Court File and Parties
Ontario Court of Justice
Date: 2019-08-22
Court File No.: Toronto 4817 998 18-70010807-01
Between:
Her Majesty the Queen
— and —
James Sears and Leroy St. Germaine
Before: Justice Richard Blouin
Ruling on an Application to Re-open (affidavit evidence) given on August 22, 2019
Counsel
Ms. Jamie Klukach — counsel for the Crown
Mr. Robin Flumerfelt — counsel for the Crown
Ms. Erica Whitford — counsel for the Crown
The defendant James Sears — on his own behalf
Decision
BLOUIN, J.:
[1] On July 15, 2019, I granted Mr. Sears some time to perfect his application to re-open by providing the Court with affidavit evidence. He missed the first deadline and additional time was accorded him, primarily because he was self-represented after dismissing trial counsel. He provided an affidavit August 8 regarding ineffective assistance of counsel. On August 15, he provided an affidavit regarding proposed witnesses if re-opening was granted. On that same day I received an affidavit from Dean Embry, Mr. Sears' former lawyer.
[2] The test laid out in R. v. Kowall, [1996] O.J. No. 2715 and R. v. Arabia, 2008 ONCA 565, 2008 O.J. No. 2960, involves not only consideration of the Palmer fresh evidence criteria noted above but, also, consideration as to whether the application to re-open is in reality an attempt to reverse tactical decisions made at trial. Paragraph 32 of Kowall sets out the test.
These criteria provide helpful guidance to a trial judge faced with an application to reopen after conviction. In addition to the Palmer criteria, a trial judge must consider whether the application to reopen is in reality an attempt to reverse a tactical decision made at trial. Counsel must make tactical decisions in every case. Assuming those decisions are within the boundaries of competence, an accused must ordinarily live with the consequences of those decisions. Should the trial judge find that the test for reopening has been met, then the judge must consider whether to carry on with the trial or declare a mistrial.
[3] In my view, the evidence contained in Mr. Sears' affidavit, taken at its highest, does not provide a basis to grant this application. I must apply the case management function regarding unmeritorious applications as discussed in R. v. Cody, 2017 SCC 31, [2017] 1 SCR 659, at paragraph 38:
In addition, trial judges should use their case management powers to minimize delay. For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that summary reveals no basis upon which the application could succeed, dismissing the application summarily (R. v. Kutynec (1992), 7 O.R. (3d) 277 (C.A.), at pp. 287-89; R. v. Vukelich (1996), 108 C.C.C. (3d) 193 (B.C.C.A.)). And, even where an application is permitted to proceed, a trial judge's screening function subsists: trial judges should not hesitate to summarily dismiss "applications and requests the moment it becomes apparent they are frivolous" (Jordan, at para. 63). This screening function applies equally to Crown applications and requests. As a best practice, all counsel — Crown and defence — should take appropriate opportunities to ask trial judges to exercise such discretion.
[4] Leaving aside the Palmer factors, this application fails because it is clear upon reading the e-mail correspondence between Mr. Sears and Mr. Embry (found in Exhibit B to Mr. Sears' affidavit) the decision to call no defence evidence was a tactical decision based upon Mr. Embry's professional view as to the best approach to defend this case. The following excerpts are instructive of the tactical approach taken by Mr. Embry.
To be honest, I think all of your defences are legal ones so I'm not sure an expert gets us that far down the road. (July 15, 2018)
Better to simply attack their opinion when they testify. (July 15, 2018)
Also, no judge is going to have a problem finding that both Jews and women are identifiable groups. (August 27, 2018)
I agree that in order for there to be a conviction the Judge has to find that you crossed the line. (November 26, 2018)
I am focused on how we win in Court and that includes any possible appeal. (November 30, 2018)
I really don't think we're going to win this by making arguments about what the article REALLY mean (sic). (December 6, 2018)
With regard to the anti-Semitism charge – as I've explained before I think we have an argument to make that although you get very close to the line and imply some bad stuff you never actually say it and therefore there's reasonable doubt. (December 6, 2018)
Again, I think we have an argument to make but I'm not going to get into the weeds trying to explain away plainly offensive stuff as either a joke or misunderstood. I'm not going to do that because I think that's a sure way to lose. (December 6, 2018)
I understand your perspective on this. As discussed though, my strategy is to agree with the Crown theory as much as possible. I certainly see why some of my wording pisses you off. It's nothing person (sic), obviously, I just want to really convey the message that "this is BAD, BAD STUFF….but not illegal" because I think by doing that we appear reasonable and have a higher chance of success. (December 16, 2018)
We did not mount any defence to show that there're a reasonable debate about these things (because we really couldn't). I think by "admitting" falsehoods in YWN we have a higher chance of winning. (December 16, 2018)
All of which is to say that it would be my strong advice to leave those sections admitting falsehoods as they are because I think they enhance our chances of winning. (December 16, 2018)
As always, it's my intention to make the best legal argument I can on your behalf. (March 11, 2019)
He's not going to give a second thought to an argument that preventing you from "channeling men's hateful grievances" might result in real violence. (March 11, 2019)
[5] Exhibit 24(a) is Mr. Embry's 22-page written submissions. He buttressed the written submissions with oral submissions and submitted that the "highly offensive" material, when viewed in its entirety, and understood contextually, does not rise to hate promotion. If it did, Mr. Sears lacked the necessary mens rea. In my view, Mr. Embry made a significant and skilled argument. Unfortunately for Mr. Sears, I concluded otherwise. Mr. Embry's approach was tactical and, in the circumstances, competent and professional. Mr. Sears has not met the test set out in Arabia where, in rare cases, a conviction can be set aside, and the trial re-opened (or a mistrial declared). And it should not be forgotten that Mr. Sears did not bring this application until months after the finding of guilt, and even after sentencing submissions had been made. While he questioned Mr. Embry's approach, he ultimately went along with it.
[6] Looked at another way, but with the same result, Justice Doherty in R. v. Archer, 2005 O.J. 4348, deals with quashing a conviction on the basis of ineffective assistance at paragraphs 19 and 20.
An appellant seeking to quash a conviction on the basis of ineffective assistance of counsel must demonstrate three things. First, where the claim is based on contested facts, the appellant must establish the material facts on the balance of probabilities. Second, the appellant must demonstrate that counsel's acts or omissions amounted to incompetence. Incompetence is measured against a reasonableness standard. That assessment is made having regard to the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role in the assessment. Allegations of incompetent representation must be closely scrutinized. Many decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction. The reasonableness analysis must proceed upon a "strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance": R. v. G.D.B. (2000), 2000 SCC 22, 143 C.C.C. (3d) 289 at 298 (S.C.C.). As this court said in R. v. White (1997), 114 C.C.C. (3d) 225 at 247:
An appellate court's review of trial counsel's performance should be deferential. … deference is called for because of the broad spectrum of professional judgment that might be considered reasonable. In most cases, even among the most skilled counsel, no two lawyers will defend an accused in the same way. Different defence counsel will use different trial strategies and tactics, different approaches to the examination and cross-examination of witnesses, different styles in opening and closing argument, all of them reasonable. The art of advocacy yields few, if any, absolute rules. It is a highly individualized art. What proves effective for one counsel may be ineffective for another. Most cases, therefore, offer defence counsel a wide scope for the exercise of reasonable skill and judgment. Appellate judges, many of them advocates in their own practices, should not be too quick to conclude that a trial lawyer's performance was deficient because they would have conducted the defence differently.
Third, the appellant must demonstrate that counsel's ineffective representation caused a miscarriage of justice. A miscarriage of justice occurs if the appellate court is satisfied that counsel's ineffective representation undermined the appearance of the fairness of the trial, or the reliability of the verdict. A verdict is rendered unreliable where the appellant demonstrates that had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different: G.D.B., supra, at pp. 298-99; Joanisse, supra, at pp. 62-64. The allegations of ineffective representation on this appeal do not go to the fairness of the trial process, but to the reliability of the result. The appellant says he was convicted because of the serious shortcomings in counsel's representation of him.
[7] The test has been expressed more recently, and more succinctly, in R. v. Eroma, 2013 ONCA 194, at paragraph 4:
…the appellant must demonstrate:
(1) the facts that underpin the claim of ineffective assistance, on a balance of probabilities;
(2) the incompetence of trial counsel's representation; and
(3) that a miscarriage of justice resulted from the incompetent representation at trial.
[8] I have already denied this application pursuant to the Arabia test because I concluded Mr. Embry made competent, professional and tactical decisions regarding Sears' defence. Interestingly, even Mr. Sears did not take issue with Mr. Embry's competence as late as March 11, 2019 (almost two months after findings of guilt). At page 35 of Mr. Sears' affidavit which excerpts an email dated March 11 from Mr. Sears to Mr. Embry:
Look, your way didn't work…and not because you were incompetent. Rather, this judge is not following the case law and he is ignoring the facts of the case. His decision was purely political in nature. He's appeasing the SJW mob that is holding pitchforks and torches. I need to corner this judge in such a way that he thinks twice about what he's doing. We're still going to appeal, so it doesn't matter in the end. But rather, I need to put ON THE RECORD what the risks are of criminalizing what we are doing, and how it is not fair in a multi-ethnic community that one white guy is deciding what people can and can't read. The appeal court will see that, and it may influence them, whether or not it is supposed to have a bearing. I won't blame the judge for it. Rather, my ire will be directed at the Crown, and I will remind the judge that he himself was a Crown, and if as a Crown he felt that the materials were so heinous that a custodial term was in order, he should have proceeded by indictment.
[9] Accordingly, Mr. Sears' application fails the Archer test.
Released: August 22, 2019
Signed: "Justice Blouin"