Court of Appeal for Ontario
Date: 20210603 Docket: C 64815
Before: Feldman, Lauwers and Trotter JJ.A.
Between: Her Majesty the Queen, Respondent And: Michael Trought, Appellant
Counsel: R. Craig Bottomley and Andrea Vanderheyden, for the appellant Lisa Csele, for the respondent
Heard: February 16, 2021 by video conference
On appeal from the conviction entered by Justice Robert F. Goldstein of the Superior Court of Justice on December 19, 2016.
Trotter J.A.:
A. Introduction
[1] The appellant was convicted on a single count of possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. He appeals his conviction on two grounds. First, he submits that the trial judge erred in dismissing his application under s. 11(b) of the Canadian Charter of Rights and Freedoms. Second, he contends that he received ineffective assistance from his trial counsel, particularly as it related to his decision to testify.
[2] The following reasons explain why I would dismiss the appeal from the trial judge’s s. 11(b) ruling. However, I would allow the appeal because the appellant received ineffective legal assistance.
B. Factual Overview
[3] The case against the appellant was rooted in the fruits of a search of his apartment, where the police found a large amount of cocaine, along with assorted drug paraphernalia. The search was conducted pursuant to a warrant that was based on information supplied by a confidential informant. The appellant challenged the warrant under s. 8 of the Charter by attacking the information said to have come from the informant.
[4] The confidential informant referred to two locations relevant to the narrative of events. The first is 165 Legion Road, Unit 1225 in Toronto. The police believed Unit 1225 was being used as a stash house for drugs and/or the proceeds of crime. Keeli Stith, a woman the appellant was seeing at the time, lived at 165 Legion Road, in Unit 434. The appellant went to her apartment on the evening of Sunday, July 28, 2013. An unrelated break-in occurred in the building in the early morning hours of July 29th that resulted in considerable police presence. The police knocked on Ms. Stith’s door at about 2:00 a.m. The appellant and Ms. Stith told the police that they heard a loud bang, but they were unable to provide any further information.
[5] Shortly after the police visit, the appellant left the building and went home. The appellant lived at 80 Harrison Gardens Boulevard, Unit 520, which is roughly half an hour away. This is the second location to which the confidential informant referred. Later that day, at about 4:00 p.m., the appellant returned to 165 Legion Road for a short visit with Ms. Stith. There was still a significant police presence.
[6] The police arrested the appellant in the Ford Fusion on July 30, 2013. Armed with a search warrant, they searched the appellant’s apartment, where they found 2 ½ kilograms of powder cocaine, 7 grams of crack cocaine, $440 in cash, a money counter, packaging paraphernalia, a debt list, as well as correspondence and identification bearing the appellant’s name.
[7] The issuance of the search warrant was explained in the trial judge’s ruling dismissing the appellant’s s. 8 Charter application (see R. v. Trought, 2016 ONSC 7919). The trial judge noted that the confidential informant reached out to the Toronto police on July 30, 2013, and provided the following information:
- an unknown male was parked in the vicinity of 165 Legion Road;
- the unknown male was described as Black, athletic, and slender;
- the unknown male was driving a black Ford Fusion with Ontario licence DLJX 572;
- the unknown male met with a white male;
- the white male was described as 6’1”, 150-160 lbs., with short brown hair;
- the unknown male showed the white male a large quantity of cocaine in kilo bricks in the trunk of the Ford Fusion;
- several police cruisers showed up while the unknown male was showing the white male the cocaine bricks;
- the unknown male drove to the area of Harrison and Everson Drive in Toronto, where he had his stash house; and
- the Ford Fusion was a rental vehicle that could not be traced back to the unknown male.
[8] Trial counsel initially challenged the validity of the search warrant by alleging that the police fabricated the information said to have come from the confidential informant. He later backed off from that position, maintaining that, if the information did originate with the confidential informant, the part about the appellant showing bricks of cocaine from the trunk of the car was so ridiculous that it must be false.
[9] The appellant testified on the Charter voir dire for the s. 8 challenge. In his evidence in chief, he claimed that he did not show anyone bricks of cocaine in the trunk of his car. In cross-examination, the appellant admitted to trafficking in cocaine. He acknowledged that half a kilogram of the cocaine seized from his apartment belonged to him; however, the rest belonged to a friend (who was also his supplier). The appellant allowed his friend to leave drugs in the apartment on the day of the seizure.
[10] During a colloquy with the trial judge after the appellant testified, trial counsel agreed that the trial could proceed in a blended fashion (i.e., the appellant’s voir dire evidence would be applied to the trial proper if the Charter application failed). It did, and trial counsel invited the trial judge to find the appellant guilty. He did, and then sentenced the appellant to 5 ½ years’ imprisonment.
C. Unreasonable Delay
[11] The appellant submits that the trial judge erred in failing to find that his right to be tried within a reasonable time under s. 11(b) of the Charter was infringed. It is not necessary to examine all of the steps taken in the proceedings in minute detail, because the appellant advances two focused arguments in support of this ground of appeal: (1) the trial judge erred in relying on the transitional exceptional circumstance; and (2) the trial judge erred in the manner in which he dealt with the asserted prejudice.
[12] The appellant was charged on July 30, 2013. When he applied for a stay of proceedings under s. 11(b), his trial in the Superior Court of Justice was expected to finish by October 29, 2016 – 39 months from the date the appellant was charged.
[13] Until the later stages of the trial proceedings, the parties were governed by the framework in R. v. Morin, [1992] 1 S.C.R. 771. However, the landscape shifted dramatically on July 8, 2016 when the Supreme Court of Canada released its judgment in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. Under the new regime, after deducting 5 months for defence delay, the remaining 34-month delay exceeded the applicable presumptive ceiling of 30 months.
[14] The trial judge concluded that the transitional exceptional circumstance applied in this case. As he said, at para. 25 of his ruling: “The parties reasonably relied on the law as it existed at the time.” See also paras. 26-27 and the reference to R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at para. 56.
[15] The appellant contends that the trial judge did not explain why it was appropriate to apply the transitional exceptional circumstance. He submits the Crown had an onus to justify the application of the transitional exceptional circumstance, yet the trial judge’s reasons do not disclose how the Crown relied on the pre-Jordan jurisprudence. I disagree. It was apparent from the Crown’s trial submissions that it relied on the law as it existed throughout most of the proceedings, until Jordan ushered in a new approach. In R. v. Powell, 2020 ONCA 743, 153 O.R. (3d) 455, at para. 37, Nordheimer J.A. said: “There was no reason … for the parities to believe that they would be judged by a different standard.” The same conclusion may be drawn in this case.
[16] The manner in which the parties proceeded in the pre-Jordan stages of the proceedings reflects an adherence to the dictates of Morin. Regrettably, it also reflects the impetus for change that inspired Jordan – both sides seemed content with a relaxed approach to the progress of the case. On the one hand, the Crown took too long to disclose a redacted version of the relatively straightforward Information to Obtain a search warrant (“ITO”); however, the trial judge accounted for this lapse by attributing three months of Crown delay. On the other hand, trial counsel adjourned the preliminary inquiry so that he could take a vacation, resulting in a five-month delay. Neither side distinguished itself in terms of efficiency.
[17] Nevertheless, the case was close to (if not within) the Morin guidelines. The trial judge found that the institutional plus Crown delay in the Ontario Court of Justice was 11 months (set against a guideline of 8-10 months), whereas in the Superior Court the delay was 9 months (with a guideline of 6-8 months). On appeal, the Crown submits that the trial judge made mathematical/rounding errors such that the institutional/Crown delay was properly 17.5 months, just below the Morin guidelines. The appellant did not contradict this re-calculation during the hearing.
[18] I need not resolve this issue definitively. The trial judge subsequently mentioned in his discussions with counsel that his s. 11(b) determination involved a “close call”. I agree with his assessment.
[19] The appellant also submits that the trial judge erred in the manner that he addressed asserted prejudice by the appellant. In an affidavit, the appellant claimed that, as a result of the delay in his proceedings, he developed high blood pressure, his income-earning opportunities decreased, and his inability to travel outside Canada resulted in him missing “family functions and funerals”. Lastly, he asserted that a long-term relationship with a woman (not Ms. Stith) experienced “significant deterioration”.
[20] The appellant acknowledged that the Crown consented to “some relatively minor variations” of his bail. However, missing from the appellant’s affidavit is any indication that he sought other bail variations to ameliorate the hardships he sought to rely upon. He failed to back up his medical complaints with any supporting documentation typically seen in these circumstances. His affidavit was also light on detail, especially in relation to the impact of his inability to travel outside Canada.
[21] In dismissing the s. 11(b) application, the trial judge said, at para. 40: “Having reviewed Mr. Trought’s affidavit, I am not satisfied that the prejudice he has suffered, while real, arose out of the delay rather than the fact of the charges.” I agree with the appellant’s counsel that this aspect of the trial judge’s reasons is cursory. However, given the lack of initiative on the appellant’s part to address the bail restrictions he faced, I see no reason to disturb the trial judge’s finding.
[22] I would dismiss this ground of appeal.
D. Ineffective Assistance of Counsel
(1) Introduction
[23] The appellant submits that he received ineffective assistance from his trial counsel. [1] Although the appellant’s application was initially quite broad when filed, his factum and oral argument focused on the manner in which trial counsel conducted the s. 8 Charter application. The appellant submits that trial counsel’s ineffectiveness is reflected in his agreement to a blended procedure without first obtaining instructions from the appellant.
[24] The appellant claims that he was blindsided by this decision. He thought that his evidence would only be used on the voir dire. Relatedly, because he was unaware of the concept of constructive possession, the appellant did not realize that his testimony about allowing his friend to keep cocaine at his apartment was inculpatory. The appellant never intended to confess under oath to possessing all of the cocaine seized from his apartment. Had he been properly advised about the legal effect of his evidence, and had he known about the use to which it would ultimately be put, he would not have testified at all. He said that trial counsel’s ineffectiveness deprived him of his right to stay silent at trial, or at least the ability to make a meaningful and informed choice on this fundamental issue.
[25] The respondent submits that the appellant was adequately represented. The case was always about the validity of the search warrant: if the Charter application failed, guilt would inevitably follow. The respondent points to an Agreed Statement of Facts that was filed at trial in which the fruits of the search are acknowledged. The appellant was involved in the preparation of this document, reflecting that he knew all along that he would be found guilty if he was unsuccessful in excluding the evidence. In short, the respondent submits that any missteps by trial counsel were inconsequential.
(2) Proceedings at Trial
[26] A good deal of the case against the appellant was based on preliminary inquiry transcripts that were filed on consent. In the lead up to the Charter voir dire, trial counsel advised the trial judge that the appellant would testify that he had “nothing to do with what the confidential informant allege[d]” and would give evidence “admitting that the apartment was his, admitting that some of the drugs in that apartment were his.” Trial counsel later said that the appellant would “have some comment about what of those drugs were actually his drugs”. The trial judge inquired: “And that’s in relation to the warrant. This is not the trial itself.” Trial counsel said, “Yes, on the application.”
[27] I pause here to observe that trial counsel’s approach to attacking the search warrant was somewhat unique. At the preliminary inquiry, he was unsuccessful on a motion to cross-examine the affiant of the ITO. He considered renewing the application at trial, but ultimately decided against doing so because he received further information from the Crown. Consequently, without challenging any police officer about the existence of the confidential informant, or the plausibility of the information supplied to the police, trial counsel put the appellant forward to imply that either the informant did not exist or the information they provided to the police was fabricated.
[28] As noted above, Keeli Stith testified as a witness. She lived at 165 Legion Road, Unit 434 and testified about the appellant’s presence in her apartment during the evening of Sunday, July 28, 2013 and the police visit in the middle of the night in relation to the burglary in the building. The appellant left about 30 to 45 minutes after the police visit. The appellant returned to Ms. Stith’s apartment around 4:00 or 5:00 p.m. that same day, July 29, to bring her food. Ms. Stith accompanied the appellant downstairs when he was leaving. There were many police cars parked out front. Ms. Stith suspected that there was an undercover officer in the lobby. After the appellant left, she returned to her apartment.
[29] Ms. Stith knew nothing of the appellant’s involvement with drugs. She thought he was a stock trader.
[30] The appellant testified that July 28, 2013 was the first time he went to 165 Legion Road. He denied showing anyone bricks of cocaine from the back of a car. In fact, he did not have cocaine on him when he went there. The appellant testified that, when he left the building in the early morning hours on July 29, there were as many as 10 police cars outside. The appellant said that he returned to the building later that day with food for Ms. Stith. There was still a “massive” police presence. The appellant stayed for half an hour and then left. Ms. Stith walked him outside. He went home. The next day, he was arrested in his vehicle on his way home from a community barbecue.
[31] While the appellant’s examination-in-chief was focused on issues related to the search warrant, the appellant was cross-examined extensively on his activities as a drug dealer.
[32] The appellant admitted that half a kilogram of the cocaine found in his apartment belonged to him. He allowed his friend/supplier to leave some cocaine in his apartment on the day that the search warrant was executed. His friend was to retrieve his portion of the cocaine later that day. The appellant admitted that the scales were his, as was the money counter. He acknowledged that there was over $100,000 worth of cocaine in his apartment.
[33] The appellant testified that he did not traffic cocaine on a large scale. He estimated he sold drugs to four people a month. He had never purchased cocaine at the kilogram level. In relation to a notebook that the police said contained a drug debt list, which was found in close proximity to a large quantity of drugs, the appellant claimed that it was used to record gym promotions, another line of work he pursued, “partner draws”, and his stock trading information.
[34] During their search, the police also discovered seven grams of crack cocaine. The appellant disavowed any prior knowledge of crack in his apartment. He surmised that his supplier gave him a “sample” of crack cocaine.
[35] After the appellant testified, the trial judge addressed counsel to “be clear about [what was] going on [that] morning.” He observed that they were in the midst of a s. 8 Charter voir dire, but he heard a lot of evidence that did not relate to the preconditions to the issuance of the search warrant. The trial judge said that he assumed it was meant to be a blended procedure. Trial counsel responded immediately:
The reality is that this is a blended hearing. The reality is that all of the evidence, including my client’s evidence and eyewitness, although strictly I said I’d call him on the motion … I’m content they be heard on the trial. My client’s, if you admit the evidence, would be sufficient to establish a guilt regardless of his admission, so his evidence doesn’t hurt him on the trial at all. This witness doesn't hurt him on the trial at all. So all of the evidence can apply to both the motion and the trial. It’s a true blended hearing. [Emphasis added.]
[36] There was further discussion and trial counsel agreed with the trial judge that, if the evidence were to be admitted, the appellant’s evidence could be considered in mitigation or aggravation of sentence.
[37] After another police witness gave evidence and the parties made closing submissions, the proceedings were adjourned for approximately six weeks. When the trial resumed, the trial judge dismissed the Charter application. In his written reasons, the trial judge thoroughly rejected the appellant’s evidence. As he said at para. 40: “I simply do not accept that Mr. Trought is a credible witness. Although a self-confessed drug dealer, he took pains to minimize his involvement in the business.” He repeated his rejection of the appellant’s evidence at a number of junctures in his reasons [2] and made detailed findings in support of his conclusions.
[38] After providing counsel with a written copy of his ruling, the trial judge asked about “next steps”. Trial counsel advised: “Well, there’s no other issue in the trial Your Honour, so the next steps is for you to make a finding of guilt. … All of the evidence applies. It’s the only issue I was litigating.” The trial judge made the finding of guilt and the case was adjourned for sentencing.
(3) Fresh Evidence on Appeal
[39] The appellant filed an affidavit in support of his claim of ineffective assistance of counsel. Trial counsel filed an affidavit in response. Both were cross-examined. The parties agreed that the affidavits and cross-examination transcripts were properly before us for the purpose of considering this issue: see R. v. W.(W.) (1995), 100 C.C.C. (3d) 225 (Ont. C.A.), at pp. 232-33; R. v. Joanisse (1995), 102 C.C.C. (3d) 35, at pp. 43-44; and R. v. Chica, 2016 ONCA 252, 348 O.A.C. 12, at para. 5.
[40] The key issues are whether trial counsel properly advised the appellant about the implications of acknowledging that he allowed his friend to leave drugs in his apartment, and whether he trammeled on the appellant’s right to decide whether to testify without consulting him about the blended procedure. Typical of this type of application, trial counsel and the appellant are at odds as to what happened.
(4) Analysis: The Appellant was Ineffectively Assisted by Counsel
[41] I begin with a discussion of the governing principles and then consider the evidence.
(a) Introduction
[42] The framework for assessing claims of ineffective assistance of counsel is well-established. The appellant must establish: (1) the facts material to the claim of ineffective assistance on the balance of probabilities; (2) that the representation provided by counsel fell below the standard of reasonable professional assistance in the circumstances; and (3) the ineffective representation resulted in a miscarriage of justice: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 26-27; Joanisse, at p. 59.
[43] Elaborating on the third criterion, miscarriages of justice may take various forms. Some may impact on the outcome of the trial; others may disclose unfairness in the proceedings: R. v. K.K.M., 2020 ONCA 736, at paras. 55, 91. As Major J. said in G.D.B., at para. 28: “In some instances, counsel’s performance may have resulted in procedural unfairness. In others, the reliability of the trial’s result may have been compromised.”
[44] In R. v. Stark, 2017 ONCA 148, 347 C.C.C. (3d) 73, this court found that the appellant’s trial counsel made the election as to mode of trial without consulting his client, resulting in a finding of ineffective assistance of counsel. Lauwers J.A. said, at para. 20: “The miscarriage of justice lies in proceeding against the accused without allowing him to make an informed election, and the accused need not establish further prejudice. What the accused might or might not have done had he been aware of his options is not relevant.” See also K.K.M., at para. 91. This court has recognized that public confidence in the administration of justice is just as shaken by the appearance, as by the fact of an unfair proceeding: see, for example, R. v. Olusoga, 2019 ONCA 565, 377 C.C.C. (3d) 143, at para. 13; and R. v. McDonald, 2018 ONCA 369, 360 C.C.C. (3d) 494, at para. 51.
[45] The appellant acknowledged that he was aware that, if the s. 8 Charter application failed, the case against him was formidable, if not worse. However, the appellant’s claim is based on the fundamental unfairness of being undermined by trial counsel’s combined failure to properly advise him about the implications of his anticipated testimony and to obtain proper instructions on the decision to have his testimony apply at trial.
(b) The Decision to Testify
[46] The appellant’s allegation of ineffective assistance engages consideration of the respective roles of defence counsel and the client in a criminal proceeding. Who is in charge of what? Modern criminal practice assigns the vast majority of decisions in a criminal trial to defence counsel. Counsel is expert in the law. They are required to assist the accused person in navigating the criminal trial process by providing sound legal advice. However, it is recognized that certain decisions belong to the client: David Layton & Hon. Michel Proulx, Ethics and Criminal Law, 2nd ed. (Toronto: Irwin Law, 2015), at p. 105.
[47] In his famous article, “The Role and Responsibility of the Defence Advocate” (1969-1970), 12:4 Crim. L.Q. 376, at pp. 386-87, G. Arthur Martin (later, the Honourable G. Arthur Martin, of this court) identified the following decisions that are the client’s to make: (1) how to plead; (2) whether to waive the right to a jury trial (where that option is available); and (3) whether to testify.
[48] This list has been modified over the years. For instance, item (2) in Justice Martin’s article now encompasses the choice between a judge alone trial in the Ontario Court of Justice and the Superior Court: Stark, at para. 18. In R. v. Szostak, 2012 ONCA 503, 111 O.R. (3d) 241, at paras. 77-80, this court held that it is the client’s decision whether to advance the defence of not criminally responsible on account of mental disorder under s. 16 of the Criminal Code; counsel cannot advance this defence without instructions.
[49] Because the right to make these decisions belongs to the client, counsel cannot make them alone. As Lauwers J.A. said in Stark, the question is whether “counsel has made certain decisions that should have been made by the accused person because they relate to the accused person’s fundamental right to control his or her own defence”: at para. 16, citing R. v. Swain, [1991] 1 S.C.R. 933, at p. 972.
[50] With respect to these fundamental decisions, ones that belong to the client, all the lawyer can do is provide advice and act on proper instructions. But that advice must be competent. As Doherty J.A. said in K.K.M., at para. 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…. [Emphasis added.]
[51] The quality of advice on the decision to testify was at issue in R. v. Faudar, 2021 ONCA 226. Faudar was charged with firearms offences that were discovered through the execution of a search warrant. He testified that, unbeknownst to him, his friend left a handgun and ammunition in his music studio. Faudar moved the items to his locked bedroom, where they were discovered days later when the police executed the search warrant. His innocent possession defence was rejected, and he was found guilty.
[52] On appeal, Faudar alleged that he received ineffective assistance from his trial counsel – his lawyer insisted that he testify, even though he did not want to. As in this case, appellate counsel submitted that trial counsel essentially set his client up for certain failure by having him admit, under oath, the legal elements of possession. In response, it was the Crown’s position that Faudar chose to testify, but it had no impact on the verdict in any event – because Faudar’s s. 8 Charter application was unsuccessful, the evidence that was admitted overwhelming established his guilt.
[53] This court dismissed the appeal. Writing for the court, Tulloch J.A. endorsed the holdings in Stark and K.K.M. concerning the right of the accused to make fundamental trial choices and the lawyer’s corresponding obligation to “offer sage advice in this regard”: at para. 80. He concluded that Faudar’s decision to testify was informed and voluntary, at para. 82: “Defence counsel detailed the significant risk of conviction on the basis of constructive possession in a reporting letter provided to the appellant prior to trial.” Moreover, Tulloch J.A. observed that there was ample evidence pointing to constructive possession, even without Faudar’s testimony: at para. 88. Nevertheless, he held that there was some faint hope of success in Faudar’s innocent possession assertion that justified the decision to elicit his evidence.
[54] Lastly, combined with other allegations of incompetence, Tulloch J.A. determined that, even if defence counsel had made some missteps, Faudar failed to establish that counsel’s performance undermined the integrity or reliability of the verdicts, or that it rendered the trial unfair: at para. 109.
[55] With these principles in mind, I turn to assess the evidence proffered by the appellant and counsel.
(c) The Appellant’s Affidavit and Cross-Examination
[56] In his affidavit, the appellant acknowledged discussing with trial counsel the possibility of testifying. As he said:
In one of our meetings, [trial counsel] and I discussed the possibility of me testifying. My understanding was that if I were to testify on the section 8 motion, my evidence would not be part of the substantive trial. It was [trial counsel’s] idea that I not testify on the trial, only the motion. It was also [trial counsel] who told me that my testimony on the motion could not be used at the trial.
[Trial counsel] knew that if I were to testify under oath I would have to admit that a portion of the cocaine found by the police belonged to me. The bulk of it belonged to a friend of mine. [Trial counsel] did not explain the concept of constructive possession.
[57] The appellant stated that trial counsel advised the trial judge that the procedure would be a blended procedure after the s. 8 Charter motion was dismissed. In fact, this occurred after the appellant testified, but before the trial judge’s ruling. The important point is that the appellant swore that trial counsel did not confer with him before agreeing to the blended procedure, saying: “[I]t was in direct contradiction to how [trial counsel] had told me my evidence could be used. Had I known that my evidence would be admissible at my trial, I would not have testified”.
[58] In his cross-examination, the appellant testified that he had never previously been arrested or charged with a criminal offence. He said, “[T]his charge is the first I’ve ever been through the process”. Nevertheless, he knew that if the evidence was admitted, the case against him was “overwhelming”.
[59] The appellant testified that he was not aware of what a “blended trial” meant. When he eventually learned that his evidence would be used on the trial, he did not raise the issue with trial counsel. As he said:
No, I did not raise that concern with my counsel. And at the end of the day, what I was told, my evidence would not be used against me. I wouldn’t have gone up there and confessed. I -- that’s what I was told. It would not be used against me. He gave me multiple examples of people going up there and saying they did this and then it cannot be used in the trial. And I also asked him, “Well, if a judge hears it, how is he going to unhear it?” Kind of, if you know understand what I mean. He goes, “Well” --
(d) Trial Counsel’s Affidavit and Cross-Examination
[60] The essence of trial counsel’s affidavit is that he was in frequent communication with the appellant about the conduct of his trial. As he said, “[the appellant] was fully engaged in each and every decision both up to and including the trial.” He emphasized that the defence of the case was always focused on attempting to exclude the evidence seized pursuant to the search warrant. Trial counsel said: “It was all or nothing, win or lose. If the drugs were excluded we win, if the drugs were admitted we lose.”
[61] Trial counsel characterized as “nonsense” the appellant’s assertion that he first heard about the blended procedure when it happened. As he explained: “He was fully aware of my tactics and that it would be a blended trial and that this approach was specifically designed to be effective with the learned trial judge and maximize our chances of success. If he had not testified the chances of success were zero.” However, trial counsel could not pinpoint precisely when he advised the appellant about a blended procedure.
[62] I wish to comment on an unfortunate passage in trial counsel’s affidavit. In his introductory paragraphs, he indicated that he had known the appellant for a couple of decades and had been introduced to “friends and associates of his who were also engaged in the sale of cocaine and other illicit drugs.” Trial counsel then said: “It has always been abundantly clear to me that Mr. Trought was a career drug dealer although he also engaged in other lawful employment from time to time to earn an income and pay taxes, his primary vocation was the sale of drugs.”
[63] This assertion is at odds with the appellant’s trial evidence, and his evidence on the fresh evidence application. The appellant does not have a criminal record; in fact, before this case, he had never been charged with a criminal offence.
[64] I appreciate that a claim of ineffectiveness is unpleasant for the lawyer who is the target of such an allegation. However, such gratuitous comments about a former client are unhelpful and unnecessary to respond to the allegations of ineffectiveness.
[65] The cross-examination of trial counsel revealed shortcomings in his response to the allegations of ineffectiveness. When questioned by the respondent, trial counsel claimed that he received instructions on the decision to testify. Asked whether he got written instructions, he said: “Absolutely not. I, perhaps, am flawed in this regard. I do not get written instructions from my clients.” Trial counsel spoke of “rare occasions” when he might get written instructions and said, “But I wouldn’t say that 10 times out of a 47-year career have I received written instructions on an issue like that.”
[66] When trial counsel was asked whether he advised the appellant about a “blended trial”, he said, “Well, I don’t know if I ever used the term ‘blended trial’ to [the appellant]. I made it clear that he would give evidence on the voir dire and that I would have the -- that the -- suggest that the evidence apply to the trial itself.” He was unable to specify when this discussion occurred.
[67] The cross-examination of trial counsel revealed confusion as to when the decision was made to go with a blended procedure. Trial counsel acknowledged that he did not mention it to the trial judge at the outset of the motion, or when the appellant testified. Yet, he maintained that the appellant always knew that his only hope of success was to exclude the evidence of the drugs, otherwise “[they] were toast on the trial.” The appellant’s counsel referred trial counsel to the exchange with the trial judge referred to in para. 35 above and suggested that this was the point in time when the decision was made. Trial counsel gave the following answer:
That’s the way it looks, in reading. I don’t have a perfect memory of what was going on in my mind. The judge caught me by surprise when he raised that. I thought it was a valid thing for him to raise. I thought it was in [the appellant’s] interest that if we lost the motion, that the other evidence that [the appellant] had given was beneficial to him in things like sentence. [Emphasis added.]
(e) Factual Findings on the Evidence of Ineffective Assistance
[68] Comparing the competing accounts by the appellant and trial counsel against the backdrop of the trial transcript, I am able to reach the following conclusions:
- the appellant and trial counsel had many discussions over the 39 months it took to bring this case to trial, yet trial counsel could not pinpoint when he discussed the blended procedure with the appellant;
- the appellant understood that if he was unsuccessful on his s. 8 Charter motion, he would be found guilty;
- although an Agreed Statement of Facts was filed at trial, the appellant’s understanding of this document and any participation he may have had in its production, remained a question mark. Moreover, neither in his affidavit nor during cross-examination did trial counsel rely on the creation of this document to justify having the appellant admit his guilt under oath;
- the excerpt from the trial transcript (at paras. 26 and 35, above) and trial counsel’s cross-examination (at para. 67, above) strongly suggest that the first time he turned his mind to the possibility of a blended procedure was mid-trial, when the trial judge raised the issue. It is also clear from the record that, after the trial judge raised the issue, trial counsel did not consult with the appellant before answering the trial judge’s question and agreeing to a blended procedure; and
- trial counsel did not explain, nor did the appellant understand, the concept of constructive possession as it related to all of the drugs found at his apartment.
(f) Conclusions on Ineffective Assistance
[69] I am satisfied that the appellant did not receive proper legal advice about his right to decide whether to testify, nor did he authorize the expanded use of his testimony. These failings resulted in an appearance of injustice that requires appellate intervention.
[70] To begin with, the appellant was not made aware of the concept of constructive possession. He took to the witness stand and testified that about a fifth of the drugs seized “belonged” to him; the rest “belonged” to his friend. The trial judge rejected this factual assertion as untrue. But it did not matter who owned the drugs in these circumstances – as a result of the appellant’s admitted control over his apartment, and his knowledge that his friend’s drugs were being stored there, he would have been guilty by virtue of constructive possession: see Criminal Code, R.S.C. 1985, c. C-46, s. 4(3); R. v. Morelli, 2010 SCC 8, [2008] 1 S.C.R. 253, at para. 17.
[71] In light of this shortcoming in advice, the appellant’s decision to testify was not an informed one. To repeat the words of Doherty J.A. in K.K.M., at para. 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.”
[72] This misstep was compounded by trial counsel’s decision to convert the proceeding into a blended procedure, whereby the appellant’s sweeping (and unwitting) admission of guilt lost the protective shield of the voir dire. It was incumbent on trial counsel to discuss the issue with the appellant and to obtain instructions: G.D.B., at para. 34. Through a lack of proper professional advice, coupled with a failure to consult and obtain instructions, the appellant chose to testify on the voir dire, not knowing that his evidence would become the functional equivalent of a guilty plea, or a sworn confession, as his counsel characterized it on appeal.
[73] I wish to be clear that the trial judge’s inquiry about a blended procedure was proper and timely. The cross-examination of the appellant had taken the voir dire in a different direction, having little to do with the warrant, and mostly focused on the appellant’s drug dealing activities. But this was predictable. In the circumstances, trial counsel ought to have paused, both for the purposes of consulting with the appellant, and to review the appellant’s just-completed testimony with him before making the critical decision to have it apply to the trial proper. By any measure, the appellant’s cross-examination went terribly. This is confirmed by the trial judge’s numerous and adverse credibility findings (see para. 37, above).
[74] The appellant’s trial became unfair because he received inadequate legal advice. I accept that the case against him was considerable. Once the drugs were admitted, a conviction was inevitable. But the appellant was still entitled to competent advice in negotiating the criminal trial process. As noted above, although he is an intelligent man, this was the first time he had been charged with an offence. He needed to understand the legal implications of his version of events, whereby he effectively confessed to possessing over $100,000 worth of cocaine. He did so believing that his own evidence could not be used against him when it came time to determine his ultimate guilt or innocence.
[75] The case was serious and the evidence was strong. Nevertheless, to let this result stand in light of what happened at trial would gut the right to effective assistance at a criminal trial, which is seen as a principle of fundamental justice: see G.D.B., at paras. 24-25; Joanisse, at p. 57.
[76] In concluding this ground of appeal, I wish to comment on trial counsel’s failure to obtain written instructions from the appellant about the decision to testify. In R. v. W.E.B., 2012 ONCA 776, 366 D.L.R. (4th) 690, aff’d 2014 SCC 2, [2014] 1 S.C.R. 34, this court recognized that the failure to obtain written instructions is a question of professional prudence, not incompetence, but noted that the failure to do so is “ill-advised and contrary to counsel’s best interests”: at para. 10. See also R. v. Shofman, 2015 ONSC 6876, 90 M.V.R. (6th) 257, at para. 48.
[77] The lawyer who fails to obtain written instructions risks exposure to unfounded allegations of unprofessionalism: see Christine Mainville, “Professionally Serving and Managing Clients: Defence Counsel’s Role in the Solicitor-Client Relationship”, For the Defence, 39:3 (13 February 2019), at p. 9. And although not indicative of ineffectiveness itself, the failure to obtain instructions may undercut trial counsel’s attempts to defend against claims of ineffectiveness.
[78] The failure to obtain written instructions also makes it more difficult for an appellate court to adjudicate claims such as the one advanced on this appeal: see R. v. Hamzehali, 2017 BCCA 290, 350 C.C.C. (3d) 71, at para. 76, leave to appeal refused, [2017] S.C.C.A. No. 380, and R. v. Wells (2001), at para. 61. Written instructions may resolve competing claims on appeal. In R. v. Archer (2006), 202 C.C.C. (3d) 60 (Ont. C.A.), Doherty J.A. observed, at para. 143, “The largest hurdle faced by the appellant in trying to convince the court that the decision to testify was made by trial counsel is the direction signed by the appellant during the trial.” Similarly, in Faudar, at para. 82, Tulloch J.A. referred to a reporting letter sent by trial counsel about the perils of constructive possession. The same approach would also have been helpful in this case, avoiding the necessity of dueling affidavits and cross-examinations.
E. Disposition
[79] I would allow the appeal, set aside the conviction, and order a new trial.
Released: June 3, 2021 “KF” “Gary Trotter J.A.” “I agree. K. Feldman J.A.” “I agree. P. Lauwers J.A.”
Notes
[1] Neither Mr. Bottomley nor Ms. Vanderheyden.
[2] For example, he said: “I do not accept Mr. Trought’s explanation” for renting a car through an intermediary (para. 41); “I do not believe him” in relation to only 500 grams of cocaine belonging to him (para. 42); “Mr. Trought’s innocent explanation that the notebook referred to gym promotions is simply not worthy of belief” (para. 42); “I found [his] evidence to be contrived” in relation to meeting visitors in the lobby of his building (para. 43). He later referred to the appellant’s evidence as a whole as being “highly suspect” (para. 55).
