WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
DATE: 20221028 DOCKET: C68721
Benotto, Miller and Coroza JJ.A.
BETWEEN
His Majesty the King Respondent
and
Lorne Clement Appellant
Counsel: Andrew Furgiuele and Ioana Dragalin-Reeves, for the appellant Nicholas Hay, for the respondent
Heard: September 12, 2022
On appeal from the conviction entered by Justice Edward E. Gareau of the Superior Court of Justice on June 2, 2020, with reasons reported at 2020 ONSC 1571.
Coroza J.A.:
[1] The appellant appeals his conviction for sexually assaulting the complainant contrary to s. 271 of the Criminal Code, R.S.C., 1985, c. C-46.
[2] The appellant’s sole ground of appeal is that he received ineffective assistance from trial counsel, making his trial unfair and undermining the reliability of the verdict.
Background
[3] On the evening of March 26, 2018, the complainant visited the appellant’s home because she was looking for drugs. She was driven over by a friend who stayed at the appellant’s home for one to two hours and then left, leaving the complainant with the appellant and his girlfriend, R.D. While at the house, the complainant, the appellant, and R.D. consumed alcohol and drugs. The appellant and R.D. had been drinking and consuming drugs throughout that day. After the complainant’s friend left, the conversation between the complainant, the appellant, and R.D. became sexual.
[4] At around 1:30 a.m., the complainant went to sleep on the appellant’s bed. She was subsequently joined by the appellant and R.D. After some sexual activity between R.D. and the complainant, the complainant assumed that R.D. fell asleep. After this, the complainant alleged that the appellant sexually assaulted her. She disclosed the sexual assault to the police on March 29, 2018.
The Appellant’s Admissions to the Police
[5] The appellant was arrested on March 29, 2018. He was charged with sexual assault and gave a statement to the police that was videotaped. The police summarized the appellant’s statement in a one-page summary and created rough scribe notes of the interview which were provided to the defence as part of disclosure.
[6] In his police statement, the appellant admitted that he was intoxicated on the day of the incident, that he did not know how much he had had to drink, that the complainant was the most sober of the three parties in the house, and that he cuddled with the complainant and R.D. and kissed her but he could not remember what had happened because he was “very hammered at the time”. At one point the officer specifically asked the appellant if he had sex with the complainant. The appellant responded:
I don’t think so. Like I rubbed against her and stuff like that. Like we were all naked in bed. But like I, I didn’t have sex with her, like – so – but that’s sexual assault anyway. It doesn’t matter, just feelin’ somebody up is still a sexual assault…. if it’s against their will.
Evidence at Trial
[7] At trial, the complainant testified that after R.D. had touched her and fallen asleep, the appellant got in the middle of the bed, touched her thigh, and attempted to perform oral sex on her. However, the complainant rebuffed these advances and fell asleep. The complainant then testified that she later woke up to the appellant having sexual intercourse with her from behind.
[8] In examination-in-chief, the appellant denied he sexually assaulted the complainant. He acknowledged that he rubbed the complainant’s thigh but once he was rebuffed, he left the complainant alone and did not touch her further.
[9] However, portions of the appellant’s videotaped statement were played by the Crown during cross-examination and the appellant was confronted with his admissions to the police. The appellant testified that he had never seen the video statement before it was played. The overall theme of the Crown’s cross-examination was that the appellant’s memory of the events would have been fresher when he made these admissions to the police. The appellant denied this and explained that the police “kind of just woke me out of bed and brought me to the police station and gave me a statement”. The appellant claimed that he had only been up for “maybe about a half an hour or so” before he gave his statement. He also gave the following evidence:
Q. And your memory is better than it was two days after the incident.
A. Well, I’ve had a lot more time to think about what happened that night and stuff like that, yes. I got caught off guard; I don’t know anything about it. The police just came, picked me up and brought me to an interview, straight out of bed.
Trial Counsel’s Decision not to call R.D.
[10] The appellant’s girlfriend, R.D., provided a statement to the police on March 29, 2018, which was videotaped. A disc labelled as being R.D.’s statement was provided to trial counsel as part of disclosure.
[11] On November 20, 2019, trial counsel gave R.D. the disc purportedly containing her video statement in preparation for the appellant’s trial. At the beginning of the defence case, on November 21, 2019, trial counsel indicated that he intended to call the appellant and R.D. on behalf of the defence.
[12] On November 22, 2019, R.D. informed trial counsel that she was unable to play her statement. Trial counsel informed the court that R.D. had been unable to access her videotaped police statement and sought a brief recess to play R.D. her statement. During the recess, trial counsel played R.D. the Crown’s copy of her video statement on the Crown’s laptop. After the recess, trial counsel informed the trial judge that he would not be calling R.D. to testify after having reviewed her statement and speaking to the appellant. Prior to this time, trial counsel had not played R.D.’s video statement for her.
The Trial Judge’s Reasons
[13] In his reasons for convicting the appellant, the trial judge found that the appellant’s evidence could not be relied upon in the face of the appellant’s admissions to the police. The trial judge expressed concerns about the reliability of the appellant’s testimony and observed that the appellant’s trial evidence was a “reconstruction” of events because the appellant testified in a manner “which led the court to believe that he had a complete recollection” of what happened between him and the complainant.
[14] On the other hand, the trial judge accepted the evidence of the complainant and found her to be clear and consistent. He also found that any inconsistencies in her testimony related to collateral issues. Accordingly, the trial judge was satisfied beyond a reasonable doubt that the complainant’s version of events occurred, and he found the appellant guilty of sexual assault.
Issues
[15] The appellant makes three submissions in support of his contention that he received ineffective assistance from trial counsel.
[16] Specifically, he argues that:
- Trial counsel failed to ensure that the appellant reviewed the video of his statement to the police before trial;
- Trial counsel failed to review potentially exculpatory evidence before trial – R.D.’s video statement to the police; and
- Trial counsel did not order transcripts of the witness statements and consequently he could not use them to cross-examine the complainant, he could not rehabilitate the appellant in re-examination, and he could not use R.D.’s statement to prepare him for his cross-examination of the complainant.
Analysis
[17] An appellant who advances an ineffective assistance of counsel claim must show three things: (i) the appellant must establish the facts material to the claim of ineffective assistance on the balance of probabilities [the factual component]; (ii) the appellant must demonstrate trial counsel’s representation was ineffective [performance component]; and (iii) the appellant must show the ineffective representation resulted in a miscarriage of justice, either by rendering the trial unfair or the verdict unreliable [prejudice component]: R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at para. 48.
[18] Once the factual component has been established, the ineffective assistance analysis begins with the prejudice component. This is because if the prejudice component cannot be met, there is no reason to subject the performance of counsel to judicial inquiry: Fiorilli, at para. 49; and R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 29. To succeed on this appeal, the appellant must satisfy us that there is a reasonable probability that, but for counsel’s ineffective assistance, the result would have been different: R. v. Joanisse, (1995), 102 C.C.C. (3d) 35 (Ont. C. A.), at p. 64, leave to appeal refused, [1996] S.C.C.A. No. 347; R. v. Jex, 2007 ONCA 737, 230 O.A.C. 77, at para. 4. This threshold will be met where the cumulative effect of the provision of ineffective assistance is “sufficient to undermine confidence in the outcome”: Joanisse, at p. 64. If an appellant establishes ineffective representation that resulted in a miscarriage of justice, his or her conviction will be quashed: Joanisse, at p. 43.
[19] The Crown submits that the appellant has not met the factual component of the test. The Crown points out that there is a strong presumption in favour of trial counsel because false allegations can easily be made post-conviction and that the allegations must be approached with caution. The Crown submits that trial counsel had over thirty years’ experience, took numerous steps to prepare the appellant to testify, starting long before the trial began, and that contrary to the appellant’s claim, he gave the appellant a copy of his video to review.
[20] This appeal can be decided without conducting an extensive analysis into trial counsel’s performance and preparation or attempting to resolve the divergence in the accounts about the video between the appellant and trial counsel. As Paciocco J.A. explained in Fiorilli, at para. 118, it is not the function of this court in considering an ineffective assistance ground of appeal “to conduct a forensic autopsy into the quality of the appellant’s legal representation”. The role of this court is to apply the ineffectiveness of counsel test to determine whether the appeal should be allowed.
[21] In my view, the appeal should be dismissed because even assuming that the appellant has satisfied the factual component of his claim, he has not established the prejudice component of the test.
(1) Trial counsel’s failure to ensure that the appellant reviewed his video statement before trial
[22] The appellant submits that due to trial counsel’s failure to ensure that the appellant had reviewed his video statement before trial, the appellant was subjected to a cross-examination where he was repeatedly confronted with prior inconsistent statements. The appellant claims that the effect of this impeachment was devastating. He was found to be incredible by the trial judge who described his evidence as a “reconstruction” of events designed to portray him in a positive light. The appellant argues that trial counsel’s failure to ensure that the appellant knew what he had said to the police materially prejudiced the appellant in his defence.
[23] I do not accept this argument. Any shortcomings in trial counsel’s preparation in relation to the statement had no effect on the trial judge’s rejection of the appellant’s evidence. As I see it, the appellant’s evidence was rejected because he made several problematic admissions to the police. In that voluntary statement, the appellant admitted that his memory of what happened between him, and the complainant was poor because he had been drinking. For example, after telling the police that the complainant, R.D., and him had fooled around, the police officer asked him to describe what he meant by “fooling around”. The appellant told the police officer the following: “Like I dunno, like cuddling with her, cuddling with my girlfriend, and blah, blah, blah. Made out with her a bit, I think, like honestly I, I don’t really honestly hardly remember. I was very hammered at the time.”
[24] The appellant was repeatedly confronted at trial about his statements regarding his level of intoxication. The appellant attempted to distance himself from these statements by explaining that he was tired and that his memory at trial was clearer than it had been when he gave the police statement two days after the incident. But that was an uphill climb and unsurprisingly, the trial judge rejected that claim in light of the fact that in his examination-in-chief, the appellant acknowledged that he had drunk 16 beers over a 12-hour period.
[25] The trial judge concluded:
The statement given by the accused to the police no more than two days after the incident, portions of which were put to him by the Crown in cross-examination, contradicts much of what the accused said in examination in-chief and leads to the conclusion that in fact the accused’s actual recollection of what occurred during the evening of March 26 and morning of March 27, 2018 is “a blur” as he indicated to police. The statement given to the police by the accused concerning his level of intoxication calls into question the accused’s crystal-clear recollection of events. The evidence of Lorne Clement simply cannot be relied upon. The evidence given by the accused in examination in-chief is impeached significantly considering the statements he made to the police shortly after the incident and the questions put to him during cross-examination and the answers given by him. The reliability of the accused’s evidence is of concern to this court. The accused has a perfect recollection of events now but two days after the incident cannot recall much of what occurred. This leads to the inescapable conclusion that the accused has reconstructed his evidence in a way that is beneficial to him.
The evidence of the accused given at trial cannot be relied upon. It was obviously a reconstruction of events to suit his own purposes and, in my view, was not an accurate account of what occurred in the evening and morning in question. This is not difficult to appreciate given how much alcohol the accused had consumed. The accused candidly admitted to the police that he was “lit”, “hammered”, and doesn’t recall what happened. I believe that this is an accurate account as opposed to the accused’s evidence of crystal clarity given at trial which, in my view, the accused reconstructed for his own benefit. [Emphasis added.]
[26] The appellant’s claim that he was prejudiced because he was not given a meaningful opportunity to watch his video statement before testifying suffers from a fatal flaw: the appellant acknowledges that he would not (nor could) have avoided the admissions that he had made to the police. Instead, his position is that had he watched his video before trial, he would have followed his statement more cautiously.
[27] If that is so, then there is no question that he would have had to acknowledge that what he said to the police was accurate − that he had a difficult time remembering what sexual activity occurred because he was intoxicated. I agree with the Crown’s submission that no amount of preparation could have altered what the trial judge found pivotal: the appellant’s admission in his statement that, because of his intoxication, he had a hard time remembering what sexual activity he engaged in that night.
(2) Trial counsel failed to review potentially exculpatory evidence before trial – R.D.’s video statement to the police
[28] The appellant submits that trial counsel’s failure to review potentially exculpatory evidence from R.D. before trial affected the preparation of the appellant for trial.
[29] I do not accept this submission. First, it is not clear that R.D.’s evidence was entirely exculpatory.
[30] R.D.’s contribution to the appellant’s case appears to be what she told the police: “that if there was a struggle in the bed she would have woken”. However, in that statement she also “described herself as very intoxicated” and the appellant as “horny” and having interest in the complainant. Second, trial counsel’s fresh evidence tendered on this appeal explained that that R.D. “was always a reluctant witness” and that she was “more loathe to testify than [the appellant]”. According to trial counsel, R.D. “expressed some concerns about being a witness because of the alcohol and drugs she consumed on the day of the alleged assault.”
[31] According to trial counsel, watching the video only cemented these concerns: after watching it, she told trial counsel “that maybe she would not have heard anything given her level of intoxication” and that “she would do more harm than good by testifying.” She said to trial counsel, “you know what, I passed out, I can’t really say I can remember anything, even if it had occurred”. She expressed to trial counsel that she did not want to testify. Accordingly, it is not surprising that trial counsel made the reasonable decision not to call R.D. at trial.
[32] Second, it is unclear how further preparation time with R.D.’s video or evidence − which only seemed to hurt the appellant’s case rather than help − would have assisted in preparing the appellant. There is nothing in this record that would support the assertion that more time with R.D.’s evidence could assist the appellant.
(3) Trial counsel did not order transcripts of the witness statements
[33] Finally, I do not accept that the failure of trial counsel to order transcripts of witness statements caused prejudice.
[34] I have reviewed the examinations conducted by trial counsel. Nothing in the record establishes that trial counsel was impeded by the lack of transcribed witness statements. First, I have not been directed to any material inconsistency in the complainant’s statement that could have been used to impeach the complainant. Even if there was, the absence of a transcript was not fatal because a video was available to be played for the complainant if the need arose. Moreover, trial counsel was able to establish that there were inconsistencies in her evidence. However, the trial judge concluded that these involved collateral matters, and in the end, he accepted her evidence. Nor do I see any basis for accepting the submission that the lack of a transcript of R.D.’s statement impeded trial counsel’s ability to prepare for the complainant’s cross-examination. Finally, I see no merit to the submission that the lack of a transcript interfered with the appellant’s ability to rehabilitate the appellant during re-examination if necessary.
Disposition
[35] For these reasons, I would dismiss the appeal.
Released: October 28, 2022 “M.L.B.” “S. Coroza J.A.” “I agree. M. L. Benotto J.A.” “I agree. B.W. Miller J.A.”