R. v. C.G., 2015 ONSC 2954

COURT FILE: Crim(P) 630/13
DATE: 05062015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

A. Valarezo for the Crown

• and -

C.G.

R. Posner for C.G.
M. Moon for A. Saini

Defendant

Application Heard: April 20 and 21, 2015

RULING ON MISTRIAL APPLICATION

Ricchetti J.

OVERVIEW

[1] Mistrial applications are routinely heard during a trial, even a jury trial. A mistrial application by an accused on the basis of ineffective assistance of counsel in the middle of a trial, let alone a jury trial, appears to be novel. Add to this the fact that the mistrial application was brought near the end of the accused's cross-examination, creates difficulties and issues with such a motion. Counsel could not point to a single authority where such a motion had previously been brought by an accused in the middle of a trial.

[2] There are numerous difficulties dealing with such a motion by an accused during the trial:

a) The accused will have to terminate his trial counsel’s retainer. The accused cannot very well allege his that trial counsel is incompetent and continue to retain him to complete the trial if the application is unsuccessful;

b) Then the accused needs to bring the mistrial application himself or herself or retain counsel to bring the mistrial application. If new counsel is to be retained for the mistrial application, any significant adjournment to retain new counsel to review the trial proceedings and prepare for the application could effectively result a mistrial, especially in a jury trial – regardless of the merits of the application. If the purpose of the application is a trial tactic to bring about a mistrial, the trial judge is in a difficult position balancing the right of an accused to bring such an application and the trial judge's duty to proceed with the jury trial in a reasonably timely fashion;

c) The accused must provide a waiver of privilege. This waiver must be provided to the accused’s trial counsel and the Crown to permit them to properly and effectively respond to the accused's mistrial application. This waiver, and in particular the information that becomes available, puts the accused in a very difficult and potentially dangerous position should the trial continue;

d) As in this case, where the accused is in the middle of cross examination, new counsel, retained to bring the mistrial application, cannot speak to the accused regarding the details of the case for fear of assisting the accused in the balance of his cross-examination. In such a case, how can new counsel satisfy himself that there is some factual foundation for the allegation of incompetence of trial counsel? See: R. v. Elliott (1975), 1975 1501 (ON CA), 28 C.C.C. (2d) 546 (Ont.C.A.) at p. 549 and para 3 of the Court of Appeal Procedural Protocol for Allegations of Incompetence of Trial Counsel;

e) If the application is dismissed, the accused may have to proceed to complete the trial without counsel or seek an adjournment to get counsel. Again, in a jury trial, a lengthy adjournment would effectively bring about a mistrial regardless of whether there had been any merits to the mistrial application. It is even more difficult in the circumstances of this case. Mr. C.G. counsel was appointed under a Rowbotham Order. Mr. C.G. termination of Mr. Saini, left Mr. C.G. in a very difficult position where he would be unlikely to get further Legal Aid assistance. Amicus? Even if such an order would be made, the process for Legal Aid to find counsel who is prepared to act as amicus and, if available, permit amicus time to become familiar with the trial, would require a very lengthy adjournment – again a mistrial in a jury trial.

[3] Given these issues and a myriad of other complexities with such motions during a trial, this application was heard. Mr. C.G.'s mistrial application was dismissed, with reasons to follow. These are those reasons.

THE BACKGROUND

[4] Mr. C.G. was charged with:

a) Sexually assaulting his daughter, A.G.; and

b) Incest with his daughter, A.G..

[5] By any standard, this was an overwhelmingly strong Crown case.

[6] A.G. was brought to Canada by Mr. C.G. from Jamaica. A.G. was about 16 years old at the time and went to live with Mr. C.G. and his partner. A.G. testified that, eight to nine months after her arrival to Canada, Mr. C.G. started to sexually abuse her by repeatedly having sexual intercourse with her. A.G. stated this continued for several years. In November 2010, A.G. had a child, N.. After N.’ birth, A.G. returned to Mr. C.G.'s home to reside. A.G. alleged that the sexual abuse continued after N.’ birth. In November 2011, A.G. had a second child, R.. Just before R. was born, she reported the sexual abuse to a social worker. This led to police involvement. A.G. was removed from Mr. C.G.'s home to a shelter in late 2011. At that time in December 2011, A.G. was not sure who the father of was N. – apparently she had had sexual intercourse with a cousin (who was subsequently excluded as the father of the children by DNA analysis). R. was born.

[7] A.G. gave the police a statement that her father, Mr. C.G., had been sexually assaulting her for several years.

[8] Buccal swabs were taken of A.G. and her two sons.

[9] In early 2012, Mr. C.G. was asked to attend the police station. Mr. C.G. voluntarily attended and consented to provide a buccal swab sample for DNA testing for the paternity of N. and R..

[10] Mr. C.G. buccal swabs and the buccal swabs of N. and R. were sent to the Centre for Forensic Sciences (CFS).

[11] Different mathematical calculations are used for paternity testing where lower results of several hundred thousand to several million might be fairly determinative of the father. In this case, the CFS determined that the likelihood of a random man, other than Mr. C.G., being the father of N. was 1 in 3,900,000. The CFS also determined that the likelihood of a random man, other than Mr. C.G., being the father of R. was 1 in 11,000,000.

[12] Later in 2012, Mr. C.G. was arrested. Mr. C.G. was charged. Mr. C.G. gave a videotaped statement to the police in May 2012. He stated that he had dreams about A.G., he would awake from these dreams and A.G. would be laying beside him in bed. On one occasion he recalled finding a “messy” underwear. He told the police this had happened twice. Mr. C.G. stated he did not know what had happened before waking up but told the police, on several occasions, that A.G. had “taken advantage of him”.

[13] Mr. C.G. denied N. and R. were his children.

[14] Mr. C.G. was not represented at the preliminary hearing. Mr. Saini, as amicus was appointed for Mr. C.G. to cross-examine A.G.. After committal, a Rowbotham application was successful. Legal Aid funded Mr. Saini’s representation for Mr. C.G..

[15] At the pre-trial, Mr. Saini indicated that he would bring a pre-trial motion to exclude the DNA results from Mr. C.G. buccal swab on the basis that the taking of the sample was in breach of Mr. C.G. rights.

[16] Faced with this possible Charter application, in 2014, the police obtained a warrant for a blood sample to be taken from Mr. C.G..

[17] Mr. C.G. blood was taken and sent to CFS. In early 2015, the DNA paternity results were available and, again, the results pointed overwhelmingly to Mr. C.G. as the father of N. and R.. Essentially, the same high degree of probability, as in the previous CFS report that Mr. C.G. was the father of both N. and R., was again reported by the CFS after this analysis.

[18] Subsequently, no pre-trial motion was brought to exclude the buccal and/or blood samples and the DNA results.

[19] Mr. C.G. chose to be tried by judge and jury.

[20] Mr. C.G.'s two videotaped statements to the police were admitted to be voluntary and admissible for the purpose of cross examination. However, there was an issue regarding the admissibility of certain portions of Mr. C.G. second statement to the police. The Crown and Defence counsel came to an agreement that certain portions of the second statement would not be used by the Crown in cross examination.

[21] On consent of both counsel, the jury was vetted based on their availability for approximately a five day trial. The jury was chosen on April 14, 2015. Late the same day, the trial started. An order excluding witnesses was requested by both counsel and made by this court. Mr. Saini left to tell a witness, believed to be Mr. C.G. sister, M.R., to leave the courtroom.

[22] The Crown’s first main witness, at approximately 10 am next morning, was A.G.. She testified as to the sexual abuse by Mr. C.G. for several years. Her examination-in-chief was approximately two hours. Her cross-examination by Mr. Saini continued for the balance of the day. Her cross-examination by Mr. Saini continued the next morning. Over the many hours of cross examination, Mr. Saini had:

a) Attacked A.G.’s credibility generally with the use of her prior statements;

b) elicited the many opportunities that A.G. had to report the sexual abuse but had not done so for years;

c) elicited that A.G. had at one time, reported the sexual abuse to Mr. C.G. sister, but later told Mr. C.G. sister that what she had said was a lie;

d) confronted A.G. that she had reported a different pattern of sexual abuse to a social worker, Ms. Wellman. At Mr. Saini's request, Ms. Wellman was made available by the Crown to permit Mr. Saini to call her as part of the Defence case;

e) obtained an admission that A.G. was not sure who the father was when N. was born; and

f) challenged A.G.’s evidence that the sexual abuse with Mr. C.G. had ever occurred.

[23] The actions and representation by Mr. Saini during this highly important cross-examination was consistent with a well prepared counsel, who understood the case to meet and had made effective decisions as to where the evidence of A.G. could be challenged.

[24] The Crown then called the police witnesses who had taken the buccal and blood samples of Mr. C.G. and the children. Mr. Saini challenged these witnesses on the continuity and possible contamination of the samples. Again, Mr. Saini appeared prepared and focused on the areas he wished to challenge the witnesses. However, both samples were taken from Mr. C.G. by highly trained officers in taking bodily fluid samples who generally followed proper protocols. The Crown’s evidence through these numerous witnesses was that the continuity of the samples and the lack of contamination were very strong. There appeared no obvious shortcoming in either of these areas.

[25] The Crown called its final witness, Ms. Matte, the CFS DNA analyst. Mr. Saini cross examined Ms. Matte on several areas including contamination of samples (in the manner taken and the fact one of the sample tubes had a broken seal when it arrived at CFS) and the database used for the DNA analysis (Ontario black men). Clearly, the difficulty faced by Mr. Saini was that two separate samples, taken years apart, separately tested, both pointed to a very high degree of probability that Mr. C.G. was the father of N. and R..

[26] The Crown closed its case. The court broke for lunch to give the Defence an opportunity to consider whether it wished to call evidence.

[27] After lunch, Mr. Saini announced that the Defence intended to call Mr. C.G. as a witness. Clearly, this is an accused’s decision. Mr. C.G. chose to testify at this trial. Mr. Saini’s opening statement to the jury was very brief, essentially announcing that they would hear directly from Mr. C.G..

[28] Mr. C.G. was called to give his testimony at approximately 2:00 pm. His evidence in-chief took approximately one hour. Mr. C.G. denied numerous times that he had had any sexual intercourse with A.G..

[29] Then the Crown cross-examined Mr. C.G.. Mr. C.G. admitted that he had told the police he had dreamed of A.G. and then awoke with her lying beside him in bed. Mr. C.G. admitted that he had told the police that A.G. had taken advantage of him on those occasions. However, Mr. C.G. testified he had lied to the police because, somehow, he was protecting A.G. by telling the police she had taken advantage of him, even though Mr. C.G. knew he had been arrested for sexually assaulting A.G.. At one point, Mr. C.G. admitted that he had lied to a question asked by the Crown but denied he had lied to this court because it was a question asked by the Crown. The credibility and reliability of Mr. C.G. evidence was seriously undermined by the cross-examination.

[30] It is hard to imagine that the cross examination could have gone any worse for Mr. C.G.. The decision to testify by Mr. C.G. appeared in hindsight to have been a very bad decision.

[31] After the afternoon break, upon the resumption of Mr. C.G. cross examination, knowing that his cross examination had gone very badly, Mr. C.G. suggested that he had been confused when he gave evidence before the break, he had had low blood sugar and he had only seen the transcripts of his police statements some 30 minutes earlier (clearly referring to when the Crown put the inconsistencies to Mr. C.G.). The reliability of Mr. C.G. evidence continued to decline.

[32] The Crown indicated it would complete its cross examination by end of day Friday – less than a half hour of cross examination remaining. However, the jury was excused. Mr. Saini advised the court that there was an issue which he needed to dealt with over the weekend. The court adjourned for the day, to resume with Mr. C.G.'s cross examination on Monday morning.

THE MISTRIAL APPLICATION

[33] On Monday morning, Mr. Posner attended court on behalf of Mr. C.G.. Mr. Posner advised that he had met with Mr. C.G. on the previous day (Sunday) and Mr. C.G. now wanted to terminate Mr. Saini’s retainer and bring a motion for a mistrial based on ineffective assistance of trial counsel.

[34] Mr. Posner sought an adjournment of a number of days to review the trial record and prepare for the mistrial motion. The adjournment of several days, as requested by Mr. Posner, would have resulted in lengthy adjournment before the trial could resume, raising the serious likelihood of a mistrial given that this was a jury trial.

[35] Mr. Saini had yet to be told what the allegations of incompetence were against him. Arrangements were made for Mr. Posner to have immediate access to the audio records of the trial. The Crown and Mr. Saini met with Mr. Posner that morning to ensure there was an immediate transfer of Mr. Saini’s trial file to Mr. Posner. Mr. Posner was ordered to set out the allegations of incompetence in writing to Mr. Saini by the end of the day Monday. The mistrial application would be heard the next day, Tuesday.

[36] The jury was sent home to return Wednesday morning. The court adjourned for the balance of the day to give Mr. Posner an opportunity to prepare for the mistrial application.

[37] Mr. C.G. waived privilege in writing with respect to Mr. Saini’s representation and files.

[38] In open court, Mr. C.G. proceeded to terminate Mr. Saini’s retainer, acknowledging to this court on the record that, if the mistrial motion was dismissed, subject to any adjournment application he might bring, Mr. C.G. might have to proceed with the jury trial being self-represented. Mr. C.G. indicated he understood and decided to proceed to terminate Mr. Saini in any event.

[39] The next day, Mr. Posner commenced by indicating that he had not had an opportunity to fully prepare for the mistrial application. However, I should note that, despite whatever limitations Mr. Posner might have had, written details of the allegations of incompetence had been given to Mr. Saini the previous day. Mr. Posner produced a six page affidavit of Mr. C.G., setting out in detail the issues Mr. C.G. had with Mr. Saini’s representation. Mr. Posner is a very experience criminal defence lawyer. Clearly, Mr. Posner had identified the details of alleged incompetence of Mr. Saini.

[40] Mr. Posner’s implicit request for an adjournment was not granted. The mistrial application continued.

[41] Mr. Saini retained Mr. Moon to represent his interests in the mistrial application. The court proceeded to hear the mistrial application.

[42] Mr. Posner objected to Mr. Saini’s counsel, Mr. Moon, attending or cross examining Mr. C.G.. The Court of Appeal’s Procedural Protocol Re: Allegations of Incompetence of Trial Counsel in Criminal Cases requires that the trial counsel be given notice of the allegations of incompetence and access to his or her trial file. On appeals, the trial counsel is given an opportunity to respond to the allegations. Evidence of the trial counsel on the appeal is contemplated by affidavit or by cross-examination. Further, the Crown is given access to the trial file – so that the Crown can properly respond to the incompetence allegations on the appeal. However, the process in the Court of Appeal takes place over many months. This luxury of time is not available when such a motion is brought during a trial. Access by the Crown to Saini's trial file became extremely problematic since it was being delivered that same morning to Mr. Posner. Mr. Saini agreed to relinquish his entire trial file to Mr. Posner that morning to assist Mr. Posner’s preparation. In these circumstances, one cannot reasonably expect the Crown to review Mr. Saini’s trial file and respond to the allegations of incompetence against Mr. Saini the next morning. Clearly, the Crown was not in a position to fully respond to the allegations of incompetence. Mr. Saini was also in a difficult position. He was delivering his trial file to Mr. Posner on Monday morning and still did not have written details of the allegations of incompetence. Mr. Saini could not participate in the hearing of the mistrial application directly as counsel. The only way for a proper response to the allegations of incompetence against Mr. Saini, in this highly unusual situation, was to permit Mr. Moon to have limited standing during the mistrial application on behalf of Mr. Saini. Such an order was made.

[43] Mr. C.G. testified. He was cross-examined by the Crown. Mr. C.G. evidence continued to be contradictory, unclear, evasive and containing blatant lies.

[44] At the conclusion of Mr. C.G.'s evidence, several documents were filed on consent. That was the entire extent of the evidence on the mistrial application.

[45] Mr. Saini did not testify.

[46] Submissions were heard. This court reserved its decision on the mistrial application until the next morning.

[47] The mistrial application was dismissed.

THE LAW

The accused's right to a fair trial

[48] An accused's right to a fair trial is constitutionally protected. The right to a fair trial includes the right to effective legal assistance by ss. 7 and 11(d) of the Charter. The Court of Appeal stated in R. v. M. B. 2009 ONCA 524, [2009] O.J. No. 2653 at para. 6:

An accused who is represented by counsel at trial is entitled to receive effective legal assistance. This entitlement is embodied in the constitutional protections afforded by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. In R. v. Joanisse (1995), 1995 3507 (ON CA), 102 C.C.C. (3d) 35, leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347, at p. 57, Doherty J.A. of this court explained:

Where counsel fails to provide effective representation, the fairness of the trial, measured both by reference to the reliability of the verdict and the adjudicative fairness of the process used to arrive at the verdict, suffers. In some cases the result will be a miscarriage of justice. This court is under a statutory obligation to quash convictions which are the product of a miscarriage of justice: Criminal Code, s. 686(1)(a)(iii). The accused who is the victim of a miscarriage of justice is entitled to at least a new trial.

[49] A trial judge has an obligation to be vigilant and raise any apparent breach of an accused's Charter rights which have been or are being infringed. This includes in trials where it is clear to the presiding judge that ineffective assistance of counsel “threatens to undermine a fair trial”. Justice Paciocco in The Case for Judicial Intervention for the Under-represented Accused stated the following:

Simply put, where either the absence of counsel or the absence of effective counsel threatens to undermine a fair trial or to imperil the liberty interest of the accused, there is a duty on trial judges to do what can be done to preserve trial fairness and it is this duty that furnishes the necessary state action required to speak of Charter-based claims.

[50] If necessary, the trial judge does have the jurisdiction to order a mistrial, if it appears to the trial judge that it is inevitable that trial fairness cannot be achieved to ensure a reliable verdict.

[51] While highly unusual, a trial judge may, on his own initiative during a trial, declare a mistrial as the result of ineffective assistance of counsel. If so, there would appear to be no impediment for an accused to bring such an application during the course of the trial.

[52] Onus is on the Accused

[53] Where the issue of ineffective assistance is raised by an accused, the onus rests on the accused. In M.B. at para 7 the Court of Appeal stated:

The burden of establishing ineffective representation at trial warranting appellate intervention rests on the accused. This burden is not easily discharged. Claims of ineffective representation by trial counsel are approached with caution by appellate courts. As Doherty J.A. observed in Joanisse, at p. 58: “It would be a rare case where, after conviction, some aspect of defence counsel’s performance could not be subjected to legitimate criticism. … Appeals are not intended to be forensic autopsies of counsel’s performance at trial.”

[54] I see no reason why this onus and heavy burden would be any different where an accused raises ineffective assistance at trial rather than on appeal.

The Appellate Test

[55] The test applied in the Court of Appeal where ineffective assistance is raised in an appellate context was set out in M.B. at para 8:

This court has adopted a three-stage approach to the scrutiny of ineffective representation claims. Under this approach, in order to succeed in a claim of ineffective assistance of counsel at trial, an appellant must establish: (i) the facts on which the claim of incompetence is based; (ii) that the representation provided by trial counsel was incompetent (the performance component of the test); and (iii) that the incompetent representation resulted in a miscarriage of justice (the prejudice component of the test): Joanisse, at p. 59; R. v. P.(T.) (2002), 2002 49360 (ON CA), 59 O.R. (3d) 577 (C.A.), at para. 19.

Performance Component

[56] The constitutional standard for counsel does not require perfect representation by counsel. Competence of counsel is strongly presumed. The constitutional standard is incompetence by trial counsel.

[57] The standard to be met in relation to the performance component of the test is one of reasonableness. Counsel’s performance is not assessed based on the hindsight of decisions made during the trial. See Joanisse, at p. 61.

Prejudice Component

[58] The prejudice component focuses on “the nature and seriousness of counsel’s errors both from the perspective of the reliability of the verdict and the adjudicative fairness of the process leading to the verdict”. See Joanisse, at p. 62.

[59] The appellate test on the miscarriage of justice is whether the trial unfairness which flows from the incompetent representation has a reasonable probability that the result in the proceedings might have been different.

The Test for Such an Application at Trial

[60] The appellate test is not directly applicable to a mistrial application brought during the trial.

[61] Trial counsel’s performance is difficult to assess mid-trial. It is unknown what the arguments will be. It is difficult to know what other witnesses will be called on behalf of the Defence. The Defence strategy has not yet unfolded.

[62] There is also no ability to assess the impact of counsel’s actions on the reliability of the result since there is no verdict.

[63] Like any appellate review of ineffective assistance of counsel, it is not for this court to delve into defence strategy and assess whether the strategy was successful. Different counsel have, and must have, a very wide latitude to make different choices on the defence strategy, each of which is a reasonable and competent strategy whether or not the strategy is ultimately successful. As set out by Justice Hill in R. v. Furtado [2006] O.J. No. 3866 at para 72:

whether counsel should have acted, or should have acted as he or she did, “must be judged, as far as possible, having regard both to the state of the evidence” at the time counsel made the impugned decision “and to what might then reasonably have been expected to be the likely future course of the matter” (R. v. Joanisse, supra, at pp. 60-1; R. v. Seepersad, supra, at para. 5; R. v. Ali, [2005] HCA 8 at para. 24 per Gleeson C.J.).

[19] “It is not a mark of competent advocacy to pursue at trial every line of argument that can be imagined, regardless of its consistency with other arguments, and regardless of its prospects of success… On the contrary, such an approach is the hallmark of incompetence” (R. v. Ali, supra, at para. 6 per Gleeson C.J.). Likewise, “Ordinary standards of professional competence do not require trial counsel to object to every piece of evidence that is arguably inadmissible, especially in front of a jury” (R. v. Ali, supra, at para. 9 per Gleeson C.J.) – “Counsel is not bound to take every objection that is open” (R. v. Ali, supra, at para. 23, per Callinan and Heydon JJ.).

[20] Even a clearly wrong tactical decision may not amount to incompetence (R. v. Archer, supra, at p. 100; Ekins, “Defence Counsel Incompetence and Post Conviction Relief…” at p. 556). As a general rule, a “single oversight” does not demonstrate incompetence (R. v. Duncan, [1999] O.J. No. 3452 (C.A.) at para. 2). “Not every error makes the trial unfair” (R. v. TKWJ, supra, at para. 77 per McHugh J.). And trial counsel’s reasons for exercise of judgment or decision-making are not to be exposed “to after-the-fact microscopic scrutiny” (R. v. White, supra, at p. 251).

[21] In most criminal trials, counsel have many decisions to make some of which will be more difficult than others. Deference is properly accorded professional judgments by counsel:

…As with most tactical decisions, different lawyers may have made different decisions. That does not mean that any of counsel’s choices demonstrate incompetence.

(R. v. Archer, supra, at p. 100)

…It is not to the point to show that in certain respects the trial might have been conducted differently, or that in certain respects it might have been conducted more skilfully.

(R. v. Ali, supra, at para. 12 per Gleeson C.J.)

…counsel has wide latitude in deciding how to best represent a client.

(Yarborough v. Gentry, supra, at pp. 5-6)

[64] When should a mistrial application be granted during a trial?

[65] Parts of the appellate test can be applied at any such application brought during the trial such as the onus is on the accused to establish the facts in support of the application.

[66] What of the performance and prejudice components? In my view, the accused would have to establish that the trial counsel’s incompetence is such that, regardless of what happens in the balance of the trial, trial fairness has been irrevocably compromised to an extent that any verdict rendered will likely be unreliable.

[67] I reject Mr. Posner’s submission that a mistrial be declared because of the “possibility” of a miscarriage of justice. This sets the standard too low for such an application during the course of a trial.

ANALYSIS

Mr. C.G.’s evidence

[68] Any analysis must start with Mr. C.G. position in this case. His position is that he never had sexual intercourse with A.G. and never sexually assaulted her.

[69] By the end of Mr. C.G. cross examination on the mistrial application, it was clear that:

a) Mr. C.G. had realized he had done very badly in his cross-examination on Friday afternoon. He testified on the application that he had not told the police A.G. had taken advantage of him but that this was only speculation on his part that she had taken advantage of him when he told this to the police. He also testified that when he told the police that Ashely had taken advantage of him, he did not mean in a sexual way. Mr. C.G. went further, he testified that if the children are his, then the only way it could have happened was that A.G. took advantage of him, presumably sexually. Mr. C.G. evidence was evasive, inconsistent and highly damaging to his credibility. He was attempting to avoid the consequences of the statements he had made to the police. The difficulty Mr. C.G. faced was that he had also given similar evidence during his cross examination at trial that A.G. had taken advantage of him. But, he testified, at great length, to say that at trial he was confused and his evidence was all wrong. It was obvious, that Mr. C.G. realized he had to undo the damage of his statements to the police and evidence to this court. He needed to retract this evidence through suggestions of confusion, medical issues or simply not being prepared. Mr. C.G. statements to the police and evidence at trial was tantamount to an admission that he had had sexual intercourse with A.G., notwithstanding his prior denials under oath that he had never had sexual intercourse with A.G., anywhere, anytime;

b) Mr. C.G. testified that he allegedly always had serious concerns about Mr. Saini’s representation, believing that Mr. Saini was “shaking him up” or “shaking him down”. He never raised any issue or took any steps to deal with this issue until after his cross examination had gone very badly;

c) Mr. C.G. testified that Mr. Saini was working with the Crown to “put him away – have him convicted”. A more preposterous suggestion could not have been made by Mr. C.G.. Mr. C.G. went so far as to suggest Mr. Saini had told him prior to an early court appearance that he did not want or need Mr. C.G. to attend at an appearance because Mr. Saini wanted a warrant for Mr. C.G. arrest to be issued!;

d) Mr. C.G. had lied about not having seen the transcripts of his statements to the police before testifying. There is some evidence he had seen the transcripts or videotape of the statements (at least parts of them) with Mr. Saini during a specific meeting for trial preparation for one and three quarters of an hour several weeks before trial had started. Mr. C.G. also admitted that he had seen the transcripts over the lunch hour for his review before he proceeded to testify before the jury. This was two to three hours before the transcripts were put to him in cross-examination. Mr. C.G. admitted he told Mr. Saini, prior to testifying, that he knew what he had told the police. Mr. C.G. first raised this issue of not having reviewed the transcripts until after he had done very badly during his cross-examination; and

e) How and why the issue of ineffective assistance arose after Friday’s cross-examination remains a mystery. He had been told by this court not to speak with anyone about this case. He testified that he realized he was not being represented properly when he spoke to a friend. Mr. C.G. admitted he spoke to “a long time friend”, who he speaks to regularly that evening when he came to this realization. When asked numerous times who this person was, Mr. C.G. said he could not remember his name. He was clearly lying. When asked numerous times where they met, he could not remember or refused to answer where he had met this friend in Toronto. Again, he was clearly lying. Later in the cross examination, he admitted the first name of the friend. However, realizing that he had been instructed by this court not to talk with anyone about this case, he said he did not speak to his friend about this case. If he did not speak with his friend about the facts of this case, how did this friend have led Mr. C.G. to conclude his trial lawyer was incompetent and he should raise this issue with new counsel on the weekend? These were flagrant, deliberate lies by Mr. C.G. to explain this sudden decision Mr. Saini was incompetent and need for a mistrial.

[70] Mr. C.G. evidence was neither credible nor reliable. Mr. C.G. is prepared to lie about anything that will assist him. I put no weight on Mr. C.G. affidavit evidence filed on this application.

[71] I conclude, without hesitation, that Mr. C.G. motivation for bringing the mistrial application was to de-rail this trial that was going very badly for him and to have a new trial. Without doubt, Mr. C.G. decision to testify in this case was a very bad decision and one that he regretted. A mistrial would give Mr. C.G. a chance to not make the same mistake again.

The Allegations of Incompetence

[72] Notwithstanding my findings regarding Mr. C.G. credibility and reliability of his evidence, I will nevertheless deal with each of the specific allegations of incompetence made by Mr. C.G..

Poor Communications

[73] Mr. C.G. alleges that Mr. Saini communicated poorly with him. He went so far as to suggest Mr. Saini avoided talking with him.

[74] Mr. C.G. concerns regarding how Mr. Saini was defending him and communicating with him must be put into context that Mr. C.G. believed Mr. Saini was conspiring with the Crown to ensure Mr. C.G. was convicted.

[75] I do not accept Mr. C.G. evidence that Mr. Saini avoided communicating with him. Mr. Saini had provided Mr. C.G. with his personal telephone number. They had a number of meetings at various places, including the courthouse and his office. Mr. Saini had obviously met with Mr. C.G. sister prior to trial. Mr. Saini had discussed meeting or speaking with Mr. C.G. partner. At various times during Mr. C.G. evidence, it was clear that he was discussing trial issues with Mr. Saini. It was clear that Mr. Saini was well prepared for the cross-examination of A.G. and the examination-in-chief of Mr. C.G., much of which must have come from preparation with Mr. C.G..

[76] If Mr. C.G. is to be believed, whenever he and Mr. Saini met, which was often, they rarely discussed the case, witnesses, the videotaped statements – nothing. I do not believe this, it is inconsistent with Mr. Saini’s preparedness to deal with the trial evidence and issues and Mr. C.G. own evidence.

[77] Even if Mr. Saini was not communicating to the level of Mr. C.G. preference, I am not persuaded that it had any impact on the level of Mr. C.G. representation or right to a fair trial.

DNA Analysis

[78] I do not accept Mr. C.G. evidence that Mr. Saini avoided answering his question as to how to deal with the DNA evidence. Mr. Saini had told Mr. C.G. that he was going to challenge the admissibility of the DNA results by bringing a motion to exclude the evidence as a breach of Mr. C.G. rights. In fact, Mr. Saini did propose to bring a Charter motion to exclude the evidence from the first DNA results. However, the police then obtained a warrant for a sample of Mr. C.G. blood. The DNA paternity test was re-done. The results came back the same, again with a high probability that Mr. C.G. was the father of N. and R.. Now Mr. Saini would have to attack the admissibility of both samples and the resulting separate DNA analysis.

[79] It was clear from the evidence in this case that the DNA evidence was the most significant inculpatory evidence that Mr. C.G. had sexual intercourse with A.G.. Mr. Saini did, in my view, effectively cross-examine Ms. Matte on areas which raised potential issues for the jury. However, the DNA evidence was very solid.

[80] For reasons set out below, any challenge to the admissibility of the DNA results from Mr. C.G. buccal swab sample had no chance of success.

[81] I do not accept the evidence that Mr. C.G. asked Mr. Saini about how he intended to defend him on the DNA evidence and Mr. Saini “refused” to explain it to him. This makes little sense. This complaint, like the other complaints of Mr. C.G., arose only after Ms. Matte’s evidence and after his cross-examination had gone so badly.

[82] Mr. Posner suggested that Mr. Saini should have sought legal aid funding for a Defence DNA expert to either testify or assist Mr. Saini in the cross-examination of Ms. Matte. Mr. Posner submitted that such funding would have no doubt been granted. I do not agree that it was a foregone conclusion Legal Aid would have funded a Defence DNA expert, in light of the DNA analysis had been done twice over several years apart with the same result.

[83] There is no evidence a third DNA analysis would have made any difference.

[84] Mr. Posner alternatively suggested that a Defence DNA expert might have assisted with the cross-examination of Ms. Matte. This is entirely speculative. The evidence at trial was that DNA analysis for paternity is a standard process used by many laboratories around the world for this purpose.

[85] I conclude that Mr. C.G. has not established that Mr. Saini’s actions and dealings with the DNA evidence was incompetent by or that it would have made any difference to this case.

The Buccal Swab

[86] Mr. C.G. suggested that Mr. Saini failed to challenge the DNA evidence arising from the buccal swab sample taken from Mr. C.G. on January 2012. Mr. C.G. testified that he did not know that the buccal swab sample could be used against him in a criminal proceeding.

[87] There are several problems with this allegation:

a) I do not accept Mr. C.G. evidence that he did not know the buccal swab sample could not be used against him. Mr. C.G. attended the police station in early 2012. His attendance was fully captured by videotape. He was not under arrest. He attended voluntarily. Mr. C.G. was told he did not have to speak with the police and that he could stop any time. The officer told Mr. C.G. that his investigation might lead to criminal charges, if warranted. The officer read to Mr. C.G. the consent form for the taking of the sample which was clear that the evidence from the buccal swab could be used to prove Mr. C.G. was guilty of an offence. Mr. C.G. was specifically told that he was under no obligation to give a sample. Mr. C.G. originally refused to give a buccal swab sample. Mr. C.G. wanted to consult with a lawyer. The interview ended. Mr. C.G. went outside of the interview room, where his partner, F.D., was waiting. Then Mr. C.G. changed his mind and told the officer he wanted to voluntarily give a sample. When the interview resumed, the videotape showed Mr. C.G. confirming that he had decided to voluntarily give the police a buccal sample. Mr. C.G. also confirmed he was not pressured or induced to give the buccal sample. Mr. C.G. signed the consent form for the taking of the sample. A buccal sample was taken from Mr. C.G.. Given this background and evidence captured on the videotape, I fail to see how Mr. C.G. rights were infringed or that there is a reasonable argument to be made that his Charter rights were infringed. Nevertheless, I am not persuaded that Mr. C.G. has established that, if such a challenged had been brought by Mr. Saini, it would have made any difference to this trial; and

b) even without the buccal sample, the DNA results from the subsequent blood sample from Mr. C.G. would continue to be a serious problem for Mr. C.G. defence. Again, Mr. Posner speculated that, if the first buccal sample was in breach of Mr. C.G. rights, the warrant for the blood sample might be tainted and, therefore, inadmissible. Given the voluntary nature of the first sample, it is unlikely and highly speculative that an attack on the ITO would have been successful. And then, there is s.24(2) of the Charter to still overcome;

[88] This allegation is another clear lie by Mr. C.G., denying what is obvious from the videotaped interview. There is no merit to this allegation of incompetence.

Erectile Dysfunction

[89] Mr. C.G. states that he could not have had sexual intercourse with A.G. because of his sexual dysfunction. He alleges Mr. Saini should have pursued this issue but did not

[90] There are a number of problems with this allegation:

a) During the course of Mr. C.G. second interview with the police, he told them he had dreamed and then awoke to find A.G. lying down beside him. He further went on to describe his “messy underwear”, which caused concerns to his partner, F.D.. On one of these occasions he told the police when he awoke, A.G. was “sitting on him”. He told the police that he could not remember what A.G. was wearing. All of this, was strongly suggestive that some form of sexual activity was going on between Mr. C.G. and A.G.;

b) Mr. C.G. said that his partner, Ms. F.D. could testify about his inability to achieve an erection. Yet, Ms. F.D., who resides in Brampton, filed no affidavit and gave no evidence on the mistrial application. No explanation was offered why not;

c) Mr. C.G. said that he was “confident that I can get medical proof that I could not have sexual intercourse with my daughter due to my sexual dysfunction” (emphasis added). First, the wording is cautionary – “I am confident”. Second, no documentary proof was produced to this court although, Mr. C.G. referred to having a document that could show his condition. Third, there was no medical evidence to support this allegation or whether this alleged condition existed in 2009 to 2011. Mr. C.G. entire evidence on this issue was very vague.

[91] I am not persuaded there is evidence to support this bald allegation of Mr. C.G.. Mr. C.G. statement does not meet the onus on him to establish that this issue resulted in an unfair trial.

The Children’s Aid (CAS) File

[92] When R. was born, the CAS commenced child protection proceedings to remove N. and R. from A.G.. The entire extent and details of the child protection proceedings are not known.

[93] There was a large CAS file, which Mr. C.G. had in his possession and had turned over to Mr. Posner sometime prior to court on Monday morning. Mr. C.G. alleged Mr. Saini refused to review this file for his defence.

[94] Mr. C.G. has had these files for years. Mr. C.G. did not point out anything in the CAS files to Mr. Posner or to this court that would have assisted the defence or made a difference in this trial. This court is left to speculate that there “might” be something in the CAS files which would have helped the defence.

[95] Mr. C.G. onus in this application is not discharged by offering mere speculation for this allegation of incompetence.

Prior Complaint by A.G. of Sexual Abuse in Jamaica

[96] Mr. C.G. affidavit sets out that A.G. had made a prior allegation against him in Jamaica of sexual abuse. Mr. C.G. stated that Mr. Saini did not investigate this.

[97] There are several problems with this evidence. To some extent, this evidence is potentially confirmatory of sexual activity between Mr. C.G. and A.G.. This coupled with the DNA evidence would be very damaging to Mr. C.G. case. It would also raise serious questions why Mr. C.G., would take A.G. from Jamaica against her will, needing police assistance, at great expense, if there was this history of false allegations of sexual abuse between them.

[98] Mr. C.G. also makes a vague allegation that A.G. had alleged sexual abuse regarding an “uncle” in England. There is no name. No information when. No detail as to what happened. Nothing to suggest that, if this had happened, how it was relevant to the issues in this case.

[99] Based on what little facts Mr. C.G. has provided, I am not persuaded that the right to cross examine A.G. on this issue would have been granted under s. 276 of the Criminal Code of Canada.

[100] I cannot and do not conclude that, the failure to deal with the alleged prior sexual assault resulted in an unfair trial to Mr. C.G..

A.G.’s Prior Statement to the Police

[101] Mr. C.G. affidavit criticizes Mr. Saini for not having dealt with this issue properly.

[102] However, Mr. Saini did in fact deal with this issue effectively when cross examining A.G.. He went into detail that A.G. had spoken to the police sometime before N. was born. Mr. Saini obtained an admission that A.G. did not tell the police about the sexual abuse; could have told the police about the sexual abuse; and was desperate to leave Mr. C.G. home. All of this evidence was helpful to Mr. C.G. case as it showed an opportunity for A.G. to have reported Mr. C.G. sexual abuse but she did not. It also shows that A.G. was desperate to leave Mr. C.G. home, suggestive that A.G. was making up the allegations to get out of Mr. C.G. home because of his strict discipline and not the sexual abuse.

Failure of A.G. to Complain to F.D.

[103] Mr. C.G. affidavit alleges Mr. Saini failed to interview Ms. F.D.. It was clear from the cross-examination that Mr. Saini and Mr. C.G. had discussed what Ms. F.D. could offer by way of evidence for the defence. Attempts were made for Mr. C.G. to arrange for Ms. F.D. to contact Mr. Saini. Mr. C.G. had no idea whether Mr. Saini had spoken to Ms. F.D.. Despite the allegation, Mr. C.G. admitted he did not know if Mr. Saini had interviewed Ms. F.D. or whether he intended to call her as a witness.

[104] In any event, Mr. Saini was able to elicit from A.G. during his cross examination, that A.G. had the opportunity to tell Ms. F.D. of the sexual abuse over the years while living in the same home and A.G. did not. It is entirely unclear what other evidence Mr. C.G. suggests could have been elicited from Ms. F.D..

[105] If in fact Mr. Saini did not meet or speak with Ms. F.D., I am not persuaded it resulted in a fair trial.

S.R.

[106] Mr. C.G. complains that the jury should have heard about allegations S.R. had sexually assaulted Ashely. There is one serious problem with this allegation – Mr. S.R. gave a DNA sample and he was excluded as the father of N. and R.. This evidence would have come out at the trial. As a result, there is no relevance of any sexual activity between A.G. and Mr. S.R..

[107] In fact, Mr. C.G. was better off with the evidence Mr. Saini elicited from A.G. that when N. was born, A.G. did not know who the father was. This was much better than having evidence that only two persons were having sexual intercourse with A.G., and the other person, Mr. S.R., was excluded as the father by DNA analysis.

[108] This was a trial tactic, which I might add, assisted in favour of the Mr. C.G..

Character Witnesses

[109] Mr. C.G. complains that Mr. Saini never asked him for a list of character witnesses. Whether to put an accused’s character at issue is a tactical decision.

[110] Further, I am not persuaded that this would have made any difference to the issues to be decided in this trial, in light of the Crown’s overwhelming case and the DNA evidence.

Failure to Interview Ms. M.R.

[111] Mr. C.G. affidavit states that Mr. Saini did not interview Ms. M.R. about A.G. telling Ms. M.R. that Mr. C.G. was sexually assaulting her and then later retracting that statement. However, this evidence was elicited from A.G. by Mr. Saini in his cross examination. At best, Ms. M.R. would simply confirm this.

[112] More importantly, during the course of the cross-examination, Mr. C.G. admitted that he was wrong about this allegation because Mr. Saini had interviewed Ms. M.R.. Further, he admitted she was ready to testify for the Defence.

Mr. C.G.

[113] Mr. C.G. lied about when he first saw the transcripts. He said it was a “mistake”.

[114] Mr. C.G. evidence on this issue was far and wide. He had seen a video of part of one interview but did not see the rest. Mr. C.G. did not ask to see the rest. Mr. C.G. did not know what he did for the other hour and a half of the specific trial preparation meeting with Mr. Saini. When asked by Mr. Saini before testifying, if Mr. C.G. knew what he had said to the police in the interviews – Mr. C.G. told him that he did! I fail to see how this issue relating to what Mr. C.G. had told the police during his interviews can be blamed on Mr. Saini as incompetence.

[115] Mr. C.G. has not persuaded me on a balance of probabilities that he was not fully prepared, had not seen his statements or that any trial unfairness resulted.

Cumulative Impact of all the above allegations

[116] The allegations of incompetence set out by Mr. C.G. are nothing more than speculation. Cumulatively, they do not amount to incompetence given the facts and circumstances of this case nor do they point to any trial unfairness in this case.

[117] The real impetus for bringing this application was Mr. C.G. fatal decision to testify and be cross-examined. Mr. C.G. does not challenge that it was his decision to testify. Mr. C.G. does not dispute that he did extremely poorly in cross examination. This decision may have gone very badly for Mr. C.G., but that does not amount to trial unfairness.

[118] The fundamental issue is that Mr. C.G. defence is that there was no sexual intercourse between himself and A.G.. A.G.’s evidence of sexual intercourse between them, the DNA analysis and Mr. C.G. prior statements to the police all provide compelling evidence to the contrary.

CONCLUSION

[119] I am not persuaded that Mr. C.G. has established on the balance of probabilities that Mr. Saini was incompetent.

[120] Mr. Saini’s conduct of the Defence in this case was proper, and gave every appearance to be in accordance with the standards one expects from counsel representing an accused in a serious, but difficult, case such as this. He was well prepared and focused on the issues at trial. He was prepared and ready to call at least one, if not two witnesses to defend Mr. C.G..

[121] It is true that Mr. Saini did not raise all the questions or issues raised by Mr. Posner. However, as was quoted by Justice Hill above in Furtado:

“It is not a mark of competent advocacy to pursue at trial every line of argument that can be imagined, regardless of its consistency with other arguments, and regardless of its prospects of success… On the contrary, such an approach is the hallmark of incompetence” (R. v. Ali, supra, at para. 6 per Gleeson C.J.). Likewise, “Ordinary standards of professional competence do not require trial counsel to object to every piece of evidence that is arguably inadmissible, especially in front of a jury” (R. v. Ali, supra, at para. 9 per Gleeson C.J.) – “Counsel is not bound to take every objection that is open” (R. v. Ali, supra, at para. 23, per Callinan and Heydon JJ.).

[122] I do not accept that there is an appearance of trial unfairness based on the evidence at trial and the evidence on the mistrial application.

[123] As a result for the following reasons, I dismiss the application as Mr. C.G. has failed to establish Mr. Saini’s representation was incompetent or that there was any trial unfairness was irrevocably compromised such that any verdict rendered would likely be unreliable.

[124] Application dismissed.

Ricchetti, J.

Released: May 7, 2015