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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

COURT OF APPEAL FOR ONTARIO

DATE: 20231020 DOCKET: M54550(COA-23-CR-0973)

Before: Paciocco J.A. (Motion Judge)

BETWEEN

His Majesty the King Responding Party/Respondent

and

M., Craig Applicant/Appellant

Counsel: Ian Gerald T. Smits, for the applicant Catherine Weiler, for the responding party

Heard: October 12, 2023 by video conference

ENDORSEMENT

OVERVIEW

[1] Craig M. applies pursuant to s. 679(3) of the Criminal Code, R.S.C. 1985, c. C-46, for bail release pending appeal of his conviction for sexual offences that he was found to have committed against his girlfriend’s pre-adolescent daughter. He was in a position of trust at the time. In the three incidents found to form the foundation for his conviction, the jury was satisfied beyond a reasonable doubt that Mr. M. touched the child’s vagina with his penis after entering her bedroom at night. Mr. M. was sentenced to four years in prison for these manifestly serious offences.

[2] Mr. M.'s sole ground of appeal alleges the ineffective assistance of counsel. There appear to be three bases for that allegation, each of which are relied upon in support of this motion. I would describe them as follows: (1) the inadequacy of his counsel’s advice relating to his right to testify; (2) the inadequacy of his counsel’s advice relating to the mode of trial; and (3) Mr. M.’s general claims about the inadequate preparation and performance of his counsel at trial.

[3] After the oral hearing I dismissed Mr. M.’s application for bail pending appeal for reasons to follow. These are my reasons.

ANALYSIS

[4] The Crown did not contest Mr. M.’s claim that he would surrender himself into custody in accordance with the terms of the release order. It argued instead that he had failed to establish that his appeal is not frivolous, and that even if he did meet that very low bar, he had not established that his reviewability interest outweighs the enforceability interest given the seriousness of the offences and the apparent weakness of his appeal. The Crown therefore argued that Mr. M. did not meet his burden of demonstrating that his release is not contrary to the public interest.

[5] I agree with the Crown that the last two of the claims Mr. M. advances for his sole ground of appeal are frivolous. I also agree that although the first basis for his appeal – the inadequacy of his counsel’s advice relating to his right to testify – is not frivolous, on the present record that claim does not clearly surpass the not frivolous standard. Offences, involving sexual offences against a young child, are at the high end of the seriousness spectrum: R. v. J.B., 2023 ONCA 264; R. v. R.Y.M., 2022 ABCA 148. Given the seriousness of the offences and the weakness of Mr. M.’s ineffective assistance of counsel appeal, he has not met the public interest standard required for his release.

[6] Mr. M.’s application initially addressed the merits of his proposed appeal in a single affidavit that he swore. In that affidavit Mr. M. described the implausibility of the allegations and attested to his heavy reliance on his trial lawyer. He also said that he was unaware that had he had an absolute right to testify and would have welcomed the opportunity to do so. No affidavit of merits was included, no evidence was provided by trial counsel, and no waiver of the right to counsel had yet occurred, leaving the Crown unable to investigate the strength of Mr. M.’s claims prior to the bail hearing. In the Crown’s written response, it pointed out these shortcomings in this record.

[7] Mr. M. responded in advance of the hearing by filing a revised motion record that included a supplementary affidavit by him in which he stated explicitly that his trial lawyer had not advised him of his right to testify. He also attested in his second affidavit that his trial lawyer never explained why he should not give evidence. I note that Mr. M. does not make an allegation in the first affidavit that his counsel had failed to explain why he should not testify.

[8] In this second affidavit Mr. M. also added the allegation that he had not been advised as to his mode of trial. Mr. M raised further issues about the adequacy of the cross-examination his lawyer conducted, as well as concerns about his lawyer’s inattention at trial. An affidavit of merits was then provided, but again, no waiver of solicitor-client privilege was furnished, transcripts were not included, and no evidence was provided from trial counsel.

[9] On this record, Mr. M.’s claim that he received ineffective assistance of counsel because of his counsel’s failure to advise him about the available modes of trial cannot succeed and is therefore frivolous. An ineffective assistance of counsel appeal cannot succeed, as a matter of law, unless the absence of such advice has caused a miscarriage of justice: R. v. White, 2022 SCC 7, 467 D.L.R. (4th) 23, at paras. 5-6. Mr. M. provided no evidence claiming that a different mode of trial would have been elected had he participated in the decision making.

[10] Mr. M.’s general claims about the inadequate preparation and performance of his counsel at trial are also frivolous, as incapable of succeeding, because he has provided little detail or specificity, and these allegations are being advanced without the support of transcripts or other independent evidence. These complaints are largely based on bald, general allegations that cannot possibly carry the day.

[11] In contrast, Mr. M.’s claim that he received ineffective assistance of counsel at trial relating to whether to testify is not frivolous. Mr. M.’s second affidavit provided an evidentiary foundation for concluding that trial counsel failed to advise him that it was his right to decide whether to testify and failed to provide him with competent advice about whether to do so. If either of these deficiencies is established, they may provide Mr. M. with a successful bases for appeal: R. v. K.K.M., 2020 ONCA 736, at para. 91. Notwithstanding this, I am not persuaded that Mr. M. has shown that this claim clearly surpasses the not frivolous threshold.

[12] To succeed with this kind of appeal, an appellant must overcome a strong presumption of competence: R. v. Archer, (2005), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 140. The record must be credible enough to do so. This requirement makes appeals of this kind difficult, and suitably so. Appellate courts strike a cautious tone when considering claims about the inadequacy of advice about testifying because of the motivation those who are convicted could have to fabricate such allegations: R. v. Kaczmarek, 2021 ONCA 771, 407 C.C.C. (3d) 34 at para. 77. In my view, this is a material consideration in assessing the strength of a proposed appeal and whether it clearly surpasses the not frivolous standard. In J.B., at para. 30, my colleague Lauwers J.A. found that a similar ground of appeal did not clearly surpass the not frivolous standard because of the deficiency in the record, namely the absence of evidence from trial counsel on this issue.

[13] To be clear, I am not of the view that a ground of appeal based on the ineffective assistance of counsel relating to advice about the right to testify can never clearly surpass the not frivolous ground without confirming evidence. Nor am I of the view that an application for release pending appeal on this basis will always be premature without evidence from counsel. We must be mindful that there are times when evidence from trial counsel may be impossible to obtain without delay because trial counsel is not available or co-operative. Appellants should not have to languish in custody until such evidence is secured when they have what might otherwise be meritorious applications for release pending appeal. However, regardless of when the application for release pending appeal based on this ground of appeal is brought, the foundation for the application will not clearly surpass the not frivolous standard unless it is credible enough that it could realistically rebut the strong presumption of competence. The record provided by Mr. M. is not supported by a sufficiently credible foundation to do so.

[14] I base this decision on the combination of three factors.

[15] First, there was no supporting evidence of any kind. Second, Mr. M. did not provide the Crown with a waiver of privilege, leaving the Crown unable to undertake a balanced evaluation of the strength of the appeal. I would draw an adverse inference from this. Third, and most importantly, Mr. M.’s affidavits are problematic. The first affidavit does not speak of the adequacy of an explanation about the trial counsel’s decision that he should not testify. This allegation was added in the second affidavit. Moreover, the first affidavit says nothing about the absence of advice relating to the mode of election. In my view, evolving allegations of incompetence present a strong bases for concern about the credibility of an incompetence of counsel appeal, given the ease with which such allegations can be made, and the strong motivation for fabricating such complaints.

CONCLUSION

[16] For the reasons expressed, Mr. M. did not persuade me that the reviewability interest outweighs the enforceability interest, given the seriousness of the offence and the apparent weakness of the proposed appeal. This was so even considering his health issues, raised in his application. I therefore dismissed his application for bail pending appeal.

[17] Of course, should further investigation and review of the transcript result in a material change in circumstances, Mr. M. is free to reapply for release pending appeal.

“David M. Paciocco J.A.”