Newmarket Court File No.: CR-14-00003554-00AP Date: 2018-10-18 Ontario Superior Court of Justice
Between: Her Majesty The Queen – and – Gregory Sutton, Appellant
Counsel: E. Thomas, for the Crown M. McKee, for the Appellant
Heard: October 12, 2018
Reasons for Decision
Healey, J.:
Nature of the Appeal
[1] The appellant was found guilty of assault (x2) and mischief by Tetley J. on November 17, 2015 in the Ontario Court of Justice at Newmarket. He was sentenced on May 19, 2016 to 90 days’ incarceration to be served intermittently, and three years of probation. He appeals both conviction and sentence.
[2] This appeal has two grounds. The first is ineffective assistance of counsel. The appellant submits that his trial counsel, Shazeen Merani, failed to advise the appellant about the protections afforded by s. 5 of the Canada Evidence Act and s. 13 of the Canadian Charter of Rights and Freedoms. Accordingly, his decision not to testify was based on misinformation and resulted in a miscarriage of justice.
[3] The second ground of appeal is that Tetley J. erred in law in not allowing the defence to reopen the hearing of evidence to permit the appellant to testify. Closing submissions of the defence were in progress when, the appellant having changed his mind about his decision not to testify, Ms. Merani made an oral motion to permit the defence to reopen the case.
First Ground of Appeal
[4] The parties agree that the governing authorities on the law to be applied where ineffective assistance of trial counsel has been alleged are R. v. Archer (2005), 202 C.C.C. (3d) 60 (Ont. C.A.) [Archer] and R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520 [G.D.B.].
[5] The test to be applied is set out at paras. 119-120 of Archer, and all three aspects of the test must be satisfied:
- Where the claim is based on contested facts, the appellant must establish the material facts on the balance of probabilities;
- The appellant must demonstrate that counsel’s acts or omissions amounted to incompetence; and
- The appellant must demonstrate that counsel’s ineffective representation caused a miscarriage of justice.
[6] The court is directed to 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: G.D.B., at para. 29; Archer, at para. 121. As explained in G.D.B., miscarriages of justice could arise in the form of procedural unfairness, or the unreliability of the verdict: para. 28.
Analysis
[7] In this case, there is nothing filed in the appeal material by which this court can assess whether the appellant’s testimony may have altered the verdicts in this case. The appellant has not provided any indication of what his testimony may have been on any issue. The appellant’s counsel submitted that the plea of not guilty on each charge could lead this court to infer that the appellant would deny conduct supporting the elements of each offence charged. However, that is not a sound basis on which this court could conclude that his testimony would have altered the court’s finding that the Crown had met its burden. All that can be inferred from that plea, at its highest, is a denial of culpability.
[8] However, the right of an accused to testify at his or her own trial is fundamental to the trial process. Declining to testify at the time in the trial when that opportunity is given to the accused means, as shown by this case, that an accused person may well be foreclosed from testifying. Where that decision is made without the benefit of competent advice regarding the risks or benefits of doing so, the fairness of the trial process is compromised.
[9] The next question is whether the appellant received misleading or incorrect information or advice, amounting to incompetence. This question requires the court to resolve issues of credibility.
[10] Having received a waiver of privilege from the appellant, Ms. Merani has submitted an affidavit to respond to the allegations of ineffective counsel. Ms. Merani’s affidavit indicates that a preliminary decision had been made by the appellant to not testify at his trial after receiving her advice during trial preparation. During the course of the trial, it became known that the complainant, who was the appellant’s common law spouse, was expecting a child. The paternity of the unborn child became the subject of testimony because the conception would mean that, if the appellant was the father, he had breached a no-contact condition of his bail. The appellant had informed Ms. Merani that he was in fact the father of the child. Ms. Merani had also received information from the appellant that he had had ongoing contact with the complainant despite the bail conditions, and that they had hoped to reconcile.
[11] During her testimony, the complainant denied that the appellant was the father. The appellant conferred with counsel during the morning recess on November 16, 2015, at which time Ms. Merani continued to advise that it may be against his interest to testify, for many reasons. The primary reason was that he would undoubtedly be questioned about his contact with the complainant, which would reveal his ongoing breach of the bail condition. This could have a negative impact on the appellant’s credibility at trial, and could result in further charges being laid. During the recess Ms. Merani obtained written instructions, which read:
I Gregory Sutton have decided not to testify in my trial. I have made the decision in consultation with my counsel. I understand the issues and challenges raised by my testimony will greatly harm my case, and may lead to more criminal charges being called.
[12] Following the morning recess the Crown closed its case and the defence called no evidence. Submissions began. During defence submissions, Tetley J. questioned Ms. Merani regarding submissions she made with respect to the charge of mischief. He allowed the lunch break for the defence to reassess those submissions.
[13] During the lunch break, Mr. Sutton changed his mind about testifying and advised Ms. Merani that he wished to do so. Ms. Merani did not alter her advice, which was that it was not in his interests to do so. She also explained to the appellant that he would only be permitted to testify if Tetley J. agreed to reopen the case to permit testimony. According to Ms. Merani, Mr. Sutton then asked her what would happen if he lied in his potential testimony. In response, she advised him that he would be putting her in a difficult position as an officer of the court, and that she may have to be removed as his counsel of record. Over the lunch recess, Ms. Merani prepared an extensive memo to file, which documents these events and the advice given by her to the appellant.
[14] Ms. Merani remained concerned that the appellant might choose to be untruthful if Tetley J. permitted further evidence. As a result, she took the step to contact the Law Society of Upper Canada, as it was then called, and received advice that if the case was reopened and the appellant lied while testifying, she should not get off the record, but simply not refer to the evidence that she knew was untrue.
[15] Following the lunch recess, Ms. Merani advanced her request that the court permit reopening of the case to permit the appellant to testify. Court recessed until the following morning to allow preparation for argument on the procedural issue.
[16] Ms. Merani then prepared an Acknowledgement and Direction, which the appellant signed the next day before argument began. The Acknowledgement and Direction is comprehensive in outlining the potential jeopardy in which the appellant might place himself should he testify, and potential consequences if he was untruthful during his testimony. The document provides that counsel would not be able to rely on portions of his testimony should he fail to tell the truth, and that in certain circumstances, any fabrications in his evidence may lead counsel to remove herself from the case, and the reasons for that.
[17] Ms. Merani was cross-examined on her affidavit. Her evidence remains unshaken regarding the chronology and reasons for taking the steps that she did on November 16 and 17.
[18] The appellant denies making such a comment. When cross-examined on his affidavit, he stated that he had no intention of lying, even when it was pointed out to him that his spouse had denied that he was the father of the child during her testimony.
[19] A credibility finding is required to resolve this discrepancy in the evidence of Ms. Merani and the appellant. I accept the evidence of Ms. Merani, as it is fully supported by the documentary evidence that was prepared contemporaneously with the discussions that counsel had with her client and the events of November 16. I find that there is no reason why the Acknowledgement and Direction should place so much emphasis on the appellant’s truthfulness unless a question had arisen about whether he was prepared to lie under oath. Further, there is no alternative explanation raised in the evidence for why Ms. Merani would contact the Law Society for advice when she did. The obvious explanation is that, in line with her evidence, an issue had arisen over the lunch recess which caused her to seek guidance from her governing body. I find that that issue was the appellant’s suggestion to her that he was contemplating providing false evidence.
[20] This finding is important because it informs how this court may view the credibility of the appellant’s evidence overall. The appellant states that during the discussion on November 16 which led to him signing the written instructions to counsel, Ms. Merani did not explain to him that the Crown could not use his evidence against him in a subsequent prosecution. He claims never to have been advised about the relevant provisions of the Canada Evidence Act or the protection afforded to him by s. 13 of the Charter.
[21] I reject the appellant’s claims. First, he gave evidence during his cross-examination that the signed instructions do not outline the entirety of the discussion that took place between he and Ms. Merani. When asked whether the potential use of any evidence that he gave was discussed with him, his answer was “to some degree it was, yes, in regards to perjury if I took the stand and lied”. He also agreed that Ms. Merani discussed with him the possibility that his testimony could lead to the police starting an investigation into a breach of bail conditions. The appellant agreed that at that point he was worried about being charged for a breach, as well as having his testimony affect the outcome of the case through an adverse credibility finding. However, he denied that Ms. Merani ever told him that his testimony, on its own, would not be used to form the foundation of a separate charge. This is contradicted by Ms. Merani’s file memo of November 16, in which she wrote:
At the morning recess, I spoke to Greg and told him that given this turn I don’t think he should testify. What he says can’t be used against him in future proceedings, but it can be used against him in perjury proceedings. Further to that, it could result in police/Crown pursuing investigation of more breaches. Also that if he gets up there, he will have to tell the truth and he would have to disclose the fact that he has been consistently breaching the bail since he was released. That once the judge hears that he has been doing so, it will affect his credibility. Judge will not be pleased that he has been breaching, and this will likely impact his ability to believe him…
[22] What is clear from the evidence is that a comprehensive discussion was held between counsel and her client during the morning recess, which took into account the dynamics of the trial at that time and the additional potential jeopardy for the appellant created by the issue of breaching his conditions. At the time of this discussion, the appellant was rightly focused on the potential for a further criminal charge or charges, as well as adverse credibility findings. That he recalls a discussion about perjury, occurring even prior to his suggestion later that day that he might be prepared to lie, strongly suggests that Ms. Merani reviewed the substance of the protections found in the relevant sections of the Canada Evidence Act and the Charter. Further, Ms. Merani’s file memo clearly and thoroughly outlines the discussions that she had with the client. It references the protections set out in the relevant sections of the Canada Evidence Act and the Charter. Her summary of the advice given accurately captures the substance of those protections, which is all that is required. Given the credibility findings made, where there is any divergence in the evidence given by these two individuals, I accept the evidence provided by Ms. Merani. Ms. Merani was alive to the fact that there are limits on how the appellant’s evidence could be used in a future prosecution, but that it could form the basis of police investigations into a breach of his bail conditions.
[23] I find that Ms. Merani fully and competently discharged her duties and obligations to her client when advising him during that first discussion about the pros and cons of testifying. As a result of the finding that no ineffective representation existed, the first ground of appeal fails.
Second Ground of Appeal
[24] The decision to permit a party to reopen its case and call further evidence is within the discretion of the trial judge: R. v. Hayward (1993), 86 C.C.C. (3d) 193 (Ont. C.A.), at para. 15 [Hayward]; R. v. Anderson, 2008 ONCA 814, at para. 2 [Anderson]. Accordingly, it should not be interfered with unless the discretion was not exercised judicially or an error of law was committed.
[25] The relevant test to be applied on an application to reopen the case, when the application is made prior to conviction, is set out in Hayward at paras. 17-19. First, the trial judge should satisfy him or herself that the proposed evidence is relevant to a material issue in the case. If so satisfied, the trial judge must next consider the potential prejudice to the opposite party should the reopening of the evidence be permitted. Further, the trial judge must also consider the effect of permitting a reopening of the evidence on the orderly and expeditious conduct of the trial. Hayward continues to be the authoritative case: R. v. Arabia, 2008 ONCA 565, 235 C.C.C. (3d) 354, at para. 53 [Arabia].
[26] At para. 20 of Hayward, Doherty J.A. stated that an application to reopen the evidence could properly be refused on the basis of an interference with the orderly conduct of the trial if it was “based on nothing more than a desire to reverse an earlier tactical decision, perhaps because of some comment made during argument”. On the same basis, the appeal court in Anderson found that the trial judge had not erred in denying an application by the defence to call alibi evidence after final submissions had been heard. The court concluded, at para. 2, “[i]n effect, the trial judge found that there was an overwhelming inference that the reopening was simply an attempt to reverse an earlier tactical decision. This finding was available to her on the record, and we see no basis for interfering with it”.
[27] In this case, the appellant’s change of mind in the middle of submissions was characterized as such by Tetley J., who found it to be a reversal of an earlier tactical decision.
[28] When the request was first made on November 16, Tetley J.’s comments show that he was aware that his remarks, made prior to the lunch recess, may have prompted the appellant’s “change of heart”.
[29] In his reasons for deciding not to reopen the case on November 17, Tetley J. referred to the cases of Hayward and Arabia. He referred to the comments of Doherty J.A. at para. 20 of Hayward, and stated “that particular sentiment resonates here, because I think that is exactly what has happened, and I do not fault Mr. Sutton. He is certainly at liberty to change his mind, but it is a matter of discretion for the trial judge as to whether that change of mind is to be accommodated during the trial process.”
[30] Justice Tetley also referred to the comments of Watt J.A., at para. 46 of Arabia, that “counsel must make tactical decisions in every case. Assuming those decisions are within the boundaries of competence, an accused must ordinarily live with the consequences of those decisions.”
[31] The core of Tetley J.’s reasons for declining the request of the defence to reopen the case are set out at pp. 37-39 of the transcript. It is clear that he found that there had been no developments in the case that warranted departing from the orderly trial process. All that had occurred was a change in a tactical decision, a change that arose following his review of some of the evidence surrounding the mischief charge during the course of closing argument.
[32] Accordingly, I find that Tetley J. reviewed the appropriate authorities and correctly applied the law. He made no error in exercising his discretion to decline to reopen the evidence. This ground of appeal also fails.
Order
[33] This court orders that the appeal is dismissed.
Healey, J.