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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. Watkins, 2020 ONCA 754

DATE: 20201127

DOCKET: C64562

Gillese, Lauwers and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Anthony Watkins

Appellant

Mark Anthony Watkins, acting in person

Joe Wilkinson, appearing as duty counsel

Michael Fawcett, for the respondent

Heard: November 3, 2020 by video conference

On appeal from the conviction entered on August 21, 2017 and the sentence imposed on October 17, 2017 by Justice Ferhan Javed of the Ontario Court of Justice.

REASONS FOR DECISION

[1] Mark Watkins was tried on a seven-count information alleging the following criminal offences involving his ex-partner, the complainant:

1. fail to comply with undertaking;

2. assault on or about July 28, 2016;

3. sexual assault on or about July 28, 2016;

4. sexual assault on or about July 27, 2016;

5. uttering threats on or between March 1-31, 2016;

6. uttering threats on or between May 1-31, 2016; and

7. uttering threats on July 27, 2016.

[2] The appellant pleaded guilty to count one, admitting that he had given an undertaking not to consume alcohol and breached it by consuming alcohol on July 29, 2016 when he was arrested by the police. The appellant testified and denied making any of the threats or committing the assault with which he was charged. He admitted having sex with the complainant on the dates of the alleged assaults but said that the sex was consensual.

[3] On August 21, 2017 the trial judge rendered an oral judgment setting out his key findings of fact and explaining why he concluded that the Crown had proven Mr. Watkins’ guilt beyond a reasonable doubt on all counts except count two – an assault on July 28, 2016 – and count six – uttering a threat in May 2016. He delivered written reasons for conviction and sentence on October 17, 2017.

[4] The trial judge’s key findings of fact were these:

1. He rejected the appellant’s evidence that his relationship with the complainant was “good”. He found that this was a relationship with long-term verbal and emotional abuse.

2. He rejected the appellant’s evidence relating to his alcohol consumption.

3. He found that the appellant was aware that the relationship with the complainant was over but that the appellant refused to accept this fact.

4. He accepted the complainant’s evidence that the appellant’s threat to her in March 2016 (count five) was clear and specific and was meant to intimidate her.

5. He accepted the complainant’s evidence about the words the appellant used when he threatened her in May 2016 (count six) but did not find that the threat intimidated her on that occasion.

6. He accepted the complainant’s evidence that she did not consent to sexual activity with the appellant on July 27 and 28 (counts three and four), and that the complainant had communicated her lack of consent to the appellant. He also found that the appellant’s sexual assault on July 27 was preceded by a threat, which was meant to and did intimidate her (count seven).

[5] The appellant makes two arguments in his notice of appeal. The first is that the trial judge misapprehended the evidence. The second, in a supplementary notice of appeal, is that he had ineffective assistance of counsel.

[6] Duty counsel adds another ground. He submits that the trial Crown improperly cross-examined the appellant on the conduct on which his previous convictions were based. Although s. 12(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5, authorizes a witness to be questioned on whether the witness has been convicted of any offence, courts have limited this type of questioning to the facts of the conviction, including the offence, the date and the place of the conviction, and the punishment imposed: R. v. M.C., 2019 ONCA 502, 376 C.C.C. (3d) 81, per Watt J.A., at paras. 53-55.

[7] The respondent concedes that the trial Crown went too far in exploring the details of the conduct underlying the appellant’s prior convictions in cross-examination. However, the respondent submits that careful examination of the trial judge’s reasons establish that trial fairness was not impaired and that this was the sort of error for which use of the proviso would be warranted.

[8] In this case the criminal record was put into evidence by defence counsel. The copy ultimately filed with the trial judge as an exhibit had the trial Crown’s handwritten annotations on it describing what the individual offences were about. Duty counsel does not fault trial defence counsel for introducing this evidence because the record was bound to be put to the appellant in cross-examination, making it good trial strategy to minimize its effect by getting it out early. However, duty counsel argues that the cumulative effect of the Crown’s improper cross-examination was to substantiate the appellant’s problems with alcohol, his history of domestic violence, his tendency to minimize his own behaviour and to lie to courts in order to minimize the personal consequences of his actions. Duty counsel argues that this tainted the trial judge’s assessment of the appellant’s credibility, encouraged prejudicial reasoning on the trial judge’s part, and therefore led to a miscarriage of justice.

[9] We do not accept this argument. While we agree that the Crown’s cross-examination on the appellant’s record was improper, we do not agree that it unduly influenced the trial judge’s approach to the case.

[10] The trial judge instructed himself appropriately on the burden of proof, citing R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 27. He did the same respecting the principles set out in R. v. W.(D.), [1991] 1 S.C.R. 742, at pp. 757-8. He instructed himself that demeanor evidence was an unreliable factor in the assessment of credibility and not to give it undue weight.

[11] The trial judge was alive to the tensions in the law. First, he cited the observation of Doherty J.A. that: “The existence of previous criminal convictions may render a witness less credible”: R. v. Watson (1996), 108 C.C.C. (3d) 310, [1996] O.J. No. 2695 (C.A.) at para. 76. Second, the trial judge was careful in instructing himself that: “While I can rely on his record, I cannot use it to infer propensity to commit the offences before the court,” citing R. v. Corbett, [1988] 1 S.C.R. 670 at para. 21.

[12] The trial judge enumerated briefly the 20 convictions on the appellant’s record. In his analysis of the issues at trial, the trial judge returned to the criminal record, and made these observations:

First, he minimized his criminal record. Mr. Watkins has a lengthy criminal record with convictions for crimes of violence. Some are driving-related which involve alcohol. Arguably, this cannot be an easy thing to be questioned on, and one would expect some downplaying, but Mr. Watkins refused to acknowledge his role in his criminal antecedents. He testified that most of the times he pled guilty to get out of jail. In cross-examination, he was given an opportunity to explain what he meant. When it was suggested to him that this meant he might have lied to the court (if he was not guilty of the offences) just to get out of jail, he did not correct or explain this assertion. He remained adamant “he just wanted to get out of jail,” implying he was not really guilty of the offences. This is problematic.

[13] The third tension in the law concerns propensity reasoning. The trial judge noted that in cases involving domestic relationships, “extrinsic evidence” can be led not for propensity reasoning but in order to provide context to the relationship, particularly where it can explain why a person remains in an abusive relationship: R. v. F.(D.S.) (1999), 132 C.C.C. (3d) 97 (Ont. C.A.), [1999] O.J. No. 688.

[14] The trial judge then said:

The extrinsic evidence led by the Crown was limited to the other counts on the information and instances of verbal and emotional abuse. It is entirely relevant to explain why [the complainant] remained in the relationship, which of course is being challenged by the defence as a key issue which speaks against her credibility.

I accept the evidence of [the complainant] as to why she stayed in the relationship. In contrast, I reject Mr. Watkins’ characterization of their relationship as “good”… [The complainant] testified that the relationship was emotionally and verbally abusive and this was a longstanding issue.

[15] The case turned on the trial judge’s credibility findings. He did not believe the appellant, pointing out that there were several areas of his evidence that were internally inconsistent and also inconsistent with his prior statements, including his statements to the police. He noted that the appellant tried to minimize his lengthy criminal record and minimized his alcohol consumption.

[16] By contrast, the trial judge found the complainant to be forthright and consistent in her evidence. He accepted her evidence that the appellant’s drinking was excessive and that when he abused alcohol, he became angry and disruptive. The complainant’s sister provided corroborative evidence that she had to take the step of banning him from her home.

[17] In assessing the complainant’s credibility, the trial judge found that she had no motive to fabricate relating to the termination of their domestic relationship nor, more specifically, in order to gain an advantage in the division of their assets. He found that their confrontation on the division of assets occurred after the assaults.

[18] The trial judge’s self instructions were thoughtful, correct, and complete, and his reasons were comprehensive and detailed. The appellant has demonstrated no palpable and overriding errors or misapprehensions of the evidence by the trial judge. Nor are there any errors of law.

[19] The appellant made submissions in addition to duty counsel and elaborated on the argument set out in a supplementary notice of appeal that his trial counsel provided ineffective assistance. The appellant had in 2018 obtained a limited order under s. 684 of the Criminal Code for assistance and a review of this claim, but no counsel is before the court making this argument.

[20] With respect to the fresh evidence relating to the ineffective assistance of counsel claim, the appellant makes four allegations:

1. Trial counsel failed to do an effective cross-examination on the complainant and her sister;

2. Trial counsel undermined the fairness and the appearance of representation of the trial and the reliability of the outcome of the verdict;

3. Trial counsel’s conduct of incompetence and ineffectiveness is the cause for a miscarriage of justice which in turn affected the verdict; and

4. Trial counsel “failed to hear my side of these allegations and events which is required by law to do so. Trial counsel [failed to inform me of these allegations at any time and did not discuss any strategies].”

[21] These allegations were refined further in communications between the Crown and trial counsel. The Crown invited trial counsel to respond to the following allegations:

1. The videotape statement – Mr. Watkins alleges that you did not view his videotaped statement to police before conceding its voluntariness.

2. The allegations – Mr. Watkins states that you did not review the allegations with him, and he did not know the nature of the case against him.

3. Trial preparation – Mr. Watkins alleges that you never discussed trial strategy with him; did not ask his side of the story; and never explained to him what would happen when he took the stand.

[22] In response, trial counsel advised:

1. I did review the video statement of Mr. Watkins but, I did not view the video with Mr. Watkins himself. I told him I had reviewed it and confirmed that it was similar to the written synopsis that the Crown had provided in the disclosure. I reviewed that with him and he recalled what he said to police. He was fine with what he had told police and did not express any issues with that aspect of his evidence.

2. I reviewed all allegations with Mr. Watkins. I read out the disclosure to him over the videolink meetings we had in preparation for trial. He knew exactly what the allegations were against him and he is the one that gave me the background of the relationship in order to cross-examine the complainant.

3. I always discussed trial strategy with Mr. Watkins. We discussed whether he wanted to take the stand. We discussed how we would cross-examine the complainant and the fact that her sister would also be testifying. I went over their statements with Mr. Watkins and he gave me the history to cross-examine the witnesses and his side of the story. I was fully aware of Mr. Watkins version of events. He told me several times what his position was and I tried to place that before his Honour as best I could. I also discussed with him what it meant to take the stand. He seemed to be fully prepared to answer questions from the Crown. When I discussed my expectation, he seemed to understand. At least, he led me to believe he understood and was still prepared to take the stand so the Judge had his side of the story.

[23] In his oral submissions before this court, the appellant focussed on the complaint that defence counsel had put his criminal record into issue, and that he was not prepared for the questions that counsel asked. As duty counsel pointed out, defence counsel cannot be faulted for adducing the appellant’s record. We addressed the problems with the cross-examination on the record earlier but note that defence counsel did not object to it.

[24] On this record, with the substantial evidence against the appellant, we are unable to find that defence counsel provided him with ineffective assistance.

[25] The notice of appeal included a sentence appeal but did not set out the grounds. Neither the appellant nor duty counsel addressed the sentence appeal, nor did they abandon it. Since leave to appeal sentence was not pursued, leave to appeal sentence is denied.

[26] The appeal is dismissed.

“E.E. Gillese J.A.”

“P. Lauwers J.A.”

“M.L. Benotto J.A.”