Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 01 16 COURT FILE No.: Central West Region 998 21 ST2639

B E T W E E N :

HIS MAJESTY THE KING

— AND —

Arkadiusz Buksinski

Before Justice De Filippis

Heard on June 30; July 17 and November 8, 2023 Reasons for Judgment released on January 16, 2024

Counsel: Mr. D Anger, counsel for the Crown Mr. S. Reid, counsel for the accused

De Filippis, J.:

Introduction

[1] After being found guilty and before sentencing, the defendant brought a motion for mistrial on the basis that he required a Polish interpreter. The motion later included a claim that he was ineffectively assisted by counsel. I find that the defendant attempted to game the system [1]. The motion for a mistrial is dismissed. This case will proceed to sentencing.

[2] It has been 31 months since the defendant was charged. His trial took place within eight months of his arrest. The motion for mistrial has been before me for the remaining 23 months. This delay will be explained below. The motion was heard over three days. I received two affidavits and heard from three witnesses: the deponents - the defendant and Ms. Alison McArthur - and Ms. Abigail Topolski.

[3] On February 23, 2022, my reasons for finding the defendant guilty began as follows:

[1] The defendants are charged, in two counts, as follows; that on June 16, 2021, at the City of Thorold, they possessed fentanyl and crystal methamphetamine for the purpose of trafficking. At the time of the events in question, they were inmates, and shared cell number 6, at the Niagara Detention Centre (NDC). A search of that cell by correctional officers resulted in the seizure of 14.5 grams of fentanyl and 18.7 grams of crystal methamphetamine.

[2] There is no dispute that the possession of these amounts of the drugs, in a detention facility, is for the purpose of trafficking. The Defence also waived proof of continuity and nature of the substances. I appreciate these concessions; they do not compromise the defence in any way and allow the court to use its time efficiently.

[3] I find Mr. Buksinski guilty. I find Mr. Mcara not guilty. These are my reasons.

[4] The defendant was represented by Ms. McArthur. On receipt of the verdict, she requested a presentence report. That was ordered and the matter adjourned for sentencing. Before the defendant was taken from the courtroom the Crown advised that, having regard to the offences and the defendant’s criminal record, he would seek a sentence of eight years in custody.

[5] A presentence report dated April 7, 2022, was prepared by Ms. Topolski. The following relevant findings were made:

The offender was born in Poland in 1976 and immigrated to Canada in 1985 at the age of 11 years old. The offender’s highest level of education completed is a high school diploma. He described his experience in school as difficult. He stated that his ADHD symptoms resulted in suspensions due to behavioral issues and that he withdrew from school in grade 10. He later completed his schooling while in a correctional facility and voiced aspirations to the author of the PSR to upgrade his education and attend a post-secondary institution in the field of engineering.

He was employed as a machinist for 10 years however there were multiple interruptions to his employment due to his struggles with addiction. He has not been employed since 2011.

The PSR interview was conducted in person in both English and Polish. The offender specified Polish as his first language.

[6] On March 31, 2022, Ms. Topolski advised the Crown by email that she had interviewed the offender and had been informed of the following information:

The client stated his first language is Polish and he indicated in the interview he believes there was a mistake because he did not have an interpreter. He stated he did not fully understand what was happening because of the language barrier between him and his lawyer. He said because he did not have an interpreter, he was not able to tell his side of the story and also said he was not able to speak to his lawyer. He stated he believes things would have been different if he had a Polish speaking lawyer or interpreter.

[7] The Crown forwarded Ms. Topolski’s message to Defence counsel.

Procedural History

[8] The defendant had his bail hearing on September 20, 2021, with a Polish interpreter for the sureties. A judicial pretrial was held before Justice Calderwood on August 17, 2021. There was no indication in the judicial pretrial notes that an interpreter was needed for the trial. On January 5, 2022, the trial was confirmed before Justice Calderwood. There was no indication that a Polish interpreter was required for the trial.

[9] The defendant was tried on February 10-11, 2022. Judgment was given on February 23. April 11 was set as the date for sentencing. On this date, the defendant advised me that he no longer wanted to be represented by Ms. McArthur and added that he had not understood his trial because he needed an interpreter. He said that his first language is Polish, and his comprehension of English is “60/40”. I replied that he had not testified at trial and that I was not aware from anything said by him or his lawyer that he had any difficulty in following the proceedings. I adjourned the case to June 8, 2022, and directed that a Polish interpreter be present. This interpreter has been present for all appearances related to the mistrial motion and the motion itself.

[10] On June 8, the defendant again asserted that he did not fully understand his trial. Having read the presentence report, I noted that the defendant has 50 convictions. I asked if he had the assistance of an interpreter in the past. He replied that most convictions followed guilty pleas and he did not need an interpreter for those proceedings. He asked for time to consult with duty counsel before deciding whether he should waive solicitor client privilege in aid of a motion for a mistrial.

[11] The matter returned before me two days later. With the assistance of duty counsel, the defendant was issued another legal aid certificate. The case was adjourned to June 30, 2022. Mr. S. Reid was retained by the defendant. November 4, 2022, was fixed as the date for a motion for mistrial. Shortly before the return date, Defence counsel advised that he would not be ready to proceed with the motion due to difficulties in obtaining instructions from his client owing to language barriers, poor phone quality at the jail and the fact the defendant had been transferred to a facility in Windsor, Ontario. I granted the adjournment, and the matter was adjourned to November 14 to set a new date. This was not done as Defence counsel was not ready to estimate the length of the motion, having just received the casefile from former counsel, Ms. McArthur. I expressed concern about the delay in this matter and adjourned it to January 24, 2023.

[12] On January 24, there was another delay. Defence counsel advised that he needed to obtain approval from Legal Aid Ontario for additional funding for 10 hours for an interpreter so he could properly consult with his client. The motion for mistrial was fixed for April 11 and 12, 2023. However, on March 22, 2023, the case was addressed again. Defence counsel had not obtained the extra funding for interpreter services and asked to convert the April 11 mistrial motion to a Rowbotham application to obtain the funding. I declined to do so. I said I would not force Mr. Reid to proceed if he felt he was not prepared but that the motion or sentencing would proceed with or without counsel. I ordered that Ms. McArthur appear on that date for examination.

[13] On April 3, 2023, Legal Aid Ontario informed Defence counsel that it had approved the extra funding for 9 hours of interpreter services in preparation for the motion for mistrial. The solicitor and client meetings could not occur in time for the motion. In these circumstances I reversed my earlier order that if the motion did not proceed, a sentence hearing would. The matter was adjourned, again, to June 30 and July 5, 2023. Mr. Reid advised that the basis of the motion might be expanded from one based on the lack of an interpreter to also include ineffective assistance of counsel. July 5 was cancelled due to the unavailability of Ms. McArthur. The motion continued on July 17 and November 8, 2023.

The Issues

[14] The Defence factum begins with this statement of the case:

The Applicant, a native Polish-speaker with limited capability in English, was convicted after an English-language trial at which he did not have the benefit of an interpreter to help him understand the proceedings or prepare for them. The lack of an interpreter precluded the Applicant from participating in his trial and rendered the proceedings unfair. A miscarriage of justice resulted.

Additionally, the Applicant was not given a choice about whether or not to testify. This decision was made by his then counsel. Any discussions between the Applicant and his then counsel concerning the trial were perfunctory, sporadic, in English without the benefit of an interpreter, and without the benefit of the Applicant having reviewed the disclosure. The Applicant was told by his then-counsel that he did not require an interpreter unless he testified at his trial. His then-counsel then made the decision about whether or not he would testify for the Applicant.

The only remedy which can cure the defects in the trial is to declare a mistrial and set a new trial, at which the Applicant has the benefit and assistance of an interpreter.

[15] In cross-examination of trial counsel and in submissions, the Defence expanded the ineffective assistance claim to include factors beyond the decision about testifying.

Legal Framework

[16] That I have the jurisdiction to hear this motion is not controversial. A trial judge is not functus officio in a trial without jury until sentence has been imposed or the case she otherwise finally disposed of: R. v. Lessard (1976).

[17] Section 14 of the Charter of Rights and Freedoms provides as follows:

“A party or witness in any proceeding who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.”

[18] In a criminal trial, Defence counsel is called upon to make many decisions. Some decisions, however, belong to the client. These fundamental decisions include, how to plead, whether to waive the right to a jury trial (where that option is available), and whether to testify. In R v Trought, 2021 ONCA 379, the Court of Appeal for Ontario said,

[50] With respect to these fundamental decisions, ones that belong to the client, all the lawyer can do is provide advice and act on proper instructions. But that advice must be competent. As Doherty J.A. said in K.K.M., at para. 91:

An accused is denied his right to choose whether to testify when counsel actually makes the decision, or when counsel provides no advice or advice that is so wanting, as to preclude the accused from making a meaningful decision about testifying. In those situations, counsel’s ineffective representation denies the accused the right to make a fundamentally important decision about the conduct of his defence. That denial goes to the appearance of the fairness of the trial, if not the actual fairness of the trial. Either results in a miscarriage of justice, regardless of the impact of the ineffective representation on the reliability of the verdict….

Evidence

Affidavit of the defendant

[19] The defendant’s affidavit includes the following assertions:

He was born in Poland where he lived there until he was eleven years old, when he immigrated to Canada. His primary language is Polish. His capability in English is limited.

He has a criminal record. His previous lawyer was also a native Polish speaker and also ensured that an interpreter was ordered for his court appearances. His previous counsel would conduct meetings with him Polish so that he could understand the advice he was being provided.

He repeatedly requested that his trial counsel, Ms. McArthur, provide him his disclosure to review at the jail in preparation for trial. Only some portions were provided.

He met with his trial counsel at the jail on three occasions before trial, the last of which was a full three months before the commencement of the trial. Following the first day of trial, February 10, 2022, trial- counsel visited him at the jail. In addition to these in-person meetings at the jail, he had a number of phone conversations with his trial counsel.

None of these meetings were with the benefit of a Polish interpreter. The only discussion he had with his trial counsel about interpretation services is when she advised him that he would only require an interpreter if he chose to give evidence.

At trial, he did not understand the proceedings. He found it difficult to follow the evidence, although his trial counsel assured him that the evidence was coming out favourably for him.

Given that his trial counsel told him the evidence was favourable, he did not object when she announced to the court that she would not be calling any evidence on his behalf.

He never told his trial counsel that he did not wish to testify. The only discussion he had with his trial counsel about this issue was to the effect it was only if he testified that an interpreter would be required. He was not asked by his then-counsel if he wanted to testify and did not receive advice from her about whether or not he should testify.

On November 9, 2021, he pleaded guilty to drive disqualified and fail to comply and was sentenced to 10 months in jail and a five-year driving prohibition. To ‘his own recollection’ a Polish interpreter was not ordered for that proceeding.

Affidavit of Alison McArthur

[20] Ms. McArthur’s affidavit includes the following assertions:

She spoke in person and by phone with the defendant on many occasions. These meetings are set out in the docket of hours spent on the file which is attached to the affidavit. She met with the defendant at the detention centre on ten occasions in the eight months leading up to his trial. At no point during these conversations, did the defendant state he was unable to understand English sufficiently or request an interpreter.

She had no reason to believe that the defendant required an interpreter. She knew that while he was born in Poland, he immigrated to Canada as a child. Her impression during her conversations with the defendant was that he had a good understanding of English and actively engaged in their discussions about evidence and her legal advice. Moreover, she had never had language concerns during her previous dealings with the defendant [re other charges].

The defendant was not assisted by an interpreter at his lengthy, contested bail hearing in September 2021. He participated in an on-record plea inquiry and made statements to the sentencing judge at his guilty plea in November 2021 [re other charges].

She denies she told the defendant he only needed an interpreter if he intended to testify. If he had told her he needed an interpreter, she would have arranged for this, regardless of whether he intended to testify.

The defendant was informed about his elections as to mode of trial. He replied that he wanted a trial as soon as possible and elected trial in the provincial court. This election was put on the record on September 3, 2021, in the (virtual) presence of the defendant.

She met with the defendant at the detention centre after the first day of the trial to obtain instructions about whether he would testify. He asked her opinion. She replied that it was his choice but, in her opinion, the disadvantages outweighed the advantages because his criminal record would detract from his credibility and he would be cross-examined by two experienced lawyers, the Crown and counsel for the co-accused. She also told the defendant she was concerned about allegations he had arranged for the co-accused to be assaulted by other inmates to intimidate him into taking responsibility for the drugs seized in the cell they jointly occupied. The defendant told her the evidence was “good the way it is, let’s leave it”.

Before the defendant was found guilty, he told her that he was pleased with her advocacy and the way the trial had gone. However, two days after the verdict, he fired her. Two months later, in April 2022, was the first time the defendant raised the issue of needing an interpreter. He did so in the letter which is attached as exhibit to affidavit.

[21] The letter sent by the defendant to Ms. McArthur, and referenced in the affidavit, is written on a birthday card. On the front is picture of presents and balloons with the words “happy day”. However, at the word birthday is crossed out and replaced with Easter, such that it ends with “happy Easter”. In handwritten script, the following is contained inside the card:

I needed some time to fully translate and comprehend all the evidence. My apology for my action, you always showed me respect, please find a way to forget or forgive me. I was just overwhelm (sic). I was under the impression I was going home. Not fully understand of English I was ashamed to tell you my understanding is 60/40. I didn’t want you to think any less of me. Now I have Polish-English dictionary. I wish I had the opportunity to take back time but it is what it is. I understand you are a vey buzzy (sic) woman with all you have going for yourself. Once again sorry sorry and thank you very much for all you have done for me and you hard work….I will never be able to re-pay you for it all…

Testimony by the Defendant

[22] The defendant adopted his affidavit as true and correct, except for an error with respect to a date in paragraph 16. He testified that he is 47 years old and came to Canada with his mother at the age of 11 in 1986 to be re-united with his father. He started school in grade six and dropped out in grade 10 because he has ADHD and could not concentrate. He worked as a machine operator at a company in which 85% of the employees were Polish. His financial affairs were conducted at a bank with Polish speaking staff. When needed, his sister, who is bilingual, assisted him in dealing with other institutions.

[23] The defendant used the same Polish speaking lawyer for his six convictions between 1994 and 1998. All were guilty pleas. This lawyer reviewed disclosure with him and explained his trial options, the Crown position with respect to sentence, and the facts to be admitted. In 2006, the defendant pleaded guilty to five charges in Calgary. He believes he was assisted by duty counsel. This lawyer did not speak Polish. However, he was able to understand the proceedings, without an interpreter, because he understood “a little English” and recognized that the Court process was just as it had been explained to him by his former Polish speaking lawyer. In 2007 and 2008, he pleaded guilty to seven charges in Belleville and Napanee, including robbery and armed robbery. He was represented by a female lawyer who only spoke English. Again, no interpreter was used in Court. He was able to talk to his lawyer before the guilty pleas with the assistance of a Polish speaking friend. In the subsequent 32 convictions until 2021, with sentences that included a penitentiary term, he was assisted by an interpreter for a few matters and did not have one to discuss the cases with his several English-speaking lawyers. The defendant again explained that he was able to understand the proceedings because these were guilty pleas and he relied on his previous experience with the initial Polish speaking lawyer.

[24] According to the defendant, Ms. McArthur did not review all disclosure with him. She did not explain his right to a preliminary hearing. He did not understand what this was until Mr. Reid explained it to him. The defendant did not instruct Ms. McArthur to elect trial in the Ontario Court of Justice. He did not tell her he did not want to testify. He was never shown the unsigned written instructions to the contrary. Ms. McArthur did not explain the benefits and risks of testifying in his own behalf. There was only one discussion about testifying, after the first day of trial. The defendant asked Ms. McArthur if he could have an interpreter and she said he would only need one if he testified. He understood about 45% of the trial and added that he did not insist on an interpreter because Ms. McArthur at this trial as she said everything looking good and he would be going home.

[25] The defendant explained that he was able to compose the Easter card to Ms. McArthur, referenced above in the summary of her affidavit, with the use of a Polish- English dictionary. He added that he had calmed down since firing her and wanted her to know that all was fine.

[26] The following Christmas, the defendant sent another letter to Ms. McArthur. It contains a drawing of a Doberman Pinscher dog with writing on either side. On the left side are these words: “The kings fury is like a lions roar; To rouse his anger is to risk your life”. The word “life” is underlined twice. On the right side are these words: “All the best holiday...wishe...and Happy New Year”. The defendant testified that wrote the words on the right side and does not know what the words on the left side mean. He cannot say if the words are threatening. He explained that someone else drew the dog and wrote the words on the left side. He cannot say why the Doberman breed was chosen. He cannot recall the identity of the person who did this.

[27] The defendant conceded that he sent a season’s greetings card to Ms. McArthur before the trial in question began, while she was still his lawyer, in which he wrote the following: “Thank you for maintaining enthusiastic envolvement (sic) in every prolong struggle I present but with full confidence I trust I know I’m in good hands”. In response to the Crown’s request, he read the words to the Court. When pressed on how he wrote the words without the Polish-English dictionary he said another inmate wrote it. When asked why involvement was misspelled as envolvement, he replied that the inmate must have made a mistake in writing it or he [the defendant] did in re-writing it.

Testimony by Ms. McArthur

[28] Ms. McArthur was called to the Bar four years ago. Her practice is in criminal law and mostly by way of legally aided clients. She adopted her affidavit as true and correct and provided additional details.

[29] The defendant is one of Ms. McArthur’s first clients. Until she was discharged in the present case, she continuously represented him with several matters before the court. The defendant was her favourite client. She added that he often called her from the jail and that in this two-year period she always spoke to him in English. She had no difficulty understanding him and had no concern about his ability to understand her. At no time did the defendant express such a concern or ask for an interpreter. Indeed, the defendant did not mention an interpreter when he fired her. The first time she became aware of this subject was when she received the Easter card from him, and he said he was ashamed to admit his understanding of English was 60/40.

[30] Ms. McArthur explained that her written instructions conclude with “Not signed – COVID”. She noted this on the document as she could not pass it to the defendant because of the COVID protocols in place. Instead, she read it to him.

[31] In preparing for the trial, Ms. McArthur visited the defendant at the Niagara Detention Centre several times. She reviewed the disclosure with him, discussed the strength of the case, and the advantages and disadvantages of testifying. The latter was revisited after the first day of trial. The defendant said he did not want to testify because he did not want the Court to know about his criminal record. Ms. McArthur agreed with this decision given his numerous convictions for crimes of dishonesty.

[32] After the verdict was given at the trial in question, Ms. McArthur visited the defendant in the cells to explain and discuss the possibility of an appeal. The defendant was angry. He said the verdict was unfair and added that he did not trust her and did not want her to be his lawyer. He stood up, slammed the phone down, cursed her and left. Ms.Arthur was upset by this. At no time during this exchange, did the defendant say he did not understand the proceedings or needed an interpreter.

[33] The cross-examination of Ms. McArthur was prepared and thorough. I need not review all of this because part of the challenge to Ms. McArthur is based on the defendant’s version of events. As I will explain, I reject his evidence on the material points at issue. In addition, the challenge to Ms. McArthur also considered best practices for trial preparation and advocacy. Much, not all, of the cross-examination reflects the different approach Mr. Reid might have taken had he been trial counsel. As I will explain, I am satisfied that the approach taken by Ms. McArthur meets the standard for effective assistance of counsel.

[34] Ms. McArthur conceded, because of her long and good relationship with the defendant, she was not as careful as she should have been in following best practices. There was much sparring between Mr. Reid and Ms. McArthur about why she did not ask the defendant for his version of events. Ms. McArthur explained that she did not want to know if the drugs belonged to her client as if would compromise her defence of him; if the defendant admitted possession, she could not ethically point the finger at the co-accused [as she did at trial]. Mr. Reid questioned how she could properly prepare the defendant for testimony without knowing his version of events. Ms. McArthur replied that there would be no need since the defendant had said he did not want to testify. The parties continued to spar over when this decision had been discussed and made.

[35] Ms. McArthur did not ask the defendant if he needed an interpreter because there was no reason to do so. They understood each other well. Over the objection of the Crown who complained about the lack of notice, I allowed Mr. Reid to play a recent audio recording of an interview with the defendant by one of his associates. The defendant is asked many questions about his background.

[36] The recording was paused after the first minute and Ms. McArthur was asked if she recognized the voice of the defendant. She replied that she could not say as she has never heard him speak this way. The balance of the recording was played. The defendant speaks with a strong accent and does not understand some of the questions. For example, he does not understand “how did you get to and from your place of employment” but does understand “do you have any children or dependants”. He does not understand, “Is Veronica the oldest”, but does understand, “what about your eldest son, is he going to school”. He does not understand “is there anything else on your mind”.

[37] When asked to comment, Ms. McArthur, visibly upset, said;

This is very heavily accented, and he barely speaks English. This is ridiculous. I have never heard him speak like this before. He is absolutely playing up for this recording. This is not how he speaks.

[38] Audio recordings of two Court appearances by the defendant were located by the Crown and put to Ms. McArthur. The first one played to her is his appearance before me on April 11, 2022, when the defendant advised me he had fired Ms. McArthur and that he did not fully understand his trial. Ms. McArthur noted that the defendant has an accent but not as strong as that in his recent interview with Mr. Reid’s associate. She testified that neither recording reflects her appreciation of the defendant’s ability to speak and understand English.

[39] The second recording played is first in time; the guilty plea to driving while disqualified and failure to comply with a court order, before Justice Watson, on November 9, 2021, three months before the trial that is the subject of the present motion. The defendant was sentenced to 10 months in jail and subjected to a five-year driving prohibition. Ms. McArthur was his lawyer. There is no Polish interpreter. The defendant speaks English with a minor accent. He appears to understand the proceedings. Ms. McArthur testified that this recording accurately reflects the defendant’s ability to speak and understand English.

[40] The audio recordings dated November 9, 2021, and April 11, 2022, had not been put to the defendant when he testified. They were searched for and played in response to the recent recording put to Ms. McArthur in cross-examination. The parties agreed that the defendant should be given the opportunity to re-take the stand and comment on these recordings. At the next date fixed to continue this motion, I was advised he elected not to do so.

Testimony by Ms. Topolski

[41] Ms. Abigail Topolski is the author of the presentence report in this case. She had been assigned to the case after a colleague had visited the defendant at the detention centre to interview him, only to be told by the defendant that he needed a Polish speaking probation officer. Ms. Topolski interviewed him and is of the opinion that he is fluent in English and Polish. She said that 85% of the interview was in English. She noted that the limited conversation in Polish concerned the defendant’s complaints about the institution and added that a correctional officer stood nearby. Ms. Topolski had no difficulty understanding the defendant in either language. She does not recall any accent when he spoke English. On her return to the office, she questioned her manager about why she had been sent to interview the defendant as a Polish speaking probation officer as he had no difficulty with English.

Defence Submissions

[42] It is submitted the defendant’s trial was rendered unfair by the failure of his trial counsel to ensure his language rights were protected. This failure infected all aspects of the trial process by limiting the defendant’s ability to communicate with counsel and meaningfully participate in the trial. It is said that the defendant’s inability to fully comprehend the testimony against him.

[43] Defence counsel concedes that I might be skeptical of the defendant’s claim that he needed an interpreter. However, counsel argues that I should reject the testimony of Ms. McArthur as an unreliable, if not incredible witness, and conclude that the defendant’s claims have merit. In this regard, it is submitted that Ms. McArthur’s emotional reaction to the audio recording of the recent interview between the defendant and Mr. Reid’s associate amounted to posturing. It is also argued that I should not accept the evidence of the probation officer as she was helping the Crown’s case.

[44] The Defence asserts that Ms. McArthur also otherwise failed to provide effective assistance as counsel to her client. This submission is bolstered by trial counsel’s file, especially the dockets which show of 100 minutes of conversations with the Applicant spread out over the course of four months and ending more than three months before the trial.

[45] The Defence asserts that Ms. McArthur did not properly review disclosure with the defendant or tell him about his election as to mode of trial and obtain instructions about testifying. Counsel is especially critical about the latter point:

It is, respectfully, simply inconceivable that trial counsel would have approached the trial without preparing the Applicant to testify unless trial counsel already knew that she would not be calling him to give evidence. If, however, she already knew that he would not give evidence well in advance of the trial, then one of only two conclusions must be drawn:

There was a discussion in advance of the trial at which the Applicant provided his trial counsel with informed instructions that he would not be testifying in his own defence; or

Trial counsel herself made the decision that she would not be calling her client to testify.

If the client provided advance instructions that he would not be testifying, one would expect those instructions to be in trial counsel’s file, and to not be dated the first day of the trial. There are no such instructions.

Furthermore, if the Applicant made such a decision, then it would have been made before hearing any testimony. If that were the case, it would have made no sense to write in the Written Instructions that “after hearing the evidence presented against me” I have decided not to testify. Those “instructions” clearly imply that the decision was made at the trial after hearing the evidence.

Crown Submissions

[46] The Crown submits that the defendant’s contention that he could not meaningfully communicate with his lawyer and understand the trial should be rejected. The late emergence of this assertion is suspicious and self-serving. Moreover, it is at odds with all other facts in this case. Counsel adds that the claim he could not understand English enough to meaningfully participate in his trial stands in stark contrast with the autobiographical information he has provided in his affidavit. His claim is also in marked conflict with the evidence of Ms. McArthur. It is not contested that she represented the defendant for two years, including a prior trial and guilty plea. This was all conducted in English. The Crown also relies on unchallenged testimony by Ms. McArthur that the only time the defendant said he required an interpreter was after he was found guilty, and the Crown stated he was seeking an eight-year sentence. Counsel adds that the defendant’s vested interest in making these assertions now in “the cold light of conviction” should be contrasted with the lack of any discernable benefit Ms. McArthur would have had by ignoring the need for an interpreter.

[47] The Crown submits that the contrast between the defendant’s ability to understand and communicate in English in the audio record of proceedings on November 9, 2021, on the one hand, and the audio record of his recent interview with Mr. Reid’s associate demonstrates that the latter was a performance. Lastly, on this issue, the Crown argues that the testimony of Mr. Topolski is fatal to the defendant’s claim.

[48] With respect to the second claim, the Crown asserts that there is no believable evidence that Ms. McArthur was incompetent. The affidavits filed and the testimony of establish that Ms. McArthur reviewed disclosure, sought missing items, discussed the case with her client, prepared for trial, and discussed trial strategy with him. Counsel adds that Ms.Arthur was alive to the fact that this was a “cutthroat defence” and if he testified, the defendant would be cross-examined by two experienced lawyers. In these circumstances, it was not unreasonable to advise the defendant not to testify and not to prepare him for testifying when he agreed with her advice.

[49] The Crown argues that the defendant acknowledged Ms. McArthur’s professionalism and hard work in the Easter card he sent her. In that letter, in addition to conveying to his post-conviction assertion of linguistic difficulties, the defendant repeatedly told her that he is sorry and asked her to forgive him, concluding with the words, “I will never be able to repay you for it all. . .”

Analysis

Right to an Interpreter

[50] The Supreme Court of Canada in R. v. Tran, 1994 S.C.J. No. 16 set out the framework to determine whether there has been a breach of the right to an interpreter, as guaranteed by s. 14 of the Charter. First, it must be clear that the accused needed interpreter assistance. Courts have an independent responsibility to ensure that those who are not conversant in the language being used in court understand and are understood. Unless the issue of interpretation is only being raised for the first time on appeal and/or there is some question as to whether the right is being asserted in bad faith, establishing “need” will not normally be an onerous step (para. 42). Second, the claimant of the right must show, assuming it is not a case of a complete denial of an interpreter but one involving some alleged deficiency in the interpretation actually provided, that the standard of interpretation fell below the requisite standard being continuity, precision, impartiality, competency and contemporaneousness (para 43). Third, the claimant must establish that the alleged lapse in interpretation occurred during the proceedings themselves when a vital interest of the accused was involved (para 44).

[51] The party asserting a violation of one of the three steps above must prove the claim on a balance of probabilities. If this is established, the Court will conclude that s. 14 has been breached, unless the Crown, again on a balance of probabilities, shows there was a valid and effective waiver of the right which accounts for the lapse in (or lack of) interpretation shown to have occurred (para 45).

[52] The present case is one in which the claim is that there was a complete denial of the right to an interpreter. In this regard, I note these additional comments in Tran about the obligation on the courts with respect to s. 14:

While courts must be alert to signs which suggest that an accused may have language difficulties, they are not, nor can they be expected to be mind readers. Where there are no outward indications which point to a lack of understanding on the accused's part and where the right has not been invoked by the accused or by counsel (in the case of represented accused), these may be factors which are weighed against the accused if, after sitting quietly throughout the trial, the issue of interpretation is suddenly raised for the first time on appeal.

Ineffective Assistance of Counsel

[53] I accept that the following statement of the law as set out by Defence counsel:

When counsel’s advice is not competent, it effectively deprives the accused of one (or more) of their meaningful / fundamental decisions. That denial goes to the appearance of the fairness of the trial. In some cases, it affects the actual fairness of the trial. Either scenario results in a miscarriage of justice regardless of the impact of the ineffective representation on the reliability of the verdict: R. v. Trought, 2021 ONCA 379 at paras. 47 – 50.

Counsel’s failure to discuss and obtain informed instructions on fundamental decisions may raise questions of procedural fairness and the reliability of the result leading to a miscarriage of justice. The accused must, in most cases (but not all) further demonstrate that there was a reasonable possibility that they would have acted differently.: R. v. White, 2022 SCC 7.

In cases where the ineffective assistance of counsel claim is rooted in the failure of counsel to obtain an interpreter for the client during the proceedings, it is submitted that there is no requirement to establish a “reasonable possibility” that they would have acted differently. The entirety of the trial is infected by the inability of the defendant to understand the proceedings, including his pre-trial discussions with their counsel. Indeed, Tran found that the “very legitimacy of the justice system in the eyes of those who are subject to it is dependent on their being able to comprehend and communicate in the language in which the proceedings are taking place. Tran, supra, at para. 35.

[54] In addition, I am guided by the Court of Appeal for Ontario in R v Ilunga 2023 ONCA 471, as follows:

This ground of appeal falls to be evaluated within the well-established framework for claims of ineffective assistance of counsel, which was summarized by this court in R. v. Chica, 2016 ONCA 252, 348 O.A.C. 12, at para. 7:

The appellant faces a high hurdle in attempting to demonstrate ineffective assistance of trial counsel. For an appeal to succeed on this ground, the appellant must establish the following: i) the material facts underlying the allegation, on a balance of probabilities; ii) that counsel’s acts or omissions constituted incompetence, measured on a reasonableness standard and in light of a strong presumption that trial counsel’s conduct fell within the wide range of reasonable professional assistance (the “performance compon­ent”); and iii) that counsel’s ineffective representation caused a miscarriage of justice by resulting in procedural unfairness or undermining the reliability of the verdict (the “prejudice component”). [Citations omitted.]

An accused is denied his right to choose whether to testify not only when counsel actually makes the decision, but also when counsel provides no advice or advice that is so wanting as to preclude the accused from making a meaningful decision about testifying: K.K.M., at para. 91; Trought, at para. 50. Advice to an accused about whether to testify should include a review of the advantages and disadvantages of testifying, using language the accused understands: R. v. D.A., 2020 ONCA 738, 396 C.C.C. (3d) 151, at para. 33. The form and content of such a review will vary from case to case: in some cases, a brief, skeletal discussion may suffice; in others, a more lengthy, detailed review will be required: D.A., at para. 33.

Credibility and Reliability of the Evidence

[55] The defendant has an extensive criminal record, including crimes of dishonesty. It is appropriate that I be cautious in assessing his credibility. However, quite apart from this fact is the evidence before me on the motion. It drives me to the conclusion he attempted to mislead me about his ability to understand and communicate in English and about the advice received and instructions given with Ms. McArthur in preparation for trial and at trial.

[56] Perhaps, it is best to begin with the late complaint. At no time, in the numerous appearances, in the months leading up to this trial, did the defendant express any concern about his ability to understand the proceedings or request an interpreter. The assertion was made for the first time after he was found guilty. In these circumstances, the merit of the claim is properly suspect.

[57] There are inconsistencies in the defendant’s account of what he told his trial counsel. In his affidavit and in testimony he insisted he told her he needed an interpreter. However, in the Easter card, he explained why he had never told her about this, namely, that he was ashamed to do so. This is the card, written shortly after he fired her, in which he expressed his gratitude to her and repeatedly told her he is sorry. His testimony, when confronted by this, is that he was thanking for her work on prior cases. In the circumstances, this makes no sense. Her prior work, including a trial, was also conducted without an interpreter. I accept the Crown’s submission that the defendant is apologizing to a lawyer he did have confidence in but threw under the bus to advance a bogus claim. In this regard, I note that at the time he sent the card the defendant had asserted a claim that he needed an interpreter. The ineffective assistance of counsel claim came later, after Mr. Reid was retained.

[58] The defendant’s extensive criminal record includes Indictable offences. He would have me believe that, until Mr. Reid was retained for this motion, in all those years before the courts, he did not know what a preliminary hearing is. Yet, he testified that the Polish speaking lawyer who represented him for his initial criminal proceedings, explained in their common language, trial options, among other matters.

[59] If the defendant is to be believed, the several English only speaking lawyers he used from 1998 until 2019 all failed in their professional duties because they conducted themselves in the way Ms. McArthur did; they spoke to him and represented him in Court without a Polish speaking lawyer. Of course, there is another explanation; like Ms. McArthur, these lawyers were not told by the defendant that he needed an interpreter, and they did not see the need for one.

[60] The foregoing comments about the credibility of the defendant’s claims allows me to deal briefly with the credibility and reliability of Ms. McArthur. It will suffice to say that she was cross-examined by an experienced and skilled lawyer. She withstood this challenge, while conceding certain mistakes. I also note that her reaction to the audio record of the recent interview between the defendant and Mr. Reid’s associate was not posturing. Her shock was genuine. She had never heard the defendant speak like that. That is because, unknown to Mr. Reid’s associate, the defendant was putting on a performance. I have confidence in the evidence given by Ms. McArthur.

[61] Finally, there is nothing to support the allegation by the Defence, that Ms. Topolski’s testimony is tainted by her partiality to the Crown. She was sent to conduct an interview with a man who said he needed a Polish interpreter. She found a man who was fluent in both languages and spoke mostly in English. Afterward, she told her manager there was no need for her to have been sent. Nevertheless, she reported to the Crown that the defendant said he did not understand his trial because of his difficulty in English. I have confidence in this witness.

Conclusion re Need for Interpreter

[62] The defendant did not tell his trial lawyer or the Court that he wanted an interpreter until after he was found guilty. There was nothing on the record to reveal such a need. The defendant’s late assertion that he required an interpreter is not true. That his performance in the recent interview with Mr. Reid’s associate was intended to promote this false claim is exposed by a comparison of that audio record with the earlier record of proceedings when he pleaded guilty and was sentenced by Justice Watson. The testimony by Ms. Topolski confirms the defendant understands and can communicate effectively in English.

Conclusion re Ineffective Assistance of Counsel

[63] For the reasons already stated, the defendant’s evidence cannot be believed or relied upon to support the claim that Ms. McArthur did not provide proper assistance as counsel. I accept Ms. McArthur’s evidence to the contrary. She devoted much more than 100 minutes in speaking to the defendant but did not docket all this time as it was not billable. She reviewed disclosure with her client, explained his election as to mode of trial and discussed the advantages and disadvantages of testifying. I am confident the defendant told her he did not want to testify. Ms. McArthur did not take fundamental decisions away from her client. Moreover, the strategic decisions trial counsel made were reasonable given that this was a case in which she sought to raise a doubt by pointing the finger at the co-accused and that the defendant decided not to testify. Ms. McArthur properly advanced her client’s case.

[64] Ms. McArthur’s long and good relationship with the defendant caused her to avoid some best practices. I do not find that this compromised her client’s defence. In addition, Ms. McArthur should have obtained written instructions well in advance of trial. Her failure to do so does not trouble me because I accept that she did perform the professional duties about which she was challenged. Nevertheless, it is worth remembering what the Court of Appeal for Ontario said in Ilunga, supra:

In R. v. W.E.B., 2012 ONCA 776, 366 D.L.R.(4th) 690, aff’d 2014 SCC 2, [2014] 1 S.C.R. 34, this court recognized that the failure to obtain written instructions is a question of professional prudence, not incompetence, but noted that the failure to do so is “ill-advised and contrary to counsel’s best interests”: at para. 10.

The lawyer who fails to obtain written instructions risks exposure to unfounded allegations of unprofessionalism. And although not indicative of ineffectiveness itself, the failure to obtain instructions may undercut trial counsel’s attempts to defend against claims of ineffectiveness.

The failure to obtain written instructions also makes it more difficult for an appellate court to adjudicate claims such as the one advanced on this appeal. Written instructions may resolve competing claims on appeal. [Citations omitted.]

[65] The motion for a mistrial is dismissed. The conviction stands. This case will proceed to sentencing.

Released: January 16, 2024 Signed: Justice De Filippis

[1] To be clear, this finding pertains to the defendant, not his lawyer. Mr. Reid acted appropriately, in accord with his professional obligations, in following instructions.