COURT FILE NO.: CR-11-1605

DATE: 20180510

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

J. Goulin, for the Crown

Respondent

• and -

PHILROY GREEN

O. Wigderson, for the defence

Applicant

HEARD: July 4 and 5, 2017 and February 21, 2018, at Brampton

RULING ON MISTRIAL APPLICATION

André J.

[1] Mr. Philroy Green was convicted of attempted robbery on February 11, 2013, along with one co-accused in a trial that took place before me. Prior to being sentenced, Mr. Green retained new counsel, who has applied for a mistrial in this case on the ground of ineffective or incompetent representation of Mr. Green by his trial counsel. The Crown opposes the application, partly on the grounds that strategic decisions made by trial counsel should not be second guessed simply because Mr. Green did not like the result of his trial.

SUMMARY OF THE CROWN’S CASE

[2] On August 6, 2010, at approximately 3:25 p.m., Elvis Dominici-Perez was in his residence located at 337 Vodden Street East in the City of Brampton. His friend, Anthony Grisanzi, was also present at this time.

[3] Mr. Green and an unknown suspect entered the residence through the unlocked front door. They confronted Mr. Dominici-Perez in the hallway of the residence, and demanded that he ‘give us all your shit’. They had their hands under their shirts, making a motion like they had guns. Mr. Dominici-Perez did not believe they had guns and confronted them. He slid along the floor to his bedroom, and was able to get inside the bedroom and hold the door closed with his foot. Mr. Green and the unknown suspect kicked and hit the bedroom door in an attempt to gain entry into the room.

[4] Mr. Grisanzi jumped out the bedroom window and Mr. Dominici-Perez followed. They jumped the backyard fence into a neighbour’s yard, and called for help.

[5] Mr. Dominici-Perez circled back to the front of his house and saw Mr. Green and the other party exiting his residence. He picked up a hockey stick and chased them. They entered a 1992 white Dodge Shadow that was waiting for them in the parking lot of Century Gardens Recreation Centre. The vehicle was being operated by Khalid Sagher, and Sunny Ramta was seated in the backseat.

[6] Mr. Dominici-Perez recognized Sunny Ramta in the vehicle. He had previously arranged for Mr. Ramta to attend his residence that afternoon.

[7] Mr. Sagher drove the vehicle erratically through the parking lot while being chased by Mr. Dominici-Perez with a hockey stick. The vehicle crashed into a pole and Mr. Green, Mr. Ramta and the other unknown suspect fled the area.

[8] Mr. Sagher was arrested at the scene. He provided an inculpatory statement to the police admitting his involvement, and implicated Mr. Green, Mr. Ramta, and a fourth party named ‘Akeem’. He told police that they had planned to rob Mr. Dominici-Perez of his marijuana. He stated it was Mr. Ramta’s idea and he knew Mr. Dominici-Perez.

[9] While inside the residence Mr. Green and the other unknown suspect allegedly took 4 grams of marijuana. Mr. Dominici-Perez had minor injuries, consisting of bruises and scratches.

SUMMARY OF THE APPLICATION EVIDENCE

Mr. Philroy Green

[10] Mr. Green testified that Mr. Osmak, his trial counsel, decided to re-elect his mode of trial from judge and jury to a judge alone trial because of the judge who would be presiding. Mr. Green testified that this decision was that of his counsel, rather than himself. When he was questioned about a signed authorization to re-elect to a judge alone trial, Mr. Green testified that he did not recall signing the authorization, nor did he understand what it meant.

[11] Mr. Green testified that his version of the events is the same now as it was during the trial in 2013. He also conceded that he had a poor recollection of his conversations with Mr. Osmak prior to the trial.

Mr. Orest Osmak

[12] Mr. Orest Osmak testified that he only met Mr. Green on the dates the matter was scheduled to come before the court. He first met Mr. Green on September 20, 2010, outside the intake court in the Ontario Court of Justice (OCJ). Mr. Green retained Mr. Osmak on December 13, 2010, after receiving a legal aid certificate. The two then sat down in a witness room and reviewed the disclosure. This review lasted “close to an hour”. Mr. Osmak also reviewed Mr. Green’s statement to the police on this date.

[13] Mr. Osmak testified that he billed the Ontario Legal Aid Plan (the “Plan”), 13.5 hours of preparation time in this matter. He also did some research in December 2010 on the relevance of Mr. Green’s brain injury which Mr. Green suffered following a motor vehicle accident in 2008.

[14] On March 30, 2011, Mr. Osmak set the matter down for a trial scheduled to commence on November 29, 2011. This date was confirmed on October 5, 2011. Mr. Osmak testified that he prepared for the trial by reviewing the statements of the Crown’s witnesses on November 28, 2011. He also spoke to Mr. Green by telephone on that date. He did not speak to a medical doctor or psychiatrist about Mr. Green’s mental health issues. He consulted a forensic psychiatrist after a guilty verdict was returned on February 13, 2013, in order to prepare a report for an application for a conditional sentence, on the ground that due to Mr. Green’s brain injury, incarceration would adversely affect his rehabilitation.

Preliminary Hearing

[15] Mr. Osmak testified that on November 29, 2011, he found out the identity of the trial judge, and decided to have a preliminary hearing rather than a trial. He advised Mr. Green to have a preliminary hearing rather than a trial. When questioned about the significance or lack thereof of a preliminary hearing, Mr. Osmak replied that he told Mr. Green that such a hearing gave the Crown an opportunity to test their witnesses and to have them “practice their evidence”. He also told Mr. Green that the hearing was an advantage to the Crown rather than to the defence in most cases. He subsequently waived Mr. Green’s right to have such a hearing and Mr. Green consented to committal for a trial. Mr. Osmak did not obtain written instructions from Mr. Green to have a trial in the OCJ or to have a preliminary hearing.

[16] Mr. Osmak indicated that although he only billed the Ontario Legal Aid Plan (the “Plan”) two hours preparation for the preliminary hearing, he spent an additional 10 hours preparing for the hearing. However, he did not detail the work done during this period, nor did he make any notes regarding Mr. Green’s version of events.

Trial Preparation

[17] Mr. Osmak spent 4 hours preparing for the trial. He did not make any detailed notes concerning his preparation because he felt that the case was “pretty straightforward”. He conceded that he made no notes regarding Mr. Green’s version of events or notes regarding his preparation to cross-examine the police officers and the Crown’s main witnesses.

[18] Mr. Osmak testified that the decision to have a judge alone trial, rather than a trial by judge and jury in the Superior Court, was made by Mr. Green. Mr. Green made this decision after learning who the trial judge would be. Mr. Osmak testified that he thought it was a good idea.

[19] When asked what he did to prepare Mr. Green to testify at trial, Mr. Osmak replied that he asked Mr. Green ten times what his defence was, but conceded that he made no notes confirming his conversations with Mr. Green. He also stated that he engaged in a mock cross-examination of Mr. Green every time he met him at the court.

Conduct of the Trial

[20] Mr. Osmak conceded that the best strategy for Mr. Green’s defence would have been to impugn the credibility of the Crown’s main witnesses prior to the trial. He also conceded that during the trial, he made no attempt to impeach the credibility of Mr. Dominici-Perez or Mr. Grisanzi when they testified. Mr. Osmak also did not cross-examine Mr. Dominici-Perez on findings of guilt in his criminal record which resulted in a conditional discharge. He admitted that he never asked Mr. Dominici-Perez if he had a criminal record.

POSITION OF THE APPLICANT

[21] Mr. Green’s new counsel alleges three types of incompetence in this case, namely:

(1) Persuasive incompetence;

(2) Specific acts of incompetence; and

(3) Significant legal decisions.

[22] Counsel identifies the following areas of alleged incompetence as conduct which permeated and affected the manner in which trial counsel conducted the trial:

a) his note taking was grossly deficient;

b) the absence of any meaningful interaction with his client;

c) insufficient preparation time with Mr. Green;

d) trial counsel’s failure to understand the fundamentals of character evidence;

e) trial counsel’s failure to conduct basic legal research;

f) his lack of understanding of an accused’s statement for criminal law purposes;

g) his flawed reasons for waiving the preliminary hearing;

h) his mistaken belief that he could not cross-examine a witness on an offence for which the witness received a conditional discharge;

i) his failure to specifically request disclosure of relevant information in the Crown’s possession; and

j) his failure to protect Mr. Green’s right to remain silent.

[23] Mr. Green’s counsel identifies the following examples of specific acts of incompetence:

a) the absence of any effort during the trial to impeach the credibility of Mr. Dominici-Perez and Mr. Grisanzi; and

b) trial counsel’s failure to cross-examine on inconsistencies in the evidence and his failure to challenge Mr. Dominici-Perez’s version of events.

[24] Mr. Green’s counsel submits that trial counsel failed to provide legal advice to Mr. Green in the following areas:

a) whether to have a trial in the OCJ or a preliminary hearing;

b) whether to waive the right to a preliminary hearing; and

c) whether to have a trial in the Superior Court by a judge sitting without a jury or with a judge and jury.

GOVERNING PRINCIPLES

[25] Section 7 of the Canadian Charter of Rights and Freedoms provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[26] Section 11(d) provides that any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

[27] In R. v. M.B., 2009 ONCA 524, 68 C.R. (6th) 55, at para. 6, the Court of Appeal noted that:

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 CanLII 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.

[28] The Court of Appeal further noted in M.B., at para. 7, that:

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?

[29] In R. v. G.C., 2018 ONCA 392 at para. 4, the Court of Appeal noted that:

An incompetence of counsel claim, brought during the course of a trial, should be approached within the principled framework for mistrial applications. Bearing in mind the unique dynamics of each trial, judges need to be left with a broad discretion to manage the trial process. A mistrial is a remedy of last resort, and it falls squarely within the discretion of the trial judge who is in the best position to assess whether such a remedy is needed in order to avoid miscarriages of justice.

[30] In R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 203 O.A.C. 56, at paras. 119-120, Doherty J.A. noted that:

[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” …

[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. …

[31] In assessing a claim of ineffective trial representation, the conduct of trial counsel must be examined with a strong presumption of competence, and not through the lens of hindsight: see R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 26-27; R. v. W.E.B., 2014 SCC 2, [2014] 1 S.C.R. 34, affirming 2012 ONCA 776, at paras. 1-3 (Ont. C.A.).

[32] In R. v. Stark, 2017 ONCA 148, 35 C.R. (7th) 455, Lauwers J.A. noted the following at paras. 18-20:

[18] In my view, the right to elect the mode of trial under s 536 of the Criminal Code is one of those fundamental rights that counsel cannot take from a client and on which the client is entitled to be adequately advised by counsel.

[19] Parliament has chosen to give accused who are charged with the more serious crimes a choice as to the mode of trial. That right is partly constitutionalized in s. 11(f) of the Charter, which guarantees a right to trial by jury for offences punishable by a sentence or five years or more. The exercise of the right to choose the mode of trial is integral to the court’s jurisdiction over an accused and is essential to the fairness of the proceeding.

[20] If an accused receives no advice from counsel as to his options, or the advantages and disadvantages of the respective options, then the accused has effectively been denied his right to choose his mode of trial under s.536 of the Criminal Code. The miscarriage of justice lies in proceeding against the accused without allowing him to make an informed election, and the accused need not establish further prejudice. What the accused might or might not have done had he been aware of his options is not relevant.

[33] The failure of trial counsel to cross-examine a witness on prior inconsistent statements which had a significant potential for impeachment may undermine the reliability of the verdict at trial: R. v. M.B., 2009 ONCA 524, 251 O.A.C. 81, at para. 66.

ANALYSIS

[34] The onus is on Mr. Green, to establish, on a balance of probabilities, that he received ineffective assistance from counsel, which justifies the granting of a mistrial. In order to do so, he must satisfy the following test set out in R. v. G.C., 2018 ONCA 392, by the Ontario Court of Appeal, at para. 3:

The decision whether to grant a mistrial is a matter that lies within the discretion of the trial judge, “who must assess whether there is a real danger that trial fairness has been compromised”: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 79.

[35] The court noted further at para. 4 that:

An incompetence of counsel claim, brought during the course of a trial, should be approached within the principled framework for mistrial applications. Bearing in mind the unique dynamics of each trial, judges need to be left with a broad discretion to manage the trial process. A mistrial is a remedy of last resort, and it falls squarely within the discretion of the trial judge who is in the best position to assess whether such a remedy is needed in order to avoid miscarriages of justice.

Has Mr. Green established the facts underlying the allegations of ineffective assistance from his counsel, on a balance of probabilities?

[36] Mr. Green’s counsel submits that the following facts constitute clear and convincing evidence of ineffectiveness of counsel:

a. grossly deficient note taking;

b. trial counsel’s lack of meaningful interaction with Mr. Green;

c. insufficient preparation time with Mr. Green;

d. trial counsel’s failure to understand the fundamentals of character evidence;

e. trial counsel’s failure to conduct basic legal research;

f. trial counsel’s lack of understanding of an accused’s statement for criminal law purposes;

g. trial counsel’s flawed reasoning for waiving the preliminary hearing;

h. trial counsel’s mistaken belief that he could not cross-examine a witness on an offence for which the witness received a conditional discharge;

i. trial counsel’s failure to specifically request disclosure of relevant information in the Crown’s possession;

j. trial counsel’s failure to protect Mr. Green’s right to remain silent; and

k. re-election of mode of trial.

Deficient Note Taking

[37] Mr. Osmak testified during this application hearing that he only billed the Plan two hours preparation time for the preliminary hearing and an additional two hours for a judicial pre-trial. Additionally, he billed 41 hours of preparation time for the trial. Mr. Osmak also testified that he did an additional 10 hours of preparation time prior to the preliminary hearing, although he conceded that he did not document or detail the actual work done during this period. He also testified that he did not make any detailed notes in this case, including notes relating to Mr. Green’s version of events, because the case was “pretty straight forward”. He also did not make any notes regarding his preparation to cross-examine three of the Crown’s witnesses, Cst. Chimula, Mr. Ramta, or Mr. Corbin.

[38] There is no doubt that trial counsel has an obligation to make detailed notes about his or her trial preparation. This is important for the purpose of billing the Plan to ensure transparency, but also for meaningful review in the event of any complaint of insufficient trial preparation or ineffective assistance by trial counsel.

[39] That said, defective or insufficient note taking is not synonymous with ineffective assistance of counsel or incompetence. Mr. Osmak testified that his preparation in this matter exceeded that indicated in his note taking. The fact that trial counsel may be a poor note taker is not necessarily evidence of trial incompetence. It may well be in combination with other circumstances. In this case however, I am not inclined to conclude that Mr. Osmak’s note taking is evidence of trial incompetence. This was not a complicated case. It was a drug rip off. The case turned on the credibility of the witnesses, including that of Mr. Green. To the extent that Mr. Osmak made adequate preparations to impugn the credibility of the witnesses who implicated Mr. Green in the incident, then his note taking, in and of itself, does not constitute evidence of ineffective assistance of counsel.

Absence of Meaningful Interaction with Mr. Green

[40] Mr. Green deposed that he had little or no meaningful interaction with Mr. Osmak prior to the preliminary hearing, and the trial. He also deposed that the decision to waive his preliminary hearing and later to waive a trial by judge and jury, was made solely by Mr. Osmak.

[41] I am not prepared to accept Mr. Green’s evidence about his interaction with Mr. Osmak for the following reasons. First, he had a very limited recollection of his verbal interaction with his trial counsel. Second, he testified that he knew that he could ask Mr. Osmak questions. Third, under cross-examination in this application, Mr. Green conceded that he did not remember much about his trial. Fourth, Mr. Green provided written instructions to Mr. Osmak to waive his preliminary hearing and to elect trial by judge and jury. Mr. Green testified during this motion that it made little sense that he would sign this waiver without asking questions about it. Fifth, Mr. Green conceded that just as Mr. Osmak testified, he may have watched Mr. Dominici-Perez’s video with Mr. Osmak and discussed its contents, but does not remember doing so.

[42] For the above reasons, I cannot rely on Mr. Green’s evidence that he had little or no interaction with his trial counsel prior to his trial.

Insufficient Preparation Time with Mr. Green

[43] Mr. Osmak billed the Plan for the following preparation time which Mr. Green’s new counsel maintains is woefully inadequate for this type of case:

1. 13.5 hours in December 2010;

2. 2 hours to attend a judicial pre-trial;

3. 2 hours of preparation time on November 28, 2011;

4. 3 hours of preparation time on November 29, 2011, the date when the preliminary hearing was waived;

5. 2 hours to attend a judicial pre-trial on March 20, 2011;

6. 2 hours of preparation time on January 20, 2013;

7. 2 hours of preparation time on February 2, 2013.

[44] Mr. Green’s counsel submits that the 4 hours of preparation time spent by Mr. Osmak in the 14 months preceding what was scheduled to be a six to seven day jury trial was “simply not enough time to prepare for a case of this nature”.

[45] Mr. Osmak testified in this motion that on December 13, 2010, he received the disclosure and a legal aid certificate from Mr. Green at the courthouse. He sat down with Mr. Green in a witness box at the courthouse and reviewed Mr. Green’s police statement with him. This meeting lasted close to an hour.

[46] Regarding his trial preparation with Mr. Green, Mr. Osmak testified that he asked Mr. Green ten times what his defence was. He indicated that he asked Mr. Green “[w]hat are you going to tell the judge when you testify?”. He engaged in a mock cross-examination with Mr. Green on each occasion they met at the courthouse prior to the trial. He also testified that he explained the pros and cons of the mode of trial to Mr. Green. Mr. Osmak conceded in cross-examination that he never communicated with Mr. Green via email or text.

[47] I have already noted that given Mr. Green’s limited recollection of his interaction with Mr. Osmak, I cannot rely on his testimony about the amount of preparation time he spent with his lawyer. However, I am also concerned that Mr. Osmak did not fully document the time he claimed he spent with Mr. Green.

[48] That said, I am unable to reject Mr. Osmak’s testimony regarding the preparation time he spent with Mr. Green over and above the time he recorded in his notes. I am also unable to conclude that he spent insufficient preparation time with Mr. Green. Indeed, there is no optimum amount of time or number of hours which trial counsel should spend with their clients. The amount of preparation required in a particular case is determined by a number of actors, including but not limited to the following:

1. experience and expertise of trial counsel;

2. complexity and nature of trial issues;

3. number of witnesses;

4. out of court statements of witnesses;

5. constitutional issues; and

6. number of accused.

[49] Mr. Osmak has over twenty-five years of experience in handling criminal cases. The main issue in Mr. Green’s trial was the credibility of witnesses. The Crown’s case against him was essentially based on the testimony of Mr. Dominici-Perez, Mr. Grisanzi, and Mr. Sagher. A proper defence for Mr. Green required his trial counsel to familiarize himself with the out of court statements of these witnesses, and attempt to impugn their credibility. The fact that Mr. Osmak may not have succeeded in doing so is not necessarily evidence of ineffectiveness or incompetency. However, as discussed later in this judgment, the amount of trial preparation by Mr. Green’s counsel may become significant in conjunction with another aspect of the conduct of Mr. Green’s defence.

Failure to Understand the Fundamentals of Character Evidence

[50] This alleged failure is also tied to Mr. Osmak’s alleged mistaken belief that he could not cross-examine a witness on an offence for which the parties received a conditional discharge (i.e. sub-point h) above), and counsel’s failure to request relevant disclosure from the Crown (sub-point i)).

[51] Mr. Green’s counsel submits that Mr. Osmak’s failure to cross-examine Mr. Dominici-Perez on a finding of guilt that resulted in a conditional discharge, or his failure to ask Mr. Dominici-Perez if he had a criminal record, constitute evidence of incompetence of trial counsel. Additionally, he submits that Mr. Osmak’s failure to understand that he could cross-examine a witness about the discreditable conduct that led to a charge may have seriously prejudiced Mr. Green in his trial.

[52] Mr. Osmak’s lack of awareness that he could have examined Mr. Dominici-Perez on any findings of guilt and the facts underlying such findings and on any outstanding charges is a cause for concern. Similarly, his acceptance of the disclosure received from the Crown without any inquiry about any other charges that may have been laid against Mr. Dominici-Perez also reflects a failure on his part as counsel for an accused, as he had an obligation to obtain all pertinent information from the Crown to enable his client to make full answer and defence. The cross-examination of Mr. Dominici-Perez about any prior discreditable conduct may have had an impact on the court’s assessment of his credibility, and without the relevant disclosure, trial counsel was unable to advance a full answer and defence for Mr. Green.

[53] Mr. Dominici-Perez testified at trial that two black males entered his home looking for drugs. He struggled with them and was forced to take refuge in a bedroom. The court accepted his version of events because it was corroborated by that of Mr. Grisanzi. I concluded at page 4 of my reasons for judgment in this case:

The latter [Mr. Grisanzi] was not shaken in cross-examination that he witnessed a struggle between his friend and two males in the hallway. This evidence is entirely at odds with Mr. Green’s testimony that he simply entered the residence and then ran out after Mr. Dominici-Perez had bolted towards the bathroom.

[54] Mr. Osmak cross-examined Mr. Dominici-Perez on the critical parts of Mr. Green’s testimony. He put to the witness that neither males stated to him “give me your shit”, and that there was no fight between the males who came to his door and himself. Additionally, Mr. Osmak put to Mr. Dominici-Perez that there had been no fight in the house and that both males left his home without a fight.

[55] However, Mr. Osmak did not cross-examine this witness on the damage to the door which I found to be evidence corroborating Mr. Dominici-Perez’s version of events.

[56] Similarly, Mr. Osmak failed to cross-examine Mr. Sagher who had, on an earlier date, pled guilty to the robbery of Mr. Dominici-Perez. Mr. Sagher, despite the fact that he was a hostile witness, gave the following answer to this question posed to him by the Crown:

Q. You knew at that point in time when Philroy [Green] and Ackeem went into the house, they weren’t going to buy weed, it was a robbery, Sunny [Ramta] planned the robbery?

A. I didn’t know at the time, no, I didn’t – I figured it out after I put two and two together.

[57] With this testimony, Mr. Sagher implicated Mr. Green in the robbery. It was therefore incumbent upon Mr. Osmak to cross-examine Mr. Sagher on this testimony in order to cast doubt or undermine his testimony that Mr. Green was involved in a robbery of Mr. Dominici-Perez. However, Mr. Osmak did not ask Mr. Sagher any questions regarding Mr. Green’s involvement in the alleged robbery.

[58] Mr. Osmak did not cross-examine Mr. Dominici-Perez on his oral statement to Cst. Singh between 3:43 p.m. and 3:45 p.m. on August 6, 2010 on the day of the robbery, in which he stated that he did not know any of the suspects. This statement preceded the allegedly threatening text message which Mr. Dominici-Perez claimed that he received from Mr. Ramta after 5:20 p.m. that afternoon. Mr. Osmak did not cross-examine Mr. Dominici-Perez on inconsistencies between his prior statements and his trial evidence concerning:

(1) how many of the intruders entered the getaway car; or

(2) whether he had lifted the shirt of one of the intruders and had stated “You don’t have a gun” or words to that effect.

[59] Furthermore, Mr. Osmak did not question Mr. Grisanzi about any inconsistencies between his testimony and that of Mr. Dominici-Perez, nor did he cross-examine Mr. Grisanzi concerning the description he gave to the police about the two intruders, versus his trial testimony where he testified he had not seen the intruders.

[60] More importantly, Mr. Osmak did not cross-examine either Mr. Dominici-Perez and Mr. Grisanzi about an important piece of the Crown’s evidence against the accused. Mr. Dominici-Perez testified that after fleeing into his bedroom, his assailants had damaged the door after repeatedly striking it with their hands. In my Reasons for Judgment, I found that neither counsel had challenged this piece of evidence, and that it corroborated the Crown’s case that Mr. Green and his companion had indeed physically assaulted Mr. Dominici-Perez. At the very minimum, trial counsel should have questioned Mr. Dominici-Perez about the genesis of the damage to the door and whether this damage had been caused by Mr. Green and his companion.

[61] Viewed individually, the failure of trial counsel to cross-examine an important Crown witness on a prior inconsistent statement may not necessarily constitute evidence of ineffectiveness of counsel. Whether it amounts to such a finding depends on a number of factors, including the importance of the inconsistency, the importance of the witness to the case, whether or not the evidence relates to an important part of the Crown’s case, or whether it assists the defence in raising a reasonable doubt about the Crown’s case. In as much as Mr. Dominici-Perez and Mr. Grisanzi’s testimony were important to the Crown’s case against Mr. Green, Mr. Osmak had an obligation to raise as many concerns as possible about the credibility and reliability of their evidence.

[62] The failure to cross-examine these witnesses must also be assessed in light of the time Mr. Osmak spent in preparing for the trial in the Superior Court. In my view, four hours preparation time would be inadequate to fully prepare to cross-examine the Crown’s witnesses and to prepare Mr. Green to testify during the trial. I make this observation despite my belief that there is no optimum number of hours to be spent preparing to defend an accused in a case of this nature.

[63] In my view the following comments by Nordheimer J. in R. v. Schmerl, [2012] O.J. No. 4358, at para. 8 are apposite in this case:

In my view, the failings in counsel's cross-examinations reach the level that undermines the reliability of the result. It cannot be said with any certainty that had an effective cross-examination of the complainant in particular, but also of her husband, taken place that it would not have lead to a different result. In that regard, it is important to observe that the fact that the appellant's evidence was rejected by the trial judge does not, in and of itself, get the prosecution to a conviction. The court must conclude, separate and apart from any rejection of the appellant's evidence, that it is satisfied beyond a reasonable doubt that the offence has been proven. It became even more important in that situation for the accused to challenge the complainant's version of the events. While I accept that the complainant was unlikely to resile from her story that does not mean that counsel for the appellant could not have raised a reasonable doubt about that story sufficient to gain an acquittal. To not even try is not an exercise of judgment, it is an abdication of defence counsel's fundamental role.

Failure to Conduct Basic Legal Research

[64] Mr. Green suffered a brain injury as a result of a motor vehicle accident in 2008. When questioned during this motion about what steps he took to find out about the impact of the injury, Mr. Osmak replied that he did not speak to any medical doctors or psychiatrists concerning the impact of this injury on Mr. Green’s cognitive abilities. He testified that he checked the legal aide website and spoke to other counsel about Mr. Green’s injuries. He also testified that he consulted a forensic psychiatrist after the court convicted Mr. Green of attempted robbery, in preparation of a constitutional argument that given the effects of Mr. Green’s brain injury, a sentence of incarceration would not be an appropriate sentence.

[65] During the trial Mr. Green testified that during the incident, there was no violence or theft of any kind. He testified that they had come to purchase drugs from Mr. Dominici-Perez. Mr. Green made reference on more than one occasion to the medical problems he experienced at the time of the offence. The Crown asked him why he ran from Mr. Dominici-Perez’s house. He replied that he was “extremely paranoid”. He then added:

Borderline schizophrenic, if you would open your eyes and see the medications that I’m on or speak to one of my psychologists . . .

[66] In his examination in-chief, Mr. Green testified that he had been involved in a motor vehicle accident in 2008. He stated that he suffered eleven broken ribs, “brain bleeds”, and was in a coma for “a little under a month”.

[67] It clearly may have been helpful to Mr. Green’s defence for Mr. Osmak to have adduced evidence that Mr. Green’s flight from Mr. Dominici-Perez’s house was not evidence of consciousness of guilt, but was precipitated by his medical condition. An opinion from a medical expert would have assisted him in this regard. It is clear that Mr. Osmak made rather lukewarm efforts to contact a medical expert to present this evidence as part of his client’s defence.

Waiver of Preliminary Hearing

[68] On November 29, 2011, Mr. Osmak waived Mr. Green’s right to have a preliminary hearing and consented to Mr. Green’s committal to stand trial. Mr. Green signed a waiver indicating that: “I, Philroy Green, hereby instruct my counsel Mr. Osmak to elect trial by judge and jury”. Mr. Osmak testified that he recommended to Mr. Green to change his mode of trial from the OCJ to a Superior Court judge sitting with a jury when he found out the identity of the trial judge in the OCJ.

[69] There is nothing wrong with trial counsel recommending a change in mode of election upon learning the identity of the trial judge assigned to do the trial. What is problematic however, are the preferred reasons why Mr. Osmak decided to waive the preliminary hearing rather than have a discovery where committal was not an issue.

[70] Mr. Osmak testified on this motion that the waiver of a preliminary inquiry and consenting to a committal are synonymous in that they mean the same thing. He testified that any suggested difference between the two “makes no sense” and that “you can use the terms synonymously”.

[71] That conclusion, I am afraid, is incorrect and may well have cost Mr. Green an opportunity to test the strength of the Crown’s case in a discovery-type hearing without the attendant jeopardy of being found guilty in a trial, following the testimony of the Crown’s witnesses. The preliminary hearing afforded an opportunity to explore any prior inconsistent statements of a witness or internal inconsistencies in their evidence and to obtain information about any criminal antecedents the witnesses may have. A preliminary hearing could have assisted trial counsel in preparing a defence to the charge or charges faced by his or her client. Mr. Osmak’s failure to appreciate this may well have compromised trial fairness because it deprived Mr. Green an opportunity, prior to the trial, to test the credibility of the Crown’s witnesses and by extension, the strength of the Crown’s case.

[72] The Crown understandably points out that Mr. Osmak had the right to rely on Mr. Green’s signed instruction to waive the right to a preliminary hearing. Indeed, Mr. Green testified in the hearing that it did not make sense that he would sign the waiver without asking any questions about it.

[73] However, Mr. Osmak had an obligation to explain the pros and cons of having a preliminary hearing to enable Mr. Green to make an informed decision about whether to have such a hearing. Based on Mr. Osmak’s testimony about what he told Mr. Green about a preliminary hearing, I am concerned that Mr. Osmak did not meet this obligation to properly advise his client about having the hearing. Mr. Osmak testified that he told Mr. Green that the preliminary hearing was an opportunity for the Crown to test the witnesses and accordingly, afforded the Crown’s witnesses an opportunity to “practice their evidence”. He told Mr. Green that that hearing was to the advantage of the Crown, not to the defence.

[74] In my view, Mr. Osmak did not meet his obligation to fully advise Mr. Green about the significance of a preliminary hearing such that Mr. Green could have made an informed choice about whether to waive the preliminary hearing. To the extent that Mr. Osmak’s comments conveyed the impression that there was no benefit from such a hearing, then Mr. Osmak failed to properly advise his client about the benefit of a preliminary hearing that could have assisted Mr. Green in making a defence in his trial.

Failure to Protect Mr. Green’s Exercise of His Right to Remain Silent

[75] During the police investigation of the alleged robbery, Constable Jeff Chamula interviewed Mr. Green who exercised his right to remain silent. When Cst. Chamula testified, Crown counsel questioned Cst. Chamula about his interview of Mr. Green. The Crown elicited evidence that Mr. Green gave an exculpatory statement, and did not say anything with regards to the robbery. Crown counsel also cross-examined Mr. Green about the fact that he failed to advise Cst. Chamula during the interrogation that Mr. Dominici-Perez pursued him with a hockey stick. Mr. Osmak never objected to either line of questioning.

[76] In my view, nothing turns on this omission. Mr. Green’s alleged failure to advise the police that Mr. Dominici-Perez chased him with a hockey stick was not a factor in the court’s decision concerning Mr. Green’s guilt.

[77] Mr. Osmak’s alleged failure to object to this line of questioning by the Crown of Mr. Green is not a factor that supports the contention that Mr. Green’s trial counsel was incompetent.

Re-election of Mode of Trial

[78] Mr. Osmak testified in this motion that Mr. Green wanted to re-elect his mode of trial from that of a judge and jury to a judge alone trial when he found out the identity of the trial judge. He testified that Mr. Green made the decision to re-elect and that he, Mr. Osmak, “thought it was a good idea as well”. Mr. Green also signed a note concerning his decision to re-elect his mode of trial. It reads:

I Philroy Green hereby instruct my counsel to re-elect from trial by judge and jury to trial by judge alone.

Dated at Brampton, this 4th day of February, 2013

[79] Mr. Green however, deposed that the decision to re-elect his mode of trial was made by Mr. Osmak rather than by himself.

[80] Assuming, without deciding, that Mr. Osmak made the decision for Mr. Green to re-elect his mode of trial, Mr. Green clearly approved his counsel’s recommendation that he should have a judge alone trial. Indeed, Mr. Green instructed his counsel to “re-elect from trial by judge and jury to trial by judge alone.”

[81] Further, there is nothing wrong if Mr. Osmak recommended to Mr. Green that he should re-elect his mode of trial. Mr. Osmak is entitled to rely on his knowledge and experience to advise his client about the mode of trial which would be advantageous to him. The fact that the result of the trial was not one anticipated by Mr. Green, does not render Mr. Osmak incompetent or ineffective as trial counsel.

[82] In my view, even if I conclude that Mr. Osmak made the decision for Mr. Green to re-elect his mode of trial, he was entitled to rely on his experience and knowledge of the trial judge and his judgment in advising Mr. Green to re-elect to have a judge alone trial.

[83] The Crown submits that given Mr. Green’s testimony that his version of events is the same now as it had been during his trial, a retrial of this matter will simply achieve the same result.

[84] That may not necessarily be the case. I did not accept Mr. Green’s version of events and found that his testimony did not raise a reasonable doubt about the Crown’s case. Significantly however, I found, based on the totality of evidence that I accepted, that the Crown proved beyond a reasonable doubt that Mr. Green was guilty of attempted robbery.

[85] Given the concerns I have regarding Mr. Osmak’s failure to fully cross-examine Mr. Dominici-Perez, Mr. Sagher and Mr. Grisanzi, I am not satisfied that the outcome of the trial would have been the same had Mr. Osmak fulfilled this obligation within the prevailing standard of competence by counsel in a case where the credibility of the Crown’s witnesses was of paramount importance.

CONCLUSION

[86] Based on the above, the application for a mistrial is granted.

André J.

Released: May 10, 2018