WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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) MANDATORY ORDER ON APPLICATION — 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.
486.6 OFFENCE — (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.
Ontario Court of Justice
Date: October 29, 2024 Court File No.: Toronto 4813 998 20 35001633
Between:
HIS MAJESTY THE KING
— AND —
E.F.
RULING ON MISTRIAL
Before: Justice David S. Rose
Heard on: August 20, 21, 22, September 16, 20, 2024.
Counsel: Ms. Moser............................................................................................. counsel for the Crown Ms. Mamo.................................................................................. counsel for the accused E.F.
Rose J.:
Overview
[1] Mr. E.F. was found guilty of sexual assault, and assault, on July 28, 2023. He then applied for a mistrial on the basis of ineffective assistance of counsel. On September 20, 2024 I dismissed the application, reserving the right to deliver written reasons. These are the written reasons.
[2] This case has a long and procedural history which provides a necessary backdrop. On July 28, 2023 I found E.F. guilty of sexual assault and assault. That finding was made after a 2 day trial in which the Crown called the complainant, and E.F. testified in his own defence. There were no other witnesses and there were no pre-trial motions. The case was put over for sentencing and a pre-sentence report was ordered.
[3] On September 20, 2023 E.F. appeared with new counsel Mr. Posner and trial counsel withdrew. I was told at that time that Mr. Posner needed to review the trial transcripts in order to advise E.F. The Crown has been in a position to proceed to sentencing since then and the Court has been in a position to receive sentencing submissions since then. On September 20, 2023 counsel waived E.F.’s 11(b) rights between then and the new sentencing date.
[4] On November 8, 2023 defence counsel advised that E.F. wished to bring a post-conviction Application for production of third party records under s. 278.3 of the Criminal Code. That Application was formalized in writing on November 17, and a Memorandum of Law provided December 7. The originally scheduled date for the post conviction 278.3 hearing could not go ahead because one of the lawyers was unwell, and the case went over to a date in February 2024 for argument.
[5] By February 6, 2024 the defence had filed a new lengthy Application for a mistrial (NOAforM) with a claim of ineffective assistance of counsel. Notably, it contained an Affidavit from E.F. wherein he referred to sexual history between himself and the complainant. E.F.’s February 1, 2024 affidavit in support of his mistrial therefore has evidence of past sexual conduct. I raised this with the parties, with the result that the defence then applied under s. 276 (NOA276) of the Code to admit that evidence at the mistrial application.
[6] On March 4, 2024 E.F. abandoned his third party records application under s. 278.3, although during argument on the mistrial application counsel sought to renew it. The Crown advised that they were proceeding on the basis that the post-conviction third party records application was abandoned. I ruled that nothing had been done to advance or renew the abandoned third party records application and it was too late in the proceedings to go back and start it anew.
[7] On June 1, 2024 Ms. Moser conceded that E.F.’s NOA276 to admit prior sexual history passed the threshold test at Stage 1 under S. 278.93(4). After hearing argument at Stage 2, on August 1, 2024 I dismissed the post conviction s. 276 Application and the mistrial application proceeded on the basis of E.F.’s affidavit with the assertions of past sexual contact redacted.
Fresh Evidence
[8] I was told on February 12, 2024 that E.F. waived his lawyer client privilege with respect to his representation by trial counsel in this matter, and had provided a signed waiver to the Crown. Trial counsel provided a reply affidavit dated August 14, 2024.
[9] E.F.’s affidavit on the NOAforM seeks to introduce fresh evidence post conviction. That material speaks to his relationship with his initial trial counsel (TC), and his own defence. Aside from the new evidence new counsel scrutinizes trial counsel’s performance as part of this Motion with a view to establishing the requirements of a mistrial.
[10] At this application E.F. was cross examined on his affidavit. Trial counsel also testified. Various text messages between E.F and his trial counsel were introduced during the course of the application.
The Test for a Mistrial
[11] The test for mistrial during the course of a bench trial is commonly when there is a real danger that trial fairness has been compromised, and in order to avoid a miscarriage of justice, see R. v. G.C. 2018 ONCA 392, R. v. Khan 2001 SCC 86. It is axiomatic that in bench trials the judge can disregard inadmissible and prejudicial evidence and information which has been put before the Court. It is possible but rare to mistry a judge-alone trial for that reason. One reason for a mistrial is the inability of the defendant to make full answer and defence without possible remedy, see Khan (supra). It is a remedy of last resort, see R. v. Donnelly 2023 ONCA 243 at par. 16. In recent years ineffective assistance of counsel has been a more commonly argued ground for a mistrial. In that context, viz mistrials for ineffective assistance of counsel, the Court in G.C. (supra) said:
4 We disagree that the same test to assess ineffective assistance claims on appeal should apply at trial. An incompetence of counsel claim, brought during the course of a trial, should be approached within the principled framework for mistrial applications. Bearing in mind the unique dynamics of each trial, judges need to be left with a broad discretion to manage the trial process. A mistrial is a remedy of last resort, and it falls squarely within the discretion of the trial judge who is in the best position to assess whether such a remedy is needed in order to avoid miscarriages of justice. No new test is required.
emphasis added
[12] The requirement that ineffective assistance of counsel created a miscarriage of justice also includes a component that the trial verdict would have been different, see R. v. Dunbar 2003 BCCA 667, R. v. Mulumba 2022 ABCA 104. In other words, if the trial result would be different were it not for the ineffective assistance of counsel there is a miscarriage of justice. Wrongful convictions are not to be countenanced.
[13] There is no strict, all encompassing, definition for the test of miscarriage of justice. For present purposes I take the test to mean something substantial speaking to the heart of the administration of justice in the eyes of the reasonable objective observer. It is a high bar. As Rouleau JA summarized in R. v. Spiers 2012 ONCA 398 at par. 32:
An appearance of a miscarriage of justice requiring a new trial exists "if the irregularity would be such as to taint the administration of justice" in the eyes of a reasonable and objective observer. "We must look at whether a well-informed, [page12 ]reasonable person considering the whole of the circumstances would have perceived the trial as being unfair or as appearing to be so": para. 73. Also see R. v. Cameron (1991), 2 O.R. (3d) 633 (C.A.).
Emphasis added
[14] Rouleau JA was referring to the legal requirement of miscarriage of justice within the language of s. 686 in the Code, and not a mistrial application as such, but I find that in law the tests are similar if not the same.
[15] There is a second limb to the claim of ineffective assistance supporting a mistrial – overall trial fairness. R. v. Nnane 2024 ONCA 609 is a recent example of that. In Nnane the case against the appellant was overwhelming, but the Court of Appeal ordered a new trial because trial counsel undermined his own client’s evidence during examination in chief, and then during the closing argument would not endorse his client’s position. He failed to advance the defence during the evidence phase and closing submission. This resulted in the appellant not receiving a fair trial, even if the Crown case was quite strong, see Nnane (supra at paras 28 – 41.
[16] Another example of this limb of mistrial from ineffective assistance of counsel is R. v. McGinley (unreported March 21, 2023 ruling of Justice Good). In McGinley trial counsel did not call two witnesses to testify despite instructions to do so and in spite of a finding by Good J that the witnesses were unlikely to help the defence. Failing to call witnesses when instructed to do so renders the trial unfair even if they would not affect the result.
[17] In this application the defence argues that the trial was unfair even if there is no attack on the conviction as such. There is nothing offered at this mistrial application which suggests that the conviction is unreliable or wrongful. No new exculpatory evidence is offered which casts doubt on the verdict. To the extent that my conviction is scrutinized the defence argues that a different cross-examination and a different defence strategy would have resulted in me not rejecting E.F.’s testimony or that the complainant’s evidence would not have been accepted to the standard of beyond a reasonable doubt.
E.F.’s Fresh Evidence
[18] E.F. now takes the position that he is gay and is not attracted to women, though he has had sexual encounters with them in the past. In his affidavit he deposes that he has never been open about his sexuality with his family, the complainant or his trial lawyer. The reason for this is his fear of persecution in his home country, which is not Canada.
[19] His affidavit also outlines various instances of threats and intimidation by the complainant, as well as his representation by trial counsel. E.F. says that his initial interview with trial counsel was only 10 minutes at the beginning and then another 10 minutes to appear by Zoom. He went a third time before the commencement of the trial. That meeting lasted about 30 minutes. He says that the disclosure was never translated into Farsi for him. He says that he told his lawyer that the complainant had come home from the casino and demanded sex. He says that he told his lawyer that he never sexually assaulted or harmed the complainant. E.F.
[20] His position at trial was that nothing happened. There was no sexual assault. It is his position that his trial counsel did not write out or tell him the questions he would be asked or prepare him for questioning by the Crown.
[21] Trial counsel’s affidavit was different than E.F. on the nature of his representation. He says that he prepared E.F. to testify by going over his narrative 3 – 4 times. This had been provided in writing in advance to trial counsel by E.F.
[22] Trial counsel’s evidence was that he gave E.F. general advice about testifying, including being honest and some general areas he was likely to be cross-examined on. As the trial was unfolding trial counsel says that he tried to clarify whether it was his position that the allegations arose on a day the complainant returned home from a casino drunk E.F. said yes but in his evidence reverted back to his original position that nothing had happened.
[23] Trial counsel spoke with E.F. on the phone between the first and second days of trial. Trial counsel deposes that he reviewed the complainant’s testimony and E.F.’s version in that conversation.
[24] E.F.’s testimony on the mistrial application had frailties. He initially said that he reviewed his affidavit in support of the mistrial in both English and Farsi. He said that his affidavit was okay but there was an omission. As he was pressed in cross-examination he put distance between himself and the affidavit. He said it was written wrongly, and that he didn’t pay attention to it. He said the affidavit was true but, “when I signed it I’m not sure what was it that I signed”. He had an idea about the contents of his affidavit but not completely. Insofar as the affidavit was part of his evidence on the mistrial application his inability to adopt it is an internal inconsistency in his evidence, and casts doubt on its contents.
[25] E.F. agreed in his evidence that his lawyer reviewed the gist of the complainant’s statement in Farsi when they met. This was before the trial, and before E.F. gave his trial counsel his version of events. He disagreed that trial counsel translated the whole statement for him. He said that he was only told that the complainant alleged her that she was raped in the bathroom and in the kitchen. This is at odds with his affidavit, which asserts that “The disclosure was never translated to for me into Farsi or summarized, and I did not know what to expect in Court”.
[26] E.F. agreed in his evidence that he provided trial counsel with his version of the events. That document is found in his trial counsel’s mistrial affidavit. In his evidence E.F. said that he was unsure if he had written it or trial counsel. He said that if he wrote it he did it only generally. Something was missing in his version which was the she kicked him out of the house but he came back. That part wasn’t true.
[27] There is no dispute that E.F.’s narrative was documented and in the hands of trial counsel. Trial counsel said that he asked for that in the initial meeting, but that it was only provided two days before trial. Trial counsel provided text messages sent by E.F. to himself in the days leading up to the trial which included E.F.’s version of events in Farsi.
[28] The narrative bears similarity to trial counsel’s cross-examination. The same things were canvassed in Court at trial, namely the complainant’s controlling ways. This supports a finding, which I make, that trial counsel had E.F.’s version of events and used it in Court to cross-examine the complainant.
[29] Notably, the narrative does not speak to what happened during the alleged sexual assault. It is silent on the issue, but E.F.’s position throughout has been that nothing happened. There was no assault and there was no sexual assault. He testified to that, so all that was missing from his defence was a statement to that effect, that nothing happened.
[30] In his evidence E.F. admitted to sending text messages to his trial counsel on May 9 and June 12 2023 thanking him for his efforts, but he denied that he was happy with the work he was doing. When he was confronted with the text messages he denied that he was happy with his lawyer’s work. He testified that he thanked him because he believed everything was right with the case. This is an internal inconsistency. His testimony is at odds with this written statement of thanks during the trial for his lawyer’s efforts.
[31] That frailty is connected with his inconsistent evidence about when he was dissatisfied with his lawyer’s work. In his affidavit E.F. deposed that he never felt that his lawyer’s heart was in the case. When pressed in cross-examination on the point, namely when did he come to believe that his lawyer’s heart was not in the case, he gave various answers. One was that he lost faith in his lawyer when reasons for judgement were read. Another was that it was at first when he was told before the trial that he was sure to be found not guilty. When pressed about why he would say that his lawyer did not always have his heart in the case, he answered “Because I was always surprised”.
[32] It is therefore a frailty that E.F. struggles with when he lost confidence in his trial counsel. Given the text messages I have no difficulty in finding that that moment happened after E.F. was found guilty. The text messages reflect confidence in the lawyer and client relationship up to the point of being found guilty. That E.F. would say his trial counsel never had his heart in the case detracts from his credibility. This is important because if E.F. lost confidence in his trial counsel before the reading of reasons for judgement there is no explanation why he didn’t do anything about that. If E.F. lost confidence in trial counsel after being found guilty the verdict tends to colour the client’s change in confidence in the lawyer. I find that latter to be the case here.
[33] Trial counsel filed an affidavit and also testified at the mistrial application. His evidence is that he did review the complainant’s statement with E.F. He summarized it to him in a phone call and another time in his office. E.F. had some level of English comprehension and trial counsel played the complainant’s statement for him and told him in Farsi the main parts of the disclosure. He recalls E.F. asking him questions about the disclosure. That was days before the commencement of the trial. He did not recall playing the whole statement of the complainant for E.F. but reviewed the main parts of the allegations and the whole of the statement, interrupting it to tell E.F. what the complainant was saying. He interpreted the main parts of the statement.
[34] There were at least 4 meetings at his office. The meeting to review the complainant’s statement was at least an hour but he did not recall the exact time.
[35] Trial counsel completely denied ever telling him that his acquittal was assured. He said that if he could not resolve the case it would be for a judge to decide. He was asked by E.F. what to say in Court and was told to tell the truth and what he said in the narrative which he had provided.
[36] Trial counsel had no dockets, no notes from his meetings or telephone records apart from the text messages.
Findings
[37] To the extent that the text messages support the inference that trial counsel assured the client of a win it is troubling. It is also troubling that there are no dockets or notes of client preparation.
[38] With that said, much of E.F.’s argument now parses individual moments of the trial. With the benefit of hindsight some of these were ill advised, such as not cross-examining on a prior affidavit, or not obtaining the Ontario Works file, or saying that he was assured a win. But trial counsel has considerable leeway to make tactical choices about how to conduct the defence including choices about cross-examination, short of following clear instructions from the accused about presenting evidence, such as seen in R. v. McGinley (supra). Trial counsel gave evidence that he turned his mind to the Ontario Works file and rejected the idea of obtaining it because he did not know whether it might have inculpatory evidence in it. He also gave evidence that he chose not to cross-examine the complainant on her 2020 Statutory Declaration because he did not want to raise its content which he viewed as prejudicial to E.F. These were reasonable tactical decisions.
[39] In this case I do not find that trial counsel failed to provide meaningful assistance to E.F. It is troubling that he failed to produce dockets or notes of his preparatory meetings. It is also troubling that he did not disclose that his notes and dockets had been lost until he testified. But there is a strong presumption of competence of counsel.
[40] As the Court of appeal said in R. v. Cherrington 2018 ONCA 653:
The performance component has to do with incompetence on the part of trial counsel. This inquiry proceeds from a strong presumption of competence, is tested against a standard of reasonableness, and accords no place to hindsight: G. (D.M.), at para. 107.
[41] Despite the fact that trial counsel failed to produce dockets or notes of meetings, E.F. has not displaced the strong presumption of competence of counsel. In making this finding I take into consideration the following:
i)-The text messages between trial counsel and E.F. indicate that there was certainly trial preparation even if he had no supportive trial dockets.
ii)-The case was at its core a simple one. The complainant said that E.F. sexually assaulted her. He denied that it ever happened. The complainant was confronted with testimonial inconsistencies which Trial counsel relied on to argue that she should be disbelieved. The theory that E.F. was in an unhappy marriage was presented at trial.
iii)-The defence argues that trial counsel was ineffective in making closing submissions. At the conclusion of the trial he argued for an acquittal based on WD principles (ie R. v. W.D., [1991] 1 S.C.R. 742). I found that to be so general as to be unhelpful. After a lunch break he came back with more helpful oral submissions and then further written submissions, which were also helpful. I cannot find that his closing submissions rendered the trial unfair. I find otherwise, that trial counsel made reasonable submissions on the whole which were helpful. That they were ultimately unsuccessful in raising a reasonable doubt is beside the point.
iv)-It is troubling that trial counsel suggested in a text message after the trial was completed, that an acquittal was assured. His message was “I would like to be there to see the moment of your happiness”. But what that said, the preceding message did have E.F. saying “ …I am thankful for your efforts”. It was not until after the conviction was registered that he became displeased with trial counsel. Obviously no lawyer can guarantee a win in any court case, but I place that evidence in the context of a case where trial counsel clearly received E.F.’s version of events and then E.F. himself testified that nothing happened. I therefore find that any suggestion that a win was assured did not contribute to trial unfairness. It might have been different if E.F. relied on the advice of an assured win to choose not to testify or not to call evidence.
v)-I do not find that trial counsel’s review of the complainants evidence with E.F. and her testimonial believability during the course of the trial to be indicative of ineffective assistance. Rather, it supports the inference that trial counsel was doing what competent counsel should do, namely review the trial evidence as the trial proceeds and review instructions.
vi)-Trial counsel had a sound tactical basis for not wanting to cross-examine the complainant on her statutory declaration, namely the door to unfavourable evidence that it might have opened up. The same holds for his decision not to seek the Ontario Works third party records, which may well have confirmed the complainant’s testimony.
[42] For reasons already discussed, I find that E.F. had testimonial frailties at the mistrial. application testimony sought to distance himself from the affidavit basis for the application. When pressed on his affidavit he said that it was written wrongly, that he didn’t pay attention to its contents and that he wasn’t sure what he signed. This despite his evidence that it was translated into Farsi for him. This seriously undermined his credibility.
[43] It is an external frailty in his evidence to say that he had no opportunity to tell trial counsel his side of the events. Trial counsel was cross-examined on that point, and there is a text message from E.F. two days before trial disclosing his side of the events. I do not believe that E.F. had no opportunity to review his version of the events with trial counsel.
[44] It is an inconsistency in his evidence to depose, as he did that he “always had a sense that his heart was not in my case”. His text messages from after the verdict was rendered suggest otherwise, that he believed in Trial counsel’s representation until the conviction was registered.
[45] These are some of the reasons that I disbelieve E.F.’s evidence at the application.
[46] Putting the factual disputes together. I am unable to find on a balance of probabilities that TC did not provide effective assistance at the trial. Applying the reasonableness standard from R. v. G.D.B. 2000 SCC 22 there is no incompetence here.
[47] Applying the test for ineffective assistance of counsel I am therefore unable to find that rial counsel failed to meet the performative aspect of the test.
[48] It is a fair concession by defence counsel that the result would not have been different. The complainant was cross-examined, and E.F. gave his evidence. I made findings of credibility. That E.F. now wishes to disclose that he prefers same sex partners is of no moment. That would not have affected the trial result. I reject the view that a sexual assault is less likely when the accused prefers same sex partners and the complainant from the opposite sex. That is a myth, or generalization, which fails to recognize that sexual assault is a crime of violence, and not sexual preference.
[49] In the result I cannot, and do not, find on this evidence that there is a real danger that trial fairness was compromised. There is no specter of a miscarriage of justice on the evidence before me.
[50] A mistrial post conviction on the basis of ineffective assistance of counsel is not a commonly granted remedy. It is a high bar to surmount. This application does not rise to the requisite level. Accordingly, there is no basis for a mistrial. The Application is dismissed and a date for sentencing must be set promptly.
[51] This was a straightforward 2 witness trial and yet the mistrial application has consumed many more days than that over last 13 months. E.F. has not enjoyed the presumption of innocence during any of that time. I do not lay all of that delay at the feet of counsel – some was the result of illness. But it took over 6 months for E.F. to file a mistrial application, which was delayed because he sought third party records post conviction – only to abandon that once it became a mistrial. The mistrial application was filed without considering the need for an accompanying s. 276 application. In future cases I encourage new counsel to promptly advise the trial judge of the mistrial and perfect the mistrial application within weeks and not months of the anticipated sentencing.
Released: October 29, 2024 Signed: Justice David Rose