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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. R.S., 2016 ONCA 655

DATE: 20160907

DOCKET: C59275

Doherty, van Rensburg and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.S.

Appellant

Ian Carter, for the appellant

Roger Pinnock, for the respondent

Heard: August 18, 2016

On appeal from convictions entered on January 20, 2014 by Justice Laliberté of the Superior Court of Justice at Cornwall, Ontario.

Doherty J.A.:

I

overview

[1] The appellant was charged with:

• assaulting his stepson, M.L. (count 1);

• touching his daughter, M.S., for a sexual purpose (count 2);

• inviting M.S. to touch him for a sexual purpose (count 3);

• incest with M.S. (count 4); and

• sexually assaulting M.S. (count 5).

[2] The trial judge found the appellant guilty on all five charges, but stayed the conviction on count 5 on the basis of the rule in R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729. The trial judge imposed sentences totalling five years, three months.

[3] The appellant appealed his convictions. He submitted that counsel’s conduct of his defence was so deficient as to render the verdicts a miscarriage of justice. Following this court’s Protocol governing ineffective assistance of counsel claims, the appellant and trial counsel filed affidavits for the purpose of the appeal and were cross-examined on those affidavits.

[4] Based primarily on the cross-examination of trial counsel, Crown counsel on appeal conceded that trial counsel had not provided competent assistance to the appellant at trial. The Crown conceded that the ineffective assistance of counsel rendered the convictions in respect of the appellant’s daughter (counts 2 to 5) unreliable, necessitating a new trial. Crown counsel argued, however, that the appellant’s conviction on the charge of assaulting his stepson (count 1) should stand. He submitted that counsel’s incompetence did not undermine the reliability of that verdict.

[5] Counsel for the appellant argued that trial counsel’s incompetence was pervasive and tainted the entire trial proceeding. He submitted that trial counsel’s incompetence compromised the fairness of the trial and necessitated the quashing of all convictions.

[6] At the end of oral argument, the court allowed the appeal and ordered a new trial on all counts. These are the reasons for that disposition.

II

evidence

[7] The appellant and D.V. lived together between 1991 and 2003. M.L., the complainant in count 1, was D.V.’s son. He was born in 1990. M.S., the complainant in counts 2 to 5, was the daughter of the appellant and D.V. She was born in 1996.

[8] M.L. testified that when he was about five or six years of age, he was living with the appellant and his mother. The appellant was disciplining him for misconduct at school. M.L., in an attempt to get away from the appellant, ran outside toward his mother who was in the family vehicle. The appellant caught him, slapped him, knocked him to the ground, and kicked him. According to M.L., he suffered bruised ribs and a contusion on his lip. He went to live with his father the next day.

[9] D.V. testified and described an incident when M.L. was about five or six years old. She saw him running toward her in the van with the appellant in pursuit. She did not see how the appellant caught up to M.L. and she did not see the appellant actually punch him. D.V. saw the appellant making a motion as if he wanted to punch M.L. as he lay on the ground. She intervened and got between the two of them. D.V. put her son in the van and drove away. Shortly afterward, he moved in with his father.

[10] M.S. described two incidents when she was five or six years old. The first incident occurred at the family home in Alexandria. She was playing in the playroom when the appellant came into the room and told her to follow him. Her mother was not home. M.S. followed the appellant into a bedroom. He touched her vagina and inserted his fingers into her vagina. He removed her clothing, assuring her that everything would be alright. He also removed some of his clothing. He instructed her to place her hand on his penis. She followed his instructions. At one point, there was a noise in the kitchen and the appellant went to see what it was. He returned indicating everything was okay. She put her clothes back on. M.S. could not say at what time of the year this incident occurred or how long it went on.

[11] The second incident occurred in the same house. The appellant came into the room where M.S. was playing and told her to follow him. They went into the bedroom. He removed her clothing and his clothing. He touched her inside and outside of her vagina and partially inserted his penis into her vagina. He continually assured her that everything would be okay. Just as in the first incident, he instructed his daughter to place her hand on his penis. According to M.S., this incident ended when her mother arrived home. The appellant told her to hurry up and get dressed and explained to her mother that he was helping M.S. get dressed. M.S. could not say how long the assault took.

[12] D.V. testified that she was unaware of any sexual misconduct toward any of the girls by the appellant.

[13] M.S. and her sisters were apprehended by the Children’s Aid Society in December 2003, after M.S.’s teacher noticed bruising on her face and notified the authorities. Over the next six months, M.S. and her sisters made allegations that both the appellant and D.V. physically assaulted and threatened them on a regular basis. M.S. did not allege any sexual misconduct by the appellant until 2010. M.S. initially told social workers that her stepbrother, M.L., had sexually assaulted her. When she was interviewed by the police about that assault, she told them that the appellant had also sexually assaulted her. At trial, she testified that she did not disclose the appellant’s sexual abuse earlier because she was afraid of him.

[14] The appellant did not testify.

The Reasons for Judgment

[15] The trial judge gave detailed reasons. He accepted M.L.’s description of the assault and found that it was confirmed in material particulars by the evidence of his mother, D.V. The trial judge reviewed the defence arguments and rejected several as speculative and unsupported by any evidence.

[16] The trial judge found M.S. to be a credible and reliable witness. He gave many reasons for accepting M.S.’s evidence. He also identified and addressed the arguments made on behalf of the appellant. In his reasons, the trial judge found that although M.S. had given a videotaped statement to the police and testified at the preliminary inquiry, there was “no indication she contradicted herself in any significant way.” Her consistency was one of the factors relied on by the trial judge in his assessment of M.S.’s credibility and reliability.

III

the ineffective assistance claim

[17] An accused is constitutionally entitled to effective representation. Effective representation means reasonably competent representation. Counsel’s performance is measured without the benefit of hindsight and bearing in mind that the reasonable exercise of professional judgment will in many instances allow for different tactical decisions: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 27-28.

[18] Trial counsel’s performance fell far below the reasonableness standard. I will organize his multiple deficiencies into four categories. Trial counsel failed to adequately prepare for trial; he failed to adequately cross-examine the complainant M.S.; he failed to bring a s. 276 application or otherwise address the allegation that the stepson, M.L., had sexually assaulted M.S.; and he failed to prepare for, or properly respond to, the Crown’s application to introduce evidence of the appellant’s discreditable conduct.

(i) Inadequate trial preparation

[19] The appellant denied sexually assaulting M.S. from the outset of his relationship with trial counsel. Trial counsel knew that cross-examination of the complainants would be crucial to the appellant’s defence. However, he did not order a transcript of their preliminary inquiry testimony. He could offer no explanation for his failure to take this most rudimentary step in the preparation for trial.

[20] Trial counsel was provided with a CD of M.S.’s statement to the police. He watched the CD, but did not have a transcript of her statement prepared or make notes that would allow him to locate any particular part of the statement should the need arise during the trial. Counsel acknowledged in his cross-examination that he was not in a position to put any part of M.S.’s statement to her at trial should the need arise. Counsel’s inadequate preparation effectively rendered M.S.’s statement to the police useless as a tool in her cross-examination. There were material inconsistencies between that statement and M.S.’s testimony.

[21] Counsel was also aware from materials supplied by the Crown disclosure that M.S. had made conflicting statements describing the appellant’s sexual misconduct to one of her foster mothers. Those statements not only contradicted M.S.’s testimony, but also described conduct that was arguably so bizarre as to render the credibility of the allegation questionable. Trial counsel made no effort to interview the foster mother, or to prepare any cross-examination of M.S. based on the alleged statements she had made to her foster mother.

[22] The appellant also provided trial counsel with information indicating that a clinical psychologist had prepared a report in 2005 in which he indicated that the children, including M.S., had made numerous conflicting statements about alleged sexual misconduct. Trial counsel made no effort to obtain a copy of that report or to interview the clinical psychologist. Had he done so, he would have found that the clinical psychologist reported that M.S. had made, but then retracted, allegations of sexual abuse at the hands of the appellant. This information may have proved most useful at trial when M.S. testified that she first made the allegations of sexual abuse against the appellant in 2010 because, on her evidence, she was too afraid to make the allegations earlier.

[23] In the cross-examination on his affidavit, trial counsel acknowledged that he had fully anticipated that the appellant would testify. He counted on that testimony to supply a motive for the false allegations. The appellant had told counsel that he believed that the allegations were motivated by his former wife’s anger in 2010 over the appellant’s new relationship and the child that he and his new partner had. The appellant decided late in the trial that he would not testify.

[24] The cross-examination of trial counsel demonstrates that he did very little to prepare the appellant to testify at his trial. Trial counsel also did nothing to impress upon the appellant the negative consequences of the appellant’s eleventh hour decision not to testify despite the fact that, according to trial counsel’s strategy, the defence was based on the assumption the appellant would testify.

[25] Counsel could offer no explanation for his failures to adequately prepare for trial. Counsel’s inadequate preparation became apparent in the course of the trial. I turn now to those features of the ineffective assistance claim.

(ii) The inadequate cross-examination of M.S.

[26] Trial counsel did not suggest to M.S. during her testimony that any part of her evidence was inconsistent with her statement to the police or her preliminary inquiry evidence. Appellate counsel assembled an impressive catalogue of inconsistencies upon which M.S. could have been cross-examined. Perhaps the most striking comes from M.S.’s statement to the police. In that statement, she indicated that her mother came into the room and caught the appellant in the act of sexually assaulting M.S. M.S. told the police that her mother had required the appellant to leave the home for two months. In her testimony, M.S. said nothing about her mother coming into the room during the assault and nothing about the appellant being forced to leave the home. Her mother, D.V., testified that she knew nothing of the sexual abuse until many years later. Counsel never confronted M.S. with this potentially powerful inconsistency. He had no explanation for failing to do so.

[27] There were other material inconsistencies. For example, at trial, M.S. testified that the appellant put his penis into her vagina during the second sexual assault. In her statement, she indicated she could not recall whether he did so. Once again, trial counsel had no explanation for failing to cross-examine M.S. on those inconsistencies. On the record before this court, it is clear that because of his inadequate preparation, trial counsel was not in a position to readily locate the relevant parts of M.S.’s statement to the police so that he could effectively use them in cross-examination.

[28] M.S.’s statement to the police and her evidence at the preliminary inquiry were not the only potential sources of prior inconsistent statements which could have been used in the cross-examination of M.S. As indicated above, M.S. told her foster mother that the appellant had sexually assaulted her. She described assaults that were, however, very different from the assaults she described in her testimony. Trial counsel made no effort to confront M.S. with those different and somewhat bizarre allegations she had made to her foster mother.

[29] Trial counsel was also in possession of a series of instant messages that had been sent by M.S. to her cousin in 2011, about six months after M.S.’s initial disclosure to the police. In those statements, M.S. denied that the appellant put his penis in her vagina. At trial, she insisted that he did. Trial counsel could offer no explanation for failing to put this inconsistency to M.S.

[30] Cross-examination of complainants in sexual assault cases on prior inconsistent statements, especially in cases involving allegations of historical sexual assaults, calls for the exercise of professional judgment. Different counsel may have different views of how and when to cross-examine a complainant on a prior inconsistent statement. Trial counsel’s failure to cross-examine M.S., however, was not the product of any judgment he made. As he repeatedly acknowledged in his cross-examination, his failure to challenge M.S. on her prior statements was a result of his “oversight” of the existence of the relevant inconsistencies.

(iii) The failure to bring a s. 276 application

[31] Trial counsel knew from the disclosure that M.S. had initially alleged that her stepbrother, M.L., had sexually assaulted her. She did not mention the appellant in her initial disclosure. It was only when she was giving her statement to the police about her stepbrother’s abuse that she told the police that the appellant had also sexually assaulted her.

[32] Trial counsel also knew from the copies of the instant messages between M.S. and her cousin that M.S. had initially told her cousin in 2011 that her stepbrother had put his penis in her vagina, but her father had not.

[33] The material provided to trial counsel forged a clear link between M.S.’s allegation against the appellant and her statements that she was abused by her stepbrother. Some of the details of the two allegations seemed interchangeable in M.S.’s different statements. Clearly, a proper defence of the appellant required an inquiry into M.S.’s statements about her stepbrother’s assaults on her.

[34] Trial counsel seemed to appreciate the need to question M.S. about the allegations she made against her stepbrother. At the preliminary inquiry, he attempted to cross-examine her about her activities with her stepbrother. The Crown objected to the question on the basis that no application under s. 276 of the Criminal Code had been made on behalf of the accused. Section 276 requires that before evidence can be adduced of sexual activity other than the activity alleged in the charge, counsel must apply for and obtain an order permitting the eliciting of that evidence. Immediately after the Crown made its objection, trial counsel abandoned this line of questioning without making any submissions as to the applicability of s. 276.

[35] The applicability of s. 276 arose again in the pretrial conference. The notes of that conference indicate that although the defence was alleging sexual abuse by the stepbrother, trial counsel did not contemplate a s. 276 motion. According to the pretrial notes, trial counsel thought that he could cover the matter in cross-examination of M.S.

[36] At trial, counsel attempted to cross-examine M.S. about the sexual activity with her stepbrother. Once again, the Crown objected on the basis that no s. 276 application had been made. Trial counsel made no argument to support the position that he could cross-examine M.S. despite not having brought a s. 276 application. Instead, as he had done at the preliminary inquiry, trial counsel abandoned that line of questioning. M.S. was never questioned about the allegations involving her stepbrother.

[37] In his cross-examination, trial counsel could offer no explanation for his failure to bring a s. 276 application. Initially, he said he did not think he needed to bring one, but he could offer no explanation for simply abandoning the line of questioning when the Crown objected, instead of arguing that he was not obligated to bring the application.

[38] Trial counsel had nothing in his file relating to the operation of s. 276 and had never brought a s. 276 application before. There is good reason to believe that trial counsel did not understand how the section worked and believed that it did not apply to cross-examination of the complainant.

(iv) The failure to challenge the Crown’s application to adduce evidence of other discreditable conduct

[39] Prior to trial, the Crown served notice that it proposed to introduce evidence that the appellant and his wife had assaulted and threatened their children, including M.S., while they were living together as a family. The Crown offered the evidence, both to show animus toward M.S. and to offer an explanation for her failure to complain about the appellant’s alleged sexual abuse until many years later.

[40] The parties agreed that argument on the admissibility of the evidence would be made in writing prior to trial. The trial judge fixed a schedule for the filing of the relevant material. The Crown filed its application, factum and case law according to the schedule set by the trial judge. Trial counsel did not file any responding material by the date set for the filing of that material.

[41] At the hearing of the motion to admit the evidence, trial counsel told the court that he had failed to properly diarize the date for the filing of material and had only realized about a week earlier that he had missed the deadline. Trial counsel had no explanation for failing to file anything in the intervening week. The trial judge allowed counsel to make oral submissions in response to the Crown’s motion. Those submissions lacked both focus and cogency.

[42] On his cross-examination, trial counsel once again admitted that his failure to file any material on the Crown’s motion was an “oversight”. He had intended to oppose the application. He also acknowledged that he had nothing in his file to suggest he had done anything by way of preparation for his oral submissions in response to the Crown’s motion.

[43] Trial counsel’s abject failure to adequately represent his client’s interests on the Crown’s motion to lead evidence of discreditable conduct is mitigated somewhat by the fact that there was in all likelihood little that any counsel could have done to exclude the proffered evidence. The evidence had significant probative value. What is important, however, for the purposes of this appeal is that counsel’s conduct was not the product of any consideration of the merits of the Crown’s motion. Trial counsel did not file material because he determined that the Crown’s motion would inevitably succeed. Trial counsel simply failed to take any steps to protect or present his client’s position on the motion despite his belief that the motion should be opposed.

What order should the court make?

[44] If an accused who receives ineffective representation at trial is convicted, the conviction must be quashed if the result is properly characterized as a miscarriage of justice. A miscarriage of justice occurs if the ineffective representation sufficiently undermines the reliability of the verdict, or results in an unfair trial. The reliability of a verdict is sufficiently undermined if the appeal court concludes that there is a reasonable probability that the verdict would have been different had the appellant received adequate legal representation: see R. v. Prebtani, 2008 ONCA 735, at para. 4; R. v. Joanisse, 1995 3507 (ON CA), [1995] O.J. No. 2883, at paras. 74-80 (C.A.), leave to appeal to SCC refused, [1996] S.C.C.A. No. 347.

[45] Mr. Pinnock conceded on the appeal that there was a reasonable probability that the verdicts on the charges involving M.S. would have been different had the appellant received proper legal representation. The record fully justifies, indeed compels, the concession made by the Crown. The potential negative impact of trial counsel’s inadequate representation of the appellant on the reliability of the convictions involving M.S. is self-evident. In light of Crown counsel’s concession, I need say no more about the convictions on those counts.

[46] Crown counsel submits, however, that it cannot be said that counsel’s ineffective representation probably affected the outcome on the assault charge involving the stepson, M.L. I agree with Crown counsel that many of trial counsel’s deficiencies had a more direct and significant impact on the defence of the charges involving M.S. than on the defence of the charge involving M.L. I also agree with Crown counsel that M.L.’s allegation was confirmed to a significant degree by the evidence of his mother, D.V. In that sense, the Crown’s case on the charge involving M.L. was stronger than its case on the charges involving M.S.

[47] However, while I acknowledge the merits of the Crown’s attempt to distinguish among the charges, I ultimately agree with Mr. Carter’s cogent submission that trial counsel’s ineffective representation taints all of the convictions. Mr. Carter characterizes the effect of counsel’s ineffective representation as “pervasive”. I agree with that description, which I think is particularly apt in respect of trial counsel’s purported preparation for trial.

[48] For all practical purposes, the appellant was without the assistance of counsel at trial. The miscarriage of justice occasioned by the ineffective representation lies not only in its impact on the reliability of the verdicts, but also in its negative effect on the appearance of the fairness of the trial. The latter concern can be adequately vindicated only by an order quashing all of the convictions.

IV

conclusion

[49] The appeal is allowed, the convictions are quashed and a new trial is ordered on all counts, including the count on which the conviction was stayed under the rule in Kienapple.

Released: “DD” “SEP 07 2016”

“Doherty J.A.”

“I agree K. van Rensburg J.A.”

“I agree L.B. Roberts J.A.”