COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McDonald, 2022 ONCA 574

DATE: 20220805

DOCKET: C63562

Pepall, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Samantha McDonald

Appellant

Leo Adler, for the appellant

Christopher Walsh, for the respondent

Heard: March 24, 2022 by video conference

On appeal from the convictions entered on November 17, 2016 by Justice Jane E. Kelly of the Superior Court of Justice.

Pepall J.A.:

Introduction

[1] The appellant, Samantha McDonald, appeals from her November 17, 2016 convictions of possession of cocaine for the purpose of trafficking and possession of MDMA for the purpose of trafficking. She abandoned her appeal from a conditional sentence of two years less a day that was imposed on March 3, 2017.

[2] The appellant appeals on the basis that she was denied a fair trial and the verdict was unreliable due to ineffective assistance of counsel. She also submits that the Crown’s decision to pursue charges against her and the police’s failure to apprehend the appellant’s former partner on a timely basis amounted to an abuse of process. The appellant seeks leave to file fresh evidence in support of the relief requested.

[3] The appellant also appeals against her conviction of possession of MDMA for the purpose of trafficking on another basis. At trial, the Crown agreed to proceed on the lesser charge of simple possession of MDMA. Although the reasons of the trial judge reflect a conviction for this offence, a conviction of possession of MDMA for the purpose of trafficking was entered. The Crown agrees that the MDMA trafficking conviction should be vacated and replaced with a conviction of possession of MDMA.

[4] On the issue of ineffective assistance of counsel, I accept that the appellant’s trial counsel was confronted with a challenging situation: a client who was emotionally fraught and being abused by her co-accused to counsel’s knowledge but who impeded counsel’s ability to disclose the abuse to the trial judge. That said, as I will explain, I am persuaded that ineffective assistance resulted in trial unfairness and a verdict that is unreliable. For the reasons that follow, I would grant leave to admit the fresh evidence, allow the appeal, and order a new trial.

Facts

[5] The appellant was in a romantic relationship with Trevone Watson dating back to July 2007. In her affidavit filed in support of the fresh evidence application, the appellant states that they moved in together around 2009, lived together for two years but they moved out of their shared home in 2011. She also states that he cheated on her so she moved in with her father and Mr. Watson moved into his godfather’s basement at 76 Stirling Crescent in Markham. They still would see each other, and she says in her affidavit that she would stay at his Stirling Crescent apartment 1-2 times a week. She states that beginning in 2011, Mr. Watson became physically and emotionally abusive of her. He punched her in the ribs so hard she could not breathe. The violence escalated. Mr. Watson sprained her arm and fractured her foot. She states in her affidavit that she does not know why she stayed with him, but she feared reprisal from him if she disclosed the violence. She was also concerned about their daughter growing up without a father figure and that Children’s Aid might get involved and take her away.

[6] On January 24, 2012, following a Guns and Gangs Task Force investigation, the police executed a search warrant targeting Mr. Watson at his home at 76 Stirling Crescent. Detective Constable Morgan testified that he observed the appellant throw three small bags, that were subsequently confirmed to hold crack cocaine, from the basement bedroom window, two of which hit him in the leg. He saw Mr. Watson retrieve something from a closet and hand it to the appellant. D.C. Morgan yelled “Police, don’t move” and he observed the appellant discard a Ziploc type bag that also contained cocaine.

[7] A search of that bedroom revealed the appellant’s SIN card, health card and birth certificate along with a large Ziploc bag containing many smaller bags in a bedside table drawer. The police also found a document from NCO Financial Services in the name of the appellant with an address of 76 Stirling Crescent. The MDMA was found wrapped in foil on the top of the same bedside table. Another drawer contained a digital scale. Marijuana was found in a gym bag on the floor.

[8] The appellant and Mr. Watson were jointly charged along with his sister, Jorgia Watson. The appellant was 23 years old. Each of the three accused was represented by separate counsel. The appellant was ultimately tried on three counts: possession of cocaine for the purpose of trafficking, possession of MDMA for the purpose of trafficking, and possession of marijuana for the purpose of trafficking. During the trial, the Crown conceded that the amount of MDMA and marijuana was not possessed for the purpose of trafficking.

[9] On March 7, 2013, the three accused all attended court for the first day of their preliminary inquiry. Mr. Watson pled guilty to possession of cocaine for the purposes of trafficking. The Crown withdrew the charges against his sister, Ms. Watson. The Crown advised the court of the status of the charges against the appellant saying:

At the conclusion, once Mr. Watson steps into custody, the charges against Ms. McDonald will be withdrawn, but we’re adjourning Ms. McDonald as well, and I understand she agrees to the adjournment, rather than running the preliminary inquiry today against her in light of what is anticipated will happen. If Mr. Watson, for some reason, didn’t appear, then the Crown might decide at that point to proceed against Ms. McDonald, but at this point, it’s not anticipated that the charges will proceed against Ms. McDonald.

The appellant’s then counsel, Ms. S. Makonnen, stated “[t]hat’s agreeable”.[^1]

[10] While awaiting sentencing, Mr. Watson changed counsel. On July 25, 2013, he advised the court that he would be applying to strike his guilty plea. Ms. Makonnen advised the court that the appellant did not wish to make submissions about the striking of Mr. Watson’s guilty plea. His plea was struck on November 22, 2013. According to the appellant, he nonetheless continued to tell her that he intended to plead guilty. The appellant gave birth to their daughter on November 16, 2014. According to her affidavit, she and Mr. Watson moved back in together until March 2017. In 2016 or early 2017, she discovered Mr. Watson had been seeing another woman and that they were expecting a baby. The appellant and he ceased living together when he went to prison in March 2017.

[11] The preliminary inquiry took place from January 26 to 29, 2015. Mr. Watson was represented by Susan J. von Achten and the appellant was now represented by Carol Anne Matthews. Ms. Matthews had represented the appellant for minor offences as a youth. Ms. Matthews is the subject of the ineffective assistance of counsel claim.

[12] In the months leading up to and during the trial, the appellant asserts that Mr. Watson was abusing her and pressuring her to continue the trial. The appellant states that she told Ms. Matthews about the abuse after court during the preliminary inquiry. In addition, she is confident that she would have discussed the 2011 assault with Ms. Matthews shortly after it occurred.

[13] In September 2016, while awaiting the ongoing proceedings, the appellant alleges that Mr. Watson attacked her after discovering she was seeing other men. That month, she had an abortion. Mr. Watson admitted to this assault at a later dinner meeting attended by Ms. Matthews.

[14] In October 2016, Ms. Matthews began to take notes on her interactions with the appellant which she described as “Well-being Checks” or “Wellness Checks”.

[15] On October 17, 2016, Detective Constable Daniel Lowe informed Ms. Matthews that Ms. von Achten had inquired as to whether there was an outstanding arrest warrant for Mr. Watson regarding an assault on the appellant. Ms. Matthews called the appellant and offered to go to the police station with her to help file a complaint. In her notes, Ms. Matthews described a telephone call between her and the appellant:

Advise police called.

“I will handle it”.

Are you being assaulted by TW – did he assault you.

“I will go to the station myself. It’s a misunderstanding. That is not what happened, what someone said they saw is wrong”.

You didn’t answer me – I will go to police with you and make complaint against TW with you.

“I will deal with it I told you … people should mind their own business”.

I confirm she does not want me to give police her #phone.

“yes don’t”.

I confirm she hasn’t been/being assaulted, threatened to not go to police by TW or others.

“Yes thank you honey”.

[16] The appellant states in her fresh evidence that on October 18, 2016, less than a week before the commencement of trial, Mr. Watson assaulted her at a bar after seeing her with another man. She says he dragged her by the hair out of the bar. According to the appellant, Ms. Matthews spoke to her about this incident but the appellant downplayed what had happened.

[17] On October 24, 2016, Mr. Watson unsuccessfully challenged the search warrant.

[18] The trial proceeded from October 24 to November 4, 2016. The appellant and Mr. Watson both argued that the police had planted the drugs, the search was a sham, and that the Crown had failed to prove possession.

[19] The appellant states that she does not recall ever discussing the possibility of severance with Ms. Matthews. There is no reference to severance in Ms. Matthews’ notes. This was the appellant’s first ever trial.

[20] On October 26, 2016, according to the appellant, Ms. Matthews suggested to her that they meet with Mr. Watson and his counsel.

[21] On October 27, 2016, after court, the appellant showed Ms. Matthews her phone saying that Mr. Watson had thrown and smashed it just outside the courtroom. In her notes, Ms. Matthews observed that only the case appeared broken, and she offered to go to the police to make a complaint but the appellant declined.

[22] That evening the appellant, Mr. Watson and the two lawyers went out for dinner. The appellant became intoxicated. She states that she cried throughout the dinner meeting. The lawyers asked the two if they were having family problems. The appellant said she had been drinking most nights after trial due to stress and that Mr. Watson was trying to control her. They both acknowledged assaulting one another on prior occasions. Towards the end of the dinner, Ms. Matthews asked the appellant for assurances about her ability to continue the trial with Mr. Watson. The appellant assured Ms. Matthews that she wished to do so. Ms. Matthews had three pages of notes for October 27, 2016. There is no mention of a severance or a mistrial in Ms. Matthews’ notes of that day. The appellant states that Mr. Watson pressured her to continue with the trial and to get the case over with.

[23] In her notes dated October 28, 2016, Ms. Matthews wrote that the appellant was crying. Ms. Matthews asked the appellant if there were any other assaults to which the appellant responded in the negative. Ms. Matthews wrote that she was very concerned with the appellant’s ability to focus and give instructions. In her affidavit, the appellant states that she told Ms. Matthews she did not care anymore, she might as well just plead guilty and that she just wanted to get it over with. Ms. Matthews advised the court that due to events of the prior evening and that morning, she had to put in a call to the Practice Advisory helpline.[^2] Ms. Matthews placed the call and was told a lawyer would get back to her with respect to her concerns. Ms. Matthews then checked on the appellant, who seemed “her old self”, said she was feeling better, and was “OK to do [the] next witness”. Ms. Matthews and Ms. von Achten agreed that the Crown could proceed with the examination in chief of its next witness.

[24] Ms. Matthews again made notes of her conversation with the appellant that day. Her notes stated: “I explain what is m/trial. Explain not satisfied she is ready to give me instructions clearly – some contradicting herself. If need to get med help – can ask for adjournment – depending on med/MH info app for mis-T[^3] – he can continue on his own.” She then wrote “Explain need basis, reasons for mis-T – abuse, threats”. The appellant was then noted as saying, “Please you cant tell J. I assaulted T and he me or abortion”.

[25] After court was adjourned, Ms. Matthews noted that the appellant looked “much better”. She wrote that she asked the appellant: “What do you want to do? Cont T or have me discuss resolutions with Crown or try and get a mis-T and end it for now. I don’t see a basis for it if you are being honest with me.” Ms. Matthews wrote that the appellant responded, “No I want to continue with T.” The appellant insisted on the trial continuing according to her cross-examination on her fresh evidence affidavit. Ms. Matthews left a message for the Practice Advisory helpline stating that the issue was resolved and no callback was needed.

[26] The trial resumed on Monday, October 31, 2016. The appellant told Ms. Matthews that she was OK and ready to continue with the trial. Ms. Matthews advised the court that the issue from Friday had been resolved.

[27] On November 2, 2016, Wade Blake, one of the occupants of 76 Stirling, was called as a witness by the defence. He testified that the appellant would come and go from the home. Sometimes he would not know she was there. He said she did not live there but explained that he said that because she did not hand him money for rent and he did not give her a receipt.

[28] Ms. Matthews also called Jorgia Watson as a witness for the defence. In her testimony, Ms. Watson stated that the appellant was frequently at the Stirling property and she described the appellant as living there.

[29] On November 3, 2016, another resident of the Stirling home testified and said he, Mr. Watson and Mr. Blake were the only paying tenants in the house.

[30] That same day over a recess, Ms. Matthews presented the appellant with handwritten instructions Ms. Matthews had prepared that said that the appellant did not wish to testify. They stated:

I Samantha McDonald instruct my lawyer Carol Anne Matthews that I do not wish to testify in my defence at my trial on charges of Possession for the Purpose of Trafficking Cocaine and Possession of MDMA + Marijuana. I further confirm that I am not defending myself + these allegations by making the defence that Trevone Watson forced me to throw drugs out of the window as no drugs were thrown out of the basement window by me as alleged by the police. While I did not know about the drugs of MDMA found in the bedroom where I was staying with Trevone that night of the execution of the search warrant, I instruct my lawyer that I do not wish to testify to these points. The marijuana was mine. I understand that whether I testify or not, the judge can still find me guilty of some or all the charges. I have understood + followed all the testimony of the witnesses and am making this decision on my own free will without pressure by anyone. I understand that if I took the stand I cannot lie under oath that I did not possess the marijuana, that it was not mine, or that I had no knowledge of these drugs + that they were in the bedroom. I am feeling sick today with a bad cold, but it does not impair my ability to instruct my lawyer.

[31] The appellant states in her affidavit that Ms. Matthews and she had not discussed the issue of her taking the stand prior to trial. She had met once with Ms. Matthews at her office when she retained her but they never met after that. They may have had a discussion over lunch or dinner prior to the trial but never a formal meeting.

[32] In her affidavit, the appellant maintains that she wished to testify but Ms. Matthews told her not to as she would have to admit to possession of marijuana. The appellant had admitted that the marijuana was actually hers. The appellant also stated that Ms. Matthews showed her a report from the police that stated that she admitted to smoking weed. According to the appellant, Ms. Matthews inserted the sentence “the marijuana was mine.” Ms. Matthews also inserted the part about the appellant having a cold, but the appellant did not have a cold. Instead, she had told Ms. Matthews she was unwell. She states that she felt beaten down and defeated and just wanted to get the trial over with; she would have signed just about anything.

[33] On November 17, 2016, the appellant and Mr. Watson were convicted of the cocaine and MDMA charges but acquitted on the marijuana count. The trial judge wrote at paras. 23-24 of her reasons:

The MDMA was wrapped in foil on top of the bedside table in the bedroom. Inside one of the bedside table drawers was identification belonging to Ms. McDonald (an OHIP card, a SIN card and a birth certificate) and a large Ziploc bag containing many smaller bags inside. Also found in one of the drawers was a small digital scale. Both defendants occupied the bedroom in which these items were found. As such, I find that the Federal Crown has proven both Ms. McDonald and Mr. Watson were in possession of the MDMA.

In a gym bag on the floor were $450 and as well as three small bags containing cannabis. I find that the Federal Crown has not proven beyond a reasonable doubt that either defendant possessed the cannabis. The officer who testified said that the items were not readily visible by simply opening the bag. There was nothing in the bag that identified its owner. I am not satisfied that either had knowledge [of] cannabis in that bag. As such, both defendants are acquitted of possession of cannabis.

[34] The case was adjourned for sentencing. According to the appellant, Mr. Watson assaulted her three more times prior to sentencing: on December 9, January 16 and March 1. She told Ms. Matthews about the January and March assaults.

[35] After the December 9 incident, the appellant’s uncle called the police. The appellant told the police that she hurt her arm in a car accident, and that her uncle smokes crack and did not know what he was talking about most of the time.

[36] After the January 16 incident, the appellant called the police herself. She gave a statement and said she would testify in court. She discussed this assault with Ms. Matthews, who told her to find someone to stay with. Although a warrant for Mr. Watson’s arrest was issued for this assault on January 18, it was not executed until March 23. The appellant ultimately did not testify against Mr. Watson with respect to the January 16 assault allegation, although it is not clear if she was subpoenaed. In cross-examination, the appellant acknowledged that it was possible she was evading service of a subpoena to testify at trial.

[37] After the March 1 incident, the neighbours called the police because they heard the appellant screaming. She was uncooperative with the police. She states that she did not trust them because she had called them before and nothing was done. Another arrest warrant was issued for Mr. Watson on March 6.

[38] The appellant and Mr. Watson were both sentenced on March 3, 2017. When the appellant arrived at court, Ms. Matthews inquired about the cut under her eye and the appellant advised that it was the result of an assault by Mr. Watson. Ms. Matthews told her to put glasses on to cover up the injury, which she did. The appellant received a conditional sentence of two years less a day and Mr. Watson received a sentence of three years in prison less pre-trial credit.

[39] After Mr. Watson had been in custody for several months, on July 28, 2017, the appellant contacted Ms. Matthews inquiring about using Mr. Watson’s abuse as a ground to appeal her convictions. The appellant completed her conditional sentence in 2019.

Grounds of Appeal

[40] I will commence by addressing the appellant’s principal ground of appeal that she was denied a fair trial and the verdict was unreliable due to ineffective assistance of counsel.

[41] The appellant advances her argument of ineffective assistance of her counsel, Ms. Matthews, on four bases. The appellant alleges that Ms. Matthews failed to:

1. properly advise the appellant of her options regarding a mistrial or severance;

2. seek a mistrial or severance due to Mr. Watson’s physical abuse of the appellant;

3. properly advise the appellant on whether to testify; and

4. properly interview the defence witness, Jorgia Watson, prior to her testifying.

Fresh Evidence

[42] The appellant seeks leave to introduce fresh evidence in support of her claim of ineffective assistance. It includes an affidavit from Katie Strong, a paralegal with the Public Prosecution Service of Canada, dated March 3, 2021. She states that Ms. Matthews is retired and unable to provide an affidavit in response to the appellant’s allegations due to health issues, which include a head injury. Ms. Matthews’ file, with respect to which the appellant has waived privilege, contained 16 pages of contemporaneous handwritten notes about the appellant’s matter made before, during, and after the trial and handwritten trial instructions signed by the appellant. Ms. Strong states that counsel for the appellant and the respondent have worked on deciphering Ms. Matthews’ handwritten notes and have included some separate annotations reflecting their interpretations. The proposed fresh evidence also includes an affidavit from the appellant. She only identified one inaccuracy in Ms. Matthews’ notes, which is immaterial for the purposes of this appeal. As the appellant states in her factum, the notes are largely corroborated by the appellant’s affidavit and cross-examination.

[43] As Doherty J.A. explained in R. v. Widdifield (1995), 1995 CanLII 3505 (ON CA), 25 O.R. (3d) 161 (C.A.), at pp. 169-70, the test articulated in R v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775, does not necessarily apply where fresh evidence is offered for a different purpose such as a challenge based on ineffective assistance of counsel. A full and fair assessment of an appellant’s claim in such circumstances requires evidence. Thus, “[w]here an appellant contends that trial counsel’s conduct resulted in a miscarriage of justice, the interests of justice will generally require that this court receive otherwise admissible evidence relevant to that claim.”

[44] The Crown takes no objection to the admissibility of the affidavit of Ms. Strong, which includes Ms. Matthews’ notes, and certain paragraphs of the appellant’s affidavit that relate to her solicitor-client relationship with Ms. Matthews, but objects to the relevance of much of the remaining fresh evidence. Although I accept that some of the evidence objected to may have little or only marginal relevance, the proposed fresh evidence does allow the court to make a full and fair assessment of Ms. Matthews’ representation of the appellant. I would therefore admit the fresh evidence.

Principles

[45] As discussed in R. v. Sararas, 2022 ONCA 58, at para. 41, an accused is entitled to receive effective assistance from counsel. To succeed on appeal, the appellant must show that the assistance was so ineffective that the conviction is the product of a miscarriage of justice: R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 57, leave to appeal refused, [1996] S.C.C.A. No. 347. To establish ineffective assistance of counsel, the appellant must establish:

1. the facts on which the claim is grounded on a balance of probabilities;

2. the incompetence of the representation provided by trial counsel (the “performance” component); and

3. a miscarriage of justice as a result of the incompetent representation by trial counsel (the “prejudice” component): R. v. Cherrington, 2018 ONCA 653, at para. 25; R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 91, R. v. White, 2022 SCC 7 (“White (2022)”).

[46] Paciocco J.A. described the factual component in R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at para. 51:

The factual component requires the appellant to “establish the facts material to the claim of ineffective assistance on the balance of probabilities”: R. v. K.K.M., 2020 ONCA 736, at para. 55. In determining whether an appellant has done so, allegations of incompetent representation must be assessed in light of the “strong presumption of competence in favour of counsel”: R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 140. Courts should also be mindful of the incentive there may be for a convicted appellant to make false allegations, particularly in light of the ease with which false allegations can be made, and the potential unreliability that can arise when events are recalled “through the bars of a jail cell”: Archer, at para. 142. As Doherty J.A. noted in Archer, at para. 141, “Common sense dictates a cautious approach to allegations against trial lawyers made by convicted persons who are seeking to avoid lengthy jail terms.”

[47] As to the performance component, there is a strong presumption that trial counsel’s conduct falls within a vast expanse of reasonable professional assistance and the appellant bears the burden of displacing that presumption, a burden that is not easily discharged: R. v. G. (D.M.), 2011 ONCA 343, 105 O.R. (3d) 481, at paras. 101 and 107. Thus, competence is measured against a standard of reasonableness: Sararas, at para. 43. The appellant must show that “the acts or omissions of counsel could not ‘have been the result of reasonable professional judgment’”: R. v. Prebtani, 2008 ONCA 735, 243 O.A.C. 207, at para. 3, leave to appeal refused, [2009] S.C.C.A. No. 153.

[48] When an appellate court reviews trial counsel’s performance, “deference is called for because of the broad spectrum of professional judgment that might be considered reasonable”: R. v. White (1997), 1997 CanLII 2426 (ON CA), 32 O.R. (3d) 722 (C.A.), at p. 745 (“White (1997)”). Hindsight plays no role in the assessment: Archer, at para. 119.

[49] As Watt J.A. explained in G. (D.M.), at paras. 108 and 109:

It is critical to keep in mind that, during the course of criminal proceedings, defence counsel make many decisions in good faith and in the best interests of his or her client. We ought not look behind every decision counsel makes, except where it is essential to prevent a miscarriage of justice. Defence counsel need not always obtain approval for each and every decision they make in the conduct of an accused’s defence: B. (G.D.), at para. 34.

On the other hand, some decisions, like whether to enter a plea of guilty or whether to testify, require instructions from the client. It is for the client, not for counsel, to make these decisions. The failure to discuss these issues with the client and to obtain the necessary instructions may raise questions of procedural fairness and the reliability of the trial result and lead to a miscarriage of justice: B. (G.D.), at para. 34.

[50] An accused is denied a right to choose whether to testify when counsel provides advice that is so wanting as to preclude the accused from making a meaningful decision about testifying. However, as recently expressed by Karakatsanis J. in White (2022), the accused must, in most cases, demonstrate more than the loss of choice; they must also show subjective prejudice: White (2022), at paras. 7-8.

[51] Once the facts have been established, the analysis proceeds to a consideration of the third element, the prejudice component, rather than the performance element. If there is no finding of prejudice, it is undesirable to address element two, the performance component.

[52] The prejudice component engages a determination of whether a miscarriage of justice has occurred either because of some trial unfairness in the proceedings, a compromise of the reliability of the verdict, or some combination of both consequences: Girn, at para. 92. Determining whether trial counsel’s assistance resulted in prejudice is an intensely factual enquiry: R. v. Belcourt, 2020 SKCA 73, 389 C.C.C. (3d) 303, at para. 76; Sararas, at para. 46.

[53] In this appeal, the appellant relies on both the reliability of the verdict and the trial fairness branches in support of the ineffectiveness of counsel argument. This court’s decision in R. v. Davies, 2008 ONCA 209, 234 O.A.C. 291, suggests that courts may consider both branches of the prejudice component simultaneously.

[54] If a compromise of the verdict’s reliability is in issue, appellants must show that there is a reasonable probability that the result of the proceeding would have been different had they received effective assistance: Joanisse, at p. 64; Sararas, at para. 44; see also Fiorilli, at para. 59. The ineffective assistance must go to one of the central issues at trial: Sararas, at para. 47. Examples include counsel’s failure to cross-examine a Crown witness (Joanisse, at p. 64); counsel’s failure to cross-examine on prior inconsistent statements (R. v. M.B., 2009 ONCA 524, 68 C.R. (6th) 55, at para. 67); and counsel’s failure to prepare the accused for testifying (R. v. K.K.M., 2020 ONCA 736, at para. 62.)

[55] The trial fairness branch was described in paras. 55 and 56 of Fiorilli by Paciocco J.A.:

The trial fairness branch of the prejudice component is concerned with the “adjudicative fairness of the process used to arrive at the verdict”: Joanisse, at p. 57. Occasionally, appellate courts refer to “procedural” fairness instead of trial fairness to describe this branch: see e.g., R. v. G.D.B., at para. 34; Prebtani, at para. 4. In Joanisse, when illustrating the kinds of infirmities in legal representation that might cause a trial to become unfair, at pp. 62-63, Doherty J.A. spoke of lawyers who are intoxicated throughout a trial, or who are acting in a conflict of interest. In such cases, the incompetence is so pervasive that it destroys the fairness of the adjudicative process at trial, thereby amounting to a constructive denial of the assistance of counsel: Joanisse, at pp. 62-63.

Some of the decisions that must be made during the course of a trial, such as the mode of trial, whether to testify or plead guilty, or whether to advance the defence of not criminally responsible, are so fundamental to procedural fairness that counsel’s failure to permit the appellant to make the decision, or to provide effective advice on the matter, can raise questions of procedural fairness: R. v. G.D.B., at para. 34; R. v. Trought, 2021 ONCA 379, at paras. 46-50.

[56] This last paragraph should be read in light of White (2022). Although the failure to permit an accused to make those decisions or to receive effective advice on the matter may still raise questions of trial fairness, according to White (2022), in most cases, loss of choice is insufficient. Subjective prejudice must also be established. In White (2022), Karakatsanis J. also explained the ground of appearance of unfairness stating that the standard for establishing a miscarriage of justice on that basis is high: “The defect must be ‘so serious that it shakes public confidence in the administration of justice’”.

Appellant’s Submissions

[57] As mentioned, although counsel did not attempt to classify the nature of the prejudice suffered, the appellant submits that Ms. Matthews’ incompetence caused both procedural unfairness and a compromise of the reliability of the verdict.

[58] The appellant submits that abuse by her co-accused occurred prior to, during, and after the trial and that Ms. Matthews knew about the violence and observed the appellant’s deteriorating mental and emotional state. The appellant says she did not know she could have applied to have the counts severed and testify to some but not others. Had she known that was a possibility, she would have instructed Ms. Matthews to apply for a severance of the counts and would have testified. The appellant also states that Ms. Matthews did not tell her that it was in her best interests to separate her case from that of Mr. Watson and had it been explained to her, she would have instructed Ms. Matthews to seek a severance or mistrial. Instead, she told Ms. Matthews to continue the trial. She submits that Ms. Matthews never urged her to apply for a mistrial and never explained the severance option to her.

[59] The appellant also submits that Ms. Matthews never explained that admitting to ownership of the marijuana did not inevitably lead to convictions for trafficking cocaine and MDMA. Had she testified, she would have said that she did not live at 76 Stirling, none of her belongings were there, she had no knowledge of what was in the house other than the marijuana, and she did not throw the drugs out the window – a position she has consistently maintained. She would have explained that her birth certificate, SIN card, and health card were only in the house because she carries them everywhere as a form of ID. In addition, they were in the gym bag, not the nightstand as the police officers had testified. She had entered into a contract for cable service for Mr. Watson because he had bad credit, hence the NCO Financial Services collection notice in her name in the basement.

[60] She also states that Ms. Matthews ought to have prepared Ms. Watson prior to calling her to testify.

Crown’s Submissions

[61] The Crown denies that Ms. Matthews’ assistance was ineffective and maintains that the trial was fair and the convictions sound. A mistrial or severance was not pursued because it was not possible: having been expressly forbidden from mentioning anything that might justify a mistrial or severance, Ms. Matthews could not have obtained either. The appellant’s decision not to testify was grounded in her confidence in the defence strategy.

Application of Principles

[62] Turning to the application of these principles to the facts, there are two atypical features associated with this appeal. First, there is no sworn evidence from trial counsel, Ms. Matthews. Accordingly, the majority of the appellant’s evidence stands uncontradicted. The record does contain Ms. Matthews’ notes, which are substantially corroborated by the appellant’s affidavit and cross-examination. Both the appellant and the Crown submit that reliance should be placed on the notes and I have done so.

[63] Second, the physical abuse of the appellant by her co-accused prior to, during, and after her conviction permeates the factual context of this case. This is not a usual feature of ineffective assistance of counsel claims. The Crown contends that the appellant’s allegations of abuse are fabricated. I completely reject this contention. The police reports support the appellant’s evidence on Mr. Watson’s assaultive behaviour, as do Ms. Matthews’ notes, and the hospital records.

(i) Mistrial

[64] Turning to a discussion of the four allegations advanced by the appellant, I will start with the allegation that Ms. Matthews ought to have sought a mistrial. Mistrials are a remedy of last resort and should only be granted in the clearest of cases where no remedy short of a mistrial will redress the harm: R. v. Toutissani, 2007 ONCA 773, at para. 9. In determining whether a mistrial should be declared, the test is whether there is either (1) a “real danger” of prejudice to the accused, or (2) a danger of a miscarriage of justice: R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, at para. 74.

[65] As mentioned, the appellant submits that ineffective assistance is established by Ms. Matthews’ failure to properly advise the appellant on her options regarding a mistrial and her failure to seek a mistrial.

[66] There is no evidence that Ms. Matthews discussed the possibility of a mistrial prior to the morning of October 28, 2016. This was the morning after the joint dinner where the appellant had had at least seven drinks and was intoxicated. In her notes, Ms. Matthews records, “I’m concerned maybe abortion, too much drinking is confusing you.” In her cross-examination, the appellant testified that she did not remember some details of the discussion while the case was being held down on October 28, but that she expressly instructed Ms. Matthews not to disclose any of the bases upon which she might have got a mistrial. I accept that at that time, as the Crown submits, Ms. Matthews’ hands were tied given the appellant’s instructions on the issue of a mistrial. By her own admission, the appellant was both in love with and feared reprisal from Mr. Watson. Assuming, without determining, that she was capable of giving instructions at that time, no prejudice arose from any failure to explain or request a mistrial as the appellant would not have given the instructions necessary to sustain such a request.

[67] The appellant and Mr. Watson were convicted on November 17, 2016 and sentenced on March 3, 2017. Between those two dates, the appellant was assaulted by Mr. Watson on at least three occasions. When she came to court for sentencing, Ms. Matthews inquired about the cut below her eye and recommended glasses to cover up the injury when the appellant responded that it resulted from an assault by Mr. Watson. I note that the appellant did not argue that Ms. Matthews ought to have renewed her inquiry about a mistrial at this juncture. Given that this was not argued, and in light of my ultimate conclusion in this appeal, I do not propose to address this issue.

(ii) Severance

[68] Turning then to the issue of severance, under s. 591(3) of the Criminal Code, the court may, where it is satisfied that the interests of justice so require, order severance of the counts and the accused. There is a strong presumption against severance for accused charged together with offences arising from the same events: R. v. Chow, 2005 SCC 24, [2005] 1 S.C.R. 384, at para. 47, citing R. v. Crawford, 1995 CanLII 138 (SCC), [1995] 1 S.C.R. 858. As Sopinka J. said in Crawford, “quite apart from the extra cost and delay involved, it is undeniable that the full truth about an incident is much more likely to emerge if every alleged participant gives his account on one occasion.” The onus is on the accused to show that a severance of the counts against them is in the interests of justice on the balance of probabilities: R. v. R.C., 2020 ONCA 159, at para. 32.

[69] As discussed, there are two branches of prejudice available to support an ineffectiveness of counsel argument: compromise of the reliability of the verdict and trial fairness. With the former, the appellant must show that there is a reasonable probability the result would have been different had she received effective assistance from Ms. Matthews on the issue of severance. That requirement is unnecessary with the trial fairness branch.

[70] Dealing first with the unreliable verdict branch, here the charges against the appellant and Mr. Watson shared the same factual and legal nexus. This factor coupled with the desirability of avoiding inconsistent verdicts and a multiplicity of proceedings would not favour severance. In addition, the appellant refused to give Ms. Matthews instructions to advise the trial judge of the abuse she was suffering.

[71] The appellant states that had Ms. Matthews told her that it was in her best interest to separate herself at trial from Mr. Watson, the appellant would have instructed her to seek a severance. This assertion is difficult to assess as the success of such an application would likely turn on disclosure of the abuse. Had there been disclosure, she would have stood a reasonable probability of having her case proceed separately from that of Mr. Watson. Had she then testified, as she asserts she would have, there is a reasonable probability that the outcome for her would have been very different. She might well have been successful in raising a reasonable doubt about her knowledge and control of the drugs. In addition, recall that earlier in the court proceedings against the appellant, the Crown had been prepared to withdraw the charges against her.

[72] On the issue of trial fairness, there is no evidence that Ms. Matthews ever discussed severance with the appellant. This was in the face of known unfulfilled representations made to the appellant by Mr. Watson that he was going to plead guilty, following which the charges against the appellant would be withdrawn. They then were not withdrawn as he pled not guilty to the charges in spite of continuously advising the appellant to the contrary. It was also in the face of continuous abuse of the appellant by her co-accused that was known to Ms. Matthews. In the circumstances of this case, where a victim of ongoing domestic abuse has been effectively tethered to the perpetrator of that abuse by virtue of a joint indictment, a failure of counsel to the abuse victim to explore severance is a fundamental deficiency that undermines the fairness of the abuse victim’s trial. It is also so serious that it shakes public confidence in the administration of justice.

[73] Although I have serious doubts that the appellant is able to meet the requirements of the unreliable verdict branch of the prejudice component due to her reluctance to disclose the abuse to the trial judge, I am persuaded that in the unusual facts of this case, trial unfairness has been established.

[74] As to the performance component, undoubtedly, in the circumstances of this case, Ms. Matthews ought to have advised the appellant of her options on severance. She was aware of the historical and continuing abuse of the appellant by her co-accused and, based on her notes, clearly had concerns about the state of the appellant – eventually to the point where she wisely contacted the Law Society’s Practice Management Helpline, but unfortunately abandoned her inquiry. Accepting that there is a strong presumption that a trial counsel’s conduct falls within a vast expanse of reasonable professional assistance, I am nonetheless persuaded that, in these specific circumstances, Ms. Matthews’ failure to explore severance with the appellant was unreasonable. I would therefore allow the appeal on this ground.

(iii) Failure to Testify

[75] This brings me to the appellant’s allegation that Ms. Matthews failed to properly advise her on whether to testify. Caution is merited when considering this issue because hindsight and an unsuccessful outcome are powerful incentives to exaggerate or fudge the truth.

[76] The appellant maintains that the handwritten instructions were presented to her without any discussion of her testifying beforehand. There is no evidence to the contrary. The appellant’s evidence before this court is that she had wanted to testify at trial and “speak [her] truth”, however Ms. Matthews had advised her that if she had “said the truth, that the weed would be in there and then I would be charged for all the drugs, which I had no idea what was in that house, other than my marijuana.” She asserted that Ms. Matthews advised her that it was in her best interest not to testify because of the marijuana. Had she received competent advice, she states that she would have testified on her own behalf and there is a reasonable probability that the outcome would have been different.

[77] Specifically, the appellant submits that, had she testified, she would have said that she did not live at 76 Stirling Avenue where the drugs were located. This testimony would have also served to rebut Jorgia Watson’s testimony that the appellant did live there. The appellant would also have testified that although the marijuana was hers, she was unaware of the cocaine and MDMA and that the drugs were planted by the police.

[78] Her testimony could have raised a reasonable doubt with respect to the charges she was facing with the exception of the marijuana possession count, a more minor offence relative to the two charges relating to cocaine and MDMA. Had she testified, there is a reasonable probability that the verdict with respect to the cocaine and MDMA charges would have been different. One might conclude that the police evidence would seriously undermine that of the appellant. However, the guidance in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, is robust. Moreover, although a reasonable possibility is inadequate, the appellant need not establish with certainty that the verdict would have been different. I am persuaded that prejudice has been established from the failure to properly advise the appellant on whether to testify.

[79] Turning to the issue of performance, as stated in R. v. Kaczmarek, 2021 ONCA 771, 407 C.C.C. (3d) 34, at para. 75, the issue of testifying on one’s own behalf is “fundamental”. The advice given by Ms. Matthews on whether the appellant should testify was unreasonable and the circumstances surrounding the giving of that advice were wanting.

[80] First, it is not axiomatic, as Ms. Matthews advised, that admitting the marijuana was the appellant’s would result in her being convicted of possession of cocaine for the purpose of trafficking and possession of MDMA for the purpose of trafficking.[^4]

[81] Second, the evidence is that Ms. Matthews only raised the issue of the appellant testifying immediately prior to presenting the handwritten instructions Ms. Matthews had prepared for the appellant’s signature. There is no reference in the instructions to any earlier discussion of the issue. Moreover, it was evident to Ms. Matthews that the appellant was in a compromised condition due to the abuse. Indeed, Ms. Matthews was well aware of the appellant’s state throughout the court proceedings as reflected in the label she gave her notes: “Well-being Checks” and “Wellness Checks”. She also knew of the abuse. In these circumstances, it was incumbent on her to properly prepare the appellant in advance so that she could understand and assess the factors that would be at play when deciding whether to testify. I fully recognize that Ms. Matthews has been unable to testify. I also appreciate the high threshold for a claim of ineffective assistance of counsel to succeed. But in this case, I am satisfied that counsel’s performance was not reasonable. Accordingly, I conclude that the appellant has established her claim of ineffective assistance of counsel on the basis that trial counsel failed to properly advise the appellant on whether to testify and this caused the appellant prejudice. Had she testified, as she wanted to, there is a reasonable probability that the verdict would have been different.

(iv) Witness Preparation

[82] My conclusion with respect to ineffective assistance of counsel is fortified by the last issue raised by the appellant in support of her claim of ineffective assistance of counsel, namely that Ms. Matthews failed to properly interview Jorgia Watson prior to her testimony.

[83] Incompetence arising from failure to interview defence witnesses was addressed in White (1997), at p. 752:

Proper trial preparation ordinarily includes speaking to potential witnesses. But failing to do so does not automatically warrant a finding of incompetence.

The court must consider the factual context including what information defence counsel had about the witnesses, about their likely testimony and about how the testimony would likely assist or harm the defence. [Citations omitted.]

[84] There is no evidence from Ms. Matthews or anyone else that Ms. Watson was interviewed before she gave her testimony. That said, it is a fair inference that she was not. A review of her evidence reveals that there was no compelling reason for Ms. Matthews to call Ms. Watson as a witness and her testimony about the appellant living at the Stirling address, which was relied upon by the trial judge, was very damaging to the appellant. Prejudice definitely arose and the performance component is also met. It is reasonable to conclude that Ms. Watson was insufficiently questioned by Ms. Matthews prior to taking the stand if she was questioned at all.

[85] The appellant has established that the convictions reflect a miscarriage of justice arising from the ineffective assistance of counsel. I would allow the appeal on this basis.

[86] In light of this conclusion, it is unnecessary to address the abuse of process ground of appeal.

Disposition

[87] For these reasons, I would admit the fresh evidence, allow the appeal and order a new trial.

Released: August 5, 2022 “S.E.P.”

“S.E. Pepall J.A.”

“I agree. M. Tulloch J.A.”

“I agree. Grant Huscroft J.A.”

[^1]: There was no evidence on whether severance was ever discussed with the appellant by Ms. Makonnen. That said, an application to sever counts should ordinarily be made at the start of trial: R. v. C. (D.A.), (1996) 1996 CanLII 8341 (BC CA), 106 C.C.C. (3d) 28 (B.C.C.A.), aff’d 1997 CanLII 397 (SCC), 112 C.C.C. (3d) 96 (S.C.C.), as should an application to sever accused: R. v. Suzack, (2000) 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449 (Ont. C.A.).

[^2]: Presumably, this refers to the Practice Management Helpline provided by the Law Society of Ontario, which offers confidential advice for lawyers on their professional obligations.

[^3]: I have assumed that T denotes ‘trial’, mis-T and M/T denote ‘mistrial’, J. denotes ‘judge’ and Cont denotes ‘continue’.

[^4]: As mentioned, it was admitted by all counsel at trial that the amount of marijuana was not possessed for the purpose of trafficking. I acknowledge that the appellant was ultimately acquitted of possession of marijuana for the purpose of trafficking. Had she testified that the marijuana was hers, she would have been convicted of simple possession of marijuana. That said, the appellant was never given advice by Ms. Matthews on the various alternatives upon which she could make an informed choice on whether to testify.