COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Baylis, 2015 ONCA 477

DATE: 20150629

DOCKET: C52256

Doherty, Watt and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robbie Baylis

Appellant

Robbie Baylis, acting in person

Russell Silverstein, for the appellant

David Friesen, for the respondent

Heard: May 21, 2015

On appeal from convictions entered on August 27, 2008, by Justice P.H. Marjoh Agro of the Ontario Court of Justice.

Doherty J.A.:

I

OVERVIEW

[1] The appellant, Robbie Baylis, was convicted on his pleas of guilty to two counts of possession of a restricted firearm with ammunition. He received a total sentence of two years. The appellant initially appealed conviction and sentence, but he has since completed his sentence and abandoned his sentence appeal. On the conviction appeal, the appellant asks the court to set aside the guilty pleas, quash the convictions and order a new trial.

[2] The appellant is self-represented on the appeal. Mr. Silverstein was appointed under s. 684 of the Criminal Code, R.S.C., 1985, c. C-46, to assist the appellant in advancing a claim of ineffective representation at trial. Mr. Silverstein provided that assistance with his usual skill. The court is indebted to him for his efforts. The court also received submissions from the appellant.

[3] The appellant’s arguments come down to two essential claims. First, he submits that the trial judge erred in law in failing to set aside the his guilty pleas on the application brought after conviction, but prior to sentencing. The appellant submits that the evidence adduced on that application shows both that he did not receive adequate legal advice before entering his plea, and that he did not understand the nature or consequences of the plea. Second, the appellant argues that he did not receive proper assistance from counsel on the application to set aside his plea. The appellant relies, not only on the trial record, but also on additional evidence filed on appeal in support of this argument. For the reasons that follow, I would dismiss the appeal.

II

PROCEDURAL HISTORY

The Charges

[4] The appellant’s arguments require a detailed review of the proceedings at trial and in this court.

[5] The appellant was charged in November 2007 with seven firearms offences. The charges arose out of a search of a home where, according to the Crown, the appellant lived with his mother. The search produced a loaded .30 calibre rifle and a .45 calibre revolver with readily accessible ammunition. The search was the by-product of a broader narcotics-related investigation. Both firearms were found in the mother’s bedroom.

[6] The appellant retained Mr. Barry Caskie shortly after the arrest. Mr. Caskie was an experienced and well-known criminal lawyer in Hamilton. He had known the appellant for several years and had represented him on two prior occasions. On both occasions, the charges had been withdrawn against the appellant.

[7] Mr. Caskie secured the appellant’s release on bail, pending trial. He appeared for the appellant on the charges on several occasions. A judicial pretrial was held in May 2008. The Crown and Mr. Caskie discussed the possibility of guilty pleas on some of the charges. Mr. Caskie was aware of wiretaps that implicated the appellant in the possession and transfer of a third firearm. The appellant had not been charged in relation to that incident, but Mr. Caskie was concerned that he could be charged. Mr. Caskie regarded the charges that might arise out of that incident as potentially more serious than the charges faced by the appellant as a result of the seizure of the firearms in his home.

[8] Eventually, Mr. Caskie and the Crown agreed that the appellant would plead guilty to two of the seven charges. The Crown would request a three-year sentence and Mr. Caskie would agree that a penitentiary sentence was necessary, but would argue for something less than three years. The other charges would be withdrawn and there would be no additional charges against the appellant.

The Guilty Pleas

[9] On August 27, 2008, the appellant pled guilty to possessing a .45 calibre revolver with readily accessible ammunition and possessing a loaded .30 calibre rifle. His guilty pleas were unequivocal.

[10] The trial judge was provided with an Agreed Statement of Facts. A description of the two seized firearms appears in para. 1, which goes on to state:

Although Mr. Baylis was not home at the time the search warrant was executed, he was in possession of both guns. He had no licence to possess either firearm.

[11] The rest of the Agreed Statement of Facts explains how the police came to search the Baylis home and implicated the appellant in other gun-related activity.

[12] The trial judge inquired as to whether Mr. Caskie had reviewed the provisions of s. 606(1.1) of the Criminal Code with the appellant. Those provisions set out the prerequisites for a valid guilty plea. Mr. Caskie advised the trial judge that he had reviewed those requirements with the appellant. The trial judge did not conduct any further inquiry into the s. 606(1.1) requirements.

[13] Mr. Caskie advised the court of the range of sentence he and the Crown had discussed. He also requested a presentence report and alerted the judge to certain issues that might arise on sentencing. Finally, Mr. Caskie indicated that the appellant’s girlfriend was expecting a baby and he asked that the trial judge adjourn the sentencing for five months until late January 2009. The Crown agreed. The trial judge accepted the guilty pleas, entered convictions and adjourned sentencing until January 29, 2009.

The Pre-Sentence Report

[14] At some time prior to January 29, 2009, the appellant met with the probation officer charged with preparing the presentence report. According to the report, the appellant cooperated fully in its preparation. The report contained all of the information routinely provided in preparation for sentencing. The probation officer did not suggest in her report that the appellant was under any misunderstanding as to the nature of the proceedings or the pending sentencing hearing.

[15] The presentence report was largely favourable to the appellant. The report described the appellant’s various medical problems experienced as a result of sports-related head trauma suffered as a teenager and young adult, including depression, anxiety and chronic pain. The report also indicated that the appellant had difficulty controlling his temper. The appellant seemed to appreciate that he had problems and indicated a willingness to take part in counselling.

[16] The presentence report referred to an interview with Dr. DeRubeis, the appellant’s family physician. Dr. DeRubeis described the appellant’s various medical problems and his medication regime. Dr. DeRubeis had referred the appellant to a neurologist in 2002, but the neurologist could not provide a definite diagnosis. Dr. DeRubeis also told the probation officer that the appellant could have difficulty controlling his emotions and could, on occasion, act aggressively towards others. He had apparently been raised in a negative home environment.

Adjournment of Sentencing Date

[17] The appellant’s sentencing did not proceed as scheduled on January 29, 2009. Mr. Caskie advised the trial judge that a problem had developed and he needed a brief adjournment to speak to his client. Mr. Caskie did not go into any details with the trial judge on January 29. In the later proceeding to set aside the guilty plea, Mr. Caskie testified that the appellant was in extreme emotional distress on January 29 and was acting in an aggressive and intimidating manner. Mr. Caskie was concerned, in light of the appellant’s conduct on January 29 and the description of his ongoing medical problems set out in the presentence report. The presentence report described medical and emotional problems that were more significant than Mr. Caskie had believed based on his prior dealings with the appellant. The trial judge granted an adjournment to February 5, 2009.

[18] Mr. Caskie did not see the appellant between January 29 and February 5. When the appellant came to court on February 5, he was still agitated. It was apparent that the client/solicitor relationship between the appellant and Mr. Caskie had broken down. Mr. Caskie was removed from the record and the matter was adjourned.

The Application to Set Aside the Guilty Pleas

[19] The appellant retained Mr. Steven Howarth to bring an application to set aside his guilty pleas. Mr. Howarth is also a senior criminal counsel in the Hamilton area. Mr. Howarth brought the application seeking to set aside the plea on the basis that the appellant, “did not fully appreciate the consequences of entering his plea of guilty as a result of moderate to severe social phobia.”

[20] Mr. Howarth did not question Mr. Caskie’s representation of the appellant in the material he filed in support of the application. In fact, in his own affidavit filed on the application, and in a draft affidavit prepared in the appellant’s name but never signed by him, Mr. Howarth disavowed any allegation of ineffective assistance.

[21] In support of the application, and in addition to the affidavits referred to above, counsel filed a letter from Dr. DeRubeis, in which he wrote:

Mr. Baylis essentially has a moderately severe Social Phobia. He is on medications for the above in an attempt to help his difficulties.

[22] In his letter, Dr. DeRubeis described the appellant as having difficulty generating coherent thoughts and appropriate responses. He referred to the appellant as being “easily confused and unable to express himself appropriately” when under social pressure. Mr. Howarth advised the court that he had spoken to Dr. DeRubeis, who did not feel qualified to give any opinion as to the appellant’s ability to understand the consequences of his guilty pleas.

The Appellant’s Evidence on the Application

[23] The application to strike the guilty plea eventually proceeded on August 21, 2009. The appellant testified. He indicated that he had been under the care of a psychiatrist from June 2002 to December 2004, some three and one-half years before he entered his guilty plea. He also outlined the medication he was taking at the time of his plea.

[24] In his examination-in-chief, the appellant testified that he did not understand anything about the guilty plea proceedings on August 27, 2008. According to him, in saying the word “guilty”, he was simply accepting that he would contest the charges, rather than have his mother arrested and charged with the same offences.

[25] Very early in the Crown’s cross-examination, the appellant made it clear that Mr. Caskie had not explained anything to him about the proceedings or the meaning of a guilty plea. The appellant testified that he thought he would have a preliminary inquiry and then a trial. In his cross-examination, he also alleged that Mr. Caskie had pressured him to plead guilty, telling him that because the guns were found in his mother’s bedroom, either the appellant or his mother would have to take responsibility for the guns. The appellant repeated his assertion that he had no idea that in pleading guilty he was taking criminal responsibility for possession of the guns. According to his evidence, he thought he was only agreeing to be tried on those charges.

[26] During the appellant’s cross-examination, the Crown sought clarification of the defence position on the application to set aside the plea. The Crown pointed out that, while the material filed on the application expressly disavowed any allegation of ineffective representation, the appellant was clearly alleging that he did not receive adequate legal assistance from Mr. Caskie.

[27] Mr. Howarth interjected:

I might be able to assist my friend [Crown counsel]. I am not going to be raising the issue that Mr. Caskie was ineffective in explaining the matters to my client. My sole argument is, is that because of mental conditions that he suffers and social phobia that he suffers, and now he’s come before the court, that he didn’t understand.

[28] The trial judge replied:

The difficulty that the Crown faces is that your client has raised it.

[29] After further discussion, the Crown requested an adjournment so that he could speak to Mr. Caskie and perhaps call him as a witness in the application. The trial judge acceded to the request and adjourned the application.

Mr. Caskie’s Evidence on the Application

[30] On November 26, 2009, the appellant completed his testimony and Mr. Caskie testified. He was examined in-chief by the Crown and cross-examined briefly by Mr. Howarth.

[31] Initially, Mr. Howarth argued that Mr. Caskie should not be allowed to testify about his discussions with the appellant, as those discussions were protected by solicitor-client privilege. The trial judge ruled that the appellant had waived that privilege when he testified about the content of those discussions.

[32] Mr. Caskie testified that he had two meetings with the appellant before the appellant entered his guilty pleas in August 2008. They discussed the nature of the charges. The appellant told Mr. Caskie that the guns belonged to his father who had died several years before the police search. Mr. Caskie explained the legal meaning of possession to the appellant and, according to Mr. Caskie, the appellant no longer suggested that he was not in possession of the guns.

[33] Mr. Caskie indicated that at some point, he and the appellant discussed the possibility of guilty pleas to some of the charges. The appellant knew he would be going to the penitentiary if he pled guilty. He also knew that there were other serious charges that might be laid against him if he did not plead guilty.

[34] Mr. Caskie testified that the appellant was not happy about it, but decided to plead guilty. He later asked Mr. Caskie to request a lengthy adjournment so he would not be in jail when his child was born. During these discussions, the appellant also told Mr. Caskie about his prior football-related injuries and some of the cognitive and emotional difficulties he suffered as a result of those injuries.

[35] Mr. Caskie acknowledged that he spoke firmly with the appellant about the likelihood that he would be convicted. He told the appellant that it was in his best interest to accept the plea bargain. Mr. Caskie testified:

You have to be firm especially in serious matters like this. I was firm with him. I never told him he had to do this. I told him it was in his best interest to do this. I guess it depends upon who’s doing the talking, what their relationship is, whether it’s pressure or not.

[36] Mr. Caskie acknowledged that in the course of discussing the charges with the appellant, he asked the appellant whether he would take the position that the guns belonged to his mother. The appellant’s mother had testified on the appellant’s bail hearing and denied any knowledge of the guns. Mr. Caskie denied ever telling the appellant that if he did not “face the music”, his mother would be charged.

[37] Mr. Caskie also testified that he had no concerns about the appellant’s ability to understand the effect of a guilty plea and the consequences of that plea. He had known the appellant for several years. Mr. Caskie put it this way:

The facts are simple…. He was charged and pleaded guilty to being in possession of two guns in his house. We went over it and over it and over it. He understood. He, what he was, let’s put it this way… he did not want to go to jail. He did not want to plead guilty. My advice to him was, you will be found guilty and that’s when I started asking him the questions, are you telling me that you didn’t know the guns were there and the answer was, no. I explained possession to him. He understood. He was very unhappy about going to jail.

[38] Mr. Caskie indicated that when he saw the appellant on the date scheduled for sentencing (January 29, 2009), he became concerned. The appellant was very emotional and aggressive. Having read the presentence report, Mr. Caskie had a fuller appreciation of the appellant’s medical background. Mr. Caskie sought and obtained a one-week adjournment.

[39] Mr. Caskie testified that he did not see the appellant between January 29 and February 5. The appellant was even more emotional on February 5 than he had been the prior week. He told Mr. Caskie that he was not ready to deal with the charges. Mr. Caskie and the appellant mutually agreed that Mr. Caskie should no longer act for the appellant. Mr. Caskie was removed from the record and Mr. Howarth became counsel for the appellant on the next appearance on February 18, 2009.

[40] Mr. Howarth briefly cross-examined Mr. Caskie on the application to set aside the pleas. It is fair to say that those questions did not challenge Mr. Caskie’s credibility or any aspect of his representation of the appellant.

[41] The parties filed written argument on the application to set aside the guilty verdict. Mr. Howarth advanced only one argument, claiming that the appellant did not “fully understand the consequences of entering a guilty plea.” Mr. Howarth relied on the evidence relating to the appellant’s medical and emotional problems, as described in the presentence report and Dr. DeRubeis’s letter. He also relied on the appellant’s mental state at the time he entered the plea, as described by the appellant in his evidence. Mr. Howarth did not question Mr. Caskie’s representation of the appellant.

The Ruling on the Application

[42] In reasons released on February 4, 2010, the trial judge declined to set aside the guilty pleas. The trial judge correctly identified the “limited cognitive capacity” test as the standard against which the validity of the plea was to be measured: see R. v. M.A.W., 2008 ONCA 555, 237 C.C.C. (3d) 560, at para. 33. After reviewing the evidence, the trial judge said, at paras. 32, and 35-37:

The thrust of this application though is a lack of voluntariness due to cognitive impairment and/or emotional disintegration but neither the medical evidence nor the record of the proceedings supports any such conclusion.

I accept that Mr. Baylis has some physical and emotional challenges. I am not satisfied on a balance of probabilities that those challenges are so severe as to have affected the procedural fairness of his plea, including his comprehension of the plea process or the facts in support of the charges against him, his appreciation of the nature and consequences of a plea or his intention in entering those pleas.

Mr. Baylis’s mental and emotional status is well within the “limited cognitive capacity” standard in R. v. Taylor, [(1992), 1992 7412 (ON CA), 11 O.R. (3d) 323 (C.A.)], as approved and applied by the Court of Appeal in R. v. M.A.W.

I find that Mr. Baylis understood the process and made a conscious and volitional decision to enter pleas for reasons he considered appropriate.

The Appeal Proceedings

[43] The appellant appealed from conviction and sentence. In his Notice of Appeal, drafted without the assistance of counsel, he claimed that because of brain injuries he had suffered in various sports, he was unaware that he was pleading guilty to the offences for which he was ultimately convicted. In January 2012, this court appointed Mr. Silverstein as counsel, pursuant to s. 684 of the Criminal Code. By the time of that appointment, the appeal had grown to include claims of ineffective assistance aimed at both Mr. Caskie and Mr. Howarth.

[44] The appellant filed two affidavits on the appeal and was cross-examined by the Crown. Mr. Howarth filed three affidavits and was cross-examined on behalf of the appellant by Mr. Silverstein. The appellant’s medical records from the East Region Mental Health Services for the period between July 2002 and December 2004 were obtained by Mr. Silverstein, and filed on the appeal. Unfortunately, Mr. Caskie suffered serious medical problems subsequent to the trial proceedings and was not available for cross-examination by Mr. Silverstein.

III

the grounds of appeal

ISSUE #1 – Did the trial judge err in refusing to set aside the guilty pleas?

(a) Did the trial judge misapply the “limited cognitive capacity” test?

[45] For the purpose of this ground of appeal, I take the record as it existed before the trial judge on the application to set aside the guilty pleas. Mr. Silverstein submits that the trial judge misapplied the “limited cognitive capacity” test by focusing exclusively on the appellant’s capacity to understand the proceedings and his capacity to make a decision as to the plea to be made in response to the charges. Mr. Silverstein submits that the trial judge should have gone further and determined whether, even if the appellant had the requisite capacity, he in fact understood the proceedings sufficiently to meet the “limited cognitive capacity” standard.

[46] I cannot accept this submission. The trial judge’s reasons track the language used in M.A.W. Her reasons speak not to capacity in some abstract sense, but to the appellant’s actual understanding of the process at the time he entered the plea (para. 37):

I find that Mr. Baylis understood the process and made a conscious and volitional decision to enter pleas for reasons he considered appropriate.

[47] Nor can the evidentiary basis for the trial judge’s conclusion be successfully challenged. Indeed, even if everything said about the appellant’s mental condition by Dr. DeRubeis and in the presentence report were accepted as fact, the cognitive incapacity test would not have been satisfied. As the trial judge observed, the appellant had some cognitive and emotional issues. Anxiety, depression, chronic pain, anger management issues and difficulty in communicating are very real problems. However, they establish neither an inability to understand the nature of the criminal proceedings in which the appellant was involved, nor an inability to make an effective choice as to the plea to be entered on the charges. The “limited cognitive capacity” criterion does not demand wise or even rational decisions, but only the ability to make a conscious decision as to the plea to be entered.

[48] The only evidence that suggested the appellant was under any misunderstanding as to the proceedings or the nature of the pleas came from the appellant himself. On his evidence, that misunderstanding flowed not from any cognitive deficiency or medical disability, but from his lawyer’s failure to properly advise him. The attempt to strike the appellant’s plea based on his alleged emotional and cognitive problems could not get off the ground on the material put before the trial judge.

[49] For these reasons, I would not interfere with the trial judge’s finding that the appellant had the requisite cognitive capacity to enter a valid plea. In reaching this conclusion I would not, however, want to be taken as accepting the distinction between a finding that an accused has the capacity to enter a valid plea and a finding that the accused in effect exercised that capacity and entered a valid plea. When an accused challenges the validity of his plea on the ground of cognitive disability impairing his ability to make a decision as to the plea to be entered, I can see no meaningful distinction between a finding that an accused had the requisite mental capacity to enter a valid plea and a finding that he exercised that capacity and entered a valid plea. The jurisprudence treats the two as one and the same. For example, in M.A.W., Laskin J.A. spoke in terms of capacity at paras. 36 and 49:

To succeed on this appeal, the appellant must show that his depression deprived him of the capacity to make an active or conscious choice whether to plead guilty… He cannot succeed if he can merely show that his decision to plead guilty was not rational or in his best interests, or even that he was incapable of making a decision that was rational or in his best interests.

Whether the appellant was able to make a rational choice is not the relevant test; rather the test is whether the appellant had the capacity to make an active or conscious choice for reasons he considered appropriate. [Emphasis added.]

[50] The language of my colleague echoes the language used by Sopinka J. in R. v. Whittle, 1994 55 (SCC), [1994] 2 S.C.R. 914, at pp. 933-34. Justice Sopinka also spoke in terms of capacity when describing the “operating mind test”, as it applied to various decisions made by an accused in the course of the criminal process.

(b) Did the trial judge err in failing to hold that Mr. Caskie provided ineffective assistance on the guilty plea?

[51] Mr. Silverstein submits that Mr. Caskie did not properly explain the legal meaning of the word “possession” to the appellant. He contends that on the appellant’s version of events, as told to Mr. Caskie, his possession of the guns was very much in issue. Counsel further argues that Mr. Caskie’s failings did not become apparent on the plea because of the sparse and conclusory nature of the Agreed Statement of Facts, as it related to possession, and the trial judge’s failure to conduct her own s. 606(1.1) inquiry. The admission of possession is found in a single sentence without amplification or explanation in the Agreed Statement of Facts.

[52] This argument was not made before the trial judge. As outlined above, Mr. Howarth expressly disavowed any challenge to Mr. Caskie’s competence. Mr. Howarth’s conduct in that regard is the subject of the next ground of appeal.

[53] The trial judge cannot be faulted for failing to separately address Mr. Caskie’s competence in her reasons for dismissing the application to set aside the plea. The argument was not made before her. During the application she was, however, alive to the appellant’s complaints about Mr. Caskie’s representation and adjourned the application specifically to get his evidence. Mr. Caskie’s testimony answered the appellant’s complaints.

[54] In addition to Mr. Caskie’s testimony on the application, the trial judge had the appellant’s acknowledged interaction with the probation officer in the preparation of the presentence report and the appellant’s own evidence on the application. The presentence report belied any suggestion that the appellant did not understand that he had pled guilty in August 2008 and the appellant’s evidence, particularly as it discussed his understanding of the meaning of the word “guilty”, simply defied belief.

[55] On the record before the trial judge, the facts admitted by the appellant supported his pleas. Mr. Caskie’s evidence supported the finding that the pleas were informed. The appellant’s evidence to the contrary was incapable of belief, particularly in light of the evidence of his interaction with the probation officer. Had the trial judge specifically addressed Mr. Caskie’s competence, I have no doubt that, on the material before her, she would have found that Mr. Caskie provided reasonable legal advice to the appellant. The real question of effective legal representation raised on this appeal concerns Mr. Howarth’s representation of the appellant on the application to set aside the guilty plea. I turn now to that issue.

ISSUE #2 – Did counsel’s representation of the appellant on the motion to set aside the pleas result in a miscarriage of justice?

(a) The arguments

[56] The appellant’s affidavits and cross-examination on those affidavits are replete with allegations against Mr. Howarth. I do not propose to address them one by one, but will focus on the two submissions emphasized by Mr. Silverstein. The other submissions cannot succeed.

[57] Mr. Silverstein submits, first, that Mr. Howarth failed to investigate and assemble the necessary medical information and testimony required to support the argument that the appellant lacked the cognitive capacity to enter valid guilty pleas. Mr. Silverstein contends that without the necessary medical information and testimony, the only ground advanced by Mr. Howarth on the application to set aside the pleas could not possibly succeed. Mr. Silverstein emphasized that Mr. Howarth took no steps to locate Dr. Vance, the appellant’s psychiatrist between 2002 and December 2004, or to obtain his medical records. Mr. Silverstein had no difficulty doing both after he was appointed as counsel for the appellant.

[58] Mr. Silverstein contends that Mr. Howarth’s failure to seek out and produce the necessary medical material flowed, in part at least, from his misunderstanding of the applicable law. Mr. Howarth believed that he only had to establish a doubt about the appellant’s capacity to enter a plea. Mr. Silverstein points to authority from this court which requires the applicant to demonstrate incapacity on the balance of probabilities: R. v. Easterbrook, 2005 12676 (ON CA), [2005] O.J. No. 1486 (C.A.), at para. 5; see also R. v. Krzehlik, 2015 ONCA 168, 124 O.R. (3d) 561, at para. 26.

[59] Mr. Silverstein’s second argument arises out of Mr. Howarth’s refusal to advance a claim of ineffective assistance against Mr. Caskie on the application to set aside the guilty pleas. Mr. Silverstein submits that Mr. Howarth was obliged to inquire into the appellant’s numerous complaints about Mr. Caskie’s representation and, if warranted, advance a claim of ineffective assistance on behalf of the appellant. Mr. Silverstein acknowledges that Mr. Howarth may have been in a somewhat difficult position, given the nature of the appellant’s complaints. He argues, however, that the one thing Mr. Howarth could not do was simply ignore the appellant’s complaints about Mr. Caskie’s representation and proceed with the application as if those complaints had not been made. Mr. Silverstein contends that Mr. Howarth did exactly that and, in doing so, effectively abandoned the appellant and failed to provide competent representation.

(b) The applicable law governing ineffective assistance claims

[60] When an ineffective assistance claim is advanced on appeal, the appellant must establish both that the legal assistance at trial was incompetent and that the ineffective representation resulted in prejudice causing a miscarriage of justice. This court routinely receives affidavits and cross-examination on those affidavits when considering ineffective assistance claims. In some cases, this court must make credibility assessments and findings of fact relevant to the ineffective assistance claim.

[61] In R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 26-29, the Supreme Court recognized that allegations of ineffective assistance have both a performance component and a prejudice component. The performance component requires that the appeal court test the competence of the representation provided to the appellant against the standard of reasonable professional assistance. The prejudice component requires that the court determine whether the allegedly ineffective representation resulted in a miscarriage of justice by undermining either the appearance of the fairness of the trial proceeding, or the reliability of the verdict. The reliability of the verdict is undermined if the appellant can demonstrate that, had counsel performed in a competent manner, there is a reasonable possibility that the verdict could have been different: see also R. v. M.B., 2009 ONCA 524, 251 O.A.C. 81, at paras. 6-10; R. v. Archer (2005), 2005 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 119-21; R. v. G.M., 2012 NLCA 47, 289 C.C.C. (3d) 361, per Hoegg J.A. in dissent, at para. 75, adopted by S.C.C., 2013 SCC 24, [2013] 2 S.C.R. 202.

[62] In G.D.B., at para. 29, the Supreme Court also gave direction as to the approach that appellate courts should take in addressing the two aspects of an ineffective assistance of counsel claim:

In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel’s performance or professional conduct. The latter is left to the profession’s self-governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow. [Emphasis added.]

[63] In keeping with the approach set out in G.D.B., I will address the prejudice component first. In my view, the prejudice alleged goes to the reliability of the result – the refusal to set aside the guilty pleas – and not to the fairness of the proceedings at which the appellant sought to set aside the pleas. The appropriate prejudice inquiry can be framed in two questions:

• Is there a reasonable possibility that the trial judge would have set aside the pleas if Mr. Howarth had pursued, with reasonable diligence, medical evidence going to the appellant’s cognitive capacity at the time he entered his pleas?

• Is there a reasonable possibility that the trial judge would have set aside the pleas if Mr. Howarth had pursued, with reasonable diligence, the appellant’s claim of ineffective assistance of counsel at the time he entered his pleas?

(c) The failure to seek out additional medical evidence

[64] Mr. Howarth testified in cross-examination on his affidavit that he did not try to locate Dr. Vance, the appellant’s psychiatrist between 2002 and 2004. Mr. Howarth stated that he did not think Legal Aid would have funded those efforts or any attempt to interview or call Dr. Vance as a witness, had he been located. On his own evidence, Mr. Howarth did nothing to obtain medical evidence other than request a letter from Dr. DeRubeis, the appellant’s family doctor.

[65] Mr. Howarth’s application to set aside the pleas was based entirely on the argument that the appellant did not have the cognitive capacity to enter valid pleas because of his emotional and cognitive problems. Inevitably, that argument depended on expert medical evidence. Dr. DeRubeis, the only doctor consulted by Mr. Howarth, had made it clear that he could not provide an opinion in support of the defence position. It is clear to me that without medical opinion evidence, the claim of cognitive incapacity could not succeed on the application to set aside the pleas.

[66] I am, however, satisfied that had Mr. Howarth made reasonable efforts to obtain medical evidence, those efforts would have proved futile. It is now 2015, almost seven years since the appellant entered his guilty pleas. There is still no medical evidence suggesting that the appellant suffered from the kind of cognitive or emotional problems that could possibly have supported a claim that he did not have the limited cognitive capacity needed to enter valid guilty pleas in August 2008.

[67] Dr. Vance’s records are helpful, in that they identify certain specific problems (e.g. the appellant’s depression). Those records do not speak to the impact of those problems on the appellant’s ability to make the kind of decision involved in entering a guilty plea. More importantly, the medical records predate the appellant’s guilty pleas by three years and consequently say nothing about his mental state in August of 2008. I note that although Mr. Silverstein located Dr. Vance, there is no affidavit from Dr. Vance addressing the appellant’s cognitive capacity in August 2008. I think it is safe to assume that Dr. Vance has no evidence to give on that issue.

[68] As discussed in M.A.W., at para. 49, the limited cognitive capacity inquiry sets a relatively low bar. An accused may suffer from a significant mental disorder and still be capable of entering valid pleas. To render the pleas ineffective, the disorder must be such as to render the accused incapable of making a conscious choice as to his or her plea. It is not enough that the mental disorder impair the accused’s decision-making ability, or even that it render the decision irrational. There is nothing in the record before this court to suggest that the appellant suffered from the kind of mental disorder that would render him incapable of choosing to plead guilty to the charges in August of 2008.

[69] Looking to the prejudice component first, as directed in G.D.B., I see no reasonable possibility that a diligent search for additional psychiatric or other medical evidence could have led to evidence supporting the claim that the appellant’s mental state left him incapable of entering a valid plea in August 2008.

(d) Counsel’s failure to pursue the appellant’s allegations against Mr. Caskie

[70] The appellant, in his cross-examination on his affidavits filed in this court, indicated that he spoke to Mr. Howarth about “the issues” he had with Mr. Caskie’s representation. According to the appellant, Mr. Howarth made it clear from the outset that he would not “go after Mr. Caskie”, but would only pursue the medical issues. The appellant testified that although he knew Mr. Howarth would not “go after Mr. Caskie”, he did not seek new counsel because he did not believe that Legal Aid would have funded another lawyer.

[71] The appellant also testified during his cross-examination on his affidavits that he told Mr. Howarth from the outset that he was not happy with Mr. Howarth’s approach on the application to strike the guilty plea. He indicated that Mr. Howarth told him that there was no point in making allegations against Mr. Caskie because Mr. Caskie would deny them and his word would inevitably be preferred over the appellant’s word. The appellant insisted that he did not have an opportunity to set out Mr. Caskie’s failings until he was being questioned by the Crown on the application to strike the guilty plea.

[72] Mr. Howarth was cross-examined on his affidavits filed on the appeal. He testified that the appellant did not make any complaints about Mr. Caskie’s representation during their meetings. According to Mr. Howarth, he and the appellant had agreed that the application to strike the pleas would be based entirely on the appellant’s medical condition and its impact on his ability to understand the proceedings and the pleas.

[73] Mr. Howarth indicated that the first time he heard the appellant complain about Mr. Caskie’s representation was during the appellant’s cross-examination on the application. He took no steps to inquire into the allegations made by the appellant in his testimony, or to subsequently challenge Mr. Caskie’s representation. Indeed, even during the appellant’s testimony, Mr. Howarth continued to maintain that he was not challenging Mr. Caskie’s representation (see supra, para. 27). When Mr. Caskie eventually testified several months later, Mr. Howarth’s cross-examination was brief (about five transcript pages) and not confrontational. In his written submissions, Mr. Howarth made no reference to the appellant’s evidence about Mr. Caskie’s representation.

[74] The appellant and Mr. Howarth have very different recollections of their discussions about Mr. Caskie prior to the application to set aside the guilty pleas. It is at least arguable that even on Mr. Howarth’s recollection of the relevant events, he failed to provide competent legal assistance when he made no effort to follow-up on and determine the merits of the allegations against Mr. Caskie made by the appellant. There is merit to Mr. Silverstein’s submission that Mr. Howarth simply ignored his client’s position and in doing so abandoned his cause. Assuming that Mr. Howarth should have at least investigated the claims against Mr. Caskie, I will turn to the prejudice component of the ineffective assistance claim.

[75] Three features of this record lead me to conclude that there is no reasonable possibility the result on the application could have been any different, had Mr. Howarth investigated and pursued the appellant’s allegations against Mr. Caskie with reasonable diligence. First, Mr. Caskie testified at some length about his relationship with the appellant, the discussions preceding the guilty pleas, and the appellant’s position when the matter came on for sentencing. While Mr. Caskie’s evidence was not challenged to the extent that it would have been had he been available for cross-examination by Mr. Silverstein on the appeal, his evidence provides a coherent and thorough description of the relationship between the appellant and Mr. Caskie, as well as the discussions that preceded the guilty pleas. Mr. Caskie’s evidence strikes me as credible. For example, Mr. Caskie’s willingness to acknowledge that he could be perceived as having pressured the appellant to plead guilty, because in Mr. Caskie’s view there was no viable alternative, seems to me to be a frank and realistic description of the interaction between experienced defence counsel and an accused with whom counsel had a history and a good working relationship.

[76] Second, there is the appellant’s evidence in this court. In his affidavit and cross-examination, the appellant explained more than once that in pleading “guilty” to the charge when read to him, he believed he was simply giving permission for the charges to proceed against him to trial. When the Crown asked the appellant in cross-examination what he thought “a not guilty” plea meant, the appellant responded:

A. Means they would have charged my mom and then she would have been in the same boat I was in and she would have to go through what I was going through.

Q. What would have happened to you did you think?

A. Nothing.

Q. So you would have just been able to walk out the door?

A. Well, yeah, I would have walked out the door. If they’re not charging me, who would they be charging? Barry [Mr. Caskie] told me that someone has to answer. If it’s not you, it’s your mother. So, I mean, yeah, I walk out, they charge my mom. That’s what I was told right in the courtroom, in front of the courtroom before I went in there and said that.

Q. That’s what Mr. Caskie told you?

A. Yes. [Emphasis added.]

[77] The appellant made submissions in this court. He had no difficulty communicating with the court or understanding questions put to him by the court. He is obviously an intelligent person. I do not accept his evidence about what he thought the words “guilty” and “not guilty” meant. His answers defy belief.

[78] Even more remarkable is the appellant’s assertion that Mr. Caskie told him that if he pled not guilty, he could simply walk away from the proceedings. Why would Mr. Caskie make such a preposterous statement to a client? The appellant’s evidence as to what Mr. Caskie told him about the effect of pleading “guilty” or “not guilty” is incapable of belief.

[79] The preparation and content of the presentence report is the third factor that causes me to conclude that there is no reasonable possibility that Mr. Howarth could have made an effective attack on Mr. Caskie’s representation. The author of the presentence report interviewed the appellant, his mother, his sister and Dr. DeRubeis. The interviews were obviously thorough and were clearly undertaken in preparation of the sentencing proceeding. This reality could not have been lost on the appellant, his mother and his sister. There is no indication in the report that the appellant or anyone in his family was confused about the effect of the pleas he had entered, or the nature of the upcoming sentence proceeding. It is impossible that the appellant could have gone through the entire presentence process under the misapprehension that he was simply going to trial in January 2009. The appellant’s interaction with the probation officer during the preparation of the presentence report flies in the face of the appellant’s claim that he believed he would have a trial.

[80] For the reasons set out above, I do not believe the appellant’s assertion that when he pled guilty to two of the charges in August 2008, he thought he was merely agreeing that the matter would go on to trial. On the entirety of the record, it is much more plausible to conclude that the appellant pled guilty in August 2008 on his lawyer’s strong advice because he realized that it was the best he could make of a very bad situation. The appellant successfully delayed the consequences of that plea for several months. However, when the time came to face the consequences of his pleas and go to jail, the appellant baulked and resiled from his guilty pleas. His reaction, while understandable, provides no basis for setting aside those pleas.

[81] I am satisfied that had Mr. Howarth diligently investigated the appellant’s claims against Mr. Caskie, he would have come to the position this court is now in. There is credible evidence from Mr. Caskie that he provided competent advice to the appellant before the appellant chose to plead guilty. There is no credible evidence to the contrary. The appellant has not demonstrated any prejudice flowing from Mr. Howarth’s failure to investigate his allegations against Mr. Caskie.

IV

conclusion

[82] I would dismiss the appeal.

RELEASED: “DD” “JUN 29 2015”

“Doherty J.A.”

“I agree David Watt J.A.”

“I agree M.L. Benotto J.A.”