Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20230914 Docket: C65647

Trotter, Thorburn and Favreau JJ.A.

BETWEEN

His Majesty the King Respondent

and

Pierre Senatus Appellant

Counsel: Pierre Senatus, acting in person Frank Au, for the respondent

Heard: September 7, 2023 by video conference

On appeal from the conviction entered on May 22, 2018 and the sentence imposed on June 13, 2018 by Justice Mitch Hoffman of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was found guilty of aggravated assault, use of an imitation firearm while committing an indictable offence, possession of an imitation firearm and failure to comply. He was sentenced to a four-year custodial sentence, which was reduced by 357 days for pre-trial credit.

[2] The complainant was just under 17 years old at the time of the incident. She was at an apartment rented through Airbnb by two older female friends. One of the friends invited an ex-boyfriend to the apartment. The complainant was upset when she found out that the ex-boyfriend would be coming with the appellant because she claimed he had previously threatened her. The complainant nevertheless decided to stay at the apartment. She consumed drugs and alcohol prior to the appellant’s arrival. When the appellant arrived at the apartment, the complainant says that he and another woman assaulted her. The appellant also threatened the complainant with an imitation firearm and demanded that she give him $1,500. The complainant suffered injuries to her head, face, hand and shoulder. The complainant was able get away to a gas station close by, where the police were called.

[3] The appellant was charged with aggravated assault and other charges involving the complainant and with assaulting and sexually assaulting one of the other women at the Airbnb. The trial judge dismissed the charges involving the other woman on the basis that he did not find her evidence credible. However, with respect to the charges involving the complainant, the trial judge found that, while there were some discrepancies in her evidence, she was a credible witness. The appellant did not testify.

[4] The appellant appeals his conviction on the basis of a claim of ineffective assistance of counsel. He alleges that his trial counsel failed to put some social media posts made by the complainant into evidence that he says would have been exculpatory. He also claims that, at the beginning of trial, the trial judge made a comment that should have led his trial lawyer to raise a claim of reasonable apprehension of bias.

[5] The appellant and his girlfriend each swore affidavits in support of the claim of ineffective assistance of counsel. The appellant’s trial counsel swore two affidavits in response. All three affiants were cross-examined.

[6] In order to succeed on a claim of ineffective assistance of counsel, the appellant must demonstrate that trial counsel’s assistance was so ineffective that the conviction was the result of a miscarriage of justice: R. v. Joanisse (1995) , 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 57, leave to appeal refused, [1996] S.C.C.A. No. 347. Counsel’s conduct can result in a miscarriage of justice either by rendering the trial unfair, referred to as the trial fairness branch, or by rendering the verdict unreliable, referred to as the unreliable verdict branch: R. v. Fiorilli, 2021 ONCA 461 , 156 O.R. (3d) 582, at para. 54 . Regardless of whether the appellant relies on the trial fairness branch or the unreliable verdict branch, in order to succeed on a claim of ineffective assistance of counsel, the appellant must establish the three following elements:

a) The material facts underlying the allegation of ineffective assistance of counsel on a balance of probabilities.

b) That trial counsel’s acts or omissions amounted to incompetence; and

c) Trial counsel’s ineffective representation led to a prejudice in the form of a miscarriage of justice.

R. v. Archer (2005) , 203 O.A.C. 56 (C.A.), at paras. 119-120 .

[7] We are not persuaded that the evidence establishes the appellant’s claim of ineffective assistance of counsel in this case.

[8] The appellant provided trial counsel with a text message exchange between the complainant and his girlfriend which he says should have been put into evidence at trial. The text messages are dated approximately two months prior to the beginning of trial. In the messages, the complainant states that she did not intend to show up at trial in response to a subpoena but that she needed $1,000 to leave town and rent a place to stay during the trial. She asks the appellant’s girlfriend if she had spoken to her “bro” yet about covering the expense. In his evidence in response to the allegations of ineffective assistance of counsel, trial counsel says that the text messages were not provided to him until after the complainant testified. His advice to the appellant was that it would not be worth recalling the complainant because the text messages did not say anything about the allegations against the appellant and because they suggested the appellant may have been attempting to obstruct justice by encouraging the complainant to disobey the subpoena. This was sound advice. The text messages on their own are not exculpatory. In addition, they provide no clear context for the complainant reaching out to the appellant’s girlfriend, but certainly suggest that the complainant may have been responding to pressure not to testify.

[9] The appellant says that he provided a social media screenshot to his trial counsel which he says would also have been exculpatory. The screenshot contains a message from someone with a nickname similar to the complainant’s name. In response to a message asking her whether “Nikki tell u anything to say to the cops”, the person with the nickname similar to the complainant’s name responded that she “came out of the hospital with no memory” and that she called people “that were there n told me what happened”. In his evidence, trial counsel says that he was never provided with a copy of this screenshot. He also points out that it would have had no evidentiary value because, without information about who the complainant was communicating with and where the screenshot came from, it could not be authenticated. He further points out that, in any event, he fully explored the complainant’s credibility, including her level of intoxication and ability to remember, at trial. We agree with trial counsel. The appellant has not established that he provided the screenshot to trial counsel. In any event, without any evidence to authenticate the screenshot, it could not have been admitted at trial. In addition, as is evident from the closing submissions and trial judge’s reasons, the focus of trial counsel’s defence of the appellant was the complainant’s credibility.

[10] Finally, the appellant claims that trial counsel failed to raise a claim of reasonable apprehension of bias against the trial judge. Prior to trial, while in custody, there were allegations against the appellant that he participated in a deadly assault against another inmate. The incident was reported in the media. On the first day of the trial, trial counsel asked the trial judge to delay the beginning of trial for thirty minutes to give him an opportunity to speak to the appellant. In response, the trial judge stated that he had “read the paper [that] morning” and understood the appellant “may be charged with new matters”. He then asked whether trial counsel was seeking to delay the beginning of trial to talk to the appellant about these new matters or the charges at issue at trial. After trial counsel said that there were some elements of preparation for the trial he had not had an opportunity to discuss with his client, the trial judge granted the request to start the trial thirty minutes late. The appellant claims that the reference to the new potential charges showed that the trial judge was biased toward him. Trial counsel’s evidence is that he understood that the trial judge referred to the new potential charges because he wanted to ensure that trial time would not be taken up with discussions involving a matter unrelated to the issues at trial. Based on our review of the transcript, trial counsel’s understanding of why the trial judge referred to the other charges is reasonable. Moreover, the trial judge’s reference to the other charges was tangential and fleeting. There was no basis for trial counsel to raise an issue of reasonable apprehension of bias and such an application would not have been successful.

[11] Accordingly, there is no basis for the appellant’s claim of ineffective assistance of counsel. None of the issues raised by the appellant would have affected the verdict at trial and there is no evidence that trial counsel’s representation was anything other than competent.

[12] While in his notice of appeal the appellant seeks to appeal his sentence, he did not make any submissions on this issue at the hearing of the appeal and he has already served his sentence.

[13] The appeal from conviction and sentence are dismissed.

“Gary Trotter J.A.”

“Thorburn J.A.”

“L. Favreau J.A.”