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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2025-05-28
COURT FILE No.: Chatham-Kent 22-16100367
BETWEEN:
His Majesty the King
— AND —
Patrick Delisle
Before Justice R. B. Horton
Heard on May 1, 2 and 5, 2025
Reasons for Decision on Application of Offender released on May 28, 2025
J. Boonstra — counsel for the Crown
C. Rudnicki — counsel for the Offender, Patrick Delisle
HORTON J.:
[1] On September 28, 2023, I found Patrick Delisle (“Delisle”) guilty of three counts of sexual assault and three counts of sexual interference following a four-day trial. The matter was then adjourned for sentencing.
[2] Prior to sentencing Delisle discharged his Trial Counsel and retained new counsel.
[3] New counsel investigated the verdict and advised the court of the intention to bring forward a post verdict application to reopen the trial or alternatively, to have a mistrial declared as a result of the perception that Delisle had received ineffective assistance from Trial Counsel.
[4] Within the Application, as filed, Delisle advances three grounds supporting the relief claimed:
(i) Trial Counsel failed to advise Mr. Delisle of his mode of election. If Mr. Delisle had known that he had the choice to elect to be tried in the Superior Court of Justice by a jury of his peers, with the benefit of a preliminary hearing, to explore the Complainant’s evidence, that is what he would have chosen;
(ii) Trial Counsel failed to advise Mr. Delisle that he had a choice about whether to testify. Mr. Delisle believed that the choice belongs to the Trial Counsel, not him. Had Mr. Delisle understood that only he could choose whether to testify, he would have elected to take the witness stand in his defence; and
(iii) Trial Counsel failed to competently investigate the evidence of Skylynn Rivers, who would’ve testified that the Complainant admitted to fabricating the allegations against Mr. Delisle.
[5] Mr. Delisle seeks to have this Court set aside his conviction and declare a mistrial. He asked that the matter return to this Court and to be permitted to elect to proceed to trial in the Superior Court of Justice before a judge and jury, with the preliminary hearing.
[6] The court received and reviewed the following in advance of these proceedings:
(i) Application Record of the Applicant, Delisle; and
(ii) Factum of the Applicant.
[7] No materials were filed by the Crown in response.
[8] By way of background, this Application has taken significant time to reach the stage of argument, it is noted that,
(i) Mr. Delisle was charged, July 6, 2021, with two offences, sexual assault and sexual interference, against the Complainant and several months later with 5 significant additional charges;
(ii) Mr. Delisle was found guilty following trial on September 28, 2023 of three counts of sexual assault and three counts of sexual interference;
(iii) The Crown Pretrial in this matter was conducted October 5, 2021;
(iv) The Judicial Pretrial was conducted October 28, 2021;
(v) The trial dates were initially fixed for April 21, 2022 and May 17, 2022. No accused election had yet been recorded and the trial set form indicated that Mr. Delisle would make his election on the following appearance date;
(vi) Trial Counsel attended court absent the Accused on November 24, 2021, and January 5, 2022. No election was made and on the latter date the matter was adjourned directly to the first date of trial;
(vii) The initial trial dates were vacated as the accused was charged with additional offences following a second statement provided by the Complainant to the police;
(viii) A further judicial pretrial was conducted June 7, 2022, and Trial Counsel submitted a new trial scheduling form which erroneously indicated that Mr. Delisle had entered an election to be tried by the Ontario Court of Justice;
(ix) New trial dates were set for January 20 and February 17, 2023;
(x) The confirmation hearing was conducted December 14, 2022. Trial Counsel appeared on behalf of the Accused pursuant to a designation filed. On this date Trial Counsel elected the Ontario Court of Justice on behalf of Mr. Delisle and in his absence;
(xi) On the first day of trial, January 20, 2023, Mr. Delisle was arraigned with no mention of the Accused’s election;
(xii) The trial proceeded over four days, Mr. Delisle was found guilty of three counts of sexual assault and three counts of sexual interference. The decision was rendered September 28, 2023. Approximately 19 months have now passed;
(xiii) Following the decision at trial proceedings were adjourned to August 8, 2023 for sentencing. This date was then adjourned to September 28, 2022, for sentencing;
(xiv) On the return date of September 28, 2023, with Trial Counsel attending, a presentence report was ordered. The matter was adjourned to October 12, 2023, for sentencing;
(xv) On October 12, 2023, sentencing was again adjourned;
(xvi) On January 2, 2024, Trial Counsel was formally removed as counsel of record at the request of Mr. Delisle;
(xvii) On January 5, 2024, new Defence Counsel, Mr. Rudnicki, contacted the Assigned Crown to speak of issues of concern;
(xviii) On January 18, 2024, Mr. Rudnicki confirmed with the Crown that he was retained to bring a post-conviction application to reopen the case and asked to speak to the Assigned Crown. The Assigned Crown did not respond;
(xix) On January 22, 2024, Mr. Rudnicki appeared on behalf of Mr. Delisle and then followed up in writing with the Assigned Crown. Again, no reply was received;
(xx) On February 8, 2024, Counsel for Mr. Delisle wrote to Trial Counsel requesting the trial file. Trial Counsel responded the same date;
(xxi) On February 9, 2024, Counsel wrote again to the Assigned Crown regarding potential ineffective counsel claims. The Assigned Crown and Defence Counsel spoke February 13, 2024;
(xxii) On February 15, 2024, this matter was again adjourned to allow Counsel the opportunity to investigate the ineffective counsel issue. The Crown agreed to the adjournment with an 11(b) waiver being provided;
(xxiii) Trial transcripts were received March 12, 2024;
(xxiv) Defence Counsel wrote to the Assigned Crown March 13, 2024, confirming that an ineffective counsel claim would be advanced. No response was received from the Assigned Crown;
(xxv) On March 14, 2024, the parties attended Court and the matter was adjourned to set a date for the pending application;
(xxvi) On March 26, 2024, Defence Counsel wrote to the Assigned Crown. No response was forthcoming;
(xxvii) On April 8, 2024, the Application Record was served on all parties and filed with the Court;
(xxviii) On April 18, 2024, the Trial Coordinator at Chatham requested the estimated time from the Crown Attorney’s office to allow dates to be set;
(xxix) On May 1, 2024, the Assigned Crown responded to the trial coordinator;
(xxx) On May 13, 2024, dates were set for the hearing of the Application of December 3, 4 and 5, 2024;
(xxxi) On September 16, 2024, this matter again returned to Court and the Crown advised that responding materials would be filed by mid October 2024;
(xxxii) On October 22, 2024, Defence Counsel inquired in writing as to the status of responding material if these had not yet been served and filed. No reply was received from the Crown’s Office;
(xxxiii) On November 1, 2024, Defence Counsel wrote again, requesting responding material be served. No reply was received;
(xxxiv) Again, on November 11, 2024 and December 2, 2024, defence counsel wrote, requesting responding materials be provided. Again, no responses were received;
(xxxv) On December 2, 2024, the Crown’s Office telephoned the Court and Defence Counsel, advising that the Assigned Crown was ill and unable to attend the scheduled Application Hearing date of December 3, 2024;
(xxxvi) The first date of hearing, December 3, 2024, was adjourned, and counsel was referred to Trial Coordination to obtain new dates. The matter returned to court December 5, 2024, for an update as to whether the application could commence. The Application was unable to proceed on that date and Defence Counsel advised of their intention to bring an application for delay pursuant to section 11(b) of the Charter;
(xxxvii) On December 11, 2024, Trial Coordination attempted to follow up with the Assigned Crown as to new date setting;
(xxxviii) On December 20, 2024, the Assigned Crown responded that any proposed dates would be acceptable to the Crown;
(xxxix) On January 13, 2025, dates were set for the 11(b) Application;
(xl) On January 15, 2025, dates of May 1, 2 and 5, 2025, were set for the reopening/mistrial application. These being the earliest dates available to all parties and the court;
(xli) In March 2025 the Application for Delay was scheduled for argument. On this date the Application was adjourned as the presiding Judge deemed it appropriate to be heard by myself, as the Trial Judge.
(xlii) Defence Counsel then confirmed in writing to the Crown Attorney’s office, that they would require the Crown’s response material on or before April 11, 2025, or would require a further adjournment;
(xliii) On April 28, 2025, Defence Counsel confirmed with the court having not received responding materials from the Crown’s Office and, in accordance with earlier correspondence, would be seeking an adjournment, though were prepared to proceed with the 11(b) argument. This court confirmed that the request for adjournment would be heard on the first date of the scheduled hearing, May 1, 2025;
(xliv) No response was provided from the Crown in regard to the failure to serve and file responding materials, most notably the required Form 2 Reply.
[9] The above recitation, of the somewhat tortured timeline, is necessary for appreciation of the manner this matter proceeded.
[10] On May 1, 2025, the Assigned Crown confirmed their responding material had not been filed and that the Crown never intended to file materials, a fact not voiced to Defence Counsel or this court previously, and in fact at odds with the Crown’s previously noted intention to file their Response. In the seemingly new view of the Crown, their position had been made clear in past communications. The Court rejected this, noting that the court had no means of appreciating the Crown’s position on the issues at hand. Defence Counsel also raised this lack of appreciation and a corresponding inability to properly prepare for the application, including required review with his client.
[11] At the request of the Court, the Assigned Crown undertook to file a Form 2 Reply later that day and proceedings were adjourned to May 2, 2025, for argument.
[12] Further, the Court, following submissions, determined that the 11(b) Application would not proceed until the completion of the substantive Application. The Court noted that this Application was an integral consideration of any delay issues and voiced concern that the relief claimed if unreasonable delay was found in a post verdict would not lend itself to a stay of proceedings but rather to the sentence to be imposed.
[13] The Assigned Crown served the necessary Form 2 and Defence Counsel immediately reviewed same and communicated to the Court and the Crown that Mr. Delisle would only be proceeding with the ineffective counsel argument regarding his election of mode of trial.
[14] I reflect, as a case management function, the significant reduction in time required for the Application resulting from this decision; a decision made possible only because of the Crown, providing their position in writing. Clearly, this benefit could have been known and acted upon much earlier with the Crown, having produced its formal position earlier and without court intervention.
[15] I note further, the Crown’s much earlier position taken with Defence Counsel of their unwillingness to discuss the Application in advance of requiring the Defence to perfect its Application.
[16] On May 2, 2025, the Application proceeded. Counsel for Mr. Delisle confirmed the withdrawal of the two grounds and that they would be proceeding only in regard to the mode of trial.
[17] The Court confirmed that on this basis. The ineffective counsel argument would be determined solely on the issue of whether Trial Counsel had failed to allow Mr. Delisle to elect his mode of trial. This integral election is a specific right of an accused person and one which cannot be overridden by any other person, including an accused’s own counsel. Counsel’s role being to inform and advise the accused person of the ramifications of such an election. If, a finding is made of the Accused’s right to elect his or her mode of trial being denied, this is a significant procedural error, and the issue then would shift to what remedy exists to resolve this failure. Counsel were in agreement that reopening of the trial would not be an available option, and that the only viable remedy would be one of a mistrial being declared.
[18] The Court also noted at this early stage, having heard no submissions, that whether the offender would or would not have elected differently is of no consequence to the determination to be made by the Court. It is solely a determination of whether the accused was denied his right to enter an informed election of his choice.
Issue
[19] The issue to be determined is:
(i) Has the Applicant met the legal test of procedural unfairness flowing from the ineffective assistance of Trial Counsel?
Position of Parties
[20] The Applicant submits he has met the required test and that this court should grant a mistrial.
[21] The Crown submits that the legal test in relation to ineffective counsel has not been satisfied by the Applicant and that this Court should dismiss the Application, maintain the finding of guilt and the Offender should proceed to sentencing.
Legal Principles
[22] In a trial by judge alone, the trial judge has discretion to re-open the case after conviction of the accused. In R. v. Kippax [2011] O.J. No. 5494, 2011 ONCA 766 at para. 62,
“a trial judge is not functus officio until he or she has imposed sentence or otherwise disposed of the case. It follows that a trial judge who has made a finding of guilt on disputed facts has the authority to vacate this adjudication of guilt at any time before the imposition of sentence or other final disposition. This authority to vacate an adjudication of guilt should be exercised only in exceptional circumstances, and in the clearest of cases.”
[23] In a re-opening application which alleges procedural unfairness, as in this case flowing from the ineffective assistance of Trial Counsel, the Applicant bears the burden of establishing,
(i) that counsel’s acts or omissions constituted incompetence (commonly referred to as the “performance component”) and,
(ii) that a miscarriage of justice resulted (the “prejudice component”).
[See R. v. White [2022] SCC 7 at para. 7.]
[24] While prejudice from ineffective counsel can amount to a miscarriage of justice by either undermining the appearance of a fair trial (trial fairness branch), such as is alleged here, the failure of Trial Counsel to provide effective advice on a fundamental decision of a trial, the decision of the accused to elect his mode of trial, or by undermining the reliability of the verdict, such as failing to address relevant defence evidence. This application is restricted to the former.
[25] In the case before this court, the Applicant alleges that Trial Counsel’s failure to provide proper advice about his right to elect the mode of his trial deprived him of his right to fundamentally control his defence. Mr. Delisle submits that, had he been advised, or in fact told at all, of his right, he would have proceeded by judge and jury with the preliminary hearing.
[26] If the Application succeeds on the grounds noted, the only appropriate remedy is a mistrial. A mistrial is to be declared, generally, where there has been “some kind of related event that puts trial fairness at risk”. See R. v. Arabia, 2008 ONCA 565.
[27] It is well established that legal counsel has broad discretion in the strategies incorporated in defending their client. However, some decisions are so fundamental to the right to control one’s own defence, that only the accused themselves can make them. These fundamental decisions include, but are not to be limited to,
(i) how to plead;
(ii) whether to waive a trial by jury, the mode; and
(iii) whether to testify.
[28] These fundamental rights cannot be waived, or the accused deprived of his specific rights, by Trial Counsel or anyone else. See R. v. Stark [2017] ONCA 148, paras. 16, 17.
[29] In Stark, the Court of Appeal concluded that,
“the exercise of the right to choose the mode of trial is integral to the court’s jurisdiction over an accused and is essential to the fairness of the proceedings.”
[30] The applicable test in this case, on a balance of probabilities, is whether, firstly, did Trial Counsel fail to give competent advice about the right of Mr. Delisle to elect the mode of trial, and secondly, had Mr. Delisle had this benefit of such advice would he have chosen differently?
[31] The waiver of an accused’s rights, such as that here, must be clear, unequivocal, and made with his full knowledge of the right, and the effect that waiver will have on those rights. The issue then becomes, did Trial Counsel’s waiver of Mr. Delisle’s right to elect his mode of trial meet this standard?
Evidence
Testimony of Patrick Delisle
[32] Defence counsel called as their sole witness Mr. Delisle.
[33] Mr. Delisle testified to the following relevant details:
(i) In regard to the election as to mode of trial, Mr. Delisle denies that Trial Counsel advised him of this right whatsoever;
(ii) This was Mr. Delisle’s first involvement in the criminal justice system;
(iii) Mr. Delisle only learned of this right to elect to proceed either in the Ontario Court of Justice by judge alone, the Superior Court of Justice with judge alone, or with judge and jury, and to have a right to a preliminary hearing, through his current counsel in December 2023;
(iv) Mr. Delisle denies the statement of his Trial Counsel contained within his sworn affidavit that he reviewed the decision of mode of trial with Mr. Delisle at their initial consultation, August 30, 2021. Mr. Delisle recalled the meeting in London, Ontario, and stated that this meeting lasted approximately 25 minutes and that this consultation involved a discussion of disclosure, a review of various statements provided to police, and that he advised he was innocent and would not negotiate, requiring a trial;
(v) Mr. Delisle denied that Trial Counsel ever advised him of his right to choose either this court or the Superior Court of Justice, and that Trial Counsel did not provide any opinions or recommendations in this regard;
(vi) Mr. Delisle denied that he demanded the earliest trial date due to his living in a trailer and his concern of the coming winter months. He acknowledged he wished to see the matter resolved as quickly as possible;
(vii) Mr. Delisle confirmed he had two further consultations with his Trial Counsel, December 2021, and March 2024. He testified that the choice of mode of trial was never raised at either of these meetings;
(viii) Between March 2022, and January 2024, he denied any further consultations with Trial Counsel;
(ix) In April 2022 additional charges were laid, requiring the initial trial dates to be vacated, Trial Counsel did not discuss the mode of election following these new charges;
(x) The transcript of the court appearance December 14, 2022, was filed. Within this, it is noted that Trial Counsel is appearing in the absence of Mr. Delisle. The court notes no election having been entered to which Trial Counsel states,
“the election is the Ontario Court of Justice. Please, your honour. We are waving reading.”
(xi) Mr. Delisle confirms he was neither present, consulted by Trial Counsel in advance, or advised after this court appearance of what had occurred.
(xii) Email communications between Mr. Delisle and Trial Counsel’s office was produced, dated December 5, 2022, in which it is noted,
Mr. Delisle: good afternoon Cassandra, just wondering if there is any news. I’m aware of a court appearance. A couple weeks ago and I haven’t heard anything.
Cassandra Friesen, legal Assistant to Trial Counsel: hi Pat. The last appearance was a confirmation hearing. The trial was confirmed for January 20 and February 17.
(xiii) Mr. Delisle confirmed he communicated in this manner at least once per month to get updates from Trial Counsel.
(xiv) A further email communication was filed, reflecting again Mr. Delisle checking for updates with counsel, and the only response, again being from Ms. Friesen, that the confirmation hearing was conducted and nothing further had occurred.
[34] Mr. Delisle was cross examined in detail. He was challenged on his evidence that he did not recall everything discussed with his Trial Counsel, and that failing to recall something was not the same as it having not occurred. He agreed to this notion in general.
[35] Mr. Delisle acknowledged that he took no notes in his meetings with counsel and did not prepare notes following such meetings.
[36] When questioned as to his position that his counsel did not tell him or discuss a specific issue with him, Crown counsel suggested that it could be that he simply does not recall and that does not equate to it not having been discussed, Mr. Delisle disagreed fully.
[37] While Mr. Delisle agreed that navigating the criminal justice system for the first time involved a great deal of new information which he was unfamiliar with, he strongly disagreed that this could result in his not remembering some of the details.
[38] The Crown’s questioning as noted, largely surrounded Mr. Delisle’s ability to recall all details from the past. Mr. Delisle testified that when it comes to such extreme circumstances, being in this case very serious criminal charges, he remembers the communications he had with his counsel.
[39] Mr. Delisle confirmed in cross-examination that he was aware of jury trials in criminal matters but had no knowledge of the different levels of court. Crown counsel suggested that Mr. Delisle was aware of jury trials and noted within Mr. Delisle’s own statement within his affidavit, affirmed April 4, 2024, at paragraph 9, stated that he would have wanted a jury trial believing
“that 12 ordinary people would not convict me on L.D.’s evidence”.
[40] The Crown suggested that Mr. Delisle himself could have raised the issue of jury trials with his Trial Counsel. I must state here that it is difficult to support this suggestion as it certainly overlooks the obligation of legal counsel to review and provide advice and opinion on such an intricate and vital step within the criminal process. While I accept the notion that perhaps an accused would make such an inquiry, I am unable to accept that any shift in responsibility to the accused to having initially introduced this topic is appropriate or in some manner deflects from Trial Counsel’s obligation.
[41] Following the additional charges being laid, and the initial trial dates being vacated Mr. Delisle testified he had a “very short” call with his Trial Counsel. He testified that no discussions occurred regarding the steps to be taken, or whether any changes in strategy were necessary.
[42] Mr. Delisle was cross-examined as to the topics of discussion with his Trial Counsel. He confirmed those consultations involved reviewing disclosure, the statements of various family members and his innocence. When questioned further, some minor points were challenged, such as his having discussed the allegations in detail, to which Mr. Delisle agreed, though, making it apparent he viewed that as part of the review of disclosure.
[43] The Crown placed significant emphasis on the issue of Mr. Delisle’s memory and throughout cross-examination sought to impeach Mr. Delisle as to specific details he was unable to recall. Mr. Delisle was unshaken and while some suggested topics were discussed with counsel, which were not included in the items discussed at the first consultation Mr. Delisle addressed these discrepancies, testifying that they were discussed at later meetings.
[44] While Mr. Delisle acknowledged he wanted the criminal charges to be dealt with as early as possible, he denied the suggestion that he stated he wanted the trial as quick as possible.
Testimony of Mr. Nick Cake, Trial Counsel for P. Delisle
[45] The Crown called as their sole witness, Trial Counsel, Mr. Nick Cake.
[46] Mr. Cake swore to an affidavit dated September 13, 2024, as prepared with his legal counsel through the Lawyer’s Professional Indemnity Corporation.
[47] Mr. Cake’s evidence was as follows:
(i) Mr. Cake was called to the Bar of Ontario in 2011 and has practiced only criminal law since this time, initially with the Crown’s Office and then as a sole practitioner from 2020 forward;
(ii) In 2021 he was contacted by Mr. Delisle due to significant allegations and charges against him relating to his son. Initially this contact occurred by telephone, retainer arrangements were established, and an initial consultation was scheduled August 30, 2021;
(iii) On August 30, 2021, the initial consultation between Mr. Cake and Mr. Delisle occurred. Mr. Cake described this meeting as a substantial meeting of one hour in duration between 4 PM and 5 PM. He confirmed that they discussed the current disclosure received, reviewed the allegations and that he would have inquired as to his client’s position. Mr. Cake noted that he would have discussed issues regarding the Complainant’s mental health, family living situation and gender issues. He described that it was at this meeting that he and his client developed a “plan of attack”;
(iv) Mr. Cake testified that at this initial meeting he canvassed Mr. Delisle’s options including how he wished the matter to proceed;
(v) Mr. Cake advised that it is his common practice to send out disclosure in advance of the consultation to allow his client to review and prepare for their meeting. He could not confirm whether this had actually occurred as it was his office manager that was responsible for that process;
(vi) Mr. Cake testified that, at this first meeting, a great deal of information was gathered regarding the Complainant’s background, Mr. Delisle’s living arrangements, any animus the Complainant may have held towards the Accused, mental health concerns and whether there were any possible interactions between the Accused and Complainant that could have resulted in a misunderstanding and so forth;
(vii) Mr. Cake testified as to the importance placed by Mr. Delisle on proceeding as quickly as possible due to his living in a trailer and concerns over heat in the winter months. It is this which led to his opinion being expressed to Mr. Delisle that a trial in the Ontario Court of Justice being the most expeditious;
(viii) Mr. Cake stated that it was at this time that Mr. Delisle made his decision and provided his instructions to proceed in the Ontario Court of Justice;
(ix) During examination, the Crown inquired as to whether more discussions regarding how to proceed followed between Trial Counsel and Mr. Delisle. Mr. Cake confirmed no further discussion occurred as, “we were still on path and wanted to get things done quickly.” Mr. Cake expanded on this by testifying that with the additional allegations it only meant that there “would be more questions asked” and that the new charges “did not change my opinion of where things should be (OCJ).”;
(x) Mr. Cake confirmed the statement of Brice Rivers was not reviewed with his client until after the first meeting as it was not received until much later, the statement having been dated January 5, 2022. Mr. Delisle having testified that he believed he had reviewed this statement at his initial meeting August 30, 2021;
(xi) Mr. Cake confirmed that he had filed a Designation of Counsel allowing him to proceed in Court in the absence of his client upon having received his client’s instructions;
(xii) Mr. Cake testified he acted upon his client’s instruction when attending on his behalf;
(xiii) Mr. Cake confirmed ultimately attending in the absence of his client on December 14, 2022, and placing the election as to mode of trial on the record. This being 16 months after the initial client consultation, and several months after the second series of charges were laid. Further, it was confirmed by Mr. Cake that the trial dates had already been set through the trial setting process in advance of his placing the election on the Court Record;
(xiv) Mr. Cake was adamant that he took this step as a result of his client’s specific instructions received on August 30, 2021, and that those instructions had not changed in the months that followed;
(xv) Mr. Cake testified that at no point had the mode of trial been revisited, including following the significant additional charges being laid;
(xvi) In cross-examination Mr. Cake confirmed that between August 30, 2021 and December 14, 2022, the issue of mode of trial was never reviewed;
(xvii) Mr. Cake confirmed he never sought or received written instructions from Mr. Delisle;
(xviii) In cross-examination, Mr. Cake confirmed he prepared three separate memorandums. Each prepared following having met with Mr. Delisle, August 30, 2021, December 3, 2021, and March 22, 2022. He outlined that these memorandums are prepared in e-mail form and forwarded to his office manager. Typically, they are prepared after the meeting. The purpose he agreed was to record advice and opinions given;
(xix) Mr. Cake acknowledged in cross-examination that these memorandums did not include the conversations he previously indicated in his examination in chief had occurred, most notably surrounding the election, as to mode of trial;
(xx) Mr. Cake confirmed that the only area not covered by the memorandum was in fact the election issue;
(xxi) Mr. Cake was challenged as to the actual elapsed time of the initial consultation of August 30, 2021, given the significant areas of discussion he testified occurred. Though he previously indicated that this meeting was one hour in duration, from 4 PM to 5 PM, the memo prepared, post meeting, was forwarded to his office manager at 4:29 PM. Mr. Cake could not explain this discrepancy other than to proffer that the meeting had commenced earlier;
(xxii) Mr. Cake disagreed with the suggestion by counsel that with such a brief meeting all of the issues allegedly canvassed in the first meeting could not have been covered let alone in any detail;
(xxiii) Mr. Cake confirmed in cross-examination that he,
(i) Did not review the issue of mode of election again with Mr. Delisle following their initial consultation on August 30, 2021;
(ii) Did not revisit this issue following the second set of charges being laid April 2022, which significantly expanded the allegations adding child luring, digital and anal penetration;
(iii) That Mr. Delisle’s jeopardy increased significantly as a result of these additional charges;
(iv) That he attended and entered the election of Mr. Delisle, in his absence, and pursuant to the Designation of Counsel filed with the court;
(v) That he did so on the basis of instructions received August 30, 2021;
Analysis
[48] Defence counsel submits, on behalf of the Applicant, correctly, that the issue for determination is whether Trial Counsel’s election on behalf of Mr. Delisle reflected Mr. Delisle’s informed choice. If this issue is addressed in the affirmative, these proceedings will move forward to sentencing. If this is not the case, Counsel submits that a mistrial due to Mr. Delisle’s s. 536 CCC rights not being met.
[49] Defence, at the commencement of submissions argued that a determination of the initial steps taken by Trial Counsel, or whether he provided Mr. Delisle with the ability to make any informed election, is unnecessary as Trial Counsel acknowledged during his testimony that he did not revisit the mode of trial issue with Mr. Delisle following the second set of charges being laid, April 21, 2022, approximately eight months following the initial consultation between Trial Counsel and Mr. Delisle of August 30, 2021. They further submit that it is simply incorrect that these steps were not necessary as noted by Trial Counsel as his previous instructions had not changed. I agree with this fully, particularly with the significant change in jeopardy for Mr. Delisle.
[50] Counsel for Mr. Delisle submits, in light of this failure, Mr. Delisle was denied his right to make an informed election and as a result the Application before this court should succeed.
[51] The Crown does not concede this, notwithstanding Trial Counsel acknowledging Mr. Delisle’s jeopardy changed with the addition of these additional charges. The Crown argues that the instructions of Mr. Delisle did not change, and that Mr. Delisle had received the requisite advice at the August 30, 2021, consultation. They submit that this turns on the credibility and reliability of the two witnesses.
[52] The onus rests with Mr. Delisle to establish, on a balance of probabilities, that he received ineffective assistance from Trial Counsel, which justifies the relief sought of a mistrial. To do so, he must satisfy the test set out in R. v. G.C. [2018] ONCA 392 in which the Court of Appeal at paragraph three states,
“the decision whether to grant a mistrial is a matter that lies within the discretion of the trial judge, who must assess whether there is a real danger that trial fairness has been compromised.” [R. v. Khan, 2001 SCC 86, [2001] 3 SCR 823 at para. 79].
[53] I am conscious that the remedy of a mistrial is a remedy of last resort, to be assessed based on whether such is necessary to avoid miscarriages of justice.
[54] The assessment of a claim for ineffective counsel at trial must be undertaken with a starting presumption of competence of counsel, and not by utilizing the benefits of hindsight.
[55] There can be no question that an accused’s right to elect mode of trial is enumerated within s. 536 C.C.C. and is a fundamental right that neither counsel nor others may take away from an accused. When counsel is representing an accused at trial the accused is entitled to be adequately advised by his or her counsel.
[56] Parliament enshrined the right of an accused charged with specified serious crimes, the right to choose the mode of trial. Section 11(f) of the Charter of Rights and Freedoms guarantees a right to be tried by jury for such offences. Such an election is the right of an accused and is essential to the fairness of the proceeding. [R. v. Stark 2017 ONCA 148, [2017] ONCA 148, 35 C.R. (7th) 455.]
[57] Lauwers, J.A., in R. v. Stark at paragraph 20 states,
“if an accused receives no advice from counsel as to his options, or the advantages and disadvantages of the respective options, then the accused has effectively been denied his right to choose his mode of trial under s. 536 CCC. The miscarriage of justice lies in proceeding against the accused without allowing him to make an informed election, and the accused need not establish further prejudice. What the accused might or might not have done had he been aware of his options is not relevant.”
[58] Counsel, and Mr. Delisle had their first of three consultations August 30, 2021. There are competing accounts of this meeting. Mr. Delisle testified that during this 25-minute meeting disclosure was reviewed, as were all statements, including all of his children, and his former partners that his position of proceeding to trial was indicated. Trial Counsel acknowledges these and notes further family history and details regarding the Complainant were also discussed. He noted this to be a one-hour consultation. Trial Counsel testified that he would have reviewed with Mr. Delisle his options and how he wished to proceed.
[59] In relation to this latter issue of Mr. Delisle’s options, Trial Counsel testified that he had explained that a trial could occur in the Ontario Court of Justice, by judge alone, the Superior Court of Justice by judge alone or by judge and jury and with the possibility of a preliminary hearing. Counsel indicated that they discussed timelines, the desire of Mr. Delisle to have the trial as quickly as possible due to housing issues and that he provided his opinion to Mr. Delisle that a trial in the Ontario Court of Justice was the manner in which to proceed. Trial Counsel testified on this basis, and understanding is Mr. Delisle who made the decision to have the trial this Court.
[60] Mr. Delisle’s testimony is in opposition. He stated he not only did not decide this issue but was not informed of this right at all.
[61] Trial Counsel prepared a memorandum following the August 30, 2021, consultation. It is noteworthy, this memorandum was prepared at 4:29 PM, August 30, 2021. The evidence establishes that the meeting therefore was, at its greatest, 29 minutes in duration.
[62] The memorandum confirms much of the noted content of the meeting, including the denials of Mr. Delisle to all allegations, the review of a number of statements provided to police, though it was later established in the evidence that a statement of Mr. Delisle’s son, Brice, was not included in this, differing from the recollection of Mr. Delisle. The allegations were reviewed, the family dynamics, and Mr. Delisle’s living arrangements were also discussed.
[63] Within this detailed memorandum there is no indication of the right of Mr. Delisle to elect his mode of trial or the opinions of Counsel on this issue.
[64] Both Trial Counsel, and Mr. Delisle confirmed that, apart from the three consultations in person, there was little contact or communication directly between counsel and client. Rather, Mr. Delisle indicated counsel’s office manager. Additionally, Trial Counsel confirmed that it was also this employee who would arrange all disclosure requests with the Crown and as a result Trial Counsel could only state that he “believed” this disclosure was received and forwarded to his client.
[65] In reviewing specific email inquiries made by Mr. Delisle to his counsel, it was the employee who corresponded with Mr. Delisle. On December 5, 2022, Mr. Delisle wrote to Ms. Friesen (also known as Ms. Brumuell),
“Good afternoon, Cassandra, just wondering if there’s anything new. I’m aware there was a court appearance. A couple weeks ago and haven’t heard anything.”
In response, Ms. Friesen responded,
“Hi Pat, the last appearance was a confirmation hearing. The trial was confirmed for January 20 and February 17.”
[66] Mr. Delisle was not advised of the pending return date of December 14, 2022, the following week. It was on this date that Trial Counsel, in the absence of his client, made the election on his behalf of the Ontario Court of Justice. At no time did any communication reference the need for an election to be made or seek confirmation of such. Likewise, there was no reporting of this significant step having occurred.
[67] Corroborating Mr. Delisle’s testimony that he was never advised of his right to elect mode of trial, are the later memorandums prepared by Trial Counsel, December 3, 2021, and March 22, 2022. Again, these documents purport to document the content of Trial Counsel’s meeting with client. While including much detail surrounding discussions relating to whether the Crown application to utilize CCTV, issues of hearsay and why the children’s aid Society records were not being sought, there is no mention of discussions as to the mode of trial or opinions or advice provided on this issue by Trial Counsel.
[68] In short, it is the case that the only area of discussion not captured within the memorandums is the sole issue before this Court, the election of mode of trial. It is not incumbent on counsel to keep detailed records of all that is discussed between client and counsel, but it is to be emphasized that this issue is a significant obligation for counsel. Therefore, the lack of this notation, given the other areas recorded certainly must be considered in this case, though not determinative on its own.
[69] As stated previously, this court starts with the presumption that Trial Counsel was competent in the manner in which he advised his client, and the opinions expressed, I find on the evidence taken in totality, I am not convinced on a balance of probabilities that the issue was canvassed in a meaningful manner so as to be assured Mr. Delisle’s informed election was made by Mr. Delisle. While I appreciate that Trial Counsel’s “usual practice” may include such an important step in the trial process, I cannot find any support of this having occurred in this particular circumstance.
[70] Turning to the period following the second set of charges being laid on April 21, 2022, it is these new charges that required the initial trial dates of April 21 and May 17, 2022, to be vacated.
[71] These new charges, in total five significant counts, greatly changed the prejudice and jeopardy of Mr. Delisle.
[72] Trial Counsel, in his testimony was asked whether, as a result of these new charges, anything changed, and he responded simply noting that “more charges existed.” In cross-examination when questioned of whether this resulted in more discussions how to proceed, he responded,
“No. We were still on the path and wanted to get things done quickly.”
Further testimony continued,
Q: With the additional allegations, how did they, or further statements, factor into your assessment?
A: (they) meant would be more questions asked (but) did not change my opinion of where things should be, the O.C.J.
[73] Trial Counsel confirmed in his testimony that he attended Court on December 14th, 2022, on the strength of his designation as counsel, and placed Mr. Delisle’s election on the record.
[74] He further confirmed no election had been entered in advance of this date, Crown counsel continued the examination as follows,
Q: Why did you make that election?
A: Because that was my instructions that is what I received from Mr. Delisle.
Q: Did that instruction ever waiver or change?
A: No.
Q: At any point was that decision ever revisited?
A: No.
[75] During cross-examination, Trial Counsel confirmed that his instructions as to the mode of trial were received during the initial client consultation of August 30, 2021, and that no other discussion regarding mode of trial occurred prior to his placing his client election on the record many months later.
[76] On this issue Cross-examination continued as follows,
Q: The new information was laid on the eve of trial?
A: Yes.
Q: Agree that was a significant increase in Mr. Delisle’s jeopardy?
A: Yes.
Q: After these new charges you did not revisit the mode trial?
A: Correct.
Q: You made the election on December 14, 2022, on instructions from the first consultation?
A: Correct.
[77] The election as to the mode of trial rests with the accused person alone. Counsel has the obligation to advise on this issue. It must follow that, where there is a significant change, such as in the circumstances with multiple new and significant charges being laid, and the accused person’s jeopardy increased, that a review of such a fundamental right must occur, regardless of prior decisions or understandings.
[78] Trial Counsel was forthright in stating this did not occur. He did not seek to revisit the issue of mode of trial despite the significance of the new charges. He continued to act on instructions provided August 30, 2021, some 16 months earlier, in the absence of his client.
[79] The Crown submits that whether the advice regarding the mode of trial was provided on August 30, 2021, must be determined on the credibility and reliability of the witnesses. I do not accept that this ends the issue of the manner in which Trial Counsel made the election many months later. The acknowledgement by Trial Counsel that this issue was neither revisited nor reviewed following such a change in Mr. Delisle’s jeopardy is significantly troubling. The submission that instructions did not change finds little merit as Trial Counsel had an obligation to his client to review these fundamental rights after such a change in his client’s jeopardy. These were not simply changes in the number of counts that would result in “more questions” as characterized by Trial Counsel.
[80] I find that Mr. Delisle did not receive proper advice or that he was properly informed of his right, and his right alone, to determine his mode trial either on August 30, 2021. I further find that, notwithstanding this, Trial Counsel did not remedy this, following the second set of charges being laid. The existence of either of these situations, or both, as I have determined prejudiced the rights of Mr. Delisle to make his decision regarding the mode of his trial, a fundamental right in the conduct of his trial.
[81] I further find that, as a result of Mr. Delisle’s testimony which was not challenged, that with proper advice he would have elected trial by judge and jury. I accept his evidence as set forth within his affidavit sworn April 4, 2024, at paragraph 9,
“I would want a jury trial because I do not believe that 12 ordinary people would convict me on L.D.’s evidence. I would want a preliminary inquiry because I understand that that is an opportunity to test the Crown’s evidence in a safe environment, where guilt or innocence is not an issue.”
[82] I find that as a result fairness of the trial process has been undermined. The only available remedy to address this, and avoid a possible miscarriage of justice, is that the requested relief of a mistrial be granted and as a result the previous finding of guilt is vacated. I make this order and direct that the matter be returned to the Trial Coordinator for a new trial to be scheduled.
[83] Matter adjourned to June 30, 2025, Courtroom 301 at 10:00 a.m. to be spoken to.
Released: May 28, 2025
Signed: Justice R. B. Horton