ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-70000012-00AP

DATE: 20140818

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

ERIC BRAZAU
Appellant

Megan Petrie, for the Crown

Anida Chiodo, as Duty Counsel for the Appellant

HEARD: June 19, 2014

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

r. f. goldstein j.

[1] On July 3, 2009 Alan Norris and Sharron Reeve attempted to serve Eric Brazau with some court documents. Mr. Brazau was then involved in a civil proceeding. Mr. Brazau was not at home so Mr. Norris and Ms. Reeve left the documents in his mailbox. Just then Mr. Norris and Ms. Reeve saw Mr. Brazau walking down the street. Ms. Reeve retrieved the documents from Mr. Brazau’s mailbox. She tried to hand them to Mr. Brazau. He ignored her and got into his car, which was parked nearby. Mr. Norris stood in front of the car, preventing Mr. Brazau’s vehicle from leaving. Mr. Brazau moved his car forward and struck Mr. Norris. Mr. Norris suffered minor injuries.

[2] Mr. Brazau was charged with assault with a weapon (the car). As he was on probation at the time, he was also charged with failure to comply with a probation order.

[3] On January 26, 2011 was tried before Lacavera J. of the Ontario Court of Justice. There were two Crown witnesses: Mr. Norris and Ms. Reeve. Mr. Brazau’s counsel called Constable Drake, the investigating officer. Mr. Brazau did not testify.

[4] Lacavera J. convicted Mr. Brazau of both charges. He found that Mr. Brazau had intentionally struck Mr. Norris with his car. He accepted the evidence of the Crown witnesses. He sentenced Mr. Brazau to a term in jail.

[5] Mr. Brazau now appeals. He says that his trial counsel, Michael Hassall, was ineffective. He says that trial counsel was ineffective because he did not provide appropriate advice regarding his decision not to testify. He also says that trial counsel did not adequately cross-examine the Crown witnesses. Fresh evidence has been filed with the court in the usual manner.

[6] In my view, trial counsel’s actions or omissions did not fall below the standard; even if they did, it is not reasonably probable that the result would have been different had he been more effective. For the reasons that follow, the appeal is dismissed.

FACTS

1. The Trial

[7] The Crown called Mr. Norris. He testified that on July 3, 2009 he was assisting Ms. Reeve. Ms. Reeve was attempting to serve Mr. Brazau with court documents. They knocked at Mr. Brazau’s apartment but nobody answered. They left the documents in his mailbox after trying to leave them with a nearby law firm. As they left, Mr. Brazau walked out of his apartment. Ms. Reeve asked if he was Mr. Brazau. Mr. Brazau replied “who wants to know?” Ms. Reeve retrieved the documents from the mailbox and tried to give them to Mr. Brazau. Mr. Brazau walked away. He got into his car, which was facing the street. Mr. Norris testified that he stood on the sidewalk in front of Mr. Brazau’s car. He said that Mr. Brazau turned on the car and moved the car forward and backward. He then turned the car off and made a call on his cell phone. Eventually he restarted the car and moved it forward. The car hit Mr. Norris in the legs and he fell onto the hood of the car. He admitted in cross-examination that he was blocking Mr. Brazau’s car. He admitted that the injuries were minor and that he had told the 911 operator that he did not require an ambulance.

[8] Ms. Reeve testified that she knew Mr. Brazau. Mr. Brazau had been in litigation with her mother-in-law and was trying to serve documents. She left them in Mr. Brazau’s mailbox. As they were leaving, she saw Mr. Brazau come down from his apartment. She said to him “you’re Eric Brazau” to which he replied “who wants to know?” She then retrieved the documents from the mailbox and tried to personally serve Mr. Brazau. He refused the documents. She and Mr. Norris then followed him to his car. He got in. She knocked on his window and told him she wanted to give him documents. Mr. Brazau started the car and moved it back and forth. He then made a call on his cell phone. After the call he moved the car forward and struck Mr. Norris, who fell on the hood. In cross-examination she agreed that she was very determined to serve Mr. Brazau on that day. She agreed as well that Mr. Norris had stood in front of Mr. Brazau’s car, blocking it.

[9] The defence called Constable Drake, the investigating officer. He testified regarding the statements that he had taken from the witnesses as well as about the accident report that he prepared. The Crown did not cross-examine him.

[10] In submissions, trial counsel argued that there were three issues to be determined: whether force was applied, whether it was intentional, and whether there was consent. Trial counsel did not contest that there was no consent or that there was evidence that the vehicle made contact with Mr. Norris. The only issue was intent. Trial counsel noted that there were inconsistencies from the two witnesses as to how the contact occurred. He also pointed out that the witnesses were determined to serve Mr. Brazau with court papers that day. He pointed to the evidence that Mr. Norris had deliberately blocked Mr. Brazau’s car, that he tried to go around Mr. Norris, and that he came to a stop before the car came into contact with Mr. Norris. His main submission that there was no evidence that Mr. Brazau intended to strike Mr. Norris.

[11] During submissions the following interaction occurred between the trial judge and trial counsel:

TRIAL COUNSEL: Well there is evidence of the vehicle forwards, but there’s a lack of evidence that Mr. Brazau actually meant to make any contact. And it’s on that issue…

THE COURT: Well the circumstances themselves demonstrate – speak for themselves, that there could be no other reasonable inference drawn from the fact that he, for the second time, drove his vehicle where Mr. Norris was standing. I mean, I could understand if, for example, Mr. Brazau was in a hurry and jumped in his vehicle, and his vehicle was parked with the rear facing the street, and without looking he backed up and hit a pedestrian, that he might not have intention to do that, to hit him, and it might be a negligence matter. Here, he’s driving right into him. I mean what other inference could I draw than it was intentional?

[12] In his reasons for judgment, Justice Lacavera found as a fact that Mr. Brazau deliberately drove his motor vehicle in to Mr. Norris. As a result he convicted Mr. Brazau of assault with a weapon. Justice Lacavera also convicted Mr. Brazau of failing to comply with his probation order. There was a joint submission on sentence, which Justice Lacavera accepted. Mr. Brazau was sentenced to 38 days in custody, which reflected a 45 day sentence, with credit for 7 days in pre-trial detention credited at one-for-one. Justice Lacavera also put Mr. Brazau on probation for two years.

2. The Fresh Evidence – Eric Brazau

[13] At the hearing of the appeal counsel agreed that I could open the sealed fresh evidence and that it was admissible. I agree: R. v. Palmer and Palmer (1979), 1979 8 (SCC), 50 C.C.C. (2d) 193 (S.C.C.).

[14] As required, Mr. Brazau filed an affidavit. In his affidavit Mr. Brazau stated that when he first met trial counsel he explained that he did not intend to hit Mr. Norris and generally gave his version of events. He said that he believed that Mr. Norris was so intent on serving him with civil papers that he intentionally threw himself on the front hood of his car in order to attract police attention. He set in detail the inconsistencies of the Crown witnesses that he said could have raised a reasonable doubt. He says that trial counsel failed to put these inconsistencies to the witnesses or highlight them to the trial judge in submissions.

[15] Mr. Brazau also stated that he said early on that he did not want to testify. He said that trial counsel agreed with him. At the close of the Crown’s case trial counsel did not re-visit the issue of Mr. Brazau testifying. He says that he was not aware that he could change his mind and decide to testify. Mr. Brazau was cross-examined on his affidavit. He maintained that he had told trial counsel that he did not want to testify but that they did not discuss whether that decision should be re-evaluated after trial. When questioned about his knowledge of the trial process, Mr. Brazau insisted that he did not understand it, although he had had multiple encounters with the justice system including a five-month stay in custody and at least one contested trial.

3. The Fresh Evidence – Trial Counsel

[16] The Crown filed the affidavit of trial counsel. Trial counsel stated that Mr. Brazau did not want to resolve the case with a peace bond despite an offer from the Crown Attorney. Trial counsel strongly advised him to do so. Mr. Brazau wanted to pursue a civil action against Mr. Norris. In cross-examination, trial counsel said that he had nothing to do with the civil action. Trial counsel practices civil litigation in addition to doing criminal defence work. He had advised Mr. Norris that a civil action had no merit.

[17] Trial counsel met with Mr. Brazau on December 3, 2010 in advance of the December 10 trial date. He obtained an adjournment in order to obtain the 911 tapes. He says that he met with or spoke to Mr. Brazau on December 3, 8, and 15, 2010. At no time did Mr. Brazau mention that Mr. Norris had intentionally thrown himself on the hood of his car, although Mr. Brazau did give different versions of the events. Trial counsel’s view was that the 911 tapes did not support Mr. Brazau’s version of events.

[18] Trial counsel stated in his affidavit that the issue of testimony was discussed on multiple occasions. Mr. Brazau maintained throughout that he did not want to testify. Trial counsel agreed. He was concerned about Mr. Brazau’s credibility. During his cross-examination, he stated:

Q. Okay, so during your meeting with him on December 8th, again he reiterated his position, that he’s not sure if the car actually hit Mr. Norris, is that right?

A. That was not a reiteration of his position. That was actually a change in his position from our previous meeting. On our previous meeting he was pretty clear that the car had hit Mr. Norris and that on this occasion he said he was not sure if the car hit him. This was one of the credibility issues I was having with Mr. Brazau. I would think that on that key issue, whether or not the car hit Mr. Norris, Mr. Brazau would be able to be clear.

[19] Trial counsel also stated in his cross-examination that Mr. Brazau appeared to be familiar with the criminal trial process. He made multiple suggestions about cross-examining the witnesses. He understood that the Crown bore the burden. Trial counsel provided him with case law in order to educate him about the elements of the offence of assault with a weapon. In his estimation, the case was about whether or not the Crown could prove that Mr. Brazau intended to touch Mr. Norris with his car.

4. The Fresh Evidence – The 911 Call And The Criminal Record

[20] The Crown filed fresh evidence consisting of recordings of four 911 calls and Mr. Brazau’s criminal record.

[21] During the incident Mr. Brazau made three calls to 911. Mr. Norris made one call. When trial counsel was first retained, he sought an adjournment of the trial date so that he could obtain disclosure of the 911 calls.

[22] On the first call Mr. Brazau told the 911 operator that people were trying to serve him with papers and were making him nervous. He said that two people were standing in front of him. He did not fully answer the 911 operator’s questions. The operator said that she was sending police.

[23] On the second call Mr. Norris called the 911 operator and said that he had been struck by Mr. Brazau’s car. He said Mr. Brazau was threatening him with his car. He said that Mr. Brazau was revving his car and making motions to hit him.

[24] On the third call Mr. Brazau called 911 again and said that someone was still blocking his driveway and preventing him from leaving. Mr. Brazau said that Mr. Norris (he did not use the name) had called police. The operator was aware that police had been dispatched and told Mr. Brazau to simply stay where he was.

[25] On the fourth call Mr. Brazau called again and said that two people were blocking his car and preventing him from leaving. He said that he basically touched Mr. Norris’s legs (again, he did not use the name) and that the man was now accusing him of assault. He asked the 911 operator what his options were as he was being prevented from leaving. This third operator repeated that the police were on the way and again advised Mr. Brazau to stay where he was.

[26] At the time of trial Mr. Brazau’s criminal record consisted of trial of 8 entries between 1986 and 2008, all in Montreal. He has been convicted once of obstructing a police officer; once of mischief over $1000; once of uttering threats; and of five times of assault. He has also been subject to three peace bonds. Mr. Brazau was on probation at the time of the incident.

ISSUES

1. Has Mr. Brazau established the material facts?
2. Did trial counsel fail to provide appropriate advice regarding the decision not to testify?
3. Did trial counsel fail to conduct an adequate cross-examination?
4. Is there a reasonable probability that the result would have been different?

ANALYSIS

[27] Where trial counsel is found to be ineffective, the result may be a miscarriage of justice. Where there has been a miscarriage of justice an appellate court is obligated to intervene: R. v. Joanisse, 1995 3507 (ON CA), [1995] O.J. No. 2883, 102 C.C.C. (3d) 35 (C.A.) at paras. 63 and 65.

[28] An appellate court must be cautious in dealing with claims of ineffective assistance of counsel. If appellate courts are too willing to accept these claims without rigorous examination, it could discourage “vigorous and fearless representation at trial” as defence counsel would be more concerned with possible subsequent criticism than with properly defending their clients: Joanisse, at paras. 67 and 69.

[29] As a result, there is a three-pronged approach to these claims:

• The appellant must establish the facts on which the claim of incompetence is based.
• The appellant must establish that the representation provided by trial counsel was incompetent.
• The appellant must establish that the incompetent representation resulted in a miscarriage of justice.

[30] Doherty J.A. summarized the principles in R. v. Archer, 2005 36444 (ON CA), [2005] O.J. No. 4348, 202 C.C.C. (3d) 60, 2005 CarswellOnt 4964 (C.A.) at paras. 119-120:

An appellant seeking to quash a conviction on the basis of ineffective assistance of counsel must demonstrate three things. First, where the claim is based on contested facts, the appellant must establish the material facts on the balance of probabilities. Second, the appellant must demonstrate that counsel's acts or omissions amounted to incompetence. Incompetence is measured against a reasonableness standard. That assessment is made having regard to the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role in the assessment. Allegations of incompetent representation must be closely scrutinized. Many decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction...

… Third, the appellant must demonstrate that counsel's ineffective representation caused a miscarriage of justice. A miscarriage of justice occurs if the appellate court is satisfied that counsel's ineffective representation undermined the appearance of the fairness of the trial, or the reliability of the verdict. A verdict is rendered unreliable where the appellant demonstrates that had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different: G.D.B., supra, at pp. 298-99; Joanisse, supra, at pp. 62-64. The allegations of ineffective representation on this appeal do not go to the fairness of the trial process, but to the reliability of the result.

[31] There is a strong presumption that counsel representation of his or her client fell “within the wide range of reasonable professional assistance": R. v. G.D.B. 2000 SCC 22, [2000] 1 S.C.R. 520, 143 C.C.C. (3d) 289 at para. 27.

[32] I turn now to the discrete issues.

1. Has Mr. Brazau established the material facts?

[33] Most of the key facts are not in dispute. Mr. Brazau and trial counsel agreed that he should not testify and that the decision not to testify was not re-evaluated at the end of the Crown’s case. There is also no dispute about what trial counsel did at trial because it is on the transcripts.

[34] There is disagreement about whether Mr. Brazau told trial counsel that Mr. Norris had thrown himself on the hood of his car. This is an important issue. It is central to Mr. Brazau’s claim that trial counsel should have put this version of events to the witness.

[35] Mr. Brazau claimed in his affidavit and in cross-examination that he told trial counsel that Mr. Norris threw himself on the hood of his car. Although it is difficult to judge credibility from a transcript, in my view Mr. Brazau’s claim is something that he has either convinced himself of since the trial, or simply fabricated. Mr. Brazau did not mention the alleged hood incident during any of the three 911 calls. He did not mention the alleged hood-throwing to the investigating officer. There is nothing about it in trial counsel’s notes, although in cross-examination Mr. Brazau said that he raised the alleged hood incident multiple times and was obsessed with it. Trial counsel took reasonably detailed notes, and certainly took notes of Mr. Brazau’s different explanations. It seems incredible that Mr. Brazau would have mentioned it multiple times given the level of detail in trial counsel’s notes. As well, trial counsel prepared a memorandum to file shortly after the trial, when Mr. Brazau was upset and accusatory. Mr. Brazau said nothing about the alleged hood incident, at least according to that memorandum. There is nothing about the hood-throwing in the police notes.

[36] I find that Mr. Brazau did not mention the alleged hood-throwing incident to trial counsel. He has not established that fact.

2. Did trial counsel fail to provide appropriate advice regarding the decision not to testify?

[37] The defence argues that trial counsel’s conduct fell below the standard because he failed to provide appropriate advice regarding an accused person’s right to testify. Trial counsel and Mr. Brazau did not have an in-depth discussion of this issue. Defence further argues that trial counsel failed in his duty because he did not re-visit the issue after the close of the Crown’s case.

[38] I respectfully disagree. There is agreement that Mr. Brazau maintained all along that he did not want to testify, and that trial counsel agreed. There is also agreement that the issue was not revisited after the close of the Crown’s case. Trial counsel did not examine the issue in detail with Mr. Brazau because he had serious concerns about his credibility. These concerns were well-founded.

[39] This is not a case like R. v. Ross, 2012 NSCA 56, [2012] N.S.J. No. 283, 317 N.S.R. (2d) 243, 290 C.C.C. (3d) 555 (C.A.). The accused in that case was charged, along with others, with sexual interference and sexual assault. The only defence available was mistaken belief as to the age of the complainant. The other defendants testified as to their belief in the age of the complainant. In the circumstances of the case, the only way to advance the defence was for the accused to testify. Trial counsel left the decision to testify to the accused but did not give any advice about the risks of testifying, or the risks of not testifying. His failure clearly fell below the standard and caused a miscarriage of justice.

[40] This case is different. Mr. Brazau was not advancing a positive defence but relying on the supposed lack of evidence on an essential element of the offence, intent. It was certainly open to counsel to try and show a lack of intent from the surrounding circumstances: R. v. LaKing, 2004 39038 (ON CA), [2004] O.J. No. 1549, 185 C.C.C. (3d) 524 (C.A.). As well, Mr. Brazau and trial counsel had discussed whether or not Mr. Brazau should testify.

[41] Trial counsel’s view that Mr. Brazau would not have been a credible witness was well founded for the following reasons:

• Mr. Brazau gave inconsistent versions of the event. He says that he told trial counsel that Mr. Norris intentionally threw himself on the hood of his car. Trial counsel denies that Mr. Brazau said that. As I have noted, there is nothing in trial counsel’s detailed notes to suggest that Mr. Brazau mentioned Mr. Norris throwing himself on the hood of his car. Instead, Mr. Brazau said that he did not know if his car hit Mr. Norris. He also said that he did not hit Mr. Norris intentionally. There is no reason to think that Mr. Brazau would have been any more consistent when testifying. I note that during his cross-examination on his affidavit, he often gave answers that shifted or changed with follow-up questions. Again, I do not believe that he told trial counsel about the alleged hood-throwing incident;

• Had Mr. Brazau testified, the 911 tapes would have been used to cross-examine him, likely to devastating effect. In the third call Mr. Brazau admitted to “touching” Mr. Norris’s legs. That is different from the two versions of events that Mr. Brazau told to trial counsel and obviously very different from Mr. Norris throwing himself on the hood of his car;

• Mr. Brazau also would have been cross-examined on his criminal record. Mr. Brazau had a criminal record with multiple entries. Obviously the trial judge was not aware of the record at the time of trial;

• It is difficult to judge demeanour and credibility second-hand and from a transcript. Nonetheless, there is support for trial counsel’s conclusion that Mr. Brazau was argumentative and inconsistent.

[42] Whether or not to testify is one of the most important decisions made by the accused in a criminal case. It is obviously fundamental to defence counsel’s role to advise his or her client about it. What is reasonable varies with the evidence and the client. Defense counsel have a considerable amount of deference as to how they will defend a client. As Laskin and Charron J.J.A. said in R. v. White, 1997 2426 (ON CA), [1997] O.J. No. 961, 32 O.R. (3d) 722, 114 C.C.C. (3d) 225 (C.A.):

An appellate court's review of trial counsel's performance should be deferential. In addition to the policy considerations discussed by Doherty J.A. in Joanisse, deference is called for because of the broad spectrum of professional judgment that might be considered reasonable. In most cases, even among the most skilled counsel, no two lawyers will defend an accused in the same way. Different defence counsel will use different trial strategies and tactics, different approaches to the examination and cross-examination of witnesses, different styles in opening and closing argument, all of them reasonable. The art of advocacy yields few, if any, absolute rules. It is a highly individualized art. What proves effective for one counsel may be ineffective for another. Most cases, therefore, offer defence counsel a wide scope for the exercise of reasonable skill and judgment. Appellate judges, many of them advocates in their own practices, should not be too quick to conclude that a trial lawyer's performance was deficient because they would have conducted the defence differently.

[43] It might have been better if trial counsel had spent more time discussing the issue of testimony with Mr. Brazau, or re-visited the issue after the close of the Crown’s case. That said, trial counsel saw nothing in the Crown’s case that caused him to change his mind. In my view, it was a tactical decision that was open to a reasonable defence counsel. It was reasonable given Mr. Brazau’s obvious credibility problems. It is not for this Court to second-guess the tactical decisions made by trial counsel as long as those decisions fell within the very broad range of reasonable actions. That said, not only was that decision reasonable, it seems to me that it was sound.

[44] Mr. Brazau’s counsel argues that trial counsel was negligent because he did not understand the nature of the W.D. test that must be applied by a trial judge in evaluating the credibility of a witness: R. v. W.D., 1991 93 (SCC), [1991] 1 S.C.R. 742. She relies on this passage from the cross-examination:

Q. On the issue of credibility, was it your concern that if the judge had to choose between believing Mr. Brazau and believing the witnesses that he would choose the witnesses?

A. Yes.

Q. And that it would – if he testified it would be a straight-up credibility contest between Mr. Brazau and believing the witnesses and the complainant and the judge – you believe the judge would choose the complainant and not Mr. Brazau?

A. I was concerned because what Mr. Brazau was telling me did not add up in the disclosure. For example, he told me that he called 911 about how he was nervous and scared and he told me that his car didn’t make contact. But then in the 911 tapes he acknowledged that his car made contact, so I was concerned about his credibility.

[45] It is obviously true that a trial judge does not choose between competing versions and pick one. I agree with the Crown, however, that it is unfair to suggest that trial counsel misunderstood the fundamental nature of the trial judge’s role. Trial counsel did not state that a trial was a credibility contest. That was the implicit suggestion in Mr. Brazau’s counsel’s question. Trial counsel, however, explained why he believed Mr. Brazau would not be a credible witness. The cross-examination was directed at trial counsel’s perception of Mr. Brazau’s credibility. There was no discussion of trial counsel’s understanding of the law. I do not accept that this snippet of cross-examination can be bootstrapped into a finding that trial counsel fundamentally misunderstood the role of a trial judge. If that was the defence position, fairness required that it should have been put directly to trial counsel in order to give him the opportunity to answer directly.

[46] Trial counsel strongly advised Mr. Brazau to resolve the case on the basis of a peace bond. He also advised Mr. Brazau that his proposed civil action had no merit. He advised Mr. Brazau, in writing, that the case would not be easy to win. Trial counsel demonstrated a reasonable knowledge and understanding of the trial process, the risks of trial, and of his client. He advised his client accordingly.

3. Did trial counsel fail to conduct an adequate cross-examination?

[47] Mr. Brazau’s counsel has broken down this issue into two arguments: first, that trial counsel failed to put the defence version of events to the Crown witnesses; and second, that trial counsel failed to cross-examine the Crown witnesses on the inconsistencies in their evidence.

[48] The two arguments can be collapsed into one single question: did trial counsel’s cross-examination fall below the standard? In my view the answer is “no”, for the reasons set out below.

[49] As Doherty J.A. pointed out in Joanisse, it is a rare case where some aspects of counsel’s performance could not be criticized. The real question is whether is whether trial counsel’s acts or omissions were reasonable given the circumstances and the evidence. In my view trial counsel’s actions were reasonable. This question engages the conduct component of the test: Joanisse, para. 67; Archer, para. 119.

[50] I agree with the defence that failure to cross-examine can undermine the reliability of the verdict: R. v. M.B., 2009 ONCA 524, [2009] O.J. No. 2653, 251 O.A.C. 81, 2009 CarswellOnt 3678 (C.A.); Joanisse, para. 78. The defence argues on appeal that the failure to put Mr. Brazau’s position to the witnesses that the contact was unintentional meant that trial counsel’s submissions to the judge had no weight, as there was no evidence to back them up. I disagree. As noted, trial counsel was able to argue that, based on the surrounding circumstances, there was no evidence of intention: LaKing. I see nothing unreasonable about this approach to the cross-examination.

[51] The Defence submission is also based on factual and legal misunderstandings. I approach the factual misunderstanding by asking, rhetorically, which version of events was trial counsel supposed to put to the witnesses? The version where Mr. Brazau told trial counsel that he wasn’t sure if the car made contact with Mr. Norris? The version where Mr. Norris allegedly threw himself on the hood of Mr. Brazau’s car (and which I find as a fact Mr. Brazau never mentioned)? Or the version where Mr. Brazau admitted touching Mr. Norris but said it was unintentional? In my respectful view, it is obvious that the only realistic position to adopt was that Mr. Brazau unintentionally struck Mr. Norris. Since intention is all about the state of Mr. Brazau’s mind, I can well imagine that a question along the lines of “I put it to you that Mr. Brazau never intended to strike you” would have swiftly drawn an objection from Crown counsel that the witness could not comment on Mr. Brazau’s state of mind – and that objection would likely have been upheld. Even if the question had been asked and answered, it seems unlikely that the Crown witnesses would have agreed with the suggestion. Trial counsel would have been left in exactly the same place.

[52] The legal misunderstanding is that there was an obligation to put a conflicting version of events to the witnesses. This was not a Browne v. Dunn situation. The nature of the rule in Browne v. Dunn was explained by Finlayson J.A. in R. v. Verney, 1993 14688 (ON CA), [1993] O.J. No. 2632, 87 C.C.C. (3d) 363 (C.A.) at para. 28:

Browne v. Dunn is a rule of fairness that prevents the "ambush" of a witness by not giving him an opportunity to state his position with respect to later evidence which contradicts him on an essential matter. It is not, however, an absolute rule and counsel must not feel obliged to slog through a witness's evidence-in-chief putting him on notice of every detail that the defence does not accept. Defence counsel must be free to use his own judgment about how to cross-examine a hostile witness. Having the witness repeat in cross-examination, everything he said in chief, is rarely the tactic of choice.

[53] See also R. v. M.B., at paras. 72-73.

[54] In the cross-examination on his affidavit, Mr. Brazau frequently criticized trial counsel’s questioning as “meek and mild”. For example:

… the way he was questioning them was a warm-up to the real questions because he was so meek and mild…

… What I’m saying is he was so meek and mild…

… He questioned them so ineffectively or weakly…

[55] With respect, Mr. Brazau is mistaken in equating aggressive or hostile cross-examination with effective cross-examination. Unfortunately, it is a common mistake; even more unfortunately, it is a mistake that is shared by many lawyers. Even more unfortunately, it is a mistake sometimes made by counsel. The idea that cross-examination must be nasty, brutish, rude, or simply aggressive in order to be effective is entirely wrong. There is nothing necessarily wrong with aggressive cross-examination. The trial process sometimes requires aggressive cross-examination. Aggressiveness does not, however, necessarily equal effectiveness. A seemingly mild cross-examination may be very effective. Much effective cross-examination is carried out with a stiletto. Much ineffective cross-examination is carried out with a flamethrower.

[56] More importantly, it was trial counsel’s view that the inconsistencies in the evidence of the Crown witnesses were not material to the elements of the offence of assault with a weapon. He explained that his strategy was to use the cross-examination to demonstrate that Mr. Brazau did not intend to hit Mr. Norris with his car. There was nothing unreasonable about following this strategy. Indeed, given the clear evidence that Mr. Brazau’s car had actually made contact with Mr. Norris’s legs, raising a reasonable doubt that Mr. Brazau had intended to hit Mr. Norris was probably the only workable strategy.

[57] Mr. Brazau also seems to be labouring under the impression that it was his counsel’s job to bring forward all of the evidence, arguments, and contradictions that he suggested. That is incorrect. Defence counsel are not a mere mouthpiece for their clients. Defence counsel are expected and required to exercise independent judgment: R. v. DiPalma, 2002 53217 (ON CA), [2002] O.J. No. 2684, [2005] 2 C.T.C. 132 (C.A.) at para. 38. The Crown’s surest ally in a criminal case is often the overbearing client who wants to control his or her lawyer, and succeeds in doing so.

[58] I therefore find that trial counsel conducted a cross-examination that met the standard of reasonableness.

4. Is there a reasonable probability that the result would have been different?

[59] The defence must demonstrate not only that counsel’s representation of the accused fell below the standard of reasonableness, but also that there was a reasonable probability that the result would have been different. Doherty J.A. described a “reasonable probability” lying somewhere between a mere possibility and a likelihood: Joanisse, paras. 79-80.

[60] I have already found that trial counsel’s representation of Mr. Brazau did not fall below the standard. It is not, therefore, strictly necessary for me to delve into this issue. Even if trial counsel’s representation did fall below the standard, however, it is not reasonably probable that the result would have been different.

[61] As trial counsel discerned, even if he had put the supposed inconsistencies in the witness’s evidence to them in more detail, and confronted them with one of Mr. Brazau’s version of events, those inconsistencies had little material bearing on Mr. Brazau’s intention. For example, Mr. Norris’s evidence about whether or not he “confronted” Mr. Brazau had no bearing on Mr. Brazau’s state of mind. The contradiction between Ms. Reeve’s and Mr. Norris’s observations about the movement of the car likewise had little or no bearing on Mr. Brazau’s state of mind. It is not reasonably probable that a different cross-examination would have brought about a different result.

[62] I also do not see how the result could have been different if trial counsel had spent more time with Mr. Brazau on the issue of testimony, or had re-visited the issue after the close of the Crown’s case. I note that there is no guarantee that Mr. Brazau would have testified if the issue had been re-visited. Although Mr. Brazau says that he would have testified if trial counsel had raised the issue, that is a conclusion made in hindsight. I give that assertion little weight. Indeed, I suspect that if Mr. Brazau had testified and been convicted, he would be appealing on the basis that trial counsel negligently advised him to testify.

[63] Thus, it is unrealistic to suppose that the result would have been different had Mr. Brazau testified or had trial counsel cross-examined in a different manner. It was reasonable – and sound – to take the position that the circumstantial evidence did not support evidence of intention, and equally reasonable to conclude that Mr. Brazau would not have helped his own case by testifying.

DISPOSITION

[64] At the end of the day, what has happened here is that Mr. Brazau blames what he views as his trial counsel’s poor performance for the result. It is much more likely that the evidence simply supported a conviction. Indeed, Mr. Brazau does not cite allege any errors by the trial judge. I see no basis for finding that trial counsel’s performance fell below the required standard. Even if it did, it is not reasonably probable that the result would have been different. The appeal is dismissed.

R. F. GOLDSTEIN J.

Released: August 18, 2014

COURT FILE NO.: 13-70000012-00AP

DATE: 20140818

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
Respondent

– and –

ERIC BRAZAU
Appellant

REASONS FOR JUDGMENT on summary conviction appeal

R. F. Goldstein J.

Released: August 18, 2014