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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2017-12-01

Docket: C62692

Judges: Simmons, van Rensburg and Nordheimer JJ.A.

Between

Her Majesty the Queen

Respondent

and

V.J.

Appellant

Counsel:

Courtney Keystone and Domenic Basile, for the appellant

Andreea Baiasu, for the respondent

Heard: October 31, 2017

On appeal from: the convictions entered on June 9, 2015 by Justice Nancy J. Spies of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] Overview of the Case

The appellant was convicted after a three day trial, of various domestic violence offences against his wife. The charges were based on five alleged incidents occurring between September 2010 and August 2012. The appellant was convicted on all nine charges, consisting of two counts of assault, three counts of assault with a weapon, two counts of uttering death threats, sexual assault, and unlawful confinement. He was sentenced to 35 months in prison. He appeals his convictions.

[2] Grounds of Appeal and Fresh Evidence

The appellant's sole ground of appeal is ineffective assistance of counsel at trial resulting in a miscarriage of justice. The fresh evidence, admitted on consent of the Crown, consists of the affidavits of the appellant and his cousin, Ms. S, who both testified at trial, a transcript of the preliminary inquiry, a statement of agreed facts, and copies of email exchanges between Crown counsel and trial counsel. The appellant's trial counsel did not provide an affidavit. He was ill when the allegation of ineffective assistance of counsel was made, and passed away shortly after the appellant perfected the appeal.

[3] Categories of Ineffective Assistance Allegations

The appellant groups his ineffective assistance allegations into four categories: (1) inadequate legal advice; (2) inadequate trial preparation; (3) inadequate cross-examination of the complainant; and (4) failure to follow the rule in Browne v. Dunn, when challenging the complainant's evidence.

[4] Legal Test for Ineffective Assistance of Counsel

To succeed on his appeal the appellant must establish, on a balance of probabilities, that his counsel's conduct fell below the standard of reasonable professional assistance, and that the ineffective representation resulted in a miscarriage of justice: R. v. Joanisse (1995), 85 O.A.C. 186, at paras. 69-71 and R. v. Stark, 2017 ONCA 148, 35 C.R. (7th) 455, at paras. 12-14. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance: see R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27. A miscarriage of justice occurs where the ineffective representation undermines the appearance of fairness of the trial or the reliability of the verdict: R. v. Archer (2005), 203 O.A.C. 56, at para. 120; Stark, at para. 14. For a verdict to be unreliable, the appellant must demonstrate that, had counsel performed in a competent fashion, there is a reasonable possibility that the verdict would have been different: Archer, at para. 120.[^1]

[5] Approach to Analysis

Because trial counsel did not respond to the particular allegations of incompetence, some of the appellant's complaints about his performance are unchallenged. Others, however, can be tested by reference to the trial and preliminary inquiry transcripts, considered together with the trial judge's reasons. The Crown's position is that the appellant has not established a reasonable possibility that he would have been acquitted of any of the offences absent the alleged deficiencies in his representation.

[6] Framework for Consideration

We will consider, in turn, each alleged deficiency in the appellant's representation at trial, and its impact, if any, on trial fairness.

Analysis of Alleged Deficiencies

[7-11] First Allegation: Inadequate Legal Advice

[7] The Appellant's Contentions

First, the appellant asserts that his trial counsel provided inadequate legal advice. He contends that he was not afforded the opportunity to give his evidence using an interpreter because counsel told him he was fine to testify without one. He also says that counsel did not explain his choice as to the mode of trial, including trial by jury, or seek his instructions on how he wished to proceed. He complains that counsel made bold and over-confident assertions, telling him that he "would take care of the charges" and "not to worry".

[8] Court's Finding

These complaints are without merit.

[9] Interpreter Issue

The record does not support that the appellant needed an interpreter at trial, or that his ability to present his defence was in any way impaired by not having one. The complainant testified through a Punjabi-English interpreter and the same interpreter could easily have assisted the appellant. The appellant did not request assistance, nor did he complain of any difficulty in understanding the questions put to him, even after Crown counsel invited him to indicate if there was any question he did not understand. His contention on appeal that he had trouble understanding the questions and expressing himself at trial, is not borne out by a review of the transcript. The brief interchanges appellate counsel refers to, when read in context, do not support the contention that the appellant had difficulty communicating his evidence because of language difficulties. Nor do the trial judge's reasons support the claim. Indeed, she recited in detail the evidence the appellant provided and commented that he gave his evidence in a very calm manner, was polite and showed no signs of stress.

[10] Mode of Trial

We also do not accept the appellant's argument that he was unfairly denied the right to choose his mode of trial, and that, relying on Stark, he is entitled to a new trial. In Stark, the appearance of trial fairness was undermined when the accused waived his right to a preliminary inquiry and a Superior Court trial without first receiving advice about his rights. His lawyer gave him neither advice nor a choice in his mode of trial. Here, by contrast, on the first day of the preliminary inquiry, after the information was read, the appellant himself waived the formal reading of the election, and his counsel indicated, on the record, that the appellant instructed him "that he wishes to be tried by a judge in the Superior Court sitting without a jury". The appellant then had the benefit of the preliminary inquiry, which proceeded without objection on his part. The appellant has not claimed that he wanted a jury trial, that he did not understand he was waiving his right to a jury trial or that he was prejudiced in any way by not have a jury trial.

[11] Over-Confident Assurances

As for the assertion that trial counsel communicated to the appellant that he had "nothing to worry about", while the Law Society cautions lawyers to be wary of bold and over-confident assurances to the client,[^2] the appellant has not explained how this might have affected the outcome of the proceedings, nor is this apparent from a review of the trial record.

[12-18] Second Allegation: Inadequate Trial Preparation

[12] The Appellant's Contentions

As his second complaint of inadequate assistance of trial counsel, the appellant asserts that neither he nor the other defence witness, Ms. S, was properly prepared by counsel to testify. While the appellant met with trial counsel several times, he contends that trial counsel neglected to discuss with him the details of the alleged incidents and the Crown disclosure, and to ascertain his version of the events. According to Ms. S, trial counsel met with her for only a few minutes before she testified, and did not prepare her for her evidence in chief or for cross-examination.

[13] Appellant's Specific Complaints

The appellant says that his evidence in chief was very brief, consisting mainly of denials of the complainant's allegations, that he felt limited in what he could say, and that it was only under cross-examination that he provided details, which then attracted adverse comment in the trial judge's reasons. The appellant also contends that the trial judge drew an adverse inference from his failure to recall the specifics of the complaint he made to police at the time the complainant was arrested for assaulting him. He blames this on trial counsel's failure to review his police statement with him.

[14] Court's Finding on Preparation

Again, we do not give effect to this argument. A fair reading of the trial proceedings reveals that trial counsel understood the appellant's position, which was essentially that he denied the events recounted by the complainant, that he had never used violence against the complainant, and that the complainant was motivated by revenge to fabricate her allegations. This position was amply conveyed in the appellant's evidence at trial through his examination in chief.

[15] Analysis of Evidence in Chief

The appellant does not suggest what evidence he might have offered, or what additional details he could have provided in direct examination that could have affected the outcome of the case, had he been better prepared to testify. The trial judge accepted that the appellant's evidence was given in a straightforward manner. And, after noting that the appellant only gave detailed evidence with respect to some of the incidents and for others it was just a general denial, the trial judge observed that this "is often the case in domestic assault cases." She went on to state however that "to the extent [the appellant] did give more detailed evidence about an incident…in many respects his evidence was incredible" (at para. 85).

[16] Credibility Assessment

It was not the fact that the appellant offered few details in direct examination that affected the trial judge's assessment of his credibility; rather, the details themselves made his evidence "incredible and not truthful" (at para. 85). These included his assertions that, despite the various marital issues he described, he was never angry with the complainant, save on one occasion; that the complainant yelled at him and abused him but he would never yell back; and his attribution of all the problems in the marriage to the complainant. The trial judge also found it "very telling" that the appellant could not remember the assaults he alleged the complainant committed against him, only referring to an alleged bite. He could not even recall the alleged scratching and slap that he had testified about only shortly before (at para. 85).

[17] Police Statement Issue

The appellant says that he failed to remember the details of the complainant's assault which led him to call the police, because his trial counsel did not review his police statement with him before he testified at trial. The police statement, which was in connection with charges against the complainant and her diversion into a counselling program, is not in the record, and was not part of the Crown disclosure in this case. In any event, what affected the appellant's credibility was not his inability to remember small details from the earlier complaint – it was the implausibility that he would be unable to recall what the complainant had done to assault him, even in the course of his evidence at trial. The trial judge found the appellant's evidence that the complainant assaulted him to be "all made up" and "an attempt to mislead [the] Court and turn the tables on [the complainant]" (at para. 100).

[18] Analysis of Ms. S's Evidence

Similarly, there is no indication of how better preparation could have altered the evidence of Ms. S in any way that would have helped the defence. Ms. S lived upstairs in the home in which the complainant, her son, and the appellant occupied a basement apartment. It was the defence position that the assaults could not have happened because there were no eyewitnesses, when five people lived upstairs and the appellant's sons were regular visitors to their home. Indeed, Ms. S testified that she took the complainant to the hospital after one alleged assault and out of the house for coffee after another, and that on neither occasion did the complainant say she had been assaulted. Ms. S testified in chief that she had never witnessed any violence between the appellant and the complainant. While this was her evidence in chief, on cross-examination Ms. S volunteered that she had seen the appellant with a ripped shirt and scratch marks and had seen the complainant slap him, at the time of the second incident before she took the complainant for coffee. The trial judge rejected Ms. S's explanation for the inconsistency (that she misunderstood the initial question), and she characterized the evidence as deliberately misleading. As a result, the trial judge "rejected much of Ms. S.'s evidence and…considered the rest with caution" (at para. 81). Defence counsel cannot be faulted for the fact that, as a result of the cross-examination, Ms. S's evidence was rendered largely unhelpful to the appellant. We do not see how better preparation of this witness would have made a difference in the outcome of the trial.

[19-25] Third Allegation: Inadequate Cross-Examination of the Complainant

[19] The Appellant's Contentions

The third alleged deficiency in his representation, according to the appellant, is that trial counsel did not conduct an effective cross-examination of the complainant, and that this affected the reliability of the verdict. Specifically, the appellant asserts that trial counsel focused on collateral matters and did not confront the complainant with her prior inconsistent statements from the preliminary inquiry, or challenge her on inconsistencies in her evidence at trial. The main inconsistencies the appellant targets were in relation to the second incident (before Ms. S took the complainant out for coffee) and the sexual assault incident.

[20-21] Second Incident Inconsistencies

The appellant points to the fact that the complainant, in describing the second incident, testified at the preliminary inquiry that after the appellant pulled out her hair, "they" [which he says refers to the whole family] came down, and saw her hair and "they" cleaned it up after Ms. S took her out. At trial however, she testified that, after the appellant pulled out her hair, Ms. S came down and saw the hair and that while she was outside the hair was cleaned up. In cross-examination she said that Ms. S was the person who cleaned up the hair.

The trial judge's reasons describe the complainant's trial evidence, including the apparent inconsistency about who cleaned up the hair (at para. 16). The trial judge explained in detail why she found the complainant's account of this incident entirely credible (at paras. 96 to 108). We are not persuaded that the trial judge's credibility assessment would have been any different had trial counsel focused on the complainant's inconsistencies about whether other family members came downstairs with Ms. S, and who precisely cleaned up the hair. The core of the complainant's account was consistent – that the appellant had assaulted her and pulled out her hair, that the evidence was cleaned up, and that the appellant's family was on his side.

[22-23] Sexual Assault Incident Inconsistencies

In relation to the sexual assault incident, the appellant says there were three main inconsistencies between the complainant's evidence at the preliminary inquiry and at trial: (1) whether the incident occurred at 11:00/11:30 or 8 or 9 pm; (2) whether the complainant or the appellant was the person who spoke to the appellant's father in India on a phone call prior to the incident; and (3) whether the complainant was kicked in the head during or after the sex act.

We disagree that there could have been a different outcome at trial, if trial counsel had pursued these alleged inconsistencies in his cross-examination of the complainant. First, although there was some confusion in her evidence at the preliminary inquiry concerning which incident she was speaking of in relation to something happening at 11:00 or 11:30, to the extent there was an inconsistency with the complainant's evidence at trial about the timing of the sexual assault, this was on a minor point. She described the assault in each case as occurring after the appellant's apology (something he testified he may have offered), and at night, when she was taken by the appellant from her son's bedroom. Second, whether the complainant called the appellant's father, or whether the appellant did so, the thrust of the complainant's evidence, which the trial judge accepted, was that the forced sexual intercourse occurred after an apology from the appellant. Third, whether the appellant kicked the complainant in the head while having sex with her or just after, in each case what was described was a kick that occurred during the same event. The trial judge gave cogent reasons for accepting the complainant's account of the sexual assault incident (at paras. 119 to 124).

[24] Significance of Inconsistencies

Whether considered together or alone, the inconsistencies in the complainant's evidence at trial, and between her trial and preliminary inquiry testimony, were all on minor aspects of her evidence and did not have any real impeachment potential that could undermine the reliability of the verdict. This is not a case like R. v. R.B., 2009 ONCA 524, 68 C.R. (6th) 55, where trial counsel failed to exploit prior inconsistent statements that had a significant potential for impeachment.

[25] Scope of Cross-Examination

Furthermore, we do not agree that the appellant's counsel limited himself to challenges to the complainant's credibility on "collateral" matters. In addition to exploring financial issues that did not seem to advance the cross-examination, counsel cross-examined the complainant on her own prior statements about how her injuries were caused, her motives for making false allegations, including as revenge for the appellant calling the police on her, the lack of eyewitnesses, and her failure to immediately tell the police she had been assaulted, when she was arrested for assaulting the appellant. There were concerns about the complainant's evidence that were revealed in her evidence, and were addressed in the trial judge's reasons. In the end, however, the trial judge found that the complainant did not exaggerate, that her evidence in some respects was corroborated, and she accepted the complainant's evidence that supported each of the offences charged.

[26-27] Fourth Allegation: Failure to Follow Browne v. Dunn Rule

[26] The Appellant's Contentions

Finally, the appellant complains that trial counsel violated the rule in Browne v. Dunn when he elicited evidence from defence witnesses about matters that had not been put to the complainant in cross-examination, and that this adversely affected the outcome of the case.

[27] Court's Finding

We do not give effect to this argument. The trial judge noted several instances where evidence from the defence witnesses had not been put to the complainant and she observed that the rule in Browne v. Dunn had been breached. She also stated that Crown counsel only raised the issue in closing submissions and that neither counsel suggested that the complainant be recalled. Although the trial judge noted that she could take into account the fact that the complainant was not questioned about certain matters in assessing the appellant's credibility, she does not appear to have relied on this factor in the course of her credibility analysis and factual findings, and it appears to have played no role in her determination of the appellant's guilt.

[28] Cumulative Effect of Alleged Deficiencies

We are not persuaded that the alleged deficiencies in the appellant's representation, when considered individually or cumulatively, resulted in an unfair trial or an unreliable verdict. After a full review of the record, including the transcript of the trial and the trial judge's careful and detailed reasons, there is no reasonable possibility that the appellant would have been acquitted of any of the offences had any one or more of the alleged deficiencies not occurred.

[29] Disposition

For these reasons, we grant leave to admit fresh evidence concerning the appellant's ineffective assistance of counsel claim, but dismiss the appeal.

"Janet Simmons J.A."

"K. van Rensburg J.A."

"I.V.B. Nordheimer J.A."

Footnotes

[^1]: In Joanisse, at para. 80, Doherty J.A. framed the test in the following terms: "the appellant must show that, had he received competent legal representation, there is a real probability that the appellant would not have been convicted of murder. A reasonable probability lies somewhere between a mere possibility and a likelihood." At endnote 9 of Joanisse, Doherty J.A. stated: "In this context, I make no distinction between a 'reasonable probability' and a 'reasonable possibility': see R. v. Garofoli, supra, at p. 152."

[^2]: Law Society of Upper Canada, Toronto: Law Society of Upper Canada, amended September 2007, Rules of Professional Conduct, Rule 3.1, commentary 9.