ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-20-30000010-00AP
DATE: 20211028
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
AHMED HAGRAS
Appellant/Defendant
Natalie Kolos, for the Appellant/Defendant
Aaron Del Rizzo, for the Respondent
HEARD: September 13, 2021, by Zoom
molloy j.:
REASONS FOR DECISION
A. INTRODUCTION
[1] Ahmed Hagras was charged with one count of sexually assaulting an 80-year-old woman. The trial proceeded before Chapman J. in the Ontario Court of Justice for two days in March 2019. The trial judge convicted Mr. Hagras for written reasons dated May 10, 2019. Mr. Hagras was sentenced on November 1, 2019 to six months’ imprisonment, followed by three years’ probation. Mr. Hagras appeals to this court from his conviction. He has already served the custody portion of his sentence, but is still subject to the probation terms. He also faces deportation proceedings as a result of the conviction.
[2] This appeal is based on the incompetence of defence counsel at trial (different counsel from counsel on this appeal). The appellant submits that the defence trial counsel’s lack of preparation and failure to properly cross-examine at trial were so negligent as to amount to ineffective assistance of counsel and that the accused’s fair trial rights were therefore compromised. The appellant seeks an order quashing the conviction. Counsel before me agreed that if I quashed the conviction, they would make further submissions as to whether the appropriate remedy would then be to stay the proceedings or to order a new trial.
[3] For the reasons that follow, I find that the accused did not have the benefit of effective representation at trial. The conviction is quashed.
B. THE LEGAL PRINCIPLES
[4] The right of an accused person to retain and instruct counsel and to have that counsel represent him at trial is a fundamental right under our common law and the Charter of Rights and Freedoms.[^1] That right includes the right to effective representation by counsel, not the mere presence of a lawyer at one’s trial. As Doherty J.A. explained in R. v. Joanisse:
The importance of effective assistance of counsel at trial is obvious. We place our trust in the adversarial process to determine the truth of criminal allegations. The adversarial process operates on the premise that the truth of a criminal allegation is best determined by “partisan advocacy on both sides of the case”: U.S. v. Cronic, 104 S. Ct. 2039 (1984), per Stevens J. at p. 2045. Effective representation by counsel makes the product of the adversarial process more reliable by providing an accused with the assistance of a professional trained in the skills needed during the combat of trial. The skilled advocate can test the case advanced by the prosecution, as well as marshal and advance the case on behalf of the defence. We further rely on a variety of procedural safeguards to maintain the requisite level of adjudicative fairness in that adversarial process. Effective assistance by counsel also enhances the adjudicative fairness of the process in that it provides to an accused a champion who has the same skills as the prosecutor and who can use those skills to ensure that the accused receives the full benefit of the panoply of procedural protections available to an accused.
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.[^2]
[5] To set aside a criminal conviction based on ineffective representation by counsel, the appellant must establish three things:
(i) that the material facts in support of the claim have been established on a balance of probabilities, where those facts are contested;
(ii) that defence counsel’s acts or omissions amounted to incompetence; and
(iii) that counsel’s ineffective representation of the accused caused a miscarriage of justice.[^3]
[6] Accused persons are not entitled to perfection from defence counsel, nor to the most skilled advocate in the country. However, they are entitled to a lawyer who is reasonably competent in the conduct of the trial on their behalf. The Supreme Court of Canada defined the standard in the following terms:
Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment.[^4]
[7] Competence, or effective representation by counsel, must be distinguished from tactical decisions by counsel and the exercise of professional judgment, which are entitled to deference. There is always room for two highly competent lawyers to disagree on how to approach a defence and it is not the role of the court to second-guess a lawyer’s trial strategy because other competent lawyers might have done things differently. As stated by Laskin J.A. in R. v. White:
An appellate court's review of trial counsel's performance should be deferential. In addition to the policy considerations discussed by Doherty J.A. in Joanisse, 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.[^5]
[8] A miscarriage of justice is established if there is a reasonable probability that the appellant would not have been convicted if defence counsel had performed in a competent manner. The question is whether the accused was prejudiced by the incompetence of counsel in that the reliability of the trial’s result may have been compromised.[^6]
C. THE EVIDENCE AT TRIAL
[9] The Crown called two witnesses at trial. The principal witness was the complainant (N.C.), who was 81 years old at the time of trial, and a Holocaust survivor. N.C. had lived in a 7^th^ floor apartment at a B’nai Brith Canada Senior Citizen’s Residence in Toronto for 22 years. The other Crown witness, Ivan Kravchuk (“Ivan K”), was an 85-year-old man who lived on the same floor as N.C. and who provided corroborative evidence of some aspects of her testimony.
[10] Sometime in the spring or summer of 2017, a Russian woman (“Tatiana V”) moved into an apartment on the same floor. Tatiana V had an adult son named Oleg, who was a frequent visitor at his mother’s unit. Mr. Hagras (who was 32 years old at the time) was a friend of Oleg’s, having known Tatiana V and Oleg from when they lived in Russia. Mr. Hagras also visited Tatiana V’s apartment, although there was conflicting evidence about the frequency of those visits. Mr. Hagras, Tatiana V, and Oleg testified as defence witnesses.
[11] N.C. testified that in late August 2017 she had propped open the door of her apartment and was bringing bags of groceries into her unit when Mr. Hagras came up behind her purporting to help her with her grocery bags. She said that he entered her apartment uninvited and, when she told him she did not need his help, he grabbed her and started making promises to help her with shopping and cooking and saying something like “I know old ladies love young men.” He then held her with one hand and proceeded to open-mouth kiss her and drag her about a meter or two into the apartment until her back was up against the wall. She testified that he then started groping her crotch and breasts over her clothing. She started yelling for help.[^7]
[12] Ivan K testified that he was coming off the elevator on the 7^th^ floor when he heard N.C.’s cries for help. The apartment door was ajar, and he saw a man he believed to be the accused standing face to face with N.C. and just a few inches away from her. Ivan K did not see any part of the assault. He initially said that the man had his hands down by his sides when he entered the unit, but later said he wasn’t sure about that as he was not focused on his hands at that time. N.C. said something like, “Ivan, take him away.” Ivan K told the man to leave, which he did. He described the complainant as being very upset and scared.[^8]
[13] N.C. testified that she had previously seen the man who attacked her coming in and out of Tatiana V’s apartment. After she was attacked, she went to Tatiana V’s apartment to tell her what happened and to find out the man’s name. She said Tatiana V begged her not to go to the police because the man was a relative of hers and she relied on him to shop and cook for her. For a number of months, N.C. complied with that request. However, she was aware that there had been complaints about Oleg and Mr. Hagras from other residents in the building and she believed both had been banned from the building. In April 2018, she unexpectedly encountered Mr. Hagras in the hallway on the 7^th^ floor and there was an angry exchange between them. She was shaken, and decided to go to the police, resulting in the sexual assault charge now before the court.
[14] Mr. Hagras testified on his own behalf. He denied that the assault had ever happened and denied ever being in N.C.’s apartment. He denied the evidence of N.C. that he had come with Tatiana V to pick up a television that N.C. was donating to Tatiana V. When confronted with his statement to the police that he had picked up the television with Oleg, he explained that he must have been referring to helping Oleg carry the television outside the apartment, but continued to maintain that he had never gone into N.C.’s apartment. Mr. Hagras testified that he initially had no problems with N.C. but that starting in the summer of 2017, N.C. was nasty to him every time she saw him and would call him an “Arab” and a “terrorist.” He testified that he believed N.C. wanted to have him banned from the building and that she had fabricated the allegation of sexual assault for that purpose, and also conscripted two other women in the building to say bad things about him.
[15] Oleg testified that N.C. was very nice to him and his mother when his mother first moved into the building in the spring of 2017. However, he said that her attitude towards him changed in the summer of 2017. He said it was he, and not Mr. Hagras, who had picked up the television from N.C.’s apartment. He acknowledged that he had been barred from entering the apartment building because of his conduct towards other tenants, unrelated to N.C. or to the allegations she made against Mr. Hagras. In the course of his re-examination he volunteered for the first time that N.C. had sexually assaulted him in the hallway of the apartment building by grabbing his genitals while stating, “How would you feel?”.
[16] Tatiana V testified that the relationship between her and N.C. was “wonderful” at the beginning but things changed in the summer of 2017 for no apparent reason. She said that N.C. started screaming at Mr. Hagras in the hallways, calling him a Muslim and an Arab.
D. ISSUES RAISED
[17] As is typically the case in appeals of this nature a number of affidavits were filed on the appeal setting out information about the conduct of the trial and the alleged failings of defence counsel. Defence counsel at trial also filed an affidavit, which was cross-examined upon. Both the affidavit and the transcript of the cross-examination were also filed. The appellant brought an application to admit this fresh evidence at trial. No issue was raised by the Crown and I find the material to be admissible. It would be impossible to advance this type of appeal in the absence of such evidence, and by its very nature it was not available at the time of trial.
[18] The appellant raises the following points as demonstrating trial counsel’s pervasive incompetence:
(i) trial counsel did not tell him, Mr. Hagras, that he could be deported if he was convicted at trial, as a result of which he turned down the Crown offer to resolve the charge against him with a peace bond;
(ii) trial counsel failed to adequately prepare for the trial; and
(iii) trial counsel failed to put the theory of the defence and key defence allegations to the two Crown witnesses.
E. ANALYSIS
(i) Failing to advise Mr. Hagras of the immigration consequences of a conviction
[19] Mr. Hagras is not a Canadian citizen or landed immigrant. He is a citizen of both Russia and Egypt, and has been in Canada since 2015. In his affidavit filed on this appeal, Mr. Hagras stated that his lawyer told him that the Crown offered to resolve the matter by having him enter into a peace bond. However, he stated that his lawyer never told him that if he was found guilty at trial, he could be deported. Further, he stated that if he had understood those potential consequences, he would have accepted the peace bond.
[20] Trial defence counsel was adamant in her affidavit and cross-examination that she told Mr. Hagras that there could be adverse immigration consequences if he was convicted, but that he wanted to go to trial. She required him to sign written instructions to that effect which state, in part, “I understand that a conviction could affect my immigration status.”
[21] Mr. Hagras denies that his criminal lawyer said anything to him about deportation. However, he was aware that it could have immigration consequences. If he had inquired about the nature of those consequences, I am sure his lawyer would have mentioned the possibility of deportation. I find it unlikely that his lawyer would have taken the precaution of getting signed instructions if she had not fully explained the consequences to Mr. Hagras, including the risk of deportation proceedings, which she had to have known about.
[22] The onus is on the appellant to establish the factual underpinning of his claim. On this aspect of his appeal, I find he has failed to meet that onus. I am not satisfied on a balance of probabilities that trial counsel failed to explain the possibility of potential deportation when discussing with Mr. Hagras whether he should resolve this matter by way of a peace bond.
(ii) Inadequate trial preparation
[23] It is difficult to assess or define what amount of preparation is required to provide competent representation at trial. There were two Crown witnesses in this case, and only one incident of alleged assault. There were no complicated legal issues. The case was fairly straightforward, both factually and legally. Therefore, I would not expect many, many hours of preparation. Much of the trial preparation process is a matter of personal style and things that some counsel might consider mandatory are simply not done by perfectly competent lawyers. That said, there were some aspects of the lack of preparation that had an impact on issues that arose at trial and were the subject of comment by the trial judge.
[24] In this case, trial counsel did little, if any, preparation prior to trial. She acknowledged that she did not commence preparation in earnest until after resolution was off the table, which was two days before the trial date. Trial counsel met with Mr. Hagras on only three occasions: October 2, 2018; January 15, 2019; and March 18, 2019. She had no notes of what was discussed at any of those meetings, but acknowledged that trial preparation would not have been done on October 2, 2018. The January 15, 2019 meeting was in conjunction with a routine court appearance and, according to counsel’s dockets, lasted 24 minutes. Preparation for trial would have been unlikely at this time. It makes sense that there was some trial preparation at the March 18 meeting between Mr. Hagras and his lawyer, since the first day of trial was March 19. However, it is clear that there was also discussion that day about potential resolution, and the entire meeting was only 48 minutes according to counsel’s dockets. Again, she has no notes. Under cross-examination, she testified that she would have made notes at all of these meetings, but they have been misplaced, possibly during an office move. Although she claimed to have met with the other two defence witnesses in advance of trial, this is denied by the witnesses who say they met her only at the courthouse immediately before the trial. Again, she has no notes of any such meetings, and nothing is reflected in her dockets. Tatiana V does not speak English. Counsel claims to have met with her on multiple occasions, but did not retain a Russian interpreter for this purpose. She explained in cross-examination that this would have been too expensive and that she therefore used Mr. Hagras as a translator. Mr. Hagras denies having done this and maintains he was not present at any interviews with these witnesses. It is difficult for me to say where the truth lies, but even if trial counsel is correct that she used Mr. Hagras as an interpreter, that is also problematic in my view.
[25] Likewise, while it does seem that trial counsel did not spend much time preparing the accused and the other two witnesses for their examination-in-chief and cross-examination at trial, it is impossible to say what, if any, impact this had on the trial outcome. Mr. Hagras reviewed his police statement only once, at the October 2, 2018 meeting. His counsel was not with him that whole time, leaving him in a room alone to go through it himself. He did not have an opportunity to review it again, nor was he given a copy of the disclosure package to review on his own. He was not told what questions he would be asked in his examination-in-chief, largely because counsel did not prepare questions she would ask witnesses ahead of time, explaining in her own cross-examination on her affidavit that this is not the way she prepares. I would not say that the level of preparation provided was so deficient as to amount to ineffective representation by counsel. However, these problems can be cumulative, a point to which I will return.
[26] There is one particular aspect of the lack of preparation that did have an impact on the findings by the trial judge. It would appear that, unbeknownst to the trial counsel, the apparently independent witness who came forward to verify N.C.’s evidence that she was attacked (Ivan K) was not entirely independent, but rather was in a romantic relationship with N.C. This fact was known to Tatiana V who lived on the same floor of the apartment building and had been quite friendly with N.C. prior to the alleged assault. Defence trial counsel did not know about this relationship because she had never shared with the accused or the two defence witnesses that this witness would testify, nor asked them if they knew anything about him. Had she asked, she would have obtained that information. If she had the information, she could have put it to both N.C. and to Ivan K. However, Tatiana V knew about it, and having seen Ivan K at the trial, she volunteered in her testimony that he was N.C.’s boyfriend. In her reasons for convicting Mr. Hagras, the trial judge noted the failure to cross-examine the Crown witnesses on this point, stating:
Nor were the following suggestions ever put to [N.C.] in cross-examination no doubt because they have no basis in reality: …. that Ivan is her “boyfriend” (this wasn’t suggested to Mr. Kravchuk in cross-examination either).
[27] There were other reasons given by the trial judge for not believing Tatiana V’s evidence. However, at least in part, her negative findings of credibility were based on the fact that this allegation came out of the blue and had never been put to either of the Crown witnesses. That being the case, the trial judge did not accept that such a relationship had existed and it did not factor into her analysis of whether the incident as described by N.C. ever happened.
[28] It may well be the case that if the existence of the relationship had been put to N.C. and Ivan, they would have acknowledged it and said it had nothing to do with his corroborative testimony. They might well have been believed. However, they might have given conflicting evidence on the point, undermining their credibility. Or, they might both have denied it, but testified in a manner that was evasive and thereby raised concerns in the mind of the trial judge. It is impossible to know what might have happened and what impact that might have had on the ultimate decision. However, what did happen is that the question was never put to either Crown witnesses, the information came up in a manner that made it seem implausible, and the trial judge concluded it was untrue, at least in part because it had never been put to the Crown witnesses. The failure to put this question to the Crown witnesses is a likely result of defence counsel’s inadequate trial preparation. Again, this is an issue which, standing alone, is unlikely to have affected the outcome of the trial. However, it is part of the cumulative impact.
[29] Further, had counsel been better prepared and known the connection between N.C. and Ivan, she might have probed the possibility of collaboration between them. In her statement to the police in April 2018, N.C. said that Mr. Hagras had assaulted her in the summer of 2017, but she did not know what month. At trial in 2019, she testified that the assault was in the month of August 2018. On cross-examination, defence counsel asked N.C. about how she was now able to remember the date and N.C. responded as follows:
I will try to explain it to you right now. Ivan was passing by, and it was right before he had an operation for a kidney removal and that was in September, when the kidney was removed. Cancer. And – and he was not around in September that would mean that was in August because he said that he was going to have an operation and I – I remember that. It’s not a crime.[^9]
[30] Counsel did not press the point, simply moving on to a different area.
[31] When Ivan testified in chief, he said that the incident occurred at the end of the summer of 2017, towards the end of August. He volunteered that he remembered that because it was before his surgery, which was in September.[^10] On cross-examination, defence counsel put to Ivan K that when he gave his statement to the police, he had said the incident occurred in October 2017. He said that was probably a mistake because it was before his surgery and his surgery was in September. Counsel then asked him if he was “definitely sure” that it was before his surgery and he said, “Yes. I – I - I- do remember it was before my surgery.” Counsel then simply abandoned the point. However, had she been better prepared, she would likely have put to Ivan K the specifics of what he told the police. In particular, he told them:
Once in October I was returning home. I exited the elevator and heard frantic screaming coming from apt. #716. I was walking with a cane after surgery.[^11]
[32] It was never put to Ivan K that in April 2018 he told the police he recalled that the incident was after his surgery because he remembered that he was walking with a cane. This is a striking contrast to his testimony that he remembered it being in late August because it was before his surgery. This discrepancy also underscores the similarity between his testimony and that of N.C. as to how they remembered the date being August 2017. This is particularly problematic given that both of them gave different dates in their police statements, which statements were much closer to the events in question and more likely to be accurate. This also raises a concern about possible collusion. Defence counsel completely missed that point. This compounds the failure to examine either witness on the nature of their personal relationship. Again, confusion about the date of the incident might not be a crucial point affecting the outcome of the trial. However, the possibility of collusion and the possibility of there being a close relationship between Ivan K and N.C. were simply never raised with either witness. It is difficult to predict how these issues might have affected findings of reliability and credibility, and ultimately the result at trial. Again, the cumulative effect must be considered.
(iii) Failing to put the theory of the defence and key defence allegations to the complainant
[33] From the very outset of her retainer, defence counsel was aware that Mr. Hagras denied that the incident described by N.C. ever happened, asserted that he had never been inside N.C.’s apartment for any reason, and maintained that N.C. fabricated these allegations against him, motivated by racist animus because he is an Arab and a Muslim. He told his lawyer that N.C. called him racist names and referred to him as a terrorist, and that he believed she was trying to get him banned from the building.
[34] Defence counsel knew that this would be the testimony Mr. Hagras would give at trial, and that Tatiana V and Oleg would provide corroboration of this animus. This was the theory of the defence and the defence evidence led at trial centered on this issue.
[35] When this appeal was commenced and trial defence counsel was put on notice of the grounds, she filed an affidavit explaining her position. In that affidavit, she stated, “I thoroughly cross-examined the witnesses called by the Crown. I complied with my obligations under Brown v. Dunn.” She was cross-examined on that affidavit, and initially continued to maintain that she complied with the rule in Brown v. Dunn in her cross-examination of N.C. by putting the defence theory to her. During that cross-examination, trial defence counsel conceded that she had not read the trial transcripts prior to filing her affidavit, nor did she do so in preparation for her cross-examination on that affidavit. In the middle of the cross-examination, she was given an opportunity to read the transcript of her cross-examination of N.C. Upon returning, she conceded that she did not cross-examine the complainant on the fact that the sexual assault never occurred, nor did she put to the witness that she had an animus towards the accused because of his religion and race, nor did she put to the witness any of the names that Mr. Hagras claimed she had called him. On the cross-examination, trial defence counsel maintained that her decision not to put those specifics to the complainant was a “tactical decision that I not call an 80-year-old Holocaust survivor a racist.”[^12] She further stated that she cross-examined to attempt to show inconsistencies and challenge the reliability of her evidence, rather than directly challenging that the described incident did not happen. She continued in her cross-examination to describe this as a tactical decision.
[36] In her affidavit and on cross-examination prior to reading the trial transcript, trial defence counsel’s position was that she put the theory of the defence to N.C. and thoroughly cross-examined her in compliance with Brown v. Dunn. It was only after reading the transcript, and it being pointed out that she did not confront the complainant with the theory of the defence case or the specific allegations made by Mr. Hagras, that defence counsel for the first time maintained this was a tactical decision. I do not accept that this was a tactical decision. Even if it was, it was developed on the fly and without any consideration for the consequences for credibility of the defence evidence, none of which had been put to the witness. Further, since the defence theory was that N.C. fabricated the allegations out of malice, trial defence counsel did not attack the identification of the accused as the person N.C. said attacked her. It was never suggested that she was confused about who had attacked her. It is unclear to me what defence counsel now saw as a viable defence if she was not going to assert that the allegations had been fabricated.
[37] In her closing submissions, trial defence counsel argued that “essentially this case comes down to a dispute between neighbours.” She then recited the requirements of R. v. W.D. She referred to there being “some issues” with the evidence of N.C. without saying what they were. She then noted the significant gap between the date of the alleged incident in August 2017 and the date she reported it to the police in April 2018, stating that the complainant gave no reason for the delay other than “I didn’t feel up to it.” This was a misstatement of the evidence, and the trial judge quite properly took counsel to task on it, reminding her that complainant had testified that she did not report it because Tatiana V begged her not to. In response, trial defence counsel first suggested that the trial judge should consult her notes. Then, upon being told by the trial judge that her memory was clear on it, counsel countered with “that’s not really much of a reason to delay of such serious reporting (sic).” Trial defence counsel pointed to inconsistencies in the complainant’s evidence as to when the incident occurred and how long it went on for. She then said that Mr. Hagras “flatly denies the allegations ever occurred” and that he “believes” N.C. wanted Tatiana V, Oleg, and himself removed from the building. She closed by referring to subsequent disputes between other neighbours about Tatiana V and her son, and by again referring to the whole thing as a neighbourhood dispute.[^13]
(iv) Impact on the Decision
[38] The failure of counsel to put the defence theory and the specific allegations made by Mr. Hagras to the complainant was referred to repeatedly by the trial judge in her reasons and formed part of her analysis for rejecting the testimony of the accused.
[39] In summarizing the defence case, the trial judge stated:
In addition to a straight denial, it would seem to be the theory of the defence that [N.C.] made up the allegation of sexual assault, so as to get Mr. Hagras kicked out of the building.[^14]
[Emphasis added]
[40] The trial judge then summarized the key points from the testimony of Mr. Hagras, including that N.C. was abusive and hurled racial epithets at him. The trial judge held:
[Mr. Hagras] testified that after the summer of 2017 every time the complainant saw him she would start screaming at him and calling him an “Arab” and a “terrorist.” It is worth noting that this was never suggested to [N.C.] in cross-examination.[^15]
[Emphasis added]
[41] After summarizing the evidence, the trial judge made a number of findings of fact. She started by stating, “I entirely reject the evidence of the accused.” She found that Mr. Hagras was not a credible witness, citing: the manner in which he testified (evasive, argumentative, talking over the Crown); that his evidence was contradicted by N.C. and Ivan K; and that his evidence was internally inconsistent and inconsistent with some of the evidence of other defence witnesses (e.g. about how often he slept over at Tatiana V’s apartment).[^16]
[42] In addition, the trial judge made adverse findings of credibility based on the fact that many of the things attested to by Mr. Hagras and other defence witnesses were never put to the Crown witnesses. For example, the trial judge held:
Mr. Hagras claimed that many times the complainant shouted racial slurs at him. I completely reject his evidence in this regard. I would note that this was never suggested to [N.C.] during her testimony. She came across as a very kind and gentle person in court.[^17]
The defence witnesses made some terrible and serious allegations against [N.C.] Those allegations were not suggested to her in cross-examination and I find them to be completely false.[^18]
Also important is what was not suggested to [N.C.] in cross-examination. In particular, it was never directly suggested to her that she made up the allegation of sexual assault, so as to get Mr. Hagras kicked out of the building. [^19]
Nor were the following suggestions ever put to her in cross-examination, no doubt because they have no basis in reality: One, that during her initial visit to Tatiana, she announced, “I’m in charge here.” Two, that she sexually assaulted Oleg. Three, that she yelled racial slurs at the accused. Four, that she assaulted Tatiana and threatened to kill her. Five, that Ivan is her “boyfriend” (this wasn’t even suggested to [Ivan K] in cross-examination either).^20
[43] I recognize that the failure to cross-examine on these points was by no means the only basis upon which adverse findings of credibility were made against the defence witnesses. I also recognize that, on the evidence before her, the trial judge was entirely justified in concluding this was a strong Crown case with thoroughly credible complainant. Before me on appeal, the Crown argued that even if these defence theories had been put to the Crown witnesses, the result would have been the same. She would simply have denied the suggestions, and this would have been accepted by the trial judge. I agree this might have been the result. However, the complainant and Ivan K might have given conflicting versions, or N.C. might have testified in a manner raising a concern for the trial judge, even if she denied the allegation of fabrication. This is simply unknowable because it was never put to her.
[44] Some other problems with the defence evidence might have been alleviated, if not eliminated, by a more thorough preparation for trial. The credibility of the accused was undermined by the apparent discrepancy between his testimony at trial about never being inside N.C.’s apartment and his statement to the police about moving a television set. Had this been noted by counsel ahead of time, as a properly prepared defence lawyer would have done, the sting of that apparent conflict could have been deflected.
[45] That lack of preparation also resulted in counsel not challenging the timing of the alleged assault, nor raising the close relationship between N.C. and Ivan K, nor presenting evidence of possible collusion between them. Had this been done, the defence of fabrication might have been strengthened as well. As things turned out, no real defence was presented until after the Crown’s case was completed. Defence counsel put none of the previously planned defence theory or factual allegations to the witnesses, had no other constructive approach to conducting the defence, and then proceeded to call the defence evidence according to the original theory of fabrication. Counsel’s justification that she made a tactical decision not to accuse an 80-year-old Holocaust survivor of being a racist does not stand up to scrutiny. At first, she maintained that she did put this to the complainant, and only changed that justification upon reviewing the transcript for the first time and realizing she had not. In any event, she called that very evidence from the defence witnesses, so at that point any strategy of not making such an accusation against a Holocaust survivor flew out the window. Further, and I have struggled to put this as delicately as I can, racism exists independently of age, religion, or personal history. Victims of racism can be themselves racist; elderly women can sometimes lie and be vindictive. The age, race, and personal history of the complainant are not a basis for failing to put forward an accused person’s defence to the best of counsel’s ability. Such factors might be discussed as part of a strategy as to the best way to approach a defence. However, it is grossly ineffective to abandon the strategy agreed upon by the client when cross-examining the Crown’s witnesses, and then resurrect it in the examination-in-chief of the accused and the defence witnesses. In my view, this amounts to incompetence. When this is combined with the other problems caused by the lack of preparation, it is difficult to say that the result at trial would nevertheless have been the same.
[46] In R. v. S. (R.),[^21] the accused had been convicted at trial of sexually assaulting two children (M.L. and M.S.). He appealed those convictions based on ineffective representation by counsel, including lack of preparation for trial and poor cross-examination of the complainants. The Crown conceded on appeal that there was a reasonable probability that the verdicts in respect of the allegations made by M.S. would have been different if the accused had received proper legal representation. However, with respect to the M.L. counts, the Crown argued that the deficiencies of counsel had a less direct and significant impact. The Court of Appeal quashed all of the convictions. Doherty J.A. agreed that the Crown had a stronger case with respect to the M.S. charges, but held that the inadequacies of counsel tainted all of the convictions. He stated:
However, while I acknowledge the merits of the Crown’s attempt to distinguish among the charges, I ultimately agree with Mr. Carter’s cogent submission that trial counsel’s ineffective representation taints all of the convictions. Mr. Carter characterizes the effect of counsel’s ineffective representation as “pervasive”. I agree with that description, which I think is particularly apt in respect of trial counsel’s purported preparation for trial.
For all practical purposes, the appellant was without the assistance of counsel at trial. The miscarriage of justice occasioned by the ineffective representation lies not only in its impact on the reliability of the verdicts, but also in its negative effect on the appearance of the fairness of the trial. The latter concern can be adequately vindicated only by an order quashing all of the convictions.[^22]
[47] The cumulative impact of trial counsel’s inadequacies is a relevant factor, as was noted by the Ontario Court of Appeal in R. v. J.B., as follows:
The purpose of appellate inquiry is not to grade counsel’s performance. The appellant has shown that the acts or omissions of his trial counsel could not have been the result of reasonable professional judgment. The appellant was entitled to competent legal representation at his trial, because effective representation by counsel enhances the reliability of the outcome of the adversarial trial process. In this case, the cumulative effect of the failures of counsel undermined the reliability of the verdict and resulted in a miscarriage of justice. Further, the appearance of a fair trial was undermined by trial counsel’s failure to advocate for her client by pressing for the rejection of the complainant’s evidence.[^23]
[48] In this case, the most serious omission by counsel was the failure to properly cross-examine the complainant, and the failure to put to her the specific allegations about her motivation to fabricate that counsel knew would be the subject of the defence evidence. There is no doubt that this oversight affected the trial judge’s conclusions as to the credibility of those witnesses, including the accused. In addition to that significant failure, there were a number of other omissions that may have had an impact on the trial judge’s impressions of the defence and Crown witnesses, including:
• the failure to properly prepare the accused for his testimony, and to deal with the apparent contradiction between his police statement and the evidence he would be giving in chief that he had never been inside the complainant’s apartment;
• the failure to prepare the other defence witnesses for their testimony, which may have avoided some of the adverse credibility findings made;
• the lack of preparation that resulted in the failure to cross-examine Ivan K at trial about why he told the police that he knew the incident occurred after September because he was using a cane post-surgery;
• the lack of preparation in relation to Ivan K’s testimony, which was not mentioned to any of the defence witnesses, with the result that counsel did not learn of the close relationship between him and the complainant prior to the close of the Crown’s case, and therefore was not able to put it to either of them in cross-examination, another factor that affected the trial judge’s adverse credibility findings with respect to the defence witness Tatiana V; and
• flowing from the failure to realize the significance of Ivan K’s statement to the police with respect to the date of the incident and the failure to discover the relationship between Ivan K and the complainant, counsel was not able to explore the possibility of collusion between these witnesses.
[49] Any one of these failures, taken alone, might not be sufficient to call into doubt the reliability of the verdict. However, the cumulative effect of all of these omissions leads me to the conclusion that Mr. Hagras has not had effective representation by counsel and his fair trial rights were compromised. In my opinion, the interests of justice require that the conviction be quashed.
Molloy J.
Released: October 28, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
AHMED HAGRAS
Appellant/Defendant
REASONS FOR DECISION
Molloy J.
Released: October 28, 2021
[^1]: R. v. B. (G.D.), 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 24.
[^2]: R. v. Joanisse, 1995 3507 (ON CA), [1995] O.J. No. 2883 (C.A.), at para. 66-67.
[^3]: R. v. Zheng, 2014 ONCA 345, [2014] O.J. No. 2205, at para. 22.
[^4]: B. (G.D.), at para. 27.
[^5]: R. v. White (1997), 1997 2426 (ON CA), 32 O.R. (3d) 722 (C.A.), leave to appeal to S.C.C. refused, [1997] S.C.C.A. No. 248.
[^6]: B. (G.D.), at para. 28.
[^7]: Transcript, Reasons for Judgment of trial judge at p. 12.
[^8]: Ibid, pp. 12-13.
[^9]: Trial Transcript of Proceedings, March 20-21, 2019, at p. 48.
[^10]: Trial transcript of Proceedings, March 20, 2019 at p. 76
[^11]: Ivan Kravchuk statement to police, April 17, 2018, Application Record, Volume 3, Tab 13.
[^12]: Transcript of Cross-Examination of [trial defence counsel], September 13, 2021 at p. 54.
[^13]: Trial Transcript, March 21, 2019, at pp. 185- 189.
[^14]: Trial Transcript, Reasons for Decision, p. 14
[^15]: Ibid, p. 15.
[^16]: Ibid, p. 20-21.
[^17]: Ibid, p. 21
[^18]: Ibid, p. 24
[^19]: Ibid, p. 30-31
[^21]: R. v. S. (R.), 2016 ONCA 655, [2016] O.J. No. 4683.
[^22]: S. (R.), at paras. 47-48.
[^23]: R. v. B. (J.), 2011 ONCA 404, [2011] O.J. No. 2322, at para. 6.