CITATION: R. v. M.H., 2016 ONSC 1019

COURT FILE NO.: CR-14-199-00AP

DATE: 20160209

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Peter Leger, for the Crown

• and -

M.H.

Elizabeth Barefoot, for the Appellant

Appellant

HEARD: April 21, 22 and November 23, 2015

REASONS FOR JUDGMENT

[On appeal from the conviction before the Honourable Justice J. A. Morneau, dated May 15, 2014]

RESTRICTION ON PUBLICATION An order has been made pursuant to s.486.4 of the Criminal Code of Canada directing that any information which could identify the Complainant not be published in any document or broadcast or transmitted in any way.

Sproat J.

INTRODUCTION

[1] The Appellant M.H. was convicted of sexual assault. This is a summary conviction appeal against conviction which alleges both errors by the trial judge and the ineffective assistance of trial counsel Mr. Wilford.

[2] I will provide a chronology and brief overview of the evidence at trial to provide context for what follows. I will review the evidence at trial in greater detail when I come to the individual grounds of appeal.

CHRONOLOGY AND OVERVIEW OF EVIDENCE AT TRIAL

[3] July 13, 2012 - Offence Date

June 25, 2013 - Trial adjourned and later rescheduled to October 2013.

September 19, 2013 - Trial adjourned at request of defence.

March 31, 2014 - Trial held.

May 15, 2014 - Appellant found guilty by Morneau J.

[4] The Complainant testified that on July 13, 2012 she worked for the Appellant, helping him in taking hay off his field. At a lunch break at the Appellant’s home they were seated on separate couches watching a movie on television. The Appellant, who was more than double her age, said if she was frightened of the movie she should sit beside him. She declined. A short time later the Appellant came across to her couch by crawling and sexually assaulted her by pulling up her top and kissing and groping her.

[5] The Complainant testified that she resisted and was able to escape and walk to a nearby convenience store. The convenience store clerk testified that the Complainant was distraught and crying and reported that she had been sexually assaulted. The clerk gave her a phone to call her parents. The Complainant reported to police the same day.

[6] The Appellant testified that nothing had occurred. The Complainant was startled by something, perhaps on the television or perhaps by a sound he made while dozing, and she left the house unexpectedly. M.H. and his wife Mrs. H. testified that the Appellant had a number of knee surgeries and could not crawl on his hands and knees as described by the Complainant.

TRIAL REASONS FOR JUDGMENT

[7] Morneau J. provided written reasons, the main parts of which can be summarized as follows:

(a) she stated expressly that her conclusions on credibility were based on the totality of the evidence; that if there was any reasonable doubt she must acquit; and that there was no onus on the defendant to offer any explanation or motive for the Complainant to lie.

(b) she considered challenges to the Complainant’s evidence on the basis of suggested inconsistencies such as that the Complainant stopped to get her shoes and did not simply run from the home and that she had a financial motive to make a false allegation and then sue.

(c) the convenience store clerk who saw the Complainant within minutes of leaving the home described her as shaking and crying.

(d) the Appellant testified that he had a series of left knee surgeries and the evidence of Mrs. H. that kneeling was hard for the Appellant so he does not kneel for long.

(e) as testified to by the Appellant, on July 13, 2012, he had handled about 200 bales of hay (20-25 lbs. each) standing on a trailer and stacking the bales as they came off the baler. He was able to lift the bales five feet high and climb a ladder by keeping his left knee straight and bending the other knee.

(f) the Appellant’s evidence that the Complainant was startled by a yawn or noise he made after dozing on the couch did not make sense.

(g) the Complainant was credible and reliable.

(h) she did not believe the Appellant’s testimony and it did not raise a reasonable doubt in her mind.

EVIDENCE AS TO ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL

Appellant’s Evidence

[8] The Appellant, his wife (Mrs. H.), his son and daughter-in-law filed affidavits. The Crown did not cross-examine.

[9] The principal elements of the Appellant’s affidavit are the following:

(a) Mr. Wilford spent less than two hours in total speaking to him from his retainer to the day of trial;

(b) he had provided Mr. Wilford with detailed evidence of his medical history including surgeries;

(c) he told Mr. Wilford he could not “put any weight on my left knee” in July 2012 because of these surgeries;

(d) Mrs. H. provided Mr. Wilford with photographs of the living room where the assault was alleged to have occurred and a drawing with measurements of the room;

(e) he was not told what questions Mr. Wilford intended to ask or what the Crown might ask at trial;

(f) the morning of the trial he spoke to Mr. Wilford about text messages that his daughter-in-law had exchanged with the Complainant, after the Complainant had put up posters publicizing the case and soliciting information; and

(g) on the day of trial, Mr. Wilford was told that the Complainant did not leave the living room by the closest door; that there were two tables, not one, in front of the couch; and that the tables would have to be moved or crawled around to commit the assault as alleged.

[10] The principal elements of the affidavit of Mrs. H. are as follows:

(a) she supported M.H.’s affidavit as to the information provided to Mr. Wilford and the time spent with him in preparation for trial;

(b) attached were the photographs of the living room including the two tables;

(c) Mr. Wilford said the text messages should be written down and she did so as her daughter-in-law read them to her in September, 2013. The handwritten notes were given to Mr. Wilford. Mr. Wilford did not suggest they retain the messages or the phone; and

(d) if asked she would have testified that in July 2012, the Appellant could not bend his left knee or crawl on a hard wood floor. Her evidence at trial, which referred to the Appellant using a kneeling pad, was only to describe how he could get himself on the floor for a brief time with his right knee on a kneeling pad.

[11] The principal elements of the Affidavit and Supplementary Affidavit of the daughter-in-law are the following:

(a) she saw a posting regarding the case and contacted the Complainant by text message at a phone number proved;

(b) the Complainant said she intended to sue M.H. and that her family needed money;

(c) there were hundreds of text messages between them during the time they were text messaging. She read the text messages to Mrs. H., who wrote them out and handed them to Mr. Wilford; and

(d) she has reviewed the text messages provided by Mr. Wilford and is “certain” that there are text messages that are missing.

[12] The Affidavit of M.H.’s son was generally supportive of the evidence of other witnesses.

Mr. Wilford’s Evidence

[13] Mr. Wilford refused to provide the Crown with an affidavit in advance. As a result his examination in-chief took almost one day, including breaks which were required so he could re-familiarize himself with his file.

[14] The principal points made by Mr. Wilford in examination in-chief were the following:

(a) based on his dockets and accounts and given the fact the case came up for trial on June 25, 2013 when they waited at court until 2:30 p.m., and came up again for trial on March 31, 2014, he spent as much as 15 hours in total speaking with M.H. and Mrs. H. about the trial;

(b) the daughter-in-law was extremely anxious and nervous and could not be persuaded to testify;

(c) he reviewed the questions he proposed to ask M.H. and Mrs. H. and gave general advice such as to tell the truth, answer only what was asked, and not to argue with the Crown. He also asked them questions he thought the Crown would ask;

(d) the photos provided by the Appellant showed the two couches in the living room were very close together and that the two tables were light folding T.V. tables. It was, therefore, better to simply have in evidence the Complainant’s drawing which showed an oval “coffee table” in between the couches;

(e) the points he wanted to make as to the Appellant’s lack of flexibility and knee pain were subjective and would not be strengthened by medical records. In his experience, doctors simply recount what the patient has said; and

(f) M.H. and Mrs. H. believed that a woman closely related to the Complainant had recovered a damage award for sexual assault and that this motivated the Complainant to make a false allegation.

[15] In cross-examination related to the contents of his file, and the time he actually spent with M.H. and Mrs. H. preparing for trial, Mr. Wilford testified:

(a) while his office had on August 6, 2014 emailed Ms. Barefoot copies of the handwritten notes regarding text messages, those pages had been lost or misfiled by the time he sent Ms. Barefoot his file in March, 2015;

(b) certain notes which he had identified as being from his initial meeting with M.H. and Mrs. H. were in fact from a later meeting;

(c) notes which had originally been hole punched and in order were taken apart by his staff for the purpose of making disclosure and he can no longer determine the chronological order of some notes;

(d) two pre-bills, which contained hand written notes regarding how the accounts were prepared, were only produced on the second day of the hearing;

(e) he could not tell whether various handwritten notes were provided by M.H. and Mrs. H. before or after the criminal trial;

(f) according to the court information, the trial was originally scheduled for June 25, 2013, at 2:00 p.m. This means that, contrary to his in-chief evidence, Mr. Wilford did not meet M.H. and Mrs. H. at 9:00 a.m. that day and review the case with them in the period to 2:30 p.m.;

(g) while his account for October 11, 2013, indicates that he spent three hours and attended court there was in fact no court appearance that date; and

(h) he always met clients a few days before a trial to review matters.

[16] Mr. Wilford also addressed a number of matters related to the trial itself:

(a) M.H. and Mrs. H. had provided him well in advance of the March 31, 2014, trial date with a note recording the distance from the home to the convenience store. At trial Mrs. H. was asked for the distance but responded that it was in a note that Mr. Wilford had;

(b) he acknowledged that it would be significant to establish that the floor was hard wood as opposed to a softer cushioned surface;

(c) contrary to his evidence in-chief, Mr. Wilford said that he equated not being able to crawl with not being able to put weight on a knee. He said that if you crawl you put weight on the knee;

(d) he viewed the fact the Complainant drew an oval coffee table as favourable but she then described that the Appellant crossed from his couch to hers without going around it, so it did not prove to be an impediment;

(e) it was suggested to Mr. Wilford that, to comply with the rule in Browne v. Dunn, he should have suggested to the Complainant that the Appellant was physically incapable of crawling as she had described. Mr. Wilford stated that the Complainant would obviously have disagreed and might well have gone on to give evidence of physical actions by the Appellant that could be damaging. (In other words, given the Appellant’s position that the sexual assault was fabricated it would follow that she would certainly be prepared to fabricate evidence of the Appellant’s physical abilities that day);

(f) he did not ask if the front door was open. Mr. Wilford agreed that would have been the closest means of escape for the Complainant;

(g) it was pointed out to Mr. Wilford that in text messages the Complainant made two references to running from the home and it was suggested that this inconsistency would have been helpful. Mr. Wilford responded that he believed it was favourable to the defence that the Complainant said she walked away as that was arguably illogical if a person had just been attacked. He thought it unhelpful to give the Complainant a chance to potentially refresh her memory and claim to have been running;

(h) contrary to his recollection in-chief, he did have a specific name he put to the Complainant as the family member who had received a damage award for sexual assault;

(i) he asked that the text messages be downloaded and printed out for the initial trial date. When this was not done he asked that the notes be prepared. When he read the notes the text messages did not seem helpful so he did not pursue getting them downloaded for the subsequent trial date;

(j) he agreed he could have questioned the Complainant about the fact she posted copies of her subpoena, which listed the charge and the name of the Appellant, at various public places or called evidence to contradict her evidence at trial that the only people who “knew” were her parents and boyfriend at the time;

(k) if the convenience store clerk was at the front of the store looking out the window, and if the Complainant’s evidence was true, the clerk should have been able to see the Appellant doing a U-turn in his van; and

(l) in the text message the Complainant referred to the Appellant grabbing at her crotch and her having “kicked” him off, which are details not mentioned in her evidence at trial.

[17] This is the first appeal of this nature that I have heard or heard of in which counsel, whose professional reputational was being challenged, refused to provide the Crown with an affidavit explaining his position. This omission was compounded by the fact that Mr. Wilford also did not prepare to give evidence by refreshing his memory from the relevant documents. As such valuable court time was wasted while Mr. Wilford tried to refresh his memory in the course of giving evidence.

[18] Mr. Wilford was careless and inaccurate in giving his evidence. As discussed, he initially claimed that on June 25, 2013 he was meeting with his witnesses at court starting at 9:00 a.m. In cross examination, he was forced to concede that the trial was scheduled to begin at 2:00 p.m. that day and not at 10:00 a.m. He also had to concede that notes he identified from an earlier meeting were from a later meeting. The file provided to Ms. Barefoot was incomplete and disorganized to the point that Mr. Wilfred could no longer determine the chronological order of some notes.

[19] In weighing the evidence of Mr. Wilfred I, therefore, must exercise considerable caution. Having said that there are certain portions of his evidence I do accept.

Ineffective Assistance of Counsel

[20] In R v. Baylis, [2015] O.J. No. 3416 (C.A.) Doherty J.A. stated:

[61] In R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 26-29, the Supreme Court recognized that allegations of ineffective assistance have both a performance component and a prejudice component. The performance component requires that the appeal court test the competence of the representation provided to the appellant against the standard of reasonable professional assistance. The prejudice component requires that the court determine whether the allegedly ineffective representation resulted in a miscarriage of justice by undermining either the appearance of the fairness of the trial proceeding, or the reliability of the verdict. The reliability of the verdict is undermined if the appellant can demonstrate that, had counsel performed in a competent manner, there is a reasonable possibility that the verdict could have been different: see also R. v. M.B., 2009 ONCA 524, 251 O.A.C. 81, at paras. 6-10; R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 119-21; R. v. G.M., 2012 NLCA 47, 289 C.C.C. (3d) 361, per Hoegg J.A. in dissent, at para. 75, adopted by S.C.C., 2013 SCC 24, [2013] 2 S.C.R. 202.

[62] In G.D.B., at para. 29, the Supreme Court also gave direction as to the approach that appellate courts should take in addressing the two aspects of an ineffective assistance of counsel claim:

In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel’s performance or professional conduct. The latter is left to the profession’s self-governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow. [Emphasis added.]

[21] In R v. Archer, 2005 CanLII 36444 (ON CA), [2005] O.J. No. 4348 (C.A.) Doherty J.A. discussed the need to carefully scrutinize claims of ineffective assistance of counsel and described the broad spectrum of professional judgment that might be considered reasonable:

[119] 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. The reasonableness analysis must proceed upon a “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance”: R. v. G.D.B. (2000), 2000 SCC 22, 143 C.C.C. (3d) 289 at 298 (S.C.C.). As this court said in R. v. White (1997), 1997 CanLII 2426 (ON CA), 114 C.C.C. (3d) 225 at 247:

An appellate court’s review of trial counsel’s performance should be deferential. … 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.

[120] 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. The appellant says he was convicted because of the serious shortcomings in counsel’s representation of him.

GROUNDS OF APPEAL

[22] The grounds of appeal set out below are as set out in the Appellant’s Factum. Certain grounds are closely related and so I will consider them together.

[23] Ms. Barefoot indicated she did not intend to rely on grounds #4 and #8, however, they bear some relation to other grounds that are relied upon so I will also address them.

[24] Ground #1 - Did the Learned Justice err in law with respect to the second and third branches of the W.(D.) analysis thereby reversing the burden of proof onto the defence to show that the Appellant was not guilty and committing an error in law?

(i) Position of the Appellant

As to the second branch of W.(D.), Morneau J. stated that the evidence of the Appellant did not “raise” a doubt as opposed to addressing whether it “left” a reasonable doubt. This was submitted to be a “subtle shift in the burden of proof”.

(ii) Position of the Crown

The trial judge is not required to recite the W.(D.) formula or to make credibility findings in a particular order. Reasons for judgment should not be subjected to a microscopic examination.

(iii) Analysis and Conclusion

I agree with the Crown submission. Morneau J. is an experienced trial judge. Her reasons made clear she based her credibility determinations on the totality of the evidence. She noted that the accused had no onus to prove anything and if there was any reasonable doubt she must acquit. As stated in R v. Vuradin 2013 SCC 38, [2013] 2 S.C.R. 639:

The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused: W.(D.), at p. 758. The order in which a trial judge makes credibility findings of witnesses is inconsequential as long as the principle of reasonable doubt remains the central consideration. A verdict of guilt must not be based on a choice between the accused’s evidence and the Crown’s evidence.

[25] Ground #2 - Did the Learned Justice misapprehend the evidence of the Complainant and the Appellant on a material issue being how many feet apart they were from each other before the sexual assault occurred versus how many feet apart the couches were that they were sitting on, thereby resulting in an unreasonable verdict?

(i) Position of the Appellant

Morneau J. stated that:

(a) the Complainant’s “estimate of the distance between the couches – 2 or 3 feet – was more accurate than his estimate of 8 or 9 feet.”

(b) she did not believe the Appellant’s evidence that he could not crawl 2-3 feet.

(c) in fact:

i. the Complainant said the couches were “not far apart”.

ii. the Appellant testified in chief that he was 8 or 10 feet away from the Complainant

iii. the Appellant agreed in cross-examination the couches were 2-3 feet apart.

(ii) Position of the Crown

Morneau J. did not misapprehend the evidence.

(iii) Analysis and Conclusion

Morneau J. made a slight error in describing the Appellant’s evidence as being that the couches were 8 or 9 feet apart when in fact he testified he and the Complainant were 8 – 10 feet apart. In cross-examination he agreed that the couches were 2 - 3 feet apart. There is no indication this minor misapprehension of the Appellant’s evidence was a factor in her overall assessment of the Appellant’s credibility. I regard this as an inconsequential error.

[26] Ground #3 - Did the Learned Justice fail to consider evidence relevant to a material issue (by making a mistake as to the substance of the evidence of Mrs. H. regarding the Appellant’s ability to kneel in July of 2012 versus his ability to kneel generally) thereby resulting in an unreasonable verdict?

[27] Ground #4 - Did the Learned Justice speculate that the Appellant’s limited ability to kneel with a kneeling pad for a short period of time generally speaking meant that he could crawl on his hands and knees in July of 2012, thereby committing an error of law?

[28] Ground #5 - Did the Learned Justice speculate that the Appellant’s ability to handle hay, exert physical strength, and use his legs generally had anything to do with his specific inability to bend his left knee and crawl across the floor on his hands and knees in July of 2012, thereby resulting in an error of law?

(i) Position of the Appellant

Mrs. H. gave evidence that:

(a) In general as a result of his surgeries the Appellant can’t put weight on his knee and if he has to get down on his knees, he will use a kneeling pad.

(b) In July, 2012, his ability to kneel using a kneeling pad was “very little”.

Morneau J. erred in stating that as of July, 2012, Mrs. H. “explained that her husband can kneel but that it is difficult.”

Morneau J. speculated by reasoning that because the Appellant could kneel with a kneeling pad for a short time, and had stacked 200 bales of hay that morning and could climb a ladder, that he could crawl as described by the Complainant.

(ii) Position of the Crown:

There was ample evidence to support the conclusion of the trial judge that the Appellant was physically capable of crawling the short distance the Complainant described. The Complainant testified to the Appellant lifting hay bales and climbing stairs. A convenience store clerk observed the Appellant in the days prior to the offence date and did not observe any limitations or disabilities. The officer who arrested the Appellant the day after the offence date did not observe him to have any difficulty in walking. The Appellant agreed he stacked 100 bales of hay, and climbed nine steps on a step ladder, on the morning of the offence date.

(iii) Analysis and Conclusion:

There is a minor and inconsequential error in the reasons. The Appellant testified that prior to July 13, 2012 he would stack 200 bales of hay a day. On July 13, 2012, however, prior to lunch he had only stacked 100 bales of hay. Whether M.H. stacked 100 or 200 bales of hay that day is not material to the analysis.

I find that Morneau J. fairly characterized the evidence of Mrs. H.. Morneau J. found her to be a credible witness. Further, in my opinion Morneau J. applied common sense and experience to her consideration of the evidence and did not engage in speculation.

It was certainly open to Morneau J. to come to the conclusion she did. She was entitled to accept some, none or all of the testimony of the witness. The notion that a man who could stack 100 or 200 bales of hay, climb a ladder and walk normally could not traverse a short distance of a few feet defies common sense and experience. The Complainant herself described the Appellant as having a bit of a limp and agreed he was “cautious” going down on his knee before approaching her.

[29] Ground #6 - Did the Learned Justice misapprehend the evidence of the Appellant about his contact with the Complainant while she was in his house on July 13, 2013, particularly on the issue of what scared the Complainant into leaving the residence, thereby resulting in an unreasonable verdict?

(i) Position of the Appellant:

The Appellant testified that he “probably” made a noise or yawned resulting in the Complainant leaving. This was stated as an assumption. Morneau J., however, stated this as an assertion by referring to the Appellant’s, “evidence that he either yawned or made a noise such that it scared the Complainant from his home and out of his sight and within hours to the police”.

(ii) Position of the Crown:

The finding by the trial judge was reasonable.

(iii) Analysis and Conclusion:

I find that Morneau J. faulty characterized the evidence of the Appellant. The Appellant did not state this as simply an assumption. He testified he probably “yawned or whatever” and followed that by agreeing that something had happened which startled the Complainant.

[30] Ground #7 - Did trial counsel fail to provide effective representation when he did not cross-examine the Complainant with respect to several inconsistencies between her videotaped statement to police and her testimony at trial, thereby resulting in a miscarriage of justice by making the verdict unreliable?

(i) Position of the Appellant:

The Appellant cites the following inconsistencies:

(a) the Complainant in her statement saying the Appellant “just jumps up and crosses in front of me, on his knees” while at trial she said he “just crawled over” and it was a “slow crawl”.

(b) whether the Appellant made one or more than one suggestion that she come and sit beside him on the couch.

(c) the precise sequence in which the Appellant touched her, pulled up her clothing, resulting in her shoving and swearing at him.

(d) in her statement she said that after leaving the house the Appellant told her to get in his car, while at trial she said he told her this only after he started to follow her in the van.

(e) in her statement to police, she said the Appellant did a U-turn at Mac’s to come at me again, while at trial she said the Appellant proceeded to the Mac’s parking lot to turn around.

(f) in her statement to police she said she walked to the convenience store while at trial she said she walked quickly.

(ii) Position of the Crown:

The alleged inconsistencies were minor in nature and inconsequential. Mr. Wilford testified that he did not see any major inconsistencies that were worth pointing out.

(iii) Analysis and Conclusion:

The cross-examination of a Complainant is challenging. It commonly occurs that counsel will attempt to point out minor inconsistencies with the result the Complainant repeats the substance of his or her evidence in an ever more emphatic and detailed manner. The failure to cross-examine on these minor matters was certainly within the broad spectrum of professional judgment that might be considered reasonable.

[31] Ground #8 - Did trial counsel fail to effectively cross-examine the Complainant with respect to several things that she said during her videotaped statement to police and at trial, thereby resulting in a miscarriage of justice by making the verdict unreliable?

(i) Position of the Appellant:

The Appellant submits that counsel should have cross-examined the Complainant as to:

(a) the fact she did not run away from the residence;

(b) her claim that the only people that knew of the allegations were her family and boyfriend when counsel knew she had posted copies of her subpoena around town which contained her name, the Appellant’s name and his charge. Further, counsel knew there was evidence that the Complainant had spoken to the Appellant’s son and to his daughter and to someone who worked for a women’s magazine; and

(c) the fact she had indicated an intention to sue the Appellant, and a need for money.

(ii) Position of the Crown:

Mr. Wilford did cross-examine the Complainant as to why she did not “run away”. The failure to cross-examine on the posting of the subpoena was a tactical decision. Mr. Wilford testified he did not view the texts as threatening to sue the Appellant and that he was not aware of the Appellant’s need for money. A text message containing a threat to sue M.H. to get needed funds, would be a “smoking gun” that Mr. Wilford would have tried to use. In any event there is no reason to believe that cross-examination on these issues would have impacted the credibility or reliability assessment by Morneau J.

(iii) Analysis and Conclusion:

I agree with the Crown that Mr. Wilford did cross-examine the Complainant as to why she did not run away from the scene of the assault and as to why, if she was so frightened, she stopped and bent down to pick-up her shoes instead of picking them up on the run. Morneau J. discussed this evidence and weighed its significance.

The other matters are peripheral. The reasons given by Mr. Wilford for not cross-examining on them fall within an acceptable range of professional judgment.

[32] Ground #9 - Did trial counsel fail to cross-examine the Complainant with respect to several material issues to the defence of the Appellant, thereby resulting in a miscarriage of justice by making the verdict unreliable?

(i) Position of the Appellant:

Counsel failed to put to the Complainant that the Appellant was physically incapable of committing the offence; that there were two T.V. tables not one coffee table in the room; and that the Complainant did not leave the house by the closest exit.

(ii) Position of the Crown:

Mr. Wilford made reasonable tactical decisions. As he testified:

(a) if he suggested the Appellant was physically incapable it would give the Complainant an opportunity to repeat or bolster her evidence as to his physical abilities that day;

(b) her evidence that there was a “coffee table” in front of the sofas was more helpful than eliciting that there were two light weight T.V. tables; and

(c) given the fact that the Complainant testified she ran out the front door, where her shoes were and the only door she knew, it did not make sense to challenge her on that point.

(iii) Analysis and Conclusion:

I agree with the Crown submission. These were tactical decisions which counsel could reasonably make.

[33] Ground #10 - Did trial counsel fail to effectively cross-examine the convenience store clerk with respect to when she looked for the van out the window after the Complainant entered the store, thereby resulting in a miscarriage of justice by making the verdict unreliable?

(i) Position of the Appellant:

Counsel did not effectively cross-examine the convenience store clerk who should have been able to see the Appellant’s van if the Complainant’s evidence was correct that the Appellant followed her in the van. The clerk’s evidence was that she was trying to deal with customers when the Complainant came in which would suggest some delay in looking out the window as opposed to her statement to police she was about to wash cooler windows when the Complainant came in which would suggest less delay.

(ii) Position of the Crown:

Mr. Wilford did elicit in cross-examination that the clerk did not see a van. As Mr. Wilford testified to this was consistent with the Appellant’s testimony that he did not follow the Complainant.

(iii) Analysis and Conclusion:

There is no reasonable possibility that a more effective cross-examination would have affected the verdict. The clerk, who the judge found honest, obviously had some difficulty in recollecting when she looked out the window. She did testify that the Complainant entered the store; reported that she had been assaulted and then sat “in a ball” on the floor. Obviously there was a gap between when the Complainant entered the store and when the clerk, at the request of the Complainant, looked outside for a van. The fact that she did not see a van at the time she happened to look out the window would not, therefore, undercut the credibility of the Complainant who testified she was followed by the Appellant driving the van. The Appellant could easily have driven away prior to the clerk making her observation.

[34] Ground #11 - Did trial counsel fail to effectively represent the Appellant when he did not use diagrams, pictures and copies of text messages at trial, which had been provided to him by the Appellant and his family in advance of the trial, thereby resulting in a miscarriage of justice by making the verdict unreliable?

(i) Position of the Appellant:

The Appellant refers to:

(a) photos depicting the TV tables and the location of the couches.

(b) text messages showing that the Complainant had a financial motive to make the allegations and to contradict the trial evidence that she had not communicated with anyone by text; and that her red flag went up only when the Appellant crawled across the floor.

(c) text messages which added detail she did not testify to in court such as the Appellant went for her crotch and she pushed him off.

(ii) Position of the Crown:

Mr. Wilford made a reasonable assessment that the photos depicting the couches close together and the lightweight TV tables were not helpful.

The text messages referred to the Complainant wanting to take someone who got her pregnant to the cleaners, not that she was after money from the Appellant.

(iii) Analysis and Conclusion:

I agree with the Crown submission. Further, the points raised are peripheral and to not cross-examine or otherwise pursue them was within an acceptable range of professional judgment.

[35] Ground #12 - Was trial counsel ineffective/incompetent in his failure to properly prepare the Appellant prior to trial before he testified thereby resulting in a miscarriage of justice by undermining the trial’s fairness?

(i) Position of the Appellant:

Mr. Wilford only spent two hours with the Appellant in total and was not prepared by him for trial. He was not told what questions he would be asked or what the Crown might ask. At Mr. Wilford’s request he did measure the distance to the convenience store and provided the measurement in writing to Mr. Wilford. Mr. Wilford did not, however, refresh his memory as to the distance before he testified.

(ii) Position of the Crown:

On Mr. Wilford’s evidence he did prepare the Appellant to give evidence and did review the distance from the Appellant’s residence to the convenience store.

(iii) Analysis and Conclusion:

I accept Mr. Wilford’s evidence that he had several discussions with the Appellant about the events of the day in question and provided his witnesses with basic instructions such as tell the truth, answer only what is asked and don’t be argumentative.

I also bear in mind that M.H.’s proposed evidence could not have been more straightforward. On his account, it was a normal day; the Complainant appeared startled by a noise and left; and nothing sexual occurred. In any event, he was incapable of taking the crawling action described due to multiple surgeries to his left knee.

The questions Mr. Wilford asked in chief were straight forward and reasonable. Reasonable counsel could differ as to whether a rehearsal of the actual questions in advance would enhance or impair how the witness presented in court.

If the distance to the convenience store was important enough for Mr. Wilford to ask the Appellant to measure it then he should certainly have refreshed the Appellant’s memory. Having said that, this was a peripheral point and certainly would not have affected the verdict.

In reviewing the transcript there is nothing that suggests to me that lack of preparation caused M.H. to be unable to relate his evidence to the court such that his right to a fair trial was compromised.

[36] Ground #13 - Was trial counsel ineffective/incompetent in his failure to elicit critical testimony of M.H. and Mrs. H., thereby resulting in a miscarriage of justice by undermining the trials fairness?

(i) Position of the Appellant

The defence witnesses did not elicit evidence:

(a) that there was a door in the room where the alleged assault occurred;

(b) that there were text messages;

(c) as to the room configuration;

(d) from Mrs. H. that M.H. could not kneel; and

(e) that the Appellant had been to the doctor several days before.

(ii) Position of the Crown

The evidence was either unhelpful to the defence or of little or no relevance.

(iii) Analysis and Conclusion

This ground overlaps grounds previously discussed. For the reasons already discussed these grounds did not cause or contribute to a miscarriage of justice.

[37] Ground #14 - Did trial counsel fail to effectively represent the Appellant during his closing submissions when he failed to bring an inconsistency (which was demonstrated at trial in the Complainant’s evidence) to the Trial Judge’s attention, thereby resulting in a miscarriage of justice?

(i) Position of the Appellant

The inconsistency is that in her statement to the police the Complainant said she waited until the Appellant was in his vehicle before she started to walk downtown but at trial she said she waited until he got in the vehicle and started it.

(ii) Position of the Crown

This was a minor and inconsequential inconsistency which could have no impact on the verdict.

(iii) Analysis and Conclusion

It overstates matters to label this an inconsistency. If anything, it was the addition of a minor detail. I regard it as of no consequence. As a matter of common sense and experience, little time usually elapses between entering and starting a vehicle. This is a trivial point that could not affect the verdict.

[38] Ground #15 - Did the Learned Trial Justice misapprehend the evidence of the Complainant when finding that there were no inconsistencies demonstrated with respect to her evidence, thereby committing an error of fact resulting in an unreasonable verdict or a miscarriage of justice?

(i) Position of the Appellant

The trial judge erred in stating that there was no prior inconsistent statement and no indication that she exaggerated or embellished any prior account. In fact, there were inconsistencies between her statement to police and testimony at trial.

(ii) Position of the Crown

The trial judge’s conclusion was consistent with and supported by the evidence.

(iii) Analysis and Conclusion

For reasons discussed under Grounds 7, 8, and 14 any inconsistencies were trivial and of no consequence.

CONCLUSION

[39] I thank both counsel for their helpful submissions. The appeal is dismissed.

Sproat J.

Released: February 9, 2016

CITATION: R. v. M.H., 2016 ONSC 1019

COURT FILE NO.: CR-14-199-00AP

DATE: 20160209

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and –

M.H.

Appellant

REAONS FOR JUDGMENT

Sproat J.

Released: February 9, 2016