous and serve only to agitate the presiding judge.
[11] We begin with the issue of whether the appellant was deprived of a remedy to which there is a reasonable possibility he would have been entitled.
[12] The framework for conducting a s. 11(b) analysis is well-known: see, for example, R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177, at paras. 20-24; R. v. Florence, 2014 ONCA 443, 312 C.C.C. (3d) 165, at paras. 29-31.
[13] In this case, in total, there was delay of just over 20 months between the appellant’s arrest and his trial. The chronology of events is as follows:
August 5, 2009: the appellant is arrested
September 23, 2009: first appearance and initial disclosure
October 14, 2009: defence counsel appears but is not yet properly retained
November 4, 2009: defence counsel is not ready to set a date
December 2, 2009: defence counsel appears and advises the court that a number of the DVDs he has received of the complainant’s statement are defective
December 23, 2009: Crown pre-trial; date set for a judicial pre-trial; at defence counsel’s request, a later date is set
March 26, 2010: judicial pre-trial held; additional initial disclosure provided; awaiting report from the Centre of Forensic Sciences (“CFS”); adjourned for ongoing judicial pre-trial
May 25, 2010: judicial pre-trial continued; CFS report still outstanding; adjourned to June 16, 2010 to set date
June 16, 2010: CFS report still outstanding; adjourned to July 7, 2010
July 7, 2010 CFS report still outstanding; adjourned to August 4, 2010
July 23, 2010 CFS report received
August 4, 2010: adjourned to September 8, 2010 at defence request
September 8, 2010: adjourned to September 22, 2010 at defence request
September 22, 2010: adjourned to October 20, 2011 at defence request
October 20, 2010: trial date set for April 13, 2011 (first available date December 30, 2010 – neither counsel available; next date February 23, 2011 – defence not available)
April 13, 2011: trial held
[14] We agree that just over 20 months of delay from arrest until trial would have attracted the trial court’s scrutiny. Further, we acknowledge that youth court matters are expected to proceed with greater dispatch than adult criminal proceedings: R. v. M. (G.C.) (1991), 1991 7057 (ON CA), 3 O.R. (3d) 223 (C.A.), at p. 230; see also R. v. R. (T.N.) (2005), 2005 18709 (ON CA), 75 O.R. (3d) 645 (C.A.), at paras. 28-31. As Osborne J.A. stated in R. v. M. (G.C.), “in general, youth court cases should be brought to trial within five to six months, after the neutral period required to retain and instruct counsel, obtain disclosure, etc.”: at p. 236. Nonetheless, we are not satisfied that the appellant has established a reasonable possibility that a stay would have been granted had a s. 11(b) application been brought.
[15] We begin by noting that, because the appellant did not bring a s. 11(b) application at trial, we do not have the benefit of the record that would have been filed or the submissions of trial counsel that would have been made had such an application been brought. In these circumstances, we can only estimate how the delay might have been allocated had a s. 11(b) application been made at trial. We have examined the transcripts of the set date proceedings and the information about available dates that appellate counsel has been able to obtain. We note, however, that, in many instances, the record does not reveal the court’s or counsel’s first available dates for next steps – information which can be critical in allocating responsibility for delay: see R. v. Tran, at paras. 54-61; R. v. Florence, at paras. 55 and 63. In the circumstances, our best estimate is as follows:
Aug. 5, 2009 to Nov. 4, 2009 3 months: intake, neutral
Nov. 4, 2009 to Dec. 2, 2009 28 days: inherent time requirements of the case (review of disclosure; arranging and preparing for Crown pre-trial)
Dec. 2, 2009 to Dec. 23, 2009 21 days: Crown delay (delay in disclosure)
Dec. 23, 2009 to March 26, 2010 3 months 3 days: combination of inherent time requirements of the case to arrange and prepare for judicial pre-trial and defence delay (defence request for later pre-trial). In the absence of specific information concerning these issues we allocate the delay as follows:
1 month 18 days: inherent time requirements or neutral
1 month 15 days: defence delay
March 26, 2010 to Aug. 4, 2010 4 months 9 days: Crown delay (CFS report)
Aug. 4, 2010 to Sept. 8, 2010 1 month 4 days: defence delay
Sept. 8, 2010 to Sept. 22, 2010 14 days: defence delay
Sept. 22, 2010 to Oct. 20, 2010 28 days: defence delay
Oct. 20, 2010 to Dec. 30, 2010 2 months 10 days: combination of inherent time requirements of the case (to allow counsel to clear their schedules and prepare for trial) and institutional delay. In the absence of specific information concerning counsel’s first available dates, we allocate the delay as follows:
2 months: inherent time requirements of the case
10 days: institutional delay
Dec. 30, 2010 to April 13, 2011 3 months 14 days: inherent time requirements (finding a date suitable to counsel)
[16] In the result, we have assessed responsibility for the delay as follows:
Intake 3 months
Inherent time requirements 8 months
Defence delay 4 months 1 day
Crown delay 5 months
Institutional delay 10 days
[17] We acknowledge that our estimate of the combination of Crown and institutional delay in this matter totalling five months and 10 days is significant. We also recognize the possibility that, with the benefit of defence submissions, a larger portion of the delay that we have attributed to the inherent time requirements of the case might have been attributed differently on a s. 11(b) application. Nonetheless, this establishes only that the appellant has not met his onus of proof on appeal. Moreover, even assuming that result and that there was actual prejudice to the appellant resulting from delay, we are still not satisfied that, in the face of four months and one day of defence delay, a s. 11(b) application would have had a reasonable chance of success.
[18] No explanation was provided for the defence request for a later pre-trial; none of the set date transcripts demonstrate any concern on the part of the appellant about the delay that was occurring; and part of the defence delay in scheduling the trial was a result of the appellant’s having missed an appointment with counsel. Finally, the record does not reveal any explanation for the delay surrounding the CFS report. That report established only that there were traces of semen on the complainant’s clothing. It is unclear from the record who thought obtaining that report should delay trial scheduling and why. Nonetheless, we have attributed the entire period of that delay to the Crown.
[19] Although we do not condone the Crown and institutional delay that took place, we are not satisfied, in the face of the defence delays, that the appellant has demonstrated that a s. 11(b) application would have had a reasonable chance of success. The charge in this case was serious. The defence delays undermined any assertion that the appellant was seeking a trial within a reasonable time.
[20] As for the appellant’s claim that he suffered procedural unfairness as a result of trial counsel’s embarking on a course of conduct without his (the appellant’s) instructions, we cannot accept this submission. Even assuming that trial counsel had an obligation to seek the appellant’s instructions as to whether to press for his right to a trial within a reasonable time from the outset and ultimately to bring a s.11(b) application, the appellant has not demonstrated that trial counsel’s failure to do so caused a miscarriage of justice. Had the appellant instructed trial counsel to press for a speedy trial from the outset, a speedier trial may have ensued. The appellant has not led evidence to demonstrate otherwise.
[21] In the result, we conclude that the appellant has failed to demonstrate a miscarriage of justice. It is therefore unnecessary, and inappropriate, for us to address the question of whether trial counsel fell below the requisite standard.
[22] The appeal is therefore dismissed.
Released:
“OCT 29 2014” “Janet Simmons J.A.”
“JS” “Paul Rouleau J.A.”
“M. Tulloch J.A.”