R. v Ali, 2016 ONSC 4782

Court File and Parties

COURT FILE NO.: CR/12/10000/15200AP DATE: 20160729

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL

BETWEEN:

HER MAJESTY THE QUEEN Respondent

• and - mohamed ali Appellant

Counsel: Robert Wright, for the Respondent Crown Ernest J. Guiste, for the Appellant

HEARD: April 19, 2016

Reasons for Judgment

[On appeal from the conviction, dated April 18, 2012, by Justice S. Nakatsuru of the Ontario Court of Justice]

b.p. o’marra, j.

Overview

1The appellant was found guilty of assault with a weapon and assault after a three day trial. The victim was his teenage son. The Crown called six witnesses in chief. They were all cross-examined by counsel for the appellant. The defence called two witnesses. The appellant did not testify.

2The sole ground of appeal relates to alleged ineffective assistance of counsel. The appellant specifically asserts the following:

• Trial counsel had a conflict of interest related to the retainer; and
• The conduct of trial counsel compromised the trial fairness and reliability of the verdict based on the following: i) The failure to interview the appellant and review disclosure with him; ii) The failure to allow the appellant to testify in his own defence; iii) The failure to challenge the lawfulness of a search conducted by the police at the appellant’s home; and iv) The failure to properly challenge the complainant’s evidence in cross-examination.

3The respondent submits that the appellant has failed to establish the factual basis for the claim of ineffective assistance of counsel or that trial counsel was incompetent.

The Facts

4On January 15, 2010, the complainant, J.A., arrived home from school and was confronted by his father, the appellant. The confrontation was precipitated by J.A.’s theft of the appellant’s money from the appellant’s bank account in the months prior. When J.A. told the appellant that a student at school had demanded the money, the appellant began to hit J.A. and demand “the real truth”. J.A. testified that the assault lasted for approximately ten minutes, with the appellant choking and punching him and hitting his head into a wall. The assaults occurred in J.A.’s bedroom.

5J.A.’s sister, A.A., arrived home shortly after. She and the appellant spoke outside J.A.’s room. About half an hour later, the appellant asked A.A. to bring him a stick from the sliding back door of the residence. She did so and the appellant used the stick to beat J.A. The assaults continued until J.A. was told to go to bed at 8:00 p.m. J.A. testified that he was beaten for “at least more than two hours” between his arrival at home and his bedtime.

6The assaults continued sporadically over the weekend, with the appellant hitting him for a few minutes at a time on his face, legs, arms and back, using the stick.

7On January 18, 2010, the appellant took J.A. to see the school principal (Marcy Palay). He showed her his bank statements and items he had taken from J.A. (which he believed J.A. had purchased with stolen money). J.A. and Ms. Palay both testified that the appellant expressed his frustration, saying he didn’t know what he was going to do with J.A., that he wanted CAS to take him because he couldn’t control him and that he felt he might physically harm J.A. When asked in the presence of the appellant, J.A. told Ms. Palay he had not been hit. Ms. Palay called for a social worker who met with the appellant in private. Afterwards, J.A. and the appellant left for the day and did not return. Later that day, the appellant assaulted J.A. again.

8On Tuesday, January 19 and Wednesday, January 20, 2010, the appellant continued to hit J.A. intermittently.

9On January 21, 2010, a teacher at the school, Victoria Templin, and an educational assistant, Sandra Johnston, both noticed J.A. sitting in the hallway and saw that he had dark circles under his eyes. Ms. Templin said he was on the verge of tears. When Ms. Johnston saw J.A., he was crying. Ms. Johnston took J.A. into a classroom. The women could see visible bruising on J.A.’s forehead and around his nose, and scratches on his wrists. Ms. Johnston described a gouge on J.A.’s arm that was starting to scab. J.A. disclosed that his father had caused the injuries and that he was scared to go home. He was eventually taken to the police station and there he provided his two videotaped statements.

10After the appellant’s arrest on the evening of January 21, 2010, Officer Sandra Manson entered the appellant’s home with his consent to retrieve his medication. The next day, officers searched the appellant’s home pursuant to a search warrant. Blood was located on the back of a television in J.A.’s room. A stick was located under a bed in the second bedroom.

11A.A. testified that in fact she confronted J.A. over the stolen money, and it was she who beat J.A. The appellant had recently been injured in a car accident; A.A. said the appellant was on heavy medication, fatigued and could not move around without assistance. The appellant’s homecare nurse, Perlita Garcia, testified that the appellant was in pain and unable to bear weight on his injured leg without assistance or crutches. The defence theory at trial was that A.A. had committed the assaults and that the appellant would have been physically unable to do so.

12In his reasons, the trial judge assessed the evidence of each witness. He dismissed A.A.’s account of the events as being fraught with inconsistencies and almost entirely incredible. He implicitly concluded that the testimony of Ms. Garcia was unreliable as to whether the appellant would have been physically able to perpetrate the assaults. After carefully considering the testimony of the complainant and the corroborating evidence, the trial judge was left with no reasonable doubt that the appellant did commit the assaults on the complainant.

Fresh Evidence on Appeal

13The fresh evidence on this appeal has produced two stark versions of what professional relationship, if any, existed between the appellant and the lawyer who appeared with him in court for the three-day trial. The appellant now claims that he never met with counsel, received disclosure or discussed whether or not he would testify. The appellant now claims that he thought the lawyer was “just a lady talking and asking questions”. He thought she was duty counsel.

14Trial counsel has provided fresh evidence that she met with the appellant five times preceding and during the trial. She also referred to her involvement in the trial, including the cross-examination of Crown witnesses, calling two defence witnesses-in-chief and providing 13 pages of written submissions at the conclusion of evidence.

15The image presented by the appellant in his fresh evidence stands in stark contrast to the trial record. To illustrate this, I will refer to extensive excerpts from his cross-examination on the fresh evidence, as follows:

Q. Okay; and your main -- now you say that Leora Shemesh was ineffective in representing you, is that correct? A. I don’t know that name in the first place. I just know just last minute now. I don’t know her at all... Q. When you say last minute now, when are you talking about? A. Just from the paper when -- the day I get a letter. Q. All right. When did you first meet Leora Shemesh? A. I -- I -- never meet her and I don’t know her and I never meet her. Q. Well did you see her in court? A. No, ma’am. I don't even remember. I don’t see her. I never see her. I don’t know her at all. Q. Okay. Was there anybody -- you know the trial in which you were alleged to have assaulted your son J.A.? A. Yes, ma’am. Q. Now you had a lawyer at that trial, is that correct? A. No, I was -- I was asking for the duty counsel and I have a legal aid certificate and I was looking and I find Mr. McKee. Q. But eventually you had a trial, right? A. Yes. A. I signed my name as the -- for the duty counsel to assist me but I wasn’t expecting the trial until I find the lawyer because I have a Legal Aid Certificate. Q. Can you repeat that? Did you have a lawyer at your trial, at the trial of the assault where you were alleged to have assaulted your son J.A.? A. I -- I apply, I have -- like I appear at the court and there was a lady was speaking and I don’t know whether she’s a lawyer or not. I don’t know. I thought that it -- I was expecting that was a duty counsel. Q. So you thought the person representing you at trial was the duty counsel, is that correct? A. Yes, yes. Q. And that was the woman who -- the woman who was representing you? A. I didn’t know what she was representing me, but she was talking, she was asking questions, but I didn’t know what did -- I didn’t understand. I don’t know what she was and I don’t have no clue whatsoever. Q. Right. Well you had the same lawyer throughout your entire trial, isn’t that right, the trial in which you were charged with assaulting your son? A. No, ma’am. I was assisted by duty counsel -- Q. Okay. A. -- most of the time, yeah. Q. Yes. Now, you actually -- your trial was on September 28th, 2011, November 22nd, 2011, and December 22nd, 2011, do you remember that? A. Yes. Q. You had your trial then? Okay; you had the same lawyer represent you on all three days, isn’t that right? A. I -- you know, I -- I not a hundred percent sure that was the same person because -- and I know Mr. Flint was most of the time was there for me. Q. Are you saying Mr. Flint represented you on your trial? A. Most of the time when I was going to court was all the time with the duty counsel was assisting me which his name was Mr. Flint. Q. I see duty the counsel was Mr. Flint? A. Yes. Q. But was there not a female who represented you, a female lawyer who represented you for your three days of trial? A. I didn’t know whether she was representing me, I didn’t know if she was a duty counsel. I didn’t know anything whatsoever. Q. But you agree that you had a female lawyer those three days? A. Not a lawyer. I didn’t have a lawyer. I’m still looking a lawyer. I had a Legal Aid Certificate but the -- my insurance lawyer took it from me but -- and I didn’t know that was my lawyer or not. I don’t know. Q. So the woman who was speaking in court, you didn’t know whether she was your lawyer, is that what you’re saying? A. Yes. Q. Do you remember the lawyer who was cross-examining your son J.A.? She was asking questions from your son J.A.? A. Is that a female or a male, I don’t remember -- Q. Female. A. -- at that moment. I don’t remember who examined my son. Q. All right. So just to be clear -- A. Yeah. Q. -- your daughter A.A. was asked questions by the police at a police station, right? A. Yes. Q. All right; but later she was at trial and she gave evidence at trial, your daughter, right? A. They was asking her a question. Q. At trial, right? A. Yeah. Q. She got up in the stand and told the court what happened, right? A. Yeah, they called her. She was -- yeah. Q. And it was your lawyer who called her. She gave evidence on your behalf, right? A. Ma’am, I don’t have a lawyer. I never find a lawyer yet. I was struggling to find a lawyer. I didn’t hire a lawyer, legal aid certified lawyer and that’s what it is. I don’t know. I don’t have no clue whatsoever. Q. Okay. All right. So -- but you were -- so what you’re telling me today is that you remember that your daughter A.A. gave evidence at your trial but you don’t know who called her; is that what you’re saying? A. I don’t know who was that and who is -- what is -- that was my lawyer, I don’t hire. I didn’t have no conversation. I don’t know that was my lawyer, or not, I don’t know. I never hire her. I never talked to that person. Q. Okay; and you’re saying that you don’t know whether your daughter gave evidence -- was called by the Crown or called by the defence? A. It was -- I don’t know who called -- who called her, I don’t know. Q. Did you understand what was going on in court? A. Yeah. Q. Okay. Do you understand the difference between the Crown and the defence? A. Yes. Q. And after the Crown calls its evidence, it closes its case and then defence calls evidence? A. Yes. Q. You understand that? A. Yes. Q. All right. And anyway eventually you went to court and Ms. Shemesh approached you and said, “Are you Mr. Ali”? A. Yeah, because I write my name on the front of the doorway, so the duty counsel can assist people. If they need duty counsel you write down your name, so my name was write down and was sitting, so we get called and then I went in. Q. And did Ms. Shemesh say to you she was sent by Grillo Barristers to represent you? A. Never. She never -- I never talked to her. I never talked to this name at all. I never have any discussion whatsoever. Q. So did she -- she didn’t introduce herself as Ms. Shemesh? A. No. Q. And she never said to you that she was sent by Grillo Barristers to represent you? A. No, I -- I didn’t hear anything. I never have any conversation whatsoever. Q. Not -- she didn’t say one word to you? A. No. Q. All right. Do you know how – do you know Perlita Garcia? Do you know Perlita Garcia? A. That my nurse. Q. Yes. And did you see her give evidence at your trial? A. No, I don’t -- I don’t remember. I don’t remember. Q. You don’t remember if she gave evidence at your trial? A. I’m not sure. I don’t remember. Q. All right. Do you know how Ms. Shemesh would know about Perlita Garcia? A. All my information I have my lawyers, my insurance lawyer, they have all detailed information. They get it from, what do you call it, from the government agency they provide me medical assistance, home care, referred by the hospital. So they get all detailed informations from the hospital. They get hospital reports and everything. Q. Okay; but you do know who Ms. Shemesh is, right? A. No, ma’am. Q. You don’t? A. No. MR. GUISTE: Do you know now? A. Now, yeah, now, after -- now, yes. But I don’t know what she look like. I don’t know what she look like. I don’t even identify her. Q. So you used to work as a court clerk, is that correct? A. Yes, ma’am. Q. At Old City Hall? A. Yes, ma’am. Q. And you were the person who escorted the judge in and out of court? A. No, I don’t escort. The judge is in and out of the court, but I was working for the justice system since 1999. Q. Did you fill out the informations? A. Criminal -- criminal – criminal clerk. Q. Okay; did you fill out the informations? A. About what informations? Q. The information -- what did you do at criminal court? A. Okay. So when somebody comes to the court, like, okay, on the weekend, like a Saturday and Sunday when the police bring the prisoners who get released, so we interview, contact the family member, and then the paper work, the Justice of the Peace make the decision they get bail or not bail, the paper, taking that to the court office, they write down and I’m preparing, organizing the papers, make the bail, the surety to sign and so forth and then go from one court to the other court collecting all the documents. So... Q. So were you like a paper runner? A. You could say that. Q. That you were responsible for taking papers from one court to another court? A. From court to court, from court clerk’s office and from everywhere. From the Crown’s office and everything, yes. Q. Okay; that’s the kind of work you did at -- A. Yes. Q. Okay; and when you were working there you understood -- you understood that there was Crown -- a Crown lawyer and a defence lawyer? A. Yes, ma’am. Q. And you understood that the defence lawyer is retained by the defendant in court? A. Yes. Q. Did you understand what was going on at your trial in the fall of 2011? A. No, I was expecting to hear anything -- I wanted to be called and to be asked some questions and stuff, and I’m sitting, just waiting. That’s all I know. Q. Did you understand what was going on at your trial in the fall of 2011? A. No, they was -- they was asking. They was talking. The police was talking this and this, and that’s the only things what I know, but in my -- to my knowledge, no -- nobody explained it to me what’s going on. Q. Okay; so you’re saying you did not understand? A. No. Q. All right. Sorry, sir. A. It’s okay. Q. So you’re saying you did not understand what was happening at your trial in the fall of 2011, is that correct? A. No, I’m -- I’m in the court and I’m waiting to find out what’s going on. And I’m sitting and waiting but -- and I never been called and I never been asked, and I never -- nothing happened -- anything to me. Q. All right; and -- but you, because you worked in the criminal justice system, understand generally what happens in court, right? A. Yes, ma’am. Q. So you must have known that the person who, that I’m saying is Ms. Shemesh, the person speaking for you was representing you? A. I don’t know if she was speaking for me or she’s speaking for something. I don’t know. I’m sitting there in the corner there and watching, because if she was Miss -- whatever name is you called it, if she -- I don’t even know what she looked like even you bring -- if she’s sitting here as you are, I don’t know. I never talked to her. I don’t know. Q. So you didn’t know who this woman was who was speaking on your behalf? A. No, I was expecting that was a duty counsel but, just, you know, but if it was my lawyer who’ll explain it to me, will make an argument, make a deal and give -- decide -- give some kind of information you will know, they will explain it to you. But without anything, and I’m sitting there and waiting. Q. Okay. So you wanted to testify you said? A. Yes, ma’am. Q. So why did you not say to the judge ‘I would like to testify’? A. I -- I who heard -- who gonna hear me because in the first place I’m not allowed to speak because of the lawyer and the others, and the Crown they’re talking. So, I’m not -- I know the rules of the court because unless you’ve been asked it, you have any -- something to say, you cannot say anything. You have to sit down and wait to be called. Q. You were the -- you know the process in the criminal justice system, right? A. Yes. Q. And you were in court and you knew you were the one on trial, right? A. Yes. Q. And you knew that you were entitled to the representation that you chose, right? A. I didn’t chose [ sic ] any representation or anything, ma’am. Q. So you allowed somebody that you didn’t know who she was to represent you at your criminal trial? A. I didn’t know she was representing me, or she didn’t represent me, or she’s against me or not. I don’t know. Q. Even though you worked in the court system, you’re saying you didn’t know -- A. Ma’am, at that moment -- Q. Let me just finish my question. A. Yes. Q. Even though you worked in the court system you’re saying you didn’t know who this person was who was speaking for you at your trial? A. Ma’am, I was on the heavy medication. I can show you whatever I was been. I was in bad situation and I am in severe pain. Q. Okay. Now you went to Leora Shemesh’s office to be interviewed by her, correct? A. Me? Q. Yes. A. No. Q. No? A. No. Q. Did you go there -- I’m suggesting you went there on February 21st 2011 to speak with her in the company of your daughter? A. No, ma’am. Q. And you attended there on crutches? A. No. Q. Okay. And not only did you attend on February 28th -- sorry. Not only did you attend on February 21st but you also -- you also attended there on November 3rd and November 17th 2011 to prepare for the continuation of the trial? A. No. Q. No; okay. And you went with your daughter as well? A. I went with my daughter and sometimes also I go with my daughter – my neighbour’s daughter because they are... Q. And did you ever attend at 599 College Street with your daughter to meet with Ms. Shemesh? A. College Street, no. Q. 599 College Street to meet with Ms. Shemesh? A. No. Q. Suite 201? No, never been there? A. No, ma’am. . . Q. You gave the disclosure to Ms. Shemesh on February 21st, 2011? A. No, no, no. Q. All right. There were two DVDs with your son on the DVDs saying what happened -- and your son was saying what happened to him? A. I didn’t see. I didn’t see. I didn’t know. I didn’t see because I’m not allowed. Nobody gave it to me. Q. You never saw the DVDs? A. No. Q. Did you see the DVDs in court being played? A. No, no. Q. I’m suggesting to you the DVDs were played in court on the first day of trial, which was September 28th 2011? A. No, I never seen any DVD whatsoever. Q. Did you remember them being played in court? A. No. Q. Are you saying they were not played in court? A. I never seen it. Q. Were you in court when your trial was being held? A. I think I was in the court. Maybe I missed one court date, but other than that, you know, that’s all. Q. Well you were present for all of your trial though, right? A. Yeah. Q. Okay. I’m suggesting to you that the DVD was played in court when you were in court; is that not correct? A. No. Q. That’s wrong? A. No. Q. That’s wrong? A. Wrong, wrong, yeah. Q. All right. Now, you fired Ms. Shemesh, is that correct? A. Ma’am, I never hired her in the first place. I don’t know who she was. I don’t know what she was doing, and -- and I don’t know what she was doing and then I never get -- I was get -- you know, if I -- I don’t know what she even -- even should look like at this moment. I don’t know. Q. Okay. You don’t even know what she looks like? A. Exactly. Q. All right. In your affidavit you say at paragraph 16 of the affidavit sworn on July 3 rd , 2013 you said, “I requested my file from Ms. Shemesh following my conviction. I received the disclosure material but no file correspondence, no accounts and no retainer agreement.” Do you remember saying that in your affidavit? A. No, I was just talking to my lawyer, yeah, must have evidence, yeah. Q. All right. A. I didn’t request my file from Ms. Shemesh. Q. “Following my conviction”. A. No, I don’t remember. Q. Is that incorrect? A. I don’t -- these particulars I don’t remember at all. Q. So are you saying that --- did you request your file from Ms. Shemesh -- A. I never ask her. Q. -- after you were convicted or not? A. I never asked her. I never asked her. But she throw the -- the lady, she throw the card, pick up the file from this and she said -- and then the person -- there was officer is standing there, the court officer is standing there and my friend was there, and then my friend he pick it up and then he took it there when he picked it up. But my knowledge, I don’t remember that I say this at all. I didn’t even read this part. Q. Mr. Ali -- A. Yeah. Q. -- not necessarily that day but maybe later, did you ever ask Ms. Shemesh for your file back? A. No, I never talked to her. I don’t know what the number -- I don’t know what communication, how I know about this person, Shemesh -- or Ms. Shemesh? I don’t know her. I never talked to her. I never signed a deal with her at all. Q. And so you knew that you were swearing to tell the truth in this affidavit, right? A. Exactly, yeah, but the point -- Q. But you’re saying -- but you’re saying that in paragraph 16 you’re saying “I requested my file from Ms. Shemesh following my conviction”. That that isn’t what happened? A. I did not ask her the file because I didn’t know who she was, what she was and I didn’t know. But she throw the card and she gone. Q. So it didn’t happen that you asked for your file from Ms. Shemesh after your conviction, is that correct? A. No, I never asked her at all. Q. So you didn’t read this whole affidavit? A. No. Q. So you just signed this affidavit because you were told to? A. Yeah, exactly. Q. Are you saying that you didn’t know that she was acting for you -- A. No. Q. -- in the case involving your son J.A.? A. No. Q. That’s what you’re saying, is that correct? A. Yeah, yeah, I say that before, too, yes. Q. You didn’t hear her name in any of the days in trial? A. No. Q. September 28th, November 22nd, or December 22nd, you never heard the name? A. No. I don’t know. I have no communication with her. I never have a discussion with her at all. Q. All right; you don’t remember her introducing herself to the court saying she is Shemesh -- A. didn’t give that attention because, you know, that’s what... Q. Right, okay. You were paying attention at your trial, right? A. In some part, yes, I’m just waiting. I’m the one being accused, so I was expecting I’m supposed to be called and then I’m waiting to be -- to say something, but then I never get the opportunity. And that’s what it is. Q. All right. So the essence of your appeal is that Ms. Shemesh didn’t review the case with you and didn’t let you take the stand, right? That’s what you’re complaining about, right? A. No. In the first place I never hired her and I -- I never discuss with her. I never have any -- any kind of communication with her whatsoever. Q. So it’s -- so it’s more than what you said in paragraph three. Your -- the essence of what your issue is with Ms. Shemesh is that you never even hired her and she came and spoke in your trial without you even saying she could? A. Exactly. Same thing. Q. Okay; and when you saw her standing up and speaking for you, why didn’t you say to the judge ‘she doesn’t have the authority to speak for me’? A. Ma’am, I -- I’m -- I’m [ sic ] regular person. I’m not a lawyer and I cannot just get up and say to the judge just like this. But who gonna give me the opportunity to get up and to speak? Like, they was talking and, you know, the way you said she’s representing me, she’s standing there and I just have to get up and have to scream in front of the court without -- without I get the chance, the opportunity, or if you are my lawyer you explain it to me, you’re telling me every details. Then I will make a sense and I’ll say something. But I didn’t get the opportunity. I’m just sitting -- sitting down and then case closed, you are guilty. Then why I’m guilty? You are guilty, and then the sentencing this and that. I get out. Q. Okay. Did you attend -- go to Ms. Shemesh’s office at 599 College Street on April 18th 2012 with two other people and get the disclosure from Ms. Shemesh? A. No, I didn’t go. Q. Pardon? A. I didn’t go at all there. Q. Okay. So you did not go there with two other people? A. No, I didn’t go, but my friend picked it up and then he can go -- you can go pick up your stuff that she said to him. So he went, he picked it up. Q. Are you agreeing with me or disagreeing with me? There is one lawyer representing you for three days that you were at the trial? A. Yeah, to my knowledge, like, the other lawyers, the duty counsel, the same duty counsel, three, four, five times and then they keep coming on my behalf. And the judge want to know, said, and then exactly he said that -- basically I didn’t know she’s representing me or she’s not representing me or whatever. Q. But she was there for the three days, right? The same lawyer, right? A. I don’t know. Could be her, could be somebody else. I don’t know. I’m not a hundred percent it’s just her. Q. All right. Now, just going back to the very first day of trial, do you remember your son J.A. first of all telling the court what happened to him? A. Yeah, yeah. Q. Okay. And part of his evidence was on a DVD; do you remember that? A. I never see the DVD. Q. Okay; they had difficulty playing the DVD on the first day of trial. Do you remember them trying to play a DVD? A. I never seen that. I never seen them playing DVD. Q. Okay. And that’s on September 28th 2011? A. I didn’t see any DVD whatsoever. Q. And you’re saying a hundred percent no DVD was ever played in court? A. I never seen any DVD.

16The trial transcripts establish the following:

• The appellant was present for all three days of evidence.
• Laura Shemesh was counsel of record for all three days and participated actively in the process. She was routinely referred to by name by Crown counsel and the presiding justice. She conducted detailed cross-examinations of the Crown witnesses. She called two witnesses for the defence. One of those witnesses took responsibility for the assaults on the victim. Ms. Shemesh was the one and only lawyer who appeared at trial on behalf of the appellant.
• The evidence of the victim included two DVD statements which were filed pursuant to s. 715.1 of the Criminal Code of Canada, R.S.C. 1985, c. C-46. Both videos were played in open court. The videos and transcripts were filed as exhibits. Ms. Shemesh cross-examined the victim for 83 pages of transcript.
• Ms. Shemesh called two witnesses to testify for the defence. One of them was A.A. (the victim’s sister) who testified that it was she and not her father who struck the victim. The examination-in-chief by Ms. Shemesh of A.A. runs for 59 pages of transcript. The second defence witness was examined-in-chief for 11 pages of transcript.

17Notwithstanding his presence throughout the three-day trial, the appellant now asserts the following:

• He never met or spoke with Ms. Shemesh and did not retain her or realize she conducted the case on his behalf. He does not even know what she looks like.
• He could not even recall whether the person who “just asked questions” was male or female.
• He did not see any videos played in court as his son, the victim, testified.
• He was not sure he had the same lawyer for each day.
• He denied that he asked Ms. Shemesh to return his file when he discharged her after the verdict. This denial in cross-examination directly contradicted his sworn affidavit wherein he said that he did so. In cross he said he “did not ask her for the file because I didn’t know who she was, what she was and I didn’t know”.

Ineffective Assistance of Counsel

18In R. v. Archer (2005), 202 C.C.C. (3d) 60 (Ont. C.A.), Justice Doherty reviewed the applicable legal principles where an appellant raises the issue of ineffective assistance of counsel.

19The starting point is that “an accused who is represented at trial is entitled to effective representation by counsel”, and “[i]neffective representation may result in a miscarriage of justice necessitating the quashing of a conviction on appeal”: see Archer, at para. 118. Fresh evidence may be admitted on the appeal in order to determine the issue.

20An Appellant seeking to quash a conviction on the basis of ineffective assistance of counsel must demonstrate three things (see Archer, at paras. 119-120; and R. v. Eroma, 2013 ONCA 194, at para. 4):

a. Where the claim is based on contested facts, the Appellant must establish the facts on the balance of probabilities; b. The Appellant must demonstrate that counsel’s acts or omissions amounted to incompetence, otherwise known as the “performance” requirement; and c. The Appellant must demonstrate that counsel’s incompetent/ineffective representation caused a miscarriage of justice, otherwise known as the “prejudice” requirement.

21Before considering the performance component, the court must consider prejudice ‑ whether there has been a miscarriage of justice as a result of an unreliable verdict or procedural unfairness: see R. v. Nwagwu, 2015 ONCA 526, at para. 6. Justice Doherty described this in Archer as follows, at para. 120:

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. [Citations omitted].

22In other words, there must be shown “that the alleged incompetence had some negative impact on the reliability of the conviction”: see R. v. Dunbar, 2007 ONCA 840, at para. 23.

23In relation to the performance component, “incompetence” is measured against a reasonableness standard, “having regard to the circumstances as they existed when the impugned acts or omissions occurred”: see Archer, at para. 119. There is a strong presumption of competence in favour of counsel: see Archer, at para. 140; and R. v. G.D.B., 2000 SCC 22, 143 C.C.C. (3d) 289, at para. 27. A reviewing court ought to carefully scrutinize allegations of incompetent representation and be deferential to the decisions of trial counsel, recognizing that there is a “broad spectrum of professional judgment that might be considered reasonable”: see Archer, at para. 119; and R. v. White (1997), 114 C.C.C. (3d) 225 (Ont. C.A.), at p. 247.

24The appellant must show, on a balance of probabilities, that the “acts or omissions of counsel could not have been the result of reasonable professional judgment”: see R. v. Prebtani, 2008 ONCA 735, 240 C.C.C. (3d) 237, at para. 3, leave to appeal ref’d, [2009] S.C.C.A. No. 153. While the appellant’s counsel may have done things differently, pursuing other evidence or cross-examining in a different way is in no way determinative of the adequacy of the representation at trial: see R. v. Hagedorn, 2014 ONCA 681, at para. 5.

25In R. v. Smith, 2015 ONSC 8121, at para. 68, Justice Fairburn commented on the assessment of competence of trial counsel as follows:

It must be recalled that when trial performance is assessed on appeal, the reasons for conviction in a judge alone trial are available to assess that performance against. Trial counsel do not have these reasons when they make their judgment calls and bring their professional wisdom to bear. To assess competence strictly against the reasons for judgment, rendered after the difficult judgment calls have been made, would hold trial counsel to a standard of clairvoyance. This would be unfair.

Analysis

26This is not a case of alleged miscommunication between client and counsel. The appellant asserts that he was oblivious to and unaware of the identity and role played by a lawyer in his presence for three days of trial. I cannot accept that evidence as true. The appellant’s evidence in cross-examination on the fresh evidence ranged between evasive and outright untruthful. Trial counsel provided time-specific dates that she met with the appellant before and during the trial. The trial record of her involvement confirms that she conducted a vigorous defence on behalf of the appellant. The evidence of the appellant is totally unworthy of belief. He bears the onus on this application. There is no credible basis to find that he has established the factual basis for his claim of ineffective assistance of counsel.

27My rejection of the appellant’s evidence, that he had not met and did not know of the role played by Ms. Shemesh, fatally taints the other issues raised by the appellant. I will nonetheless make brief comments on those issues.

28The appellant claims that Ms. Shemesh was never retained by him. He claims she was hired by his civil counsel on an unrelated matter. There is no dispute that Ms. Shemesh was to be paid her fees on the criminal charges out of an anticipated recovery on the civil matter. This may have been an unusual fee arrangement on a criminal matter. However, I do not accept the appellant’s claim that this amounted to an improper contingency arrangement by Ms. Shemesh. I also do not agree that it placed her in a conflict of interest.

29The appellant also asserts that he was improperly denied the opportunity to testify at his trial. This is always an important and sensitive issue to be discussed between an accused and counsel. The ultimate decision, based on the advice of counsel, must rest with the accused: see Archer, at para. 139. On appeal, the Appellant bears the onus of demonstrating that it was trial counsel, not the Appellant, that decided the Appellant would not testify and that therefore a miscarriage of justice has occurred: see Archer, at paras. 139-140. Ms. Shemesh provided evidence that the issue was thoroughly canvassed with the appellant. The process included a mock cross-examination in counsel’s office. Her advice was that he would be better off to not testify. She testified that he agreed with that advice. This seems a reasonable decision in light of the fact that the daughter of the appellant testified that she had assaulted the victim.

30Finally, the decision not to challenge the search of the residence was a tactical one and reasonable in the circumstances. The stick located was consistent with the evidence of A.A. for the defence. The blood located on the television potentially contradicted the victim’s testimony.

31Judicial precedents dealing with ineffective assistance of counsel claims often refer to a motive for convicted persons to impugn the conduct of trial counsel. The court in Archer commented, at para. 141, that “[c]ommon sense dictates a cautious approach to allegations against trial lawyers made by convicted persons” and that “[l]ooking backwards through the bars of a jail cell is not the most reliable of vantage points”. That is not to say that every case demonstrates such a motive. But here, in my view, in his zeal to attack the conduct of his trial counsel, the appellant has gone far beyond the limits of credibility. The allegations made against Ms. Shemesh are ill-founded and without justification.

Result

32Appeal dismissed.

B.P. O’Marra J.