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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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

Date: 2017-02-15

Docket: C55428

Judges: Simmons, Pardu and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

D.S. Appellant

Counsel: Misha Feldmann, for the appellant Michael Perlin, for the respondent

Heard: October 14, 2016

On appeal from the conviction entered on June 21, 2011 by Justice Laurence A. Pattillo of the Superior Court of Justice, sitting with a jury.

Decision

Miller J.A.:

[1] Overview of Conviction

[1] After a 21 day trial before a judge and jury, the appellant was convicted of 32 charges, including sexual assault, assault with a weapon, and assault causing bodily harm. The appellant's former spouse testified that these acts were a discrete part of a larger, on-going pattern of domestic abuse of both her and her children which persisted for over 10 years: on multiple occasions the appellant facilitated the sexual assault of his former spouse by strangers in their family home; many of his assaults were carried out with weapons including swords, knives, an axe, a meat cleaver and a spear.

[2] Chief among the appellant's grounds of appeal is a claim of ineffective assistance of counsel. He also appeals on the basis of multiple errors in the charge to the jury.

[3] None of these grounds of appeal have merit and I would dismiss the appeal.

A. Ineffective Assistance of Counsel

[4] The ineffective assistance of counsel claim was brought in relation to the six counts of sexual assault against the appellant's former spouse, R.B. The claim revolves around trial counsel's decision not to seek a more lengthy adjournment when, in the midst of cross-examining R.B., the appellant's trial counsel realized she had not received a videotaped statement that R.B. had provided to the police on May 15, 2009. The videotaped statement had been provided to the appellant's previous counsel as part of the Crown disclosure, but had not been passed on to counsel at trial.

[5] Trial counsel sought a brief recess to review the transcript of the videotaped statement, and was granted a 20 minute recess to do so. After the recess trial counsel indicated that she was content to proceed and she resumed cross-examination, making use of the transcript. She later watched the videotaped statement, and confirmed for herself the accuracy of the transcript that she had been using. The next day, June 2, she continued her cross-examination, using the transcript.

[6] What happened in the June 1 cross-examination is this: trial counsel began to cross-examine R.B. on a sexual encounter for which the appellant had not been indicted, and about which R.B. had not been examined in chief. Much confusion followed.

[7] R.B., in the May 15 videotaped statement, had given an account of four sexual incidents. The appellant had only been indicted for three of these. Trial counsel nevertheless questioned R.B. on her statements about the non-indicted incident, on the theory that there were only ever three incidents, that R.B. could not keep the details of each one separate, and that this inability impaired her credibility.

[8] Eventually, when the trial Crown understood what defence counsel was doing, she objected. The trial judge, upon review of the May 15 transcript, concluded that R.B.'s videotaped statement chronicled four separate incidents. Defence counsel asked for an order under s. 276 of the Criminal Code to cross-examine R.B. on the fourth incident. Ultimately, the trial judge did not permit cross-examination on this incident. He questioned how there could be any inconsistency on which to cross-examine, given that R.B. had not testified about the fourth incident, and held that the fourth incident was not relevant for the purposes of the trial.

[9] The trial judge then gave a mid-trial instruction to the jury to ignore the evidence that R.B. had given up to that point about the fourth incident. Defence counsel was permitted to continue questioning R.B. with respect to inconsistencies among her accounts of the three assaults, and she did so.

[10] The appellant now argues that the cross-examination was deficient in its exploration of discrepancies between the videotaped statement and the evidence given on examination-in-chief, and that reasonably competent counsel would have sought an adjournment so as to have been better prepared to exploit these inconsistencies on cross-examination.

[11] I do not agree that the appellant has met the high bar of establishing ineffective assistance of counsel. On an appeal on the basis of ineffective assistance of counsel, the burden is on the appellant to establish not only that trial counsel's performance was incompetent, but crucially, that the appellant was sufficiently prejudiced by counsel's inadequate performance that it amounts to a miscarriage of justice: R. v. Archer (2005), 202 C.C.C. (3d) 60, at paras. 118-121; R. v. S.(R.), 2016 ONCA 655, 341 C.C.C. (3d) 530, at para. 44.

[12] The appellant cannot identify any actual prejudice that he suffered on account of trial counsel not having obtained an adjournment before commencing the cross-examination on the transcript, or in relation to a s. 276 application. The trial judge ruled that cross-examination on the fourth incident was not relevant to the trial. The appellant has not taken issue with that ruling. The inconsistencies now identified by the appellant are comparatively minor details, and to suggest that examining on these details could have led to a different outcome is speculative and doubtful. Whether the cross-examination would have been more fruitful had it been undertaken with greater preparation is a matter of conjecture. Notably, trial counsel obtained an acknowledgment from R.B. that she could have become mixed up about the details of the three sexual assaults.

[13] As I would hold that the appellant's claim failed to establish that the alleged incompetence resulted in a miscarriage of justice, there is no need to assess the adequacy of counsel's performance: Archer, at para. 121.

[14] I would hold that the claim of ineffective assistance fails.

B. Errors Related to the Charge to the Jury

[15] The appellant raises five grounds of appeal related to the jury charge, which can be dealt with summarily. He alleges deficiencies in the charge related to (i) collusion, (ii) similar fact evidence, (iii) evidence on withdrawn counts, (iv) the length, confusing, and unbalanced nature of the charge, and (v) the instruction regarding the rule in Browne v. Dunn. In my view, none of these grounds have any merit.

(1) Collusion

[16] The appellant argues that there ought to have been a specific charge to the jury with respect to collusion among the witnesses: particularly, R.B. and her four children.

[17] The jury, however, could have been under no mistake about the defence claim of collusion. It was front and centre throughout the trial: R.B. was said to be a jealous, spurned woman, who turned the children against their father and orchestrated their claims against him. This theory was highlighted during the cross-examinations, the defence closing address and the trial judge's review of the defence theory in the charge to the jury.

[18] No specific charge was sought, and in this context no specific charge was needed, either for intentional collusion or an unintentional tainting.

(2) Similar Fact Evidence

[19] The appellant accepts that similar fact evidence was properly admitted at trial. He now objects that although the jury was sufficiently instructed that they could not use similar fact evidence to conclude that the appellant is a bad person and therefore likely to have committed the offences, the jury was not sufficiently instructed on the positive use to which they could put that evidence. In my view, there is no merit to this submission.

[20] The instruction to the jury was adequate and no objection to it was raised at trial. No injustice resulted from the absence of a more detailed instruction as to how the evidence of how assaults against one member of his family supported the complaints by other members of the family.

(3) Evidence on Withdrawn Charges

[21] Encouraged by the trial judge, the Crown withdrew eight counts in an attempt to streamline the trial. The appellant argues, for the first time, that the jury ought to have been instructed to disregard any evidence related to these withdrawn charges.

[22] There was no error, in my view. The evidence related to the withdrawn charges was properly admissible as similar fact evidence in relation to other counts still before the jury.

(4) Unbalanced Charge

[23] The appellant's argument is that the charge was unduly complex, and that the trial judge unduly emphasized the Crown's case.

[24] Again, I see no merit in the submission that the jury charge was unduly complex.

[25] With respect to the argument that the charge emphasized the Crown's case, in a trial such as this, where there is a large number of charges comprising a continuous course of conduct against the same set of complainants over a 10 year period, the jury charge will necessarily contain some repetition. When that is coupled with a defence that is a more or less blanket denial of each charge, there will be a superficial imbalance. But it is not an imbalance in the requisite sense as set out in R. v. Nelson, 2014 ONCA 853, 318 C.C.C. (3d) 476, at para. 47.

(5) Rule in Browne v. Dunn

[26] In cross-examining defence witnesses, the Crown noted that some of the events to which defence witnesses had testified were not put to Crown witnesses on cross-examination, so that they might have the opportunity to provide their account of these events: for example, the appellant's testimony that what appeared to be a scar on the chest of one of the children was not caused by the appellant's use of a sword, but by a cat. This failure to cross-examine engaged the rule in Browne v. Dunn.

[27] The trial judge declined the Crown's request that he give an instruction on the failure to cross-examine because, in his view, it related to peripheral matters to a certain extent. The appellant argues that in the absence of an instruction, the jury would be left with the impression that the appellant should be held responsible for defence counsel's errors. In my view, there is no merit in this submission.

[28] With the trial judge's permission, both counsel addressed the issue in their closing addresses. In the Crown's submissions, the jury was told that where a Crown witness is not cross-examined on an alternative version of events, the jury is entitled to place less weight on contradictory defence evidence and to use the absence of cross-examination in assessing the credibility of the defence witness. In defence counsel's closing address, she told the jury that it was open to the Crown to recall witnesses to explore these issues, which the Crown had also acknowledged. Both of these submissions were accurate and, contrary to the appellant's submissions, in the circumstances of this case, there was nothing improper in the trial judge allowing counsel to address the issue, nor was there need for further comment from the trial judge in order to balance these submissions.

Disposition

[29] I would dismiss the appeal.

Released: February 15, 2017

"B.W. Miller J.A."

"I agree. Janet Simmons J.A."

"I agree. G. Pardu J.A."