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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. K.K.M., 2020 ONCA 736

DATE: 20201120

DOCKET: C62755

Doherty, Watt and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.K.M.

Appellant

Paul J.I. Alexander, for the appellant

Andrew Cappell, for the respondent

Heard: June 13, 2019 and October 29, 2020

On appeal from the conviction entered on March 30, 2016 and the sentence imposed on October 14, 2016 by Justice Quinlan of the Superior Court of Justice, sitting with a jury.

Doherty J.A.:

I

overview

[1] This appeal has a long history. The appellant was convicted in March 2016 and sentenced to three years in the penitentiary in October 2016. He was released on bail pending appeal.

[2] His appeal was eventually scheduled for argument in June 2019. Shortly before the scheduled appeal date, counsel for the appellant sought an adjournment to allow counsel to pursue a potential fresh evidence application based on the alleged ineffective assistance of trial counsel. I directed the appeal should proceed as scheduled, and counsel could, if necessary, renew his request for an adjournment after the grounds of appeal arising from the trial record had been argued.

[3] Counsel for the appellant argued the grounds of appeal arising out of the trial record at the hearing in June 2019. After oral argument, the court indicated none of the grounds advanced by the appellant could succeed. Counsel renewed his request to adjourn the appeal so he could investigate and, if appropriate, pursue an allegation of ineffective assistance. The court granted the adjournment, anticipating it would be relatively brief.

[4] Counsel decided to pursue the ineffective assistance of counsel claim and a schedule was set for the filing of affidavits and cross-examination on those affidavits. Counsel were not available to argue the appeal until the spring of 2020. By then, the pandemic had arrived and a further adjournment was granted. The appeal was ultimately adjourned to October 29, 2020.

[5] At the October 29^th^ hearing, the court heard from both counsel on the ineffective assistance claim. The court rejected that claim, and dismissed the appellant’s appeals from conviction and sentence with reasons to follow.

[6] These reasons will first consider the conviction appeal, beginning with the grounds based on the trial record, followed by the ineffective assistance of counsel claim. I will then address the sentence appeal.

II

the conviction appeal

A. The grounds of appeal based on the trial record

[7] The appellant was charged with one count of sexual assault and one count of sexual interference. The sexual interference charge was particularized to allege sexual intercourse. The relevant events occurred in the early morning hours at the appellant’s home. The jury convicted on the sexual assault charge, but acquitted on the sexual interference charge.

[8] M.A. was 12-years old at the time of the alleged assaults. She and the appellant, who was 21, had met several months earlier on Facebook. They chatted regularly. M.A. testified that she told the appellant she was 12. Her Facebook profile indicated she was 18. M.A. and the appellant met in person for the first time on the night of the alleged assaults.

[9] M.A. and two friends were at an all-ages club. She decided to call the appellant and invite him to come to the club. A short time later, the appellant arrived with a friend.

[10] The appellant and M.A. “hung out” together at the club, talking and playing pool. He asked her how old she was and she told him she was 12. He did not react one way or the other. While they were at the club, M.A. sat on the appellant’s lap and they kissed.

[11] One of M.A.’s friends testified that she overheard a conversation between the appellant and his friend, in which the appellant acknowledged M.A. was 12.

[12] M.A., the appellant, his friend and M.A.’s two friends left the club together sometime after midnight. They walked to the appellant’s home. M.A. and the appellant took a shower together. According to M.A., the appellant had told her on the way home that he wanted to have a shower with her.

[13] M.A. described various sexual acts, including fondling of her vagina and buttocks, digital penetration, and sexual intercourse. According to her testimony, these acts occurred in the bathroom and the bedroom. M.A. described herself as feeling “awkward and uncomfortable” throughout the sexual activity. She and her friends stayed at the appellant’s overnight and left the following morning. She exchanged texts with the appellant later that day.

[14] The defence challenged the credibility of M.A. There were significant inconsistencies in her evidence. M.A.’s evidence also differed in material respects from her statement to the police and her preliminary inquiry testimony. Most notably, M.A. never alleged sexual intercourse occurred until she testified at trial. There was no mention of that allegation in her statement to the police or her preliminary inquiry testimony. The jury acquitted on the charge alleging sexual intercourse.

[15] The testimony of M.A.’s two friends also contained various inconsistencies and variations from earlier statements. One of M.A.’s friends also acknowledged at least some her evidence was based on information she received from other people. The two friends did, however, provide confirmatory evidence of sexual activity between the appellant and M.A.

[16] T.W. testified for the Crown. She dated the appellant in the fall of 2013, a few months after the alleged assaults. T.W. heard rumours the appellant and M.A. had sex. She looked through the appellant’s phone and found messages, which appeared to be between the appellant and M.A. In the messages, the appellant asked M.A. if “she liked it”, and if she wanted “to do it again”. T.W. confronted the appellant with these messages and he denied they existed. When T.W. told him she had seen the messages, he changed his story and said the comments related to sexually explicit text messages between M.A. and him.

[17] T.W.’s relationship with the appellant ended on unfriendly terms. She was upset with the appellant over his failure to provide child support.

[18] The appellant did not testify and did not call a defence.

[19] Because M.A. was under 16, she could not, as a matter of law, consent to the sexual activity: Criminal Code, s. 150.1(1). At trial, the defence sought to advance two positions. First, the defence argued the Crown had failed to prove beyond a reasonable doubt the alleged sexual activity had occurred. Second, the defence maintained if the sexual activity occurred, the Crown had failed to prove beyond a reasonable doubt the appellant did not believe M.A. was 16 or older and had failed to prove the appellant did not take “all reasonable steps to ascertain” M.A.’s age: Criminal Code, s. 150.1(4).

[20] The trial judge found there was no air of reality to the mistaken belief in age defence and declined to leave that defence with the jury.

[21] The appellant submitted the trial judge erred in law in refusing to leave with the jury mistaken belief in age as a defence. The appellant also submitted the trial judge misdirected the jury in respect of the impact of possible collusion or tainting on the credibility of the evidence of M.A. and her two friends. The appellant argued either error required a new trial.

(i) Mistaken Belief in Age

[22] The trial judge held the mistaken belief in age defence in s. 150.1(4) could succeed only if a jury had a reasonable doubt as to whether the appellant believed M.A. was 16 or older (the subjective component), and had a reasonable doubt as to whether the appellant had taken all reasonable steps to ascertain M.A.’s age (the objective component). Consequently, if there was no air of reality to either the subjective or objective component of the defence, the defence could not be left with the jury: see R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3.

[23] In support of the submission the appellant’s mistaken belief in M.A.’s age should have been left as a defence, counsel referred to M.A.’s Facebook profile, which indicated she was 18 years old. Counsel also referred to evidence of M.A.’s conduct during the night of the alleged assaults. He argued her conduct, while with the appellant, could lend an air of reality to the contention the appellant believed M.A. was 16 or older.

[24] There was no direct evidence the appellant ever saw M.A.’s Facebook profile. The trial judge referred to the suggestion he had as “mere speculation.” The appellant did, however, communicate for several months, and on many occasions, with M.A. using Facebook. Her profile was readily available to anyone communicating with her. On this evidence, it is a fair inference the appellant probably saw the Facebook profile at some point during his interaction with M.A. on Facebook.

[25] The probability the appellant saw M.A.’s Facebook profile at some time in the months before they actually met does not, however, standing alone, provide a basis upon which a jury could have a doubt about the appellant’s belief with respect to M.A.’s age at the relevant time. Facebook profiles are not inherently accurate or reliable. Nor does seeing a Facebook profile mean one has read the profile. A reference in the profile to a date of birth, if remembered at all, would have little, if any, significance to the appellant’s belief about M.A.’s age after he had actually met her and spent hours with her. The crucial question insofar as the availability of the defence is concerned is what the appellant believed about M.A.’s age when he engaged in sexual activity with her, not what he saw on her Facebook profile, weeks or months earlier. The Facebook profile, on its own, is not enough to lend an air of reality to a defence predicated on the appellant’s belief M.A. was 16 or older.

[26] M.A.’s conduct, while with the appellant on the night of the assaults, also provides no air of reality to the assertion the appellant honestly believed M.A. was at least 16. This part of the inquiry is purely subjective. The trier of fact looks for evidence of what the appellant actually believed. While it is a fair generalization most persons who engage in certain kinds of activity are 16 or older, that generalization provides no insight into what the appellant believed about M.A.’s age at the relevant time. In other words, accepting that most people who engage in a certain sexual activity are over 16 does not assist in determining what the appellant believed about M.A.’s age based on her conduct. Furthermore, as the trial judge pointed out, to the extent the appellant relied on the sexual nature of some of M.A.’s alleged conduct as a basis for any belief about her age, that belief could not assist the appellant if it was formed during or after the activity constituting the sexual assault.

[27] As I accept the trial judge’s holding there was no air of reality to the appellant’s claim he honestly believed M.A. was at least 16, it is unnecessary to deal with the trial judge’s further conclusion there was no air of reality to the objective component of the mistaken belief in consent defence. I will, however, address the objective component. I agree with the trial judge’s assessment.

[28] There is no evidence the appellant took any positive steps to determine M.A.’s age. He submitted positive steps are not always necessary to satisfy the reasonable steps component in s. 150.1(4). As indicated in R. v. Duran, 2013 ONCA 343, at para. 52:

Indeed, in some cases, an accused’s visual observation of the complainant may be enough to constitute reasonable steps.

[29] The trial judge did not suggest active steps to determine M.A.’s age were a prerequisite to the availability of the defence. She did, however, correctly observe the appellant took none. In effect, the trial judge found there was no air of reality to the assertion “visual observations of the complainant” could, in the circumstances in which the appellant found himself, amount to “all reasonable steps” to determine M.A.’s age.

[30] This finding is unassailable. It will be a very unusual case when simply looking at a complainant will provide a basis for a defence under s. 150.1(4). The facts of this case are a long way from that rare case. M.A. was 12 years old. There is very little evidence about her appearance on the night of the alleged assaults, and certainly nothing to suggest merely observing her was all that was needed to meet the “all reasonable steps” requirement in s. 150.1(4).

[31] In holding that the trial judge correctly concluded there was no air of reality to the objective component of the mistaken belief in age defence, I do not suggest it is for the trial judge to decide what did or did not constitute all reasonable steps. That is a jury question. The trial judge had to determine whether the evidence gave an air of reality to the assertion the jury could be left with a doubt as to whether an accused took all reasonable steps to determine a complainant’s age.

[32] The trial judge did not err in refusing to leave mistaken belief in age with the jury as a possible defence.[^1]

(ii) The Collusion Instruction

[33] The appellant submitted the trial judge erred in her instruction on the connection between potential collusion among Crown witnesses and the jury’s assessment of the credibility of those witnesses. The trial judge told the jury:

There is evidence from which you could, but you do not have to find, that some witnesses had some discussion, as well as some opportunities to talk to one another about the events at which each testified. If you conclude, after considering all of the evidence, that their evidence is the result of tainting, collusion or collaboration, intentional or otherwise, this may affect your assessment of the reliability of their evidence. [Emphasis added.]

[34] The appellant submitted the trial judge erred by telling the jury they should consider tainting or collusion as factors in the assessment of the credibility and reliability of the Crown witnesses only if they concluded tainting or collusion had in fact occurred. The appellant submitted the possibility of collusion or tainting is enough to potentially negatively affect the jury’s assessment of the reliability and credibility of a witness’s evidence.

[35] The appellant is correct. The possibility of collusion or tainting can negatively affect a witness’s reliability or credibility: see R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 44. Were one grading the trial judge’s instructions, the language used in the above-quoted passage would be enough to deny her a perfect grade. This court is, of course, not engaged in that exercise.

[36] The jury instructions must be considered as a whole. The instructions must be read as the jury would understand them in the context of the evidence and the arguments of the particular case. The meaning of words and phrases used in a jury instruction are not to be parsed as lawyers and judges, attuned to fine distinctions drawn in the case law, might do.

[37] The claim the Crown witnesses had colluded, or their evidence was tainted by interactions among them, was front and centre throughout the trial. In her general instructions about the assessment of witnesses’ evidence, given very shortly before the passage quoted above, the trial judge alluded to the need to consider possible connections among the witnesses when assessing credibility and reliability. She also put the risk of collusion or tainting forward as part of the position of the defence. Finally, the strong instructions on the burden of proof would minimize any risk the jury might think there was any onus on the appellant to prove anything, including collusion.

[38] It is significant that there was no objection taken to the language used by the trial judge, either in the pretrial discussions about the draft charge, or after the instructions had been delivered.

[39] The trial judge’s instructions on collusion or tainting, as they could affect the credibility of the Crown witnesses, were appropriate and did not mislead the jury.

B. The Alleged Ineffective Assistance of Counsel

(i) The relevant trial proceedings

[40] During her evidence, M.A. was asked about text exchanges she had with the appellant on a social media app called “Whisper”. These exchanges occurred about four months after the alleged assaults.

[41] M.A. acknowledged the appellant had communicated with her over Whisper. In her evidence, M.A. said she and the appellant exchanged messages about various rather mundane matters. She agreed on cross-examination she told the police in her statement the appellant had told her during the Whisper communications to “stop telling everyone”. There were apparently rumours circulating about their sexual activities.

[42] M.A. was shown what appeared to be a screenshot of the text exchanges over Whisper. In that document, the appellant is represented as having asked her why she had lied to her sister when, in fact, she and the appellant had “never did anything”. M.A. is represented in the screenshot as having said she lied about their encounter because she did not want her “family being mad at me at Christmas”. M.A. is also represented as admitting to the appellant she told him she was 16.

[43] The conversation, as set out in the alleged screenshot, ends with the appellant telling M.A. he is upset and concerned about being arrested. He tells M.A. he is “screenshotting all of this”. M.A. is then said to have apologized for “ruining your life”.

[44] In her evidence, M.A. adamantly denied ever saying any of the statements attributed to her in the screenshot. She insisted the conversation depicted in the screenshot never happened.

[45] No attempt was made at trial to authenticate the screenshot, either through the evidence of the appellant, who did not testify, or through any other evidence. The trial judge instructed the jury:

As well, [M.A.] was asked about a Whisper exchange with [the appellant]. She testified that although she had a Whisper exchange with [the appellant] around Christmas 2013, she did not send the messages and she did not have the conversation captured in what was described as the screenshot. This evidence is only to be considered by you in relation to the credibility of [M.A.] and not for the truth of the contents of what was set out in the document. It is not to be treated as a statement of [the appellant]

[46] In this instruction, the trial judge told the jury it could take into account, when assessing M.A.’s credibility, her acknowledgement an exchange on Whisper occurred and her evidence about the contents of that exchange. The jury could also consider M.A.’s denial she had the conversation depicted in the screenshot when assessing her credibility. The jury could not, however, use the contents of the screenshot as evidence of the truth of its contents and could not treat the screenshot as a statement made by the appellant. There was no objection to this instruction at trial or on appeal. The instruction was arguably overly favourable to the accused. The jury could have been told to ignore the contents of the screenshot.

(ii) The nature of the ineffective assistance claim

[47] The appellant asserts he did not understand the content of the alleged screenshot could not be considered by the jury unless he testified and identified the screenshot as an accurate representation of the conversation. Although the appellant acknowledges he and trial counsel discussed, at some length, whether the appellant should testify, he maintains the evidentiary status of the screenshot never came up in those conversations.

[48] The appellant claims he decided not to testify based on the advice trial counsel gave him. He relied on that advice primarily because he had full confidence in trial counsel. The appellant insists, however, had he understood the jury could not consider the contents of the screenshot unless he testified, he would have insisted on testifying regardless of counsel’s advice. The appellant described the screenshot as very important evidence that could prove his innocence.

[49] On the ineffective assistance claim, counsel filed the appellant’s affidavit and the affidavit of trial counsel. Both were cross-examined. There were other affidavits filed by the appellant and Crown but, in the end, those affidavits did not play a significant role in the assessment of the claim.

[50] Before examining this claim in some detail, it is important to highlight its limited scope. There is no argument trial counsel was incompetent for failing to obtain independent verification of the authenticity of the screenshot. There was some evidence data pertaining to the Whisper communication could be extracted from a cellphone, but no evidence any extraction was ever attempted, or had it been attempted, could have been successful.

[51] There is also no argument trial counsel was under any misapprehension as to the applicable rules of evidence. It is not argued trial counsel failed to appreciate the screenshot could not be used as evidence of its contents, absent verification.

[52] Nor does the appellant contend trial counsel’s advice to the appellant he should not testify was, in the circumstances, unreasonable advice: e.g. see R. v. Ross, 2012 NSCA 56, at para. 51. The appellant quarrels, not with the advice ultimately given, but with the sufficiency of the information provided to him by counsel, so he could make an informed decision whether to follow counsel’s advice.

[53] It was also common ground in oral argument, although there was some confusion at trial and in the facta, the contents of the screenshot had no evidentiary value beyond their potential to impeach M.A.’s credibility by showing she made a statement inconsistent with her trial testimony. For example, in the screenshot, M.A. is reported as telling the appellant she told him she was 16 on the night of the alleged assaults. Even if the appellant testified the screenshot was accurate, and the jury believed that evidence, M.A.’s statement to the appellant in the screenshot was not evidence she told the appellant she was 16 on the night of the alleged assaults. It was an out-of-court statement made by M.A., inconsistent with her trial testimony she told the appellant she was 12 on the night of the sexual activity. The contents of the screenshot could only become evidence M.A. actually told the appellant she was 16 on the night of the alleged assaults, if M.A. confirmed the accuracy of the statements in the screenshot. In her testimony, she adamantly denied making those statements.

[54] The distinction between evidence admitted for impeachment purposes and evidence admissible for its truth is important in the context of the availability of the mistaken belief in age defence. M.A.’s alleged statement in the screenshot, even if the jury believed she made the statement, was not evidence of what M.A. said on the night of the alleged assaults about her age, and was not evidence from which any inference could be drawn as to the appellant’s belief about her age on the night of the alleged assaults. M.A.’s alleged statement in the screenshot could not give an air of reality to a mistaken belief in age defence under s. 150.1(4).[^2]

(iii) Analysis of the ineffective assistance claim

[55] An appellant who advances an ineffective assistance of counsel claim must show three things. First, the appellant must establish the facts material to the claim of ineffective assistance on the balance of probabilities. Second, the appellant must demonstrate trial counsel’s representation was ineffective. Trial counsel’s representation of an accused is ineffective only if it falls below what is reasonably expected of trial counsel in all the circumstances. Third, the appellant must show the ineffective representation resulted in a miscarriage of justice, either by rendering the trial unfair or the verdict unreliable: see R. v. Archer, 2005 CanLII 36444, at paras. 119, 202 C.C.C. (3d) 60 (Ont. C.A.); R. v. Qiu, 2010 ONCA 736, at paras. 6-8; R. v. D.G.M., 2018 MBCA 88, at para. 7; R. v. Stark, 2017 ONCA 148, at paras. 12-14; R. v. White (1997), 1997 CanLII 2426 (ON CA), 114 C.C.C. (3d) 225, at 247 (Ont. C.A.), leave to appeal to SCC refused, [1997] S.C.C.A. No. 248.

[56] Because the focus of the ineffective assistance of counsel claim is narrow, there is only one material fact in issue. The appellant must show, on the balance of probabilities, trial counsel did not, when discussing whether the appellant should testify, advise him the contents of the screenshot could not be considered by the jury unless the appellant testified and authenticated the screenshot. If the appellant cannot establish that fact on the balance of probabilities, the ineffective assistance claim fails.

[57] Crown counsel submitted the appellant cannot meet that burden. While trial counsel and the appellant do not recall any such conversation, they both acknowledged the possibility the screenshot could have been discussed in the course of their discussions about whether the appellant should testify. The Crown maintained that possibility foreclosed a finding no such discussion occurred.

[58] Trial counsel testified he had a brief discussion with the appellant when the screenshot was marked as a lettered exhibit during M.A.’s cross-examination. He told the appellant only numbered exhibits were considered evidence. Trial counsel could not recall any reference to the screenshot when he and the appellant were discussing the possibility of the appellant testifying. Trial counsel indicated it was “possible” they spoke about the screenshot, but he did not think it was a “realistic” possibility.

[59] In his affidavit and cross-examination, the appellant acknowledged after the Crown’s case was completed, he and trial counsel discussed M.A.’s evidence in the context of trial counsel explaining why, in his view, the appellant should not testify. During this conversation, trial counsel identified several aspects of M.A.’s testimony he believed made her evidence incredible. The appellant was “pretty sure” the screenshot did not come up in these discussions. He went on to say he would have insisted on testifying had he been told the screenshot could not otherwise be treated as evidence of what M.A. said. The appellant reasoned, since he chose not to testify, the screenshot must not have been discussed with him.

[60] I do not understand the Crown to challenge trial counsel’s credibility or the reliability of his evidence. In fact, Crown counsel puts considerable reliance on trial counsel’s detailed recollection of his discussions with the appellant about testifying. Trial counsel did not, however, recall any discussion about the screenshot and went so far as to describe the possibility such a discussion occurred as “unrealistic”.

[61] Based on trial counsel’s evidence, which is supported on this point by the appellant’s evidence, I am satisfied, on the balance of probabilities, the appellant and trial counsel did not discuss the inadmissibility of the screenshot as evidence of what M.A. said, absent authentication of the screenshot in the appellant’s testimony. The appellant has established the requisite factual basis for the claim he did not receive adequate legal advice.

[62] I move next to the performance component of the ineffective assistance of counsel claim. Part of counsel’s duty is to advise an accused whether to testify. Counsel must ensure the accused understands it is the accused who must make that decision: R. v. Stark, at para. 17. Counsel must, however, arm the accused with the information needed to make an informed decision. That information includes counsel’s advice about testifying and the reasons behind that advice.

[63] Counsel’s conduct is measured against the standard of reasonable professional judgment: R. v. D.G.M., at para. 7, and by reference to the circumstances as they existed when the decision was made. Hindsight has no role to play. Advice and representation that were reasonable when provided cannot be made unreasonable by virtue of an adverse verdict: R. v. Archer, at para. 119; R. v. Fraser, 2011 NSCA 70, at paras. 53, 80. As stated by Major J., in R. v. G.G.B., 2000 SCC 22, at para. 27:

The analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.

[64] The reasonable professional judgment standard does not require counsel say or do everything that may have been appropriate or helpful to the accused in deciding whether to testify. When an ineffective assistance claim is predicated entirely on counsel’s failure to discuss a specific piece of evidence in the context of providing advice about testifying, the argument can only succeed if that single piece of evidence was, on any reasonable view, so important to the decision to testify that counsel’s failure to discuss it pushed counsel’s performance below the reasonable professional assistance standard.

[65] The significance of a particular piece of evidence to counsel’s advice about testifying must be measured objectively through the eyes of a reasonable person placed in counsel’s circumstances, and bearing in mind that the reasonableness standard describes a range of conduct. The importance of that evidence cannot be judged from the post-verdict vantage point of a convicted accused. It is hardly surprising an accused who took counsel’s advice, but now finds himself convicted and facing a jail sentence, has come to see the missing piece of information as crucial to proper representation.

[66] In applying the reasonableness standard, courts recognize different lawyers can reasonably give different advice in the same circumstances, and can reasonably take different approaches when conveying that advice to the client. For the purposes of determining an ineffective assistance of counsel claim, the question for this court is not what should trial counsel have said or done, but rather was what trial counsel said or did reasonable in the circumstances?

[67] There is no dispute trial counsel and the appellant discussed whether the appellant would testify on several occasions during the trial, and at considerable length after the Crown’s case closed. The discussion included a review of the evidence and the reasons offered by trial counsel in support of the opinion the appellant should not testify. It is also common ground trial counsel advised the appellant not to testify and the appellant took that advice and chose not to testify. He signed an acknowledgement to that effect.

[68] Trial counsel testified he had many discussions about testifying with the appellant as the trial proceeded. He told the appellant the decision would be revisited as the evidence developed. The appellant was not adverse to testifying.

[69] Trial counsel recalled discussing the Crown’s evidence with the appellant and family members after the Crown’s case was complete. Everyone, including trial counsel, were in good spirits and agreed the Crown’s case had been “damaged significantly” by cross-examination.

[70] Trial counsel told the appellant, in his opinion, the Crown had not made out its case and he should not testify. Trial counsel reviewed the evidence of the Crown witnesses with the appellant so the appellant would understand why trial counsel believed the jury would not return a guilty verdict on the evidence of the Crown’ witnesses.

[71] In his review of the evidence, trial counsel talked about T.M.’s evidence at some length. He referred to the many inconsistencies, indicating her evidence “was completely different from her first sworn statement, completely different from her preliminary inquiry and now different again on the day of trial”. Counsel believed he had exposed T.M.’s efforts to lie to the jury. In trial counsel’s opinion, the jury would not believe T.M.’s evidence.

[72] Trial counsel also recalled discussing the weaknesses in the testimony of the other Crown witnesses. He particularly remembered indicating one witness had acknowledged in her evidence her testimony was the product of conversations she had had with her friends.

[73] Trial counsel testified he focussed on the weaknesses in the Crown’s case when explaining to the appellant why he believed he should not testify. Trial counsel also, however, spoke to the appellant about the risks of testifying. Trial counsel did not believe the appellant would be “a strong witness”. He was young, inexperienced in the trial process, and had anxiety issues. Trial counsel feared much of the good work done in cross-examination of the Crown’s witnesses could be undone through the skilful cross-examination of the appellant by an experienced Crown counsel.

[74] Trial counsel and the appellant also spoke about the benefits of going to the jury last. Both saw real value in the circumstances of this case in addressing the jury last. If the appellant testified, the Crown would have had the last word.

[75] Trial counsel’s appraisal of the Crown’s case was not unreasonable. In fact, the jury ultimately acquitted on the more serious charge. Trial counsel’s concerns about the risks inherent in the appellant testifying were also reasonable, as was his opinion going to the jury last had some tactical advantage.

[76] The appellant’s evidence about his discussions with trial counsel did not differ materially from trial counsel’s recollection. He agreed, after the Crown’s case was complete, he and trial counsel discussed whether he should testify. Trial counsel pointed out the many inconsistencies in the evidence of the Crown’s witness, stressing “the fact that everybody’s story kept changing”. In reference to T.M.’s evidence, trial counsel spoke of the differences between her statements, her testimony at the preliminary inquiry, and her testimony at trial. Trial counsel advised the appellant against testifying primarily because, in his opinion, the jury had not believed the Crown witnesses and would not convict.

[77] The appellant also recalled trial counsel expressing concerns about his testimony. Trial counsel told him his testimony could confuse the jury:

Because it’s a completely different story than everybody else’s, correct. It’s a different series of events.[^3]

[78] The appellant also agreed that trial counsel expressed concerns about the appellant testifying because of his age, inexperience and his “anxiety issues”. Trial counsel was concerned he might “look bad in front of the jury” during cross-examination.

[79] It is clear from the appellant’s cross-examination, he understood the reasons put forward by trial counsel in support of his advice the appellant should not testify. It is equally clear the appellant understood if he did not testify, his version of events would not be directly before the jury. The appellant decided to take counsel’s advice, largely because he had faith in him.

[80] Having concluded there was nothing unreasonable in what trial counsel said, or the advice he gave, I come to the argument the advice was rendered ineffective by what was not said. Certainly, counsel could have explained the evidentiary status of the screenshot when advising the appellant whether he should testify. No doubt, there were other aspects of the evidence counsel could have discussed with the appellant as well.

[81] The adequacy of counsel’s advice cannot be determined in the abstract, but must be measured, having regard to the dynamic of the specific trial. Trial counsel had concluded the Crown witnesses were not credible and their evidence could not successfully carry the burden of proof. In counsel’s view, the best defence lay in the assertion the Crown had failed to prove its case because the Crown witnesses, especially M.A., were not credible. Not surprisingly, given counsel’s assessment of the evidence, his discussions with the appellant about testifying focused on the harm done to the Crown’s case in cross-examination and the dangers inherent in testifying.

[82] Trial counsel was obliged to make it clear it was the appellant’s decision whether to testify. He was equally obliged to give the appellant the full benefit of his advice, including an explanation of his reasons for that advice. In my view, counsel met those obligations in his discussions with the appellant. The appellant made an informed decision not to testify.

[83] Trial counsel was not obliged to go through all of the evidence and identify the pros and cons of testifying and not testifying associated with each piece of evidence. Nor was counsel obliged to provide advice based on a hypothetical assessment of the evidence that conflicted with counsel’s actual assessment. Counsel had fully explained to the appellant why he did not think the appellant should testify. The explanation included counsel’s assessment of the credibility of the Crown witnesses and the risks inherent in the appellant testifying. The reasonable professional assistance standard did not require trial counsel to go on and explain to the appellant how M.A.’s credibility, which trial counsel believed was badly damaged on cross-examination, could be further damaged were the appellant to act against his advice and take the very real risk of testifying so he could give evidence about the screenshot in the hope the jury would believe that evidence and have yet another reason to disbelieve M.A. I have difficulty seeing how that kind of information could assist the appellant in deciding whether to testify.

[84] Counsel for the appellant submitted this case is on all fours with R. v. Gadam, 2019 ONCA 345. In Gadam, this court held trial counsel provided ineffective assistance when he failed to authenticate certain phone records that had been put to the complainant. Counsel submits the failure of counsel in Gadam to authenticate the telephone records stands on exactly the same footing as the failure to authenticate the screenshot in this case.

[85] There is a superficial similarity in the two cases. In Gadam, the complainant had described the accused as only an acquaintance. It was the defence position the accused and the complainant were having an extramarital affair. Counsel for the accused put telephone records to the complainant showing some 900 calls between the complainant and the accused, half of which were initiated by the complainant. The complainant denied the authenticity of the records. Even though the trial judge warned counsel the records would be inadmissible unless authenticated, trial counsel took no steps to authenticate them, either through the service provider or the accused. The trial judge gave the records no weight.

[86] On appeal in Gadam, the Crown conceded trial counsel had provided ineffective assistance. This court, in a brief endorsement, accepted the Crown’s concession. As I read the reasons, the court held counsel’s failure to authenticate the telephone records amounted to ineffective assistance. Those records could have been used, not only to impeach the complainant’s credibility, but as powerful circumstantial evidence the accused and complainant were something more than mere acquaintances.

[87] Gadam did not turn on the adequacy of counsel’s advice about testifying. Gadam found ineffective assistance in counsel’s unexplained failure to produce what was potentially very important evidence for the accused. That evidence was presumably readily available, either through the evidence of the appellant, or the service provider.

[88] There is no suggestion in this case the failure to authenticate the screenshot amounted to ineffective assistance. Nor could the authentication of the screenshot have provided substantive evidence in support of the defence position at trial. This claim relates exclusively to the adequacy of the advice given in respect of the decision to testify. Gadam does not assist the appellant.

[89] The appellant has not satisfied me counsel failed to exercise reasonable skill and judgment in the course of advising the appellant about testifying. The ineffective assistance of counsel claim fails at the performance requirement.

[90] Having concluded counsel’s representation met the reasonableness standard and was therefore not ineffective, there is no basis to conclude counsel’s representation led to a miscarriage of justice. I will, however, make one observation relevant to the miscarriage of justice inquiry required when an ineffective assistance of counsel claim is advanced.

[91] An accused is denied his right to choose whether to testify when counsel actually makes the decision, or when counsel provides no advice or advice that is so wanting, as to preclude the accused from making a meaningful decision about testifying. In those situations, counsel’s ineffective representation denies the accused the right to make a fundamentally important decision about the conduct of his defence. That denial goes to the appearance of the fairness of the trial, if not the actual fairness of the trial. Either results in a miscarriage of justice, regardless of the impact of the ineffective representation on the reliability of the verdict: see R. v. D.G.M., at paras. 32-36; R. v. Stark, at para. 31; R. v. Eroma, 2013 ONCA 194, at para. 8.

[92] Assuming trial counsel’s advice was unreasonable because he failed to discuss the screenshot, I do not think trial counsel’s advice can be seen as the equivalent of denying the appellant the right to decide whether to testify, or the equivalent of providing no meaningful advice to the appellant. Even if the advice was rendered ineffective by the failure to explain the evidentiary status of the screenshot, the appellant still made the decision not to testify after a detailed discussion with trial counsel in which the relevant factors were canvassed. This was not a case where the appellant was denied a right to control his own defence.

[93] In my view, the kind of ineffective assistance alleged here does not automatically undermine the fairness, or appearance of fairness, of the trial. To succeed on an ineffective assistance of counsel claim like this one, the appellant must demonstrate counsel’s failure to refer to the screenshot when discussing whether the appellant should testify had a negative impact on the reliability of the verdict. To do so, the appellant must demonstrate there is a reasonable prospect he would have testified, had he been told his evidence was necessary to authenticate the screenshot.

[94] The appellant insisted he would have testified even if trial counsel advised him not to testify, had he understood his evidence was necessary to authenticate the screenshot. The appellant asserted, wrongly, the authentication of the screenshot could “prove his innocence”. As explained above, the screenshot could only be used to impeach the complainant’s credibility, assuming the jury believed the appellant’s unconfirmed evidence about the authenticity of the screenshot. The risks the appellant would take in testifying, as described to him by trial counsel, all applied to his evidence about the screenshot.

[95] More to the point, I do not accept the appellant’s assertion he would have insisted on testifying. Had the appellant and trial counsel discussed the screenshot, nothing in that discussion would have altered trial counsel’s assessment about the weaknesses in the Crown’s case, the real risks inherent in the appellant testifying, and the tactical advantage in going last to the jury. Counsel’s advice would not have changed and there is no reason to think the appellant would not have accepted trial counsel’s analysis and advice, even if it included reference to testifying in order to authenticate the screenshot. Why would the appellant suddenly reject counsel’s assessment about the inadequacies in the Crown’s case and choose to run the risk of testifying, solely to potentially undermine T.M.’s credibility, when, on the advice of his trusted lawyer, that credibility had already been sufficiently damaged?

[96] The appellant may have come to believe, years after his trial, he would have insisted on testifying had he understood the screenshot would not otherwise be evidence of its contents. That belief stands between the appellant and a significant penitentiary sentence. Viewed from the perspective of the trial, I have no doubt had the fulsome discussion about testifying included a discussion about the screenshot evidence, the appellant would have followed counsel’s advice he should not testify. The trial would have proceeded exactly as it did, and the jury would have returned the same verdicts. There was no miscarriage of justice.

III

THE SENTENCE APPEAL

[97] The appellant received a three-year sentence. The trial judge found that the appellant knew that that M.A. was 12-years old, when they were chatting on Facebook, when he went to the club to meet with her, when he took her back to his home, and when he engaged in sexual activity with her. Whatever may be said about the accuracy of the trial judge’s use of the term “grooming”, there was ample evidence the appellant built up a relationship through Facebook with a 12-year-old child and, when the opportunity arose, took advantage of that relationship to sexually abuse M.A.

[98] I also reject the argument that the trial judge erred in her fact-finding on sentencing. The trial judge acknowledged the different verdicts arrived at by the jury and the limits those verdicts placed on her fact-finding. She was entitled to believe M.A.’s evidence about the nature of the sexual activity, apart from the sexual intercourse.

[99] The sentence was fit.

IV

conclusion

[100] The appeals are dismissed.

Released: “DD” “NOV 20 2020”

“Doherty J.A.”

“I agree David Watt J.A.”

“I agree G. Pardu J.A.”

[^1]: When considering the availability of the defence created by s. 150.1(4), the trial judge relied on the interpretation of that provision in this court’s jurisprudence as subsequently confirmed in R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 8. On appeal, counsel did not take issue with those principles, but argued the trial judge erred in finding no evidentiary basis for the s. 150.1(4) defence. We have addressed this argument in the terms in which it was put forward. Nothing said in these reasons should be taken as a comment on the jurisprudence post-dating this trial relating to the mens rea requirement when a complainant’s age is an element of the offence, considered apart from the mistaken belief defence in s. 150.1(4): see R. v. Morrison, 2019 SCC 15, at para. 88; R. v. Carbone, 2020 ONCA 34, at paras. 116-120.

[^2]: There is nothing in the evidence proffered on the ineffective assistance claim indicating what the appellant’s evidence would have been about what M.A. said, if anything, about her age on the night of the alleged assaults.

[^3]: It is difficult to know what was meant by “confusing the jury”. There is nothing in the material filed on the ineffective assistance of counsel claim about the substance of the appellant’s evidence had he testified. It would seem, based on this answer, he would have taken issue with virtually everything the Crown witnesses had said about the events on the night of the alleged assault.