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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. D.A., 2020 ONCA 738
DATE: 20201119
DOCKET: C65908
Doherty, Hourigan and Pardu JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
D.A.
Appellant
Christopher K. Assié, for the appellant
Andrew Cappell, for the respondent
Heard: October 27, 2020 by video conference
On appeal from the convictions entered by Justice Shaun S. Nakatsuru of the Superior Court of Justice on February 5, 2018.
Pardu J.A.:
OVERVIEW
[1] The appellant was charged with three counts of sexual assault and three counts of sexual interference. The complainant was a female relative who was nine or ten years of age at the time of the alleged offences. The appellant was arrested on September 20, 2016. On February 5, 2018, a jury convicted him on all counts.
[2] He appeals from those convictions on the ground of ineffective assistance of counsel. He says that trial counsel told him that he could not allow him to testify and that, as a lay person, he would not be able to withstand cross-examination by a professional cross-examiner, a Crown attorney. He says, further, that trial counsel failed to give him advice to enable him to make an informed decision about whether to testify.
[3] For the reasons that follow, I would allow the appeal. The appellant was not given any meaningful advice about whether to testify. Had the advantages and disadvantages of testifying been explained to him, he likely would have testified. There is a reasonable possibility that, had he testified, the verdict would have been different, and so a miscarriage of justice has occurred.
MATERIAL FACTS
[4] Following his arrest, the appellant was brought to the courthouse. His wife was distraught and crying in the hallway of the courthouse when trial counsel approached her and told her he could help secure her husband’s release. She paid trial counsel for the bail hearing and the appellant was released from custody.
[5] The appellant then retained trial counsel to defend him on the charges. On October 2, 2016, trial counsel emailed him a retainer letter. The appellant signed and returned the retainer letter by email on October 13, 2016. The second paragraph of the letter describes the relationship between counsel and client:
The relationship between the accused and counsel is one of confidence between the parties. Each of the accused and counsel have specific roles on [sic] that relationship. The accused decides whether to plead guilty (if in fact the accused is guilty - I cannot assist an innocent person to plead guilty) or to proceed to trial, the accused decides whether (where available) the trial should be before a jury or with a judge alone and the accused decides whether the accused will take the stand and testify. Counsel decides trial strategy including what witnesses (other than the accused) and what evidence to call and what theory to pursue in the defence. The accused and counsel will collaborate in the above matters but the ultimate decisions are as set forth above.
(1) Proceedings at trial
[6] The appellant was tried by jury. The complainant testified at trial and her police interview was admitted pursuant to s. 715.1 of the Criminal Code. She testified that the alleged offences took place in the appellant’s home on nights when her brothers were also present, and when the appellant’s wife was working. The complainant’s mother, father, and one of her brothers also testified, but none of them had witnessed the alleged offences.
[7] Trial counsel called the appellant’s wife to testify. She testified that she never worked a night shift during the relevant period, that she had always been present when the complainant spent time at the appellant’s home, and that she had never seen her husband, the appellant, touch the complainant inappropriately. Under cross-examination, she acknowledged that she was not always in the same room as her husband and the complainant, as she would come and go from the kitchen.
[8] Following a brief whispered exchange between trial counsel and the appellant in front of the jury, trial counsel indicated that he would call no more evidence. The appellant did not testify. The jury found the appellant guilty on all counts.
(2) Consultation with appellate counsel
[9] Following conviction, the appellant approached new counsel to prepare an appeal (appellate counsel #1). The appellant advised appellate counsel #1, among other things, that his trial counsel had not wanted him to testify in his defence.
[10] After meeting with the appellant, appellate counsel #1 telephoned trial counsel in order to assess the merit of the appellant’s claims. He asked trial counsel whether it was true that that the appellant had not testified in his own defence, in spite of telling trial counsel that he wished to do so. Appellate counsel #1, in his affidavit, submitted as fresh evidence in this appeal, describes trial counsel’s response:
[Trial counsel] advised me that he could not let the [appellant] testify because he, the [appellant], as a lay person could never withstand the cross examination of a professional like the Assistant Crown Attorney prosecuting the case. I was bewildered by the response and therefore restated his reason for not allowing the [appellant] to testify as stated above to be sure this was what he meant. [Trial counsel] confirmed that this was in fact his reason for advising the [appellant] not to testify in his defence.
[11] Appellate counsel #1 then realized that he might be involved in an appeal as a witness to these statements by trial counsel, and referred the appellant to new counsel for the appeal.
(3) Conflicting evidence about the relationship between the appellant and his trial counsel
[12] In this appeal, fresh evidence has been filed by both parties on the issue of whether there was ineffective assistance of counsel, and whether there was a miscarriage of justice. There are affidavits from the appellant, his wife, appellate counsel #1, and trial counsel. Each affiant was cross-examined on his or her affidavit.
[13] The appellant, when cross examined on his allegations of ineffective assistance of counsel, acknowledged having signed the retainer letter, but indicated that, approximately 16 months later when his trial occurred, he did not understand that whether to testify was his decision to make. The retainer letter was part of the blur of events surrounding his arrest and the financial arrangements to retain counsel. The appellant has no experience with the courts. He attended high school in Trinidad and worked as a courier driver for 25 years.
[14] Trial counsel could not specifically recall discussing with the appellant the fact that the decision as to whether to testify was the appellant’s to make. In cross-examination, he initially stated that the fact that it was the appellant’s decision “was discussed in a meeting we had very early on”. However, he then stated that he did not specifically recall this discussion. He assumed it occurred because it was his normal practice, on first meeting with a client, to go through the terms of the retainer agreement including the roles of counsel and the client.
[15] Trial counsel has no contemporaneous notes of any such discussion. Given this, and the manner in which the appellant received and returned the retainer agreement by email, I am unable to conclude that any such initial discussion took place.
[16] When asked about the conversations he had with the appellant about the decision to testify, trial counsel stated: “[t]here were conversations throughout”. He says that the appellant’s position was always that he did not want to testify, but that the appellant never said he would refuse to testify. He stated that, up until the exchange that occurred after the appellant’s wife testimony, it was always a possibility that the appellant would testify.
[17] Trial counsel has no notes of any discussions around testifying that took place in preparation for the trial, and could point to no specific occasions, until the exchange after the appellant’s wife testified, when the topic was discussed.
[18] The appellant says, and trial counsel acknowledges, that he repeatedly maintained his innocence to trial counsel. He says trial counsel told him repeatedly that the Crown was a professional cross examiner and that he could not withstand cross examination. He says trial counsel never asked for his instructions about whether to testify, and never explained to him the consequences of not testifying in his own defence. He said, on cross-examination, that trial counsel told him he could not take the stand. He states that he always wanted to testify in his own defence.
[19] The appellant’s wife was present during his meetings with trial counsel. She says in her affidavit that trial counsel said her husband could not testify because he was not a professional.
[20] At trial, after the appellant’s wife finished giving her evidence, a whispered exchange took place in front of the jury between the appellant and trial counsel. Trial counsel himself described this exchange as “very brief”. Trial counsel says that, in that exchange, he told the appellant that his wife was a great witness, and the appellant agreed. Trial counsel says that he asked the appellant if he wanted to testify and the appellant said no.
[21] Trial counsel, when asked if he gave the appellant any advice as to whether or not he should testify, responded “not that I recall”. Trial counsel said he felt that the wife’s evidence was “sufficiently strong that his evidence couldn’t add a whole lot, and he didn’t want to take the stand”.
[22] He elaborated:
Her evidence had been to the extent that no opportunity existed for the sexual assaults to have occurred. And I didn’t see that he could add anything more because he was going to be saying more or less the same thing: It didn’t happen and it couldn’t have happened. And she’d already said it couldn’t have happened, I was there all the time.
[23] Under further cross-examination, trial counsel said that he “couldn’t really offer advice to [the appellant] as to whether or not I thought he needed to take the stand” until after his wife testified. He says he believed he told the appellant that his wife had been a very strong witness and that he did not “need to take the stand, but it’s your call”.
[24] Trial counsel had the impression that the appellant was nervous or reticent about testifying. There was nothing in the appellant’s background that would have made him vulnerable to cross examination about his personal history in front of the jury. There were no prior inculpatory statements. There was no evidence that trial counsel attempted to prepare the appellant for testifying at trial.
[25] Trial counsel denies having made the remarks that appellate counsel #1 reports hearing from him. He says that they only spoke in general terms about the dilemma faced by defence counsel when advising a client on testifying. He said it has never been his position to dictate to a client whether or not he or she should testify.
[26] Trial counsel has no notes, correspondence, memoranda to file, or docket entries referring to any instructions given to him by the appellant, or regarding trial strategy or trial procedure.
ISSUES
[27] The only issue in this appeal is whether a miscarriage of justice occurred due to ineffective assistance of counsel. To succeed in a claim of ineffective assistance of counsel, an appellant must: (1) establish the material facts on a balance of probabilities; (2) demonstrate that counsel’s acts or omissions amounted to incompetence; and (3) demonstrate that counsel’s ineffective representation caused a miscarriage of justice: R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 119-120; R. v. Girn, 2019 ONCA 202,145 O.R. (3d) 420, at para. 91.
[28] As the appellant suggests, in this case ineffective assistance of counsel can be established by demonstrating that trial counsel either made the decision not to call the appellant or failed to provide advice to the appellant regarding testifying. If either of these is established, the question becomes whether trial counsel’s ineffective assistance resulted in a miscarriage of justice. In some cases the advice given may be so deficient as to undermine the fairness of the trial and result in a miscarriage of justice, however for the purposes of this appeal, I need not decide that issue.
[29] I find that trial counsel gave the impression to the appellant that the appellant could not be allowed to testify and, in any case, failed to provide advice as to whether to testify. This resulted in a miscarriage of justice as, provided meaningful advice, the appellant would likely have testified, and there is a reasonable possibility that his testimony would have led to a different verdict.
ANALYSIS
[30] The right to effective assistance of counsel in criminal proceedings is a principle of fundamental justice: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 24. Competence is assessed by a “reasonableness standard”, and the analysis begins with a “strong presumption that counsel’s conduct fell within the wide range of reasonable professional judgment”: G.D.B., at para. 27.
[31] Reasonable competent counsel may well have different views about whether a particular accused should or should not testify. As this court noted in R. v. White (1997), 1997 CanLII 2426 (ON CA), 114 C.C.C. (3d) 225, at p. 247, leave to appeal refused, [1997] S.C.C.A. No. 248:
An appellate court’s review of trial counsel’s performance should be deferential.… [D]eference is called for because of the broad spectrum of professional judgment that might be considered reasonable. In most cases, even among the most skilled counsel, no two lawyers will defend an accused in the same way. Different defence counsel will use different trial strategies and tactics, different approaches to the examination and cross-examination of witnesses, different styles in opening and closing argument, all of them reasonable. The art of advocacy yields few, if any, absolute rules. It is a highly individualized art. What proves effective for one counsel may be ineffective for another. Most cases, therefore, offer defence counsel a wide scope for the exercise of reasonable skill and judgment. Appellate judges, many of them advocates in their own practices, should not be too quick to conclude that a trial lawyer’s performance was deficient because they would have conducted the defence differently.
[32] Effective representation by counsel includes advice as to whether or not to testify: Archer, at para. 139. As noted in G.D.B., at para. 34, defence counsel are ethically bound to discuss the decision whether or not to testify with the client and must obtain instructions from the client about his or her choice.
[33] That advice should include a review of the advantages and disadvantages of testifying in language that the accused person understands. The decision whether to testify is ultimately the client’s, but the client cannot make an informed decision unless he or she understands what is at stake at this crucial moment in the proceedings. The form and content of that review will vary in almost every case. In some cases, a skeletal discussion may suffice. In others a more detailed review will be required. Sometimes it will be lengthy, at other times it may be quite brief. Counsel should document that discussion, by a scribbled note to file if more is not possible.
(1) Did trial counsel provide advice on testifying?
[34] Here, there is no such evidence. Nothing exists to show that any such discussion took place. Further, I accept the evidence of trial counsel himself that he did not give the appellant any advice about whether or not to testify until the whispered conversation in front of the jury.
[35] By advice, I mean a reasoned explanation of the advantages and disadvantages of testifying that would enable the appellant to make an informed decision about whether to testify. The brief whispered exchange lasting a matter of seconds in front of the jury did not amount to a reasoned explanation of the advantages and disadvantages of testifying.
[36] In contrast, in Archer, as described at paras. 143-144, the client signed a written direction during the trial confirming that the decision to testify was his own, and that the implications of testifying had been fully explained to him, taking into account his previous testimonial performance in court and in mock examinations conducted by counsel.
[37] In this case, I conclude that trial counsel’s communications to his client did not meet the minimum standard required for legal advice about whether to testify.
[38] Further, I find that trial counsel’s communications and his manner of expression, before and after conviction, created the impression that the appellant could not be, or had not been, allowed to testify. The appellant, his wife, and appellate counsel #1 were each left with this impression, even if trial counsel had, in his own mind, not intended to foreclose testimony from the appellant. However, my conclusion that trial counsel failed to provide meaningful advice to the appellant about the decision whether or not to testify is a sufficient basis in itself to establish ineffective assistance of counsel.
(2) Was there a miscarriage of justice?
[39] An appellant must demonstrate that the ineffective representation they received caused a miscarriage of justice. This is established if the ineffective assistance undermined the fairness of the trial or the reliability of the verdict. As noted in Archer, at para. 120: “A verdict is rendered unreliable where the appellant demonstrates that had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different.”
[40] The appellant states, and I accept, that he wanted to testify in his own defence. It appears likely that, if trial counsel had explained the advantages and disadvantages of testifying, the appellant would have testified in his own defence.
[41] Contrary to trial counsel’s suggestion, it is not the case that the appellant’s testimony could not “add anything more” once the appellant’s wife had testified. In her testimony, the appellant’s wife had acknowledged that even though she was home when the complainant visited, she would leave her husband and the complainant together in the same room as she went about her ordinary activities in the home.
[42] Even if the jury fully accepted the wife’s evidence, it was not necessarily inconsistent with the alleged offences taking place as the complainant described. The offences could have taken place when the appellant’s wife was not in the room with the appellant and complainant.
[43] The only person who could potentially say that the sexual touching did not occur was the appellant. Had the appellant testified, it is possible that his testimony would have led the jury to reach a different verdict.
[44] Given that there is a reasonable possibility that the verdict could have been different, had the appellant received effective assistance from counsel, a miscarriage of justice has occurred.
[45] The convictions are therefore set aside, and a new trial is ordered.
Released: November 19, 2020
“D.D.”
“G. Pardu J.A.”
“I agree Doherty J.A.”
“I agree C.W. Hourigan J.A.”