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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Court of Appeal for Ontario

Date: 2017-02-21

Docket: C57488

Panel: Doherty, Blair and Lauwers JJ.A.

Parties

Between

Her Majesty the Queen

Respondent

and

Stephen Stark

Appellant

Counsel

Erika Chozik, for the appellant

Dena Bonnet, for the respondent

Hearing

Heard: January 18, 2017

On appeal from: the conviction entered by Justice Kevin Sherwood of the Ontario Court of Justice, dated June 11, 2013 and from the sentence imposed on August 20, 2013.

Decision

Lauwers J.A.:

[1] Introduction

[1] The appellant and the complainant were casual acquaintances in the town of Port Dover. The complainant testified that she awoke one night to find the appellant in her bedroom, drunk. He sexually assaulted her and left after an hour. The appellant testified that the sexual encounter was consensual, which the complainant denied.

[2] The appellant was charged with breaking and entering the complainant's residence with the intent to commit an indictable offence, contrary to s. 348(1)(a) of the Criminal Code, and with assaulting her sexually, contrary to s. 271(1) of the Code. He was convicted of both charges and was sentenced to 15 months imprisonment.

[3] The primary ground of appeal is that the appellant was ineffectively assisted by trial counsel, Mark Dresser. I find merit in the appellant's argument that he was not given an adequate opportunity to consider electing his mode of trial, as provided by s. 536 of the Criminal Code, that is, whether to be tried in the Superior Court, which would have led to a preliminary inquiry, or to be tried in the Ontario Court of Justice, as he was. On this basis alone the conviction cannot stand. It is therefore unnecessary to consider the appellant's other complaints about the ineffective assistance of counsel, his substantive grounds of appeal, or his sentence appeal.

The Factual Context

[4] The appellant's interactions with trial counsel are described in the affidavits and cross-examinations found in the Fresh Evidence, which relates to the ineffective assistance of counsel claim. The appellant first met trial counsel at the courthouse in November 2011. The meeting was brief. Trial counsel skimmed the disclosure the appellant handed to him, and agreed to take the appellant's case. They next met in December 2011, again at the courthouse.

[5] Around January or February 2012, trial counsel asked the appellant how he wanted to plead. The appellant was adamant that he was innocent. Trial counsel told him that the matter would probably go to trial. From January 2012 to November 2012, the appellant testified that he had only email contact with his lawyer, in which he unsuccessfully asked for a copy of the Crown's disclosure material.

[6] The appellant next met trial counsel the day before the trial on February 6, 2013. He asserts he was shocked to learn at the meeting that the trial would be the next day. This is disputed by trial counsel.

[7] At trial, Crown counsel advised that he would be proceeding by indictment because, although sexual assault is a hybrid offence, the break and enter charge was straight indictable. The Crown's manner of proceeding surprised trial counsel. The clerk then asked, in relation to the appellant's election of the mode of trial required by s. 536 of the Criminal Code: "Mr. Stark, do you waive reading of the election?" Trial counsel, not the appellant, responded: "Yes." The clerk then read the charges and asked: "And on this charge, how to you elect to be tried?" Again trial counsel, not the appellant, responded: "Mr. Stark elects to be tried by this Honourable Court today."

[8] How this election came about is the basis of the appellant's claim that he was ineffectively assisted by trial counsel. I return to the details below.

The Issue: Has the Appellant Established that He Was Ineffectively Assisted by Counsel Regarding the Election of the Mode of Trial Required by s. 536 of the Criminal Code?

[9] I consider first the governing principles and then their application to the facts of this case.

(1) The Governing Principles

[10] The right to the effective assistance of counsel is constitutionally protected. It is part of the right to make full answer in defence and the right to a fair trial: R. v. G.D.B., 2000 SCC 22, para. 24; R. v. Joanisse, para. 63.

[11] The analytical framework was set out by Doherty J.A. in Joanisse at para. 69, and in R. v. Baylis, 2015 ONCA 477, at para. 61. The court starts with the presumption that trial counsel was competent.

[12] The framework has three elements. First, the appellant must establish the facts on which the claim of incompetence is based.

[13] Second, the appellant must establish that the representation provided by trial counsel was incompetent, in that counsel's performance fell below a standard of reasonable professional assistance.

[14] Third, the appellant must establish prejudice by showing that the incompetent representation resulted in a miscarriage of justice. The miscarriage of justice can be established in one of two ways. The first is to show that incompetent representation undermines the reliability of the verdict. The second is to show that the incompetent representation undermined the appearance of the fairness of the trial proceeding.

[15] Most allegations of ineffective assistance of counsel take the first route, and involve claims that discrete instances of counsel's incompetence worked to render the verdict unreliable. To succeed on this basis the appellant must demonstrate a reasonable possibility that, but for the incompetence, the verdict could have been different. That is the prejudice to be established. Examples from the cases include counsel's failure to object to inadmissible evidence, the failure to call material witnesses, the lack of preparation for trial, failure to carefully review Crown disclosure, the failure to prepare the accused to testify, and the failure to cross-examine effectively, or at all.

[16] However, different considerations apply where the appellant takes the second route and challenges trial fairness, particularly on the basis that counsel has made certain decisions that should have been made by the accused person because they relate to the accused person's fundamental right to control his or her own defence: R. v. Swain, para. 35. That is the appellant's claim in this appeal.

[17] The elements of the defence that an accused person is entitled to control were discussed by G. Arthur Martin, as he then was, in his seminal article entitled The Role and Responsibility of the Defence Advocate (1969-70) 12 Crim. L.Q. 376. He mentioned three defence decisions that only the client can make: how to plead; whether to waive a trial by jury where that is permissible; and whether to testify on his own behalf. There are doubtless others. Mr. Martin made the following observation, at p. 387:

Obviously, neither counsel nor anyone else can deprive an accused of his fundamental rights. If the accused insists on giving evidence or insists on a jury trial, contrary to counsel's advice, counsel cannot, as a matter of law, prevent him from exercising those rights.

[18] In my view, the right to elect the mode of trial under s. 536 of the Criminal Code is one of those fundamental rights that counsel cannot take from a client and on which the client is entitled to be adequately advised by counsel.

[19] Parliament has chosen to give accused who are charged with the more serious crimes a choice as to the mode of trial. That right is partly constitutionalized in s. 11(f) of the Charter, which guarantees a right to trial by jury for offences punishable by a sentence of five years or more. The exercise of the right to choose the mode of trial is integral to the court's jurisdiction over an accused and is essential to the fairness of the proceeding.

[20] If an accused receives no advice from counsel as to his options, or the advantages and disadvantages of the respective options, then the accused has effectively been denied his right to choose his mode of trial under s. 536 of the Criminal Code. The miscarriage of justice lies in proceeding against the accused without allowing him to make an informed election, and the accused need not establish further prejudice. What the accused might or might not have done had he been aware of his options is not relevant.

(2) The Principles Applied

[21] How the election of the mode of trial came about in this case is a matter of some dispute.

[22] Trial counsel's evidence and the transcript of the arraignment clearly show he had prepared for the trial of a summary conviction offence. He admitted the idea of a preliminary inquiry did not cross his mind before it arose at the beginning of trial, because the charge screening form erroneously indicated the Crown would be proceeding summarily. Given that indication, trial counsel was surprised that the Crown was proceeding with the straight indictable break and enter charge. He had formed the view that the Crown would only be proceeding on the sexual assault charge, although he did not recall addressing the issue with the Crown in two pre-trial conferences.

[23] Since the Crown was proceeding by indictment, trial counsel was immediately compelled to seek instructions from the appellant on his election of the mode of trial. Trial counsel said there was a pause in the trial proceedings during which he had a short conversation about whether the appellant wanted an adjournment and preliminary inquiry, and the appellant responded he wanted to go to trial that day.

[24] The appellant disputes this evidence. He testified that he was not familiar with the criminal law process and did not understand what was going on in court, and that trial counsel said nothing to him in court about what was happening. He did not know that he could have had a preliminary inquiry. The appellant stated that if trial counsel had sought instructions, he would have chosen a preliminary inquiry. He disagreed with trial counsel's claim that he wanted to get things over with as quickly as possible.

[25] The Crown challenges the appellant's credibility: "the appellant's assertion that he received no advice on the mode of trial is unbelievable." However, trial counsel made several admissions that, taken together, largely substantiate the appellant's evidence on this issue.

[26] In cross-examination on his affidavit, trial counsel could not recall the exact words he used in advising the appellant, but he asserted he would have said "How do you want to proceed? Do you want an adjournment?" Trial counsel testified initially that he believed he explained that there could be a preliminary inquiry and a trial, and therefore an adjournment, but he also said that he did not explain that the appellant could have a trial in Superior Court or a trial with judge and jury, and had never before discussed a preliminary inquiry with him.

[27] Trial counsel agreed that he had no real opportunity to explain the advantages of the options to the appellant. Their short conversation was in open court. He conceded the appellant did not have the "most time" to consider the decision he was being asked to make. He agreed that he could have asked to stand the matter down, but did not.

[28] In cross-examination, trial counsel had trouble identifying the spot in the transcript where the pause occurred. He was then taken to the audio recording of the proceedings, and identified a break that lasted from 30 to 90 seconds. He said that it was during this short time he asked the appellant "what do you want to do? Do you want an adjournment?" Trial counsel then admitted that this was the full extent of his advice, contrary to his earlier evidence. He conceded that in the short time available, he could not give the appellant enough information to permit him to make an informed decision about the election.

[29] While the Crown concedes that the trial counsel's conversation with the appellant to the mode of trial "could have been more detailed", she argues that the appellant's assertion that he received no advice on the mode of trial is unbelievable, and that it is unreasonable to accept the appellant's evidence that no words were exchanged at all. She adds: "Given the appellant's stated knowledge about preliminary inquiries and their earlier discussion, while a longer conversation may have been preferred, it was adequate in the circumstances." Crown counsel relies on the words of this court in R. v. Chica, 2016 ONCA 252 at para. 19: "A failure to advise an accused about the available mode of trial may constitute incompetence leading to a miscarriage of justice in the appropriate case." She argues that, in this case, even with full information, the appellant would have chosen to have his trial that day because he wanted to get it over with. Accordingly, she asserts: "the appellant suffered no prejudice."

[30] Given trial counsel's admissions, I would reject these Crown submissions. The appellant might have been dimly aware of the existence of preliminary inquiries from his wife's internet searches, but there is no evidence that the level of his conversancy was sufficient to have made up for trial counsel's manifest failures. Trial counsel admitted giving the appellant no cogent advice about his options concerning the mode of trial, nor did he take steps to get the appellant the time he needed to consider his election.

[31] In my view, these facts are sufficient to fatally undermine the fairness of the trial. The appellant need not establish further prejudice by attempting to prove his assertion that he would have elected a Superior Court trial preceded by a preliminary inquiry. It is not this court's business to override an accused person's fundamental right to make the election by predicting retrospectively that his true choice would have been different.

[32] While there might be cases in which trial counsel's failure to advise the accused person about the available modes of trial will not constitute a miscarriage of justice, this is not one of them.

Disposition

[33] I would allow the appeal, set aside the conviction and order a new trial.

"P. Lauwers J.A."

"I agree Doherty J.A."

"R.A. Blair J.A."

Released: February 21, 2017