Court File and Parties

COURT FILE NO.: SCA(P)1599/16 DATE: 2018 10 03

Ontario Superior Court of Justice (Summary Conviction Appeal Court)

B E T W E E N:

HER MAJESTY THE QUEEN T. Kim, Counsel for the Respondent Respondent

- and -

Z.K. J. Kalidas, Counsel for the Appellant Appellant

HEARD: July 23, 2018

Reasons for Judgment

[On appeal from conviction by Schreck J. dated October 7, 2015]

TRIMBLE J.

[1] On October 7, 2015, Schreck J. of the Ontario Court of Justice convicted the appellant Z.K. of sexual assault under section 271 of the Criminal Code following a trial on September 1 and 2, 2015. The learned Trial Judge sentenced Z.K. to six months incarceration and a further one year’s probation. He was granted release pending appeal. Should the conviction stand, Z.K. must serve his incarceration. He will be listed on the sex offender registry for 10 years. In addition, Z.K. claims that he has lost his ability to pursue a career as a masseur because of his conviction, and thereby to provide for his family. He says he is now facing deportation as a result of his conviction.

[2] Z.K. appeals this conviction on the basis of ineffective assistance of counsel.

[3] For the reasons that follow, the appeal is dismissed.

The Incident

[4] On 27 June 2014, Z.K. was training as a registered massage therapist but had not yet received his certification. On that day, he gave a massage first to the complainant’s partner, and then to the complainant. The complainant paid full price for her massage. The complainant’s, partner used a “Groupon”. Each massage lasted 60 minutes.

[5] The complainant alleged that during the massage, Z.K., without her consent, cupped and kneaded her breasts, then grazed her vagina with his fingers while massaging her inner thigh. She made no complaint at the time. After the massages were complete, an issue arose with respect to whether the complainant could submit the receipt for the massage to her benefits insurer for reimbursement. It appears that during the post-massage discussions, it became clear that Z.K. was not a registered massage therapist and therefore, the complainant was unable to claim for the massage.

[6] She reported to police later that day. Z.K. was arrested later that day and interrogated by the police, maintaining the whole while, his innocence.

The Trial

[7] Evidence in the trial was heard on 1 and 2 September 2015. The learned trial judge released written reasons on 7 October 2015.

[8] The Crown called the complainant and her spousal partner. The partner was massaged first. She was satisfied with the massage she received. The complainant massaged second; she was not satisfied. She testified to a number of irregularities with respect to her massage. More particularly, she testified that after she was told to roll over on her back and she pulled her sheet up, Z.K. asked her if she wanted to have her stomach massaged. She thought this was odd. Z.K. put his hands under the sheet, cupped both of her breasts with his hands and began squeezing them rhythmically. The complainant told Z.K. that she did not need a massage there. He stopped. Shortly thereafter, he massaged her inner thigh and after the complainant said “no”, he moved his hand away and in so doing brushed his fingers against her vagina. He also asked if he if she would like to have dinner with him. She then left the room.

[9] The complainant said that when she went to pay, she asked for a receipt so that she could claim the cost of the massage on her employment benefits. She admitted that the real reason that she wanted a receipt was to prove that she had been there and had received the massage from Z.K., so she could give it to the police. An argument ensued. The parlour owner said that the only receipt that could be issued for the complainant’s massage was for $60 as Z.K. was not a certified RMT. The complainant, however, could only submit to her employer’s benefit plan receipts for massages by certified RMTs, which cost $85.

[10] Both the complainant and her partner were able to provide in-dock identification of Z.K. as the person who performed the massages, notwithstanding that they called him “Mr. Ali”.

[11] In defense, Z.K.’s lawyer, Ms. Payal Malhotra, called the owner of the massage parlour. He confirmed that “Groupon” massages were not performed by RMTs. This was so because it was “decided by the market”. He confirmed that he was training Z.K. During examination in chief, the owner also reported that he heard nothing but positive reviews from clients about Z.K. Indeed, he had repeat customers. In cross-examination, the owner did say that he received one complaint where his massage had not been “up to par” and another that Z.K. talked too much. The owner remembers there being a disagreement over the price of the massage and the receipt.

[12] Z.K. did not give evidence.

The Trial Decision

[13] The trial judge identified the central issue as whether the assault took place. He said that this issue required an assessment of the credibility and reliability of the complainant, the only witness to testify about the alleged sexual assault. The learned Trial Judge found that the complainant was credible. She was not shaken in cross-examination. She was responsive to questions in both examination-in-chief and cross-examination. Some of her testimony was confirmed by her partner’s testimony.

[14] The learned Trial Judge considered and rejected defence arguments proffered to raise a reasonable doubt. The first argument was that the accused failed to end the massage or to make a complaint to the massage parlour staff. The first complaint came many hours later to the Better Business Bureau and the Police. The Trial Judge rejected this, holding that the timing of the complaint by the accused is irrelevant since the failure to complain in a timely way cannot give rise to a presumptive adverse inference. He recognized, however, delayed disclosure by the complainant, together with the other evidence, may signal a need for caution with respect to credibility. He found, however, that the complaint to the police was made within hours of the assault and did not affect the complainant’s credibility.

[15] The second defense was that the complainant had a motive to fabricate; namely, that she was angry that she had not been given a receipt showing that she had been massaged by a qualified RMT so she could claim the expense from her employer’s benefits provider. The learned Trial Judge rejected the argument that the complainant was so upset that she decided to fabricate a sexual assault allegation as some sort of retaliation against the massage therapist and parlour. Trial judge noted that it was the parlour owner refused to provide the receipt not Z.K.

[16] The third argument was that there were serious inconsistencies in the complainant’s testimony. Two were pointed out. The complainant testified that, usually, she had massages four times a year, yet when she went to the massage parlour and had the massage by Z.K., she had not had one in a year. The court rejected this as a serious inconsistency. He accepted the complainant’s evidence as a general statement, not a specific statement of the number of massages she had every year. Even if it was a consistency, the trial judge held it was a peripheral one and did not affect the credibility with respect to any allegation of sexual assault.

[17] Ms. Malhotra also argued that there was a consistency between the massage parlour owner’s evidence and the complainant’s evidence. The complainant testified that the owner offered her an RMT receipt for $85. The owner denied this and taken place. Again, the court rejected this is peripheral but also did not accept the owner’s advice. He rejected the owner as not credible.

Summary Conviction Appeal

Z.K.'s Appeal

[18] Z.K. appeals from this conviction based on inadequate assistance of counsel.

[19] The alleged inadequate assistance in this case can be broken down to categories:

1. Ms. Malhotra refused to permit Z.K. to testify; and,
2. Ms. Malhotra was incompetent. The result of Ms. Malhotra’s conduct is that the conviction and sentence are not reliable. There was a miscarriage of justice.

[20] Some of the claimed areas of incompetence of counsel are: a. she did not understand R. v. W.D. and how it applied; b. she conducted no research into the offense; c. she developed a theory of the case that was bound to fail; d. this was her first trial; e. she did not understand the law of evidence; f. she did not disclose her inexperience and obtain instructions to proceed; g. she did not follow clients instructions to obtain a surveillance video; h. she did not apply for a directed verdict which “surely would have been a successful directed verdict.”; i. she gave bad advice; j. she did not reduced to writing her advice to the client and the client’s instructions concerning his testifying; k. she was incompetent in her cross examination; l. she did not lay the proper foundation for a challenge based on Browne v. Dunne; m. she disclosed privileged communications; and, n. she made submissions for which she had called no evidence.

[21] The most succinct statement of Z.K.’s position is the last three sentences of paragraph 5 of his factum: “If all these things don’t amount to ineffectiveness, what does? This is a winnable case. [Z.K.] had already rebutted these allegations successfully in a skillful police interview using the controversial Reid technique and could have surely done so again from the witness stand but trial counsel advised him not testify.”

Analysis of Appeal Grounds

Credibility Assessment

[22] I will address the appellant’s argument, first, dealing with the accused’s failure to testify, and second, with respect to the incompetence arguments.

[23] Before discussing the grounds for the appeal, I should address credibility.

[24] “Credibility” of a witness comprises two aspects: is the witness believable, and is his or her evidence reliable. Triers of fact can also believe some, none or all of the testimony of any particular witness.

[25] Some of the factors a Judge may consider are: a) The demeanor of the witnesses – this is an important factor, although not the only factor. Findings of credibility should not be made on demeanor, alone. b) Does the evidence make sense? - is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and condition? See: Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.). c) Internal Consistency – does the evidence have an internal consistency and logical flow? R. v. C.H., [1999] N.J. No. 273 (Nfld C.A.). d) Prior inconsistencies – is the evidence consistent with prior statements? How significant are the differences, and are they adequately explained? R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788. e) Is there independent confirming or contradicting evidence? R. v. Khan, [1990] 2 S.C.R. 531. (S.C.C.) f) Interest in the outcome and a motive to lie – does the witness have such motivation? Motivation to win or lose the case is not sufficient. The interest must be beyond that. R. v. S.D., 2007 ONCA 243, 218 C.C.C. (3d) 323.

[26] None of these factors is determinative.

[27] In addressing the credibility and reliability of Z.K., his wife A.B., and Ms. Malhotra, I have considered all of these factors.

####### Z.K.'s Credibility

[28] Generally, in a case involving a claim by a litigant against a solicitor, a litigant’s memory of the conduct of their dealings with their lawyers are treated deferentially and presumed to be more accurate than their solicitor’s accounts. That is because the client usually has only one law suit. To the client, the law suit is out of their ordinary experience and lives. It is extraordinary. Events stand out. Other than the challenges to memory that arise with the passage of time, little else distracts them from the tasks in the specific file.

[29] With Z.K., however, I have serious concerns about the accuracy of his memory and reliability of his evidence, concerns which are not forgiven by the normal assumptions about a client’s memory of his case or dealings with his solicitor. For example:

1. Z.K. would not concede what documents clearly indicated. For example, he would not concede to when and how payments were made, when the documents were clear.
2. He sometimes denied the obvious. For example, he denied that the signature on the receipt for payment at Exhibit C of Ms. Malhotra’s Affidavit was his, when it clearly was. The reason he gave was that that one signature included a middle initial and the other did not, when he always signed using his middle initial. This is sophistry.
3. He failed to raise significant evidence in his affidavit which was critical to his appeal, only to face it in cross-examination. For example, Z.K. has the onus of establishing the factual basis of his claim, on a balance of probabilities. His affidavit, however, makes only passing reference to his saying to Ms. Malhotra that he wanted to testify. There is no reference to her recommendations. He merely says, baldly, that she did not call him to testify. Based on his Affidavit, alone. He does not meet this onus. Any meaningful evidence had to be elicited in cross examination.
4. His evidence migrated during the course of his cross examination to the opposite of his initial statement. For example, as described below, with respect to his testifying at trial, he initially said that that Ms. Malhotra forbade him to testify. By the end of the cross examination he conceded that he knew it was his decision to testify, he listened to Ms. Malhotra’s advice and her recommendation not to testify, considered it, discussed it with his wife, and accepted it.
5. Sometimes he was wrong. For instance, he insisted that he retained a more senior lawyer (Mr. Mann) to represent him at trial, or that Ms. Malhotra retained him on their behalf. Z.K. insists that this was done because Ms. Malhotra was so inexperienced. Z.K. insists that Mr. Mann agreed to be retained. Mr. Mann and Ms. Malhotra’s evidence is clear and opposite. Ms. Malhotra arranged a consult with Mr. Mann because he was a more senior lawyer. She disclosed to Z.K. that she was a junior lawyer. Mr. Mann agreed to conduct the trial for a specific fee, but was never paid the fee and never retained. I find that Z.K. refused to pay Mr. Mann’s fee of $7,500.00. Instead, he retained Ms. Malhotra for a fee of $4,500.00.
6. He said that the interpreter at the trial that Ms. Malhotra arranged did not speak his language. He admitted under cross-examination that this was not really an obstacle. He spoke two languages, one of which the first reporter spoke. He got the sense of all of the evidence during the first morning of trial. He did not raise the interpreter issue with Ms. Malhotra until later in the day. He agreed that when he told Ms. Malhotra of this issue an appropriate interpreter was provided.

####### A.B.'s Credibility

[30] Her evidence suffered from the same issues as Z.K.’s.

####### Ms. Malhotra's Credibility

[31] Solicitors’ memories, unlike clients’ memories, are not treated deferentially. They have many, perhaps hundreds of files. Nothing stands out between files. Solicitors’ memories cannot retain all the details of all of their ongoing files. Where time passes between the event and the inquiry into it, solicitors’ memories are challenged by all of the files and the actions in them since the date of the events as issue. Generally, Solicitors, therefore, are expected to be professional note-takers and their memories of events are suspect unless supported by a contemporaneous note in a file.

[32] In this case, Ms. Malhotra did not take many notes (at least that were presented at the appeal).

[33] This case, however, contains many features which suggest that Ms. Malhotra’s memory is reliable and that the assumptions about a solicitor’s memory about a client’s case are not as applicable as they otherwise might be. For example,

1. She gave oral evidence as to her advice and recommendations to Z.K., and her reasons for her advice and recommendation about his testifying. This evidence was not challenged on cross examination. She was asked only one question on this issue.
2. This was her first trial, the details of which she is more likely to remember.
3. Her memory is more consistent with documents.
4. Most of her cross-examination addressed her level of competence, not the adequacy of her memory.

[34] Based on the foregoing, where there was a discrepancy between Ms. Malhotra’s evidence and Z.K.’s or A.B.’s, I preferred Ms. Malhotra’s.

Failure to Testify

####### The Law on Failure to Testify

[35] The controlling case on the failure to testify in respect to the argument of the ineffective assistance of counsel is R. v. Archer, [2005] O.J. No. 4348.

[36] In Archer, the accused was convicted of a number of counts of sexual assault. He did not testify. The defense was based on a pure denial. The arguments advanced in support of the defense were that the complainant was not credible, he had reasons to fabricate his allegations, his version of events itself was inherently incredible, he gave inconsistent versions of relevant events, his evidence was contradicted on key points by other witnesses, and the appellant was of good character with a long history of helping young people. The first four of these arguments were also the foundation of the defence in this case.

[37] A significant distinguishing factor between this case and Archer is that in Archer there was a direction, signed by the appellant with respect to not testifying.

[38] The Court of Appeal, beginning at paragraph 118, addressed, first, the general law with respect to ineffective assistance of counsel.

[118] It is helpful to begin with a summary of the applicable legal principles, none of which are in dispute. An accused who is represented at trial is entitled to effective representation by counsel. Ineffective representation may result in a miscarriage of justice necessitating the quashing of the conviction on appeal. Evidence relating to the alleged ineffective assistance of counsel will be received on appeal pursuant to s. 683(1) so that the appellate court may determine whether the representation was ineffective and ultimately whether it resulted in a miscarriage of justice: R. v. Joanisse (1995), 102 C.C.C. (3d) 35 at 43-44, 56-58 (Ont. C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347; R. v. B.(L.C.) (1996), 104 C.C.C. (3d) 353 (Ont. C.A.).

[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), 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.

[121] In G.D.B., supra, at pp. 298, Major J. makes the important observation that where an allegation of ineffective representation is made on appeal, the court should first consider whether the alleged incompetence resulted in a miscarriage of justice. If the claim fails on this ground, there is no need to assess the adequacy of counsel’s performance. This approach recognizes that it is the appellate court’s function to determine whether a miscarriage of justice has occurred and not to grade counsel’s performance.

[39] With respect to the issue of the failure to testify, specifically, Doherty wrote, beginning at paragraph 135:

[135] I come now to the claims revolving around the appellant’s failure to testify. The appellant submits that trial counsel and not the appellant decided that the appellant would not testify. The appellant claims that he did not know that it was his decision to make. Alternatively, the appellant argues that if he made the decision not to testify, he did so based on counsel’s advice, which was in all the circumstances so wrongheaded as to render counsel’s representation incompetent.

[136] Initially, trial counsel and the appellant anticipated that the appellant would testify. The appellant testified on the pre-trial motion regarding the admissibility of his statement to police. Trial counsel was unimpressed with the appellant as a witness. Trial counsel arranged for a videotaped mock examination and cross-examination of the appellant. Three persons retained by trial counsel viewed the videotape. They too were unimpressed with the appellant as a witness. By the end of the Crown’s case, trial counsel had determined that the appellant should not testify. According to trial counsel, he advised the appellant against testifying and the appellant took his advice. According to the appellant, defence counsel told him that he would not testify and did not tell the appellant that it was his decision to make.

[137] It is trial counsel’s position that because the appellant had performed poorly in the pre-trial motion as a witness and because the mock cross-examination had not gone well, he came to the conclusion that the appellant should not testify. Trial counsel also considered that the Crown’s case was not strong and that the Complainant’s credibility had been effectively undermined. Trial counsel thus advised the appellant not to testify. When the appellant took that advice, counsel had him sign a direction indicating he had decided not to testify and that he understood the implications. Trial counsel indicated, however, that even after the direction was signed, he and the appellant understood that there could be a further change in strategy and the appellant could testify.

[138] The appellant claims that he wanted to testify all along and believed that he would testify until trial counsel told him part way through the defence that he would not testify. The appellant blames any shortcomings in his testimony during the pre-trial motion and the mock cross-examination on trial counsel’s failure to adequately prepare him.

[139] While counsel owes an obligation to advise his client as to whether he or she should testify, the ultimate determination must be made by the client: G.B.D., supra, at p. 300; M. Proulx & D. Layton, Ethics and Canadian Criminal Law (Toronto: Irwin Law, 2001) at pp. 114-30. If the appellant can show that it was trial counsel and not the appellant who decided that the appellant would not testify, and that the appellant would have testified had he understood that it was his decision, it seems to me that it must be accepted that his testimony could have affected the result, thereby establishing that a miscarriage of justice occurred: see R. v. Moore (2002), 2002 SKCA 30, 163 C.C.C. (3d) 343 at 371 (Sask. C.A.). The crucial question becomes – who made the decision?

[140] The appellant bears the onus of demonstrating that trial counsel and not the appellant decided that the appellant would not testify. In determining whether the appellant has met that onus, I bear in mind the strong presumption of competence in favour of counsel. Counsel was an experienced criminal lawyer with over twenty years in practice.

[141] The appellant also has a very strong motive to fabricate the claim that he was denied the right to decide whether to testify. The appellant is no longer presumed innocent. He makes his allegation against trial counsel as a convicted felon facing a lengthy penitentiary term. No doubt, the appellant understands that if he can convince the court that his own lawyer denied him the opportunity to testify, he will receive a new trial. Common sense dictates a cautious approach to allegations against trial lawyers made by convicted persons who are seeking to avoid lengthy jail terms. It must also be recognized that the confidential nature of the relationship between a lawyer and his client can make it easy for the client to make all kinds of unfounded allegations against his former lawyer.

[142] Furthermore, and apart entirely from the possibility that the appellant has fabricated these allegations, it is not uncommon that a person who has been convicted after having received strong advice from his counsel that he should not testify comes to believe, while awaiting his appeal, that counsel’s strong advice was in fact a decision by counsel that the client should not testify. Looking backwards through the bars of a jail cell is not the most reliable of vantage points from which to see events that culminated in the conviction.

[40] See also R. v. Zheng, 2014 ONCA 345 (C.A.) and R. v. Khan, 2015 ONCJ 182.

####### The Evidence on the Appeal Regarding Failure to Testify

Z.K.'s Evidence

[41] Z.K., in his affidavit dated 7 February 2017, says the following with respect to his meetings with his counsel, Ms. Malhotra:

a. He retained Ms. Malhotra because she was a massage client of his. b. They discussed a retainer. c. She was confident she would be able to settle a matter with the Crown. d. He explained to Ms. Malhotra that “all throughout our dealings [i.e. Z.K. and the complainant] that the reason why I believe the complaint of the charges against me was because she was upset due to being denied a receipt for her massage, and therefore hateful price, rather than being able to claim for insurance.” e. He urged her to obtain copies of the surveillance video at the massage parlour so that it could show that the complainant was satisfied with the massage. f. During the first day of the trial, while he was provided with an interpreter, it was not an Urdu interpreter. He admits that a proper interpreter was provided once he raised the issue with Ms. Malhotra. g. In a short, bald statement in paragraph 22 of his affidavit he says “I told Ms. Malhotra in previous meetings that I wish to testify in my trial so that I could disprove the allegations but she did not call me as a witness in my trial.”

[42] Here, as the Court of Appeal said in Archer, the crucial question is: who made the decision not to testify?

[43] In this case, Ms. Malhotra did not obtain a written, signed acknowledgment of advice given and instructions received with respect to Z.K. testifying, as she did with respect to instructions to proceed to trial. I am left for this determination with the evidence of the parties.

[44] Z.K.’s affidavit is vague and lacking in specifics on the key elements of the test he has to meet on this appeal. He appears fixed on the financial arrangements and payments made, Ms. Malhotra’s inexperience, and the fact that she did not ensure that a more senior lawyer took the case. He said in conclusion, at paragraph 29 “Due to Payal’s lack of experience and without my testimony, it is my belief that we lost the case. Payal did not tell me that I had the right to testify and I felt that my side of the story was not presented. I felt cheated by her. I asked myself why I was facing a conviction when I had not done anything wrong.”

[45] In his affidavit, Z.K. did not offer any evidence with respect to what he might have said had he been allowed to testify. One can only assume that he would have given a straight denial of the allegations against them. The only evidence of any discussion with his lawyer with respect to his giving evidence is in a two line paragraph 22 in which he said that on the eve of the first day of his trial, he said that he wanted to testify. He does not say what, if anything, Ms. Malhotra said to him.

[46] Z.K.’s oral evidence on the appeal, however, is much more pointed. He said that he repeatedly conveyed to Ms. Malhotra his innocence regarding the sexual assault and told her several times that he wanted to tell the court his story.

[47] Z.K.’s evidence with respect to the advice he was given changed through the course of his testimony. At first he said “oh my lawyer had forbidden me to testify.” He said that a few days before the trial when he expressed his desire to testify, she refused to let him testify.

[48] Later, Z.K. said that Ms. Malhotra told him that there would be no need for him to testify since her plan was to have the charges dismissed or withdrawn. At another time, Z.K. admitted that Ms. Malhotra never explicitly told him that he ‘could not testify’ but told him repeatedly that he should not to testify. Z.K. says that he was never told that it was his decision whether to testify. He felt he needed to do what Ms. Malhotra said.

[49] Z.K. eventually admitted that after he gave written instructions to Ms. Malhotra to proceed to trial he again insisted that he should testify and again was told it was not necessary. Under cross-examination, Z.K. was asked specifically about the discussion during the trial about his testifying. He agreed that Ms. Malhotra said words to the effect of “I advise you” or “I recommend” that you not testify. He agreed she did not order him not to testify. He said that Ms. Malhotra was giving advice and Z.K. and his wife were listening. Ms. Malhotra’s advice was that he should not testify.

[50] In his cross-examination, Z.K. made some significant admissions:

1. While he said that on multiple occasions he told his lawyer that he wanted to testify, he also said that he knew he could tell his story if he wished. He was the only one who was there when the alleged incident occurred.
2. Upon completion of the Crown’s case and prior to defence evidence being given, Ms. Malhotra advised him that it was not a good idea for him to testify and why, that he discussed this advice with his wife, and that he agreed to follow Ms. Malhotra’s advice.
3. He was asked “and you knew that you could do that [give evidence], that you could tell that story at trial?” to which he answered yes.
4. At the time of his trial, he understood that it was his right to testify even thought his lawyer didn’t tell him that, specifically.
5. Ms. Malhotra never told him that he could not give evidence nor to not give evidence. She advised him that it was not a good idea for him to testify. He trusted the advice given and agreed with it.
6. He was asked “…and you and your wife talked to each other and agreed to follow Ms. Malhotra’s advice?” to which he answered yes.

A.B.'s Evidence

[51] On the appeal, Z.K.’s wife’s (A.B.), evidence was generally supportive. Her affidavit, too, was general and lacked specifics with respect to evidence concerning ineffective assistance of counsel. Like her husband, she appears fixed on the financial arrangements and payments made, Ms. Malhotra’s inexperience, and the fact that Ms. Malhotra did not ensure that a more senior lawyer took the case.

[52] On cross-examination, A.B. conceded that:

1. She and Z.K. both thought that he would testify. They tried to speak to Ms. Malhotra about it.
2. Z.K. met many times with Ms. Malhotra, at which times they discussed his version of events, and she asked him questions to clarify.
3. On the eve of the first day of the trial, she heard Z.K. say that he wanted to testify, but A.B. did not recall what Ms. Malhotra said.
4. Later, she was asked “Okay, I am going to suggest to you that during that discussion Ms. Malhotra suggested or recommended to Z.K. that it was not a good idea for him to testify at the trial.” A.B. answered “Yeah but he wanted to testify.”
5. Later, still, when she was asked to confirm that Ms. Malhotra advised Mr Khan to not testify as it would not be good for him to testify she said “maybe”. When pressed further, she confirmed Ms. Malhotra’s recommendation but reiterated that she and her husband both wanted him to testify.
6. Later still, she was asked “When Ms. Malhotra recommended that it was not a good idea for [Z.K.] to testify at his trial, your husband and you decided to follow along with her advice because you trusted her. Is that correct.” A.B. answered “Correct, maybe correct.” She then digressed to another topic.

[53] A.B. was re-examined on the conversation at the end of the first day of trial regarding Ms. Malhotra’s recommendation that Z.K. not give evidence. She muddied the water further. She said that Ms. Malhotra recommended that Mr Khan not testify. She said: “She stopped him actually”, without elucidating further.

Payal Malhotra's Evidence

[54] Ms. Malhotra says that she formed the opinion, as the file progressed, that Z.K. should not testify. Her reason for saying this was that his version of events changed with each repetition of his version of events. Therefore, she concluded that he would be a poor witness and, more specifically, if it is evidence had changed since his statement to the police, he would be seriously injured in cross-examination. She said that she discussed with Z.K. on several occasions before the trial the possibility of his giving evidence. On these occasions, she led him through mock questioning. She documented the answers. She formed the opinion that he would be a generally poor witness because of many inconsistencies in his evidence.

[55] During the trial, Mr. Malhotra said that she spoke to Z.K. and his wife and told them that in her opinion the crown’s evidence fell short of proof beyond a reasonable doubt. She advised, again, that in light of her concerns about his credibility and of the week crown case, she again recommended that the appellant not testify. She explained that his evidence would be more harmful than helpful to his case. He accepted that advice. He did not insist on testifying. There was no further discussion on the subject.

[56] In cross-examination, Ms. Malhotra was seldom asked about the discussion with Z.K. about his testifying. She conceded that while his evidence may have changed in many respects, in terms of his insistence that the assault never occurred, he was consistent in his denial.

####### Analysis of Failure to Testify

[57] The decision of whether to testify is solely the client’s. The client can only exercise that right if properly advised.

[58] The best evidence of giving advice with respect to testifying and taking instructions from the accused is a signed document by which the accused acknowledges receiving advice concerning the risks of testifying, and by which the accused gives instructions on the subject. There is no such document in this case. I am left, therefore, to rely on the oral and affidavit evidence.

[59] As the Court of Appeal said in Archer, the question here is: Who made the decision to not testify?

[60] Based on all of the evidence, I find that Z.K. made his own decision about testifying. He clearly wanted to testify, all along. He told this to Ms. Malhotra. While Ms. Malhotra did not tell him that the decision to testify was his, alone, I conclude that Z.K., in all the circumstances, knew it. There is no basis to hold that Ms. Malhotra made the decision. Z.K.’s evidence is to the contrary. He agreed he listened to her and took her recommendation.

[61] Ms. Malhotra explained to him why he should not testify. She said that she did not think the Crown met its burden of proof, and there was no need for him to testify. Further, she also explained to him that due to inconsistencies in his evidence, it was very dangerous for him to testify. Z.K. accepted this advice.

General Incompetence

####### The Law on General Incompetence

[62] The law with respect to ineffective assistance of counsel, which I have already reviewed, can be reduced to the following propositions:

1. An appellant appealing on the basis of ineffective assistance of counsel must establish three things. a. where the claim is based on contested facts, the appellant must establish the material facts on the balance of probabilities. b. counsel’s acts or omissions amounted to incompetence. c. counsel’s ineffective representation caused a miscarriage of justice.
2. With respect to the second criteria, incompetence is measured against a reasonableness standard having regard to the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role in the assessment.
3. Allegations of incompetent representation must be closely scrutinized. Many decisions made by counsel at trial will come to be seen as erroneous, in hindsight, in the cold light of a conviction.
4. The reasonableness analysis must proceed upon a “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.” Put another way, the reviewing Court should approach the counsel’s performance with deference. What is the reasonable use professional judgment in any case is quite broad, and differs from case to case. Different counsel adopt different trial strategies, tactics, approaches to the examination and cross-examination of witnesses, styles in opening and closing argument, all of which are reasonable. What a lawyer does is governed by his or her experience, experience, personality and the circumstances of the case. Counsel has a wide scope for the exercise of reasonable skill and judgment. Appellate judges should not be too quick to conclude that a trial lawyer’s performance was deficient because they would have conducted the defence differently: see R. v. G.D.B. (2000), 2000 SCC 22, 143 C.C.C. (3d) 289 at 298 (S.C.C.), R. v. White (1997), 114 C.C.C. (3d) 225 at 247.
5. To this, I add a few more factors with respect to consider regarding competence. First, there is a presumption of basic competence. The Law Society of Ontario certifies that each newly-called lawyer has a basic level of competence in all areas of practice. The Law Society of Ontario does not guarantee that all lawyers will be experts or even proficient. Second, clients are entitled to retain young lawyers or old, experienced or not, specialist or generalist.
6. With respect to the third question, above, the appellant must demonstrate that counsel’s ineffective representation caused a miscarriage of justice.
7. 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.
8. 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.
9. Where an allegation of ineffective representation is made on appeal, the court should first consider whether the alleged incompetence resulted in a miscarriage of justice. If the claim fails on this ground, there is no need to assess the adequacy of counsel’s performance. This approach recognizes that it is the appellate court’s function to determine whether a miscarriage of justice has occurred and not to grade counsel’s performance.

####### Analysis of General Incompetence

[63] In this case, the focus on the appeal is the reliability of the verdict since Z.K. says he was convicted because of the serious shortcomings in Ms. Malhotra’s representation of him. Therefore, I start with the question “is there a miscarriage of justice in this case because of the lawyer’s conduct?”

[64] Where the lawyer’s misconduct is preventing the client from testifying or in so poorly advising him that his decision to not testify was not an informed decision, a miscarriage of justice is presumed. I have already addressed this aspect of the appeal.

[65] In this case, Z.K. reviews Ms. Malhotra’s conduct at the trial and says “If all these things don’t amount to ineffectiveness, what does?”

[66] The onus is on Z.K. to establish that the verdict is unreliable. To do so, he must show that had Ms. Malhotra not made one, some or all of those alleged errors, there is a reasonable possibility that the verdict would have been different (see G.D.B., supra, para. 28 and Archer, supra, para. 120).

[67] Z.K. has not done met his onus.

[68] To be clear, in dismissing this aspect of Z.K.’s appeal, I am not suggesting that Ms. Malhotra’s conduct of this case was perfect, exemplary or even adequate. It left much to be desired. I might criticize the depth of Ms. Malhotra’s research and preparation, or conclude that her skill in cross examining were poor. I cannot conclude, however, that, all things considered, the verdict might be unreliable because of her inexperience or shortcomings such that there is a reasonable possibility that the verdict would have been different.

[69] I reach this conclusion for a number of reasons which follow. In laying out my reasons for my conclusion, I do not address every alleged deficiency in Ms. Malhotra’s conduct of the file. I have addressed only the more serious grievances Z.K. advances. The remaining issues Z.K. raised do not leave me with any question as to the reliability of the verdict.

[70] The reasons for my conclusion are:

1. As discussed in my credibility section, the interpreter issue is a non-issue.
2. Z.K.’s performance as a witness as commented on in my credibility section align with Ms. Malhotra’s view that at trial Z.K. would have made a very poor witness. It is unlikely that his evidence would have been accepted.
3. Ms. Malhotra’s failure to move for a directed verdict is not an issue. Regardless of the complainant’s and her partners’ calling Z.K. by the wrong name, they made an in-dock identification of Z.K. as the masseur. A motion for a directed verdict would likely have failed based on this evidence. In any event, only the most confident counsel bring motions for directed verdicts, and only in the clearest of cases. In this case, the learned Trial Judge commented that the identification evidence was weak. However, even if Ms. Malhotra considered such a motion, with the in-dock identification, such a motion may well not have succeeded, and indeed may have backfired. The decision to not bring such a motion was a sound one, in the circumstances.
4. Z.K. says that Ms. Malhotra was ineffective in attacking the complainant’s credibility. The failure to ask any questions of a Complainant in a sexual assault case (see R. v. Schmerl, [2012] O.J. Nol. 4358 (S.C.J.) or the failure to cross examine the main Crown witness on a prior inconsistent statement regarding identification (see R. v. Green, [2012] O.J. No. 2516 (S.C.J.)) may well undermine the reliability of the verdict. A failure to impeach a witness, however, does not mean that the questioning lawyer is incompetent (see: Green, supra, para. 49). Ms. Malhotra put some inconsistencies to the complainant to chip away at her credibility. The learned Trial Judge found the complainant to be a credible witness.
5. Z.K. says that the defence that the complainant brought the sexual assault allegations in retribution for not getting a receipt that allowed her to claim the expense is nonsense since the parlour issued the receipt for the massage, not Z.K. This, however, was Z.K.’s own explanation for the complainant making her allegation, and Z.K. gave it to Ms. Malhotra. Absent a better defence, it was one which Z.K. wanted Ms. Malhotra to raise, and one which Ms. Malhotra properly advanced, although unsuccessfully.
6. Z.K. says that Ms. Malhotra ought to have obtained the video tapes which would have shown how happy the complainant was with the massage. There is no issue that the complainant said that she was happy with the massage. She said that, in actuality she was not happy, but acted so as she wanted to get her receipt to assist with her visit to the police.
7. Z.K. says that Ms. Malhotra’s attempt to impeach the complainant’s credibility based on the late reporting of the event showed Ms. Malhotra’s fundamental misunderstanding of the principle set out in R. v. D.D., [2002] 2 S.C.R. 275, para. 60-83, in which the Supreme Court held that the failure to make immediate complaint cannot give rise to a presumptive inference that the event happened or did not. At the appeal, Z.K.’s counsel agreed that the time of report, along with other evidence, may be used to assess credibility. Therefore, one cannot say that Ms. Malhotra was wrong for cross-examining on the timing of the complainant’s report.
8. Z.K. says that Ms. Malhotra did not put R. v. W.D. to the Trial Judge in her summation, in particular the principle that if any of the evidence raised a reasonable doubt as to whether the assault occurred, he had to acquit. I do not accept this argument. The learned Trial Judge is presumed to know the law. I say this regardless of whether Ms. Malhotra knew of the case or understood it.

[71] For these reasons, I do not find that I have any doubt as to the reliability of the learned Trial Judge’s verdict. The appeal is dismissed.

[72] Z.K. will surrender himself within 72 hours from the release of these reasons to the authorities, to complete serving his sentence.

Trimble J.

Released: October 3, 2018