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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Howell, 2015 ONCA 728

DATE: 20151029

DOCKET: C55558

Feldman, Benotto and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Aston Howell

Appellant

Erika Chozik, for the Appellant

Lisa Joyal, for the Respondent

Heard: October 21, 2015

On appeal from the conviction imposed on February 3, 2012, by the Honourable Madam Justice K. Corrick of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] We are grateful for section 684 counsel’s thorough and careful preparation of this appeal. Notwithstanding her very able submissions, we are not persuaded that there was a miscarriage of justice because the performance of the appellant’s trial counsel was not ineffective and did not undermine the appearance of a fair trial or the reliability of the verdict: R. v. J.B., 2011 ONCA 404, [2011] O.J. No. 2322 (C.A.), at para. 2; R. v. Joanisse, [2011] O.J. No. 2322 (C.A.), at para. 69.

[2] As both counsel fairly acknowledged, the evaluation of counsel’s performance is not a standard of perfection or hindsight but of reasonableness: R. v. Joanisse, at para. 71.

[3] The credibility of the complainant was a key issue in this case. It is clear from the trial transcript that the appellant’s trial counsel cross-examined the complainant on the most material inconsistencies and frailties in her testimony which evolved over time. The trial judge referenced these inconsistencies in her Reasons for Judgment, including the very significant omissions from and additions to the complainant’s police statement that the complainant told the appellant to use a condom and the appellant’s ejaculation.

[4] Further, in accordance with the submissions of the appellant’s trial counsel, the trial judge rejected the Kents’ evidence, which, if accepted, would have served to corroborate important aspects of the evidence of the complainant and her sister concerning the presence of chickens and the nature of the ritual baths that they testified took place in the appellant’s apartment and that the appellant denied.

[5] The purpose of appellate inquiry into an allegation of ineffective assistance of counsel is not to grade counsel’s performance: R. v. J.B., at para. 6. That the appellant’s trial counsel could have asked more questions, or that the submitted defences did not succeed, does not mean that counsel’s representation of the appellant was ineffective or that the verdict would have been different. We are of the view that it would have made no difference in this case.

[6] The trial judge was alerted to the most serious deficiencies and discrepancies in the complainant’s evidence, was alive to a possible motive to fabricate because of the complainant’s application to the Criminal Compensation Board, was aware of the potential for collusion between the complainant and her sisters, and fully understood the appellant’s denial that the offences had ever occurred.

[7] The trial judge’s positive assessment of the complainant’s evidence and her negative assessment of the appellant’s testimony did not depend on the fact that not every detail of the appellant’s evidence was put to the complainant. In the circumstances of this case, it was not necessary and would have been confusing and unhelpful for appellant’s counsel to put the appellant’s conflicting versions of events to the complainant without knowing exactly what the appellant would say when he testified.

[8] On the issue whether trial counsel undermined the appellant’s credibility by failing to comply with the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.(Eng.)) when cross-examining the complainant, the appellant’s trial counsel submitted on several occasions in his closing and in response to the trial Crown’s position in her closing that he had complied with the rule in Browne v. Dunn. The trial judge did not find that the appellant’s trial counsel had breached it.

[9] The trial judge’s acceptance of the complainant’s evidence was primarily based on the credible manner in which the complainant gave her evidence and its corroboration by and consistency with other evidence, including importantly, in response to the appellant’s defense of identity, the appellant’s significant admissions that he had previously met the complainant and that she had come to his apartment.

[10] Similarly, the principal reasons for the trial judge’s rejection of the appellant’s evidence were the manner and content of the appellant’s testimony over which his counsel had little control. As the trial judge concluded: “I did not find Mr. Howell to be a credible witness. He did not give his evidence in a forthright manner. He was not responsive to questions. He often made no sense.” The trial judge’s assessment of the witnesses is entitled to considerable deference.

[11] Finally, we reject the submission that the appellant’s trial counsel fell below the standard by asserting the alternative defenses of consent or honest but mistaken belief in consent, when the appellant denied any sexual contact. We note that the appellant’s previous trial counsel, who died before the trial and with whom the appellant’s trial counsel had articled and continued to work from time to time, had indicated following the preliminary hearing and the judicial pre-trial that consent was the main defense. The assertion of the alternative defenses was a strategic decision by trial counsel following the appellant’s problematic trial testimony. Although there were legal and factual problems with this position, in a judge-alone trial, there would have been no prejudice to the appellant in the circumstances of this case.

[12] As a result, we find that there was no miscarriage of justice in this case. There was no trial unfairness to the appellant and the reliability of the trial judge’s verdict was not undermined by the representation of the appellant by his trial counsel. The appellant’s trial counsel was not ineffective.

[13] We admit and have considered the appellant’s fresh evidence.

[14] For these reasons, the appeal is dismissed.

“K. Feldman J.A.”

“M.L. Benotto J.A.”

“L.B. Roberts J.A”.