Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220217 DOCKET: C67437

Fairburn A.C.J.O., Doherty and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Alexander Young Appellant

Counsel: Enje Daniels and Isaac Heo, for the appellant Erica Whitford, for the respondent

Heard: February 10, 2022 by video conference

On appeal from the convictions entered by Justice Lucy C. Glenn of the Ontario Court of Justice on January 8, 2019.

Reasons for Decision

[1] This is an appeal from three convictions for sexual assault with a weapon. [1] The weapons were a belt, a cane, a folded piece of plastic siding, and a broken coat hanger. The complainant was the appellant’s wife. [2]

[2] The appeal rests solely on an ineffective assistance of counsel claim. We dismissed the appeal with written reasons to follow. These are our reasons.

[3] The appellant focused upon two issues during oral argument. Although the factum referred to other issues, all ultimately turned on the credibility of the affidavit filed by the appellant as fresh evidence. As will be explained below, that affidavit is not credible. We see no need in these reasons to address the arguments raised in the factum but not addressed in oral argument.

[4] First, the appellant claims that the trial was unfair because counsel failed to inform him about the available modes of trial and, more specifically, about his right to a preliminary inquiry. Second, he claims that the verdict was unreliable because counsel failed to lead evidence that the complainant had a potential motive to fabricate.

[5] To succeed on a claim of ineffective assistance of counsel, an appellant holds the onus of establishing three things:

(1) the facts upon which the claim rests (the factual component);

(2) that the facts reveal ineffective representation (the performance component); and

(3) that a miscarriage of justice has resulted from the ineffective representation (the prejudice component).

See R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 91.

[6] Turning to the first issue, whether the trial was rendered unfair because trial counsel failed to adequately inform the appellant about the different modes of trial, we are unpersuaded.

[7] As is typical in appeals involving ineffective assistance claims, the fresh evidence includes an affidavit from the appellant and a transcript of his cross-examination. That transcript reveals that the appellant’s complaint morphed between examination-in-chief and cross-examination. He initially suggested that his counsel did not inform him about the various modes of trial. That position changed during cross-examination, where he acknowledged that he in fact knew that he could have a trial in the Ontario Court of Justice or the Superior Court of Justice, and that one of his options in the Superior Court of Justice was to be tried by a judge and jury.

[8] Having acknowledged that fact, the appellant’s complaint seemed to become that he did not actually make a choice, but rather “wanted whatever [his] lawyer suggested would be … better”. At the same time, he acknowledged that his primary concern was to obtain an expeditious trial. Trial counsel’s evidence demonstrates that he clearly understood the appellant’s concern about a speedy trial and, therefore, recommended the matter be tried in the Ontario Court of Justice.

[9] We are satisfied that the appellant clearly understood the various modes of trial and that he was prepared to accede to counsel’s suggestion as to how to obtain the most expeditious trial.

[10] As for the appellant’s suggestion that he was not informed about his entitlement to a preliminary inquiry, he has failed to meet his onus.

[11] Trial counsel candidly admits that he has no specific recollection of informing the appellant about the potential for a preliminary inquiry. While it is trial counsel’s normal practice to explain this to his clients, he acknowledges that he has no specific note or recollection of having done so in this case. Therefore, he cannot definitively say that he followed his usual practice.

[12] What counsel does very clearly recall is that he told his client about the various modes of trial and was given unequivocal instructions about getting the matter to trial as quickly as possible. In his view, that meant a trial in the Ontario Court of Justice.

[13] Counsel’s lack of memory on this point does not tip the scales toward proof that the claim has been made out. This is particularly true in the face of a strong presumption of counsel’s competence: see R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27. Even assuming that information about a potential preliminary inquiry properly falls under the rubric of “modes of trial”, the onus remains squarely on the appellant to prove that he was not given this information. In our view, the appellant’s evidence falls well short of establishing this fact.

[14] For a number of reasons, we do not accept his evidence on this point because he lacks credibility. In our view, the appellant’s commitment to the truth is undetectable. For instance, the appellant admitted during cross-examination on his affidavit, which was filed in this court as fresh evidence, that he lied under oath at trial. Those lies included having testified at trial that he would never strike anyone with anything, explaining that he had an aversion to doing so because he was hit with a belt as a child. Yet, in the fresh evidence filed in this court, the appellant has admitted that he struck his wife with objects, including a belt, because she asked him to do so, and that he was afraid that he would get a “good beating” if he did not do as she asked. There is no indication in the record that the appellant in any way appreciates the fact that his sworn evidence on appeal belies his sworn evidence at trial.

[15] In addition, read as a whole, the appellant’s evidence is entirely self-serving, internally inconsistent, and reflective of either intentional lies or memory issues. In our view, his evidence simply cannot be trusted.

[16] In these circumstances, we decide this ground of appeal on the basis that the appellant has failed to demonstrate his claim that he was not told about the possibility of a preliminary inquiry. This conclusion should not be taken as suggesting that a failure to tell a client about the possibility for a preliminary inquiry would necessarily result in a miscarriage of justice. We leave for another day whether imperfections in the manner that a client is told about possible modes of trial are all necessarily equal and have the same impact on the fairness of the subsequent trial.

[17] In this case, though, we need not get into the legal consequences arising from such a failure because we are not satisfied that the appellant was not told about the preliminary inquiry.

[18] As to the second issue, the appellant argues that the verdict is unreliable because trial counsel failed to lead evidence that the complainant had a potential motive to fabricate. That motive to fabricate is said to arise from the fact that immediately prior to the police complaint being made, the appellant advised the complainant that he would be seeking custody of their children. The purported motive to fabricate, then, is said to arise from the complainant’s desire to obtain an advantage in the custody dispute.

[19] We are unable to accept this submission. While there was in fact an active custody dispute at the time that the complainant reported this matter to the police, the fact is that she had previously made those allegations to others long before the matter was reported to the police or the custody dispute commenced. Among those she reported to was the appellant’s mother, who confirmed that fact in her evidence at trial.

[20] In these circumstances, raising motive would have had no impact on the result of this case and, therefore, at a minimum, the appellant falls short on proving the prejudice component of the test.

[21] These are the reasons we dismissed the conviction appeal.

[22] The sentence appeal was abandoned.

“Fairburn A.C.J.O.” “Doherty J.A.” “David M. Paciocco J.A.”

Footnotes

[1] While the appellant originally sought leave to appeal his sentence, he has since served his full sentence and therefore abandoned his sentence appeal.

[2] While this matter was initially subject to a publication ban under s. 486.4 of the Criminal Code, R.S.C., 1985, c. C-46, that ban was removed at the request of the complainant on April 25, 2019. We have asked for and received confirmation of this fact.