Court File and Parties

Goderich Court File No.: CR-20-0009-00AP Date: 20220307

Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Vincent Bauer, Appellant

Counsel: Laura Grant, for the Crown Scott Cowan, for the Appellant

Heard: January 19, 2022 (Via Zoom)

On appeal from the decision of Justice V. Brown of the Ontario Court of Justice dated January 10, 2020.

Decision on Summary Conviction Appeal

CARROCCIA J.

Overview

[1] The accused, Vincent Bauer, was convicted of three counts of sexual assault on January 10, 2020, following a trial before V. Brown J. in the Ontario Court of Justice, which was conducted on November 29, 2019. He was sentenced to 21 months in jail followed by probation for two years with conditions.

[2] He filed a Notice of Appeal in relation to those convictions advancing a single ground of appeal: ineffective assistance of counsel.

The Decision at Trial

[3] The only witness called at trial was the complainant. The appellant did not testify. The case rested entirely on the credibility of the complainant. She testified that on three occasions, twice in May and once in June 2018, the appellant, while sharing a bed with her, woke her up during the night and forced vaginal intercourse upon her without her consent.

[4] In the course of the complainant’s cross-examination, the Crown objected to questions being asked in relation to her work background and her relationship with the appellant’s children, as well as the appellant’s care of his children, as being irrelevant.

[5] Trial counsel, Mr. Armstrong, suggested to the complainant that apart from the three incidents that formed the subject matter of the charges, the relationship was not an intimate one. The witness disagreed with the suggestion. She was not seriously challenged with respect to her version of the events. The appellant’s position was not put to her, namely that they did not engage in sexual intercourse during their relationship or that they did not share a bed when the appellant slept at her residence.

[6] Once cross-examination of the complainant was concluded, Mr. Armstrong requested “one minute” to confirm some instructions from his client. Following that opportunity, he indicated that the defence was not calling any evidence.

[7] During her final submissions, the Crown argued that the case had been proven beyond a reasonable doubt, since the evidence of the complainant essentially stood unchallenged. She argued, pre-emptively, that there was no evidence to suggest that the appellant was “asleep” when he committed the offences, so as to support a finding that the acts were unintentional.

[8] Mr. Armstrong, in his submissions, questioned the complainant’s motive for making the allegations. He referred to the complainant’s evidence that when confronted in the morning after the first two occurrences, the appellant appeared horrified that he engaged in such conduct, and he claimed not to have any memory of them. Counsel suggested that the appellant was in a “sleep state” when the assaults occurred. He indicated that the court should have a doubt based on the evidence and referred the court to the Supreme Court of Canada’s decision in R. v. W.(D.), [1991] 1 S.C.R. 742. At no time did counsel suggest that the offences did not occur.

[9] The trial judge reserved her decision until January 10, 2020. When Brown J. delivered her reasons, she indicated that she found the evidence of the complainant to be credible and reliable and convicted the appellant of all three offences. She found that W.(D.) was not applicable in the circumstances, since the accused did not testify.

[10] The court did not accept the submission made by defence counsel that the complainant had a motive to make the complaint based on the timing of Mr. Bauer’s scheduled child protection trial. The complainant’s evidence was found to be consistent, lacking embellishment, and not shaken on cross-examination. It was accepted in its entirety.

[11] Furthermore, the court found Mr. Bauer’s actions were intentional. She found that his professed lack of memory expressed to the complainant on the morning after the first two incidents did not equate with lack of intention, and that it did not constitute evidence of his state of mind. The court reviewed the law as it related to “involuntariness” or automatism and found that there was no evidence, particularly medical evidence, to support such a claim.

The Evidence on Appeal

The Evidence of the Appellant

[12] The appellant swore an affidavit in support of this appeal dated December 3, 2020. He has waived solicitor-client privilege. In it, he states that he never had sex with the complainant, and that they did not share a bed together when he stayed at her residence.

[13] The appellant indicates that he expected to testify at his trial but never received any advice on testifying and did not participate in a practice cross-examination. He states that he was scared about testifying after being told by his trial counsel that he did not think he should testify. He confirms that he was angry, stressed, and anxious after hearing the complainant testify.

[14] The appellant does not remember participating in meetings with Mr. Armstrong dealing with his right to testify, his decision to testify, or the evidence he might give if he did. He acknowledges that he told his trial counsel that he would not testify but only after being told by his counsel that he did not think he should.

[15] The appellant swears that at no time did he tell his trial counsel that he suffered from sleepwalking or that he might have had sex with the complainant while he was asleep. He indicates that he maintained his innocence throughout his dealings with Mr. Armstrong.

[16] The appellant was cross-examined on his affidavit by the Crown on April 8, 2021. He indicated that trial counsel reviewed the disclosure with him but that he only met with him in person to prepare for trial on one occasion, on November 15, 2019, at the courthouse. He indicates that on that day, he was advised by his trial counsel not to testify.

[17] The appellant indicates that he felt as if the question of whether he would testify was “dumped on him” on the date of trial and that he was not prepared; he was suffering from depression and was advised by counsel not to testify. He gave contradictory answers when asked about whether he was aware of the trial date. Initially, he indicated that he was advised of the trial date and later testified that he did not know that November 29, 2019 was his trial date and was caught by surprise.

[18] He confirmed that the “plan” prior to the trial date was that he would testify at the trial, and that was still the case on the morning of the trial. When cross-examined by the Crown on whether he himself made the decision not to testify, the appellant stated:

He told me – I said to him point blank, I cannot testify, and he agreed with, with me to not testify. He wouldn’t advise me on that and I even said, I cannot testify under my mental health state.

[19] The appellant acknowledged that he made a decision not to testify on the trial date after receiving advice from Mr. Armstrong. Later in his evidence, he indicated that he did so because he was not adequately prepared and that his mental health made it impossible for him to testify on that date.

The Evidence of Trial Counsel

[20] Mr. Armstrong provided appellate counsel, Mr. Cowan, a letter dated November 3, 2020, in reply to a letter from Mr. Cowan asking him a number of questions about the conduct of this matter. These letters are attached as exhibits to the affidavit of Kathy Glenn, the Office Manager at the Crown Attorney’s office, and form part of the record.

[21] In his letter, Mr. Cowan mentions that they had a telephone conversation wherein Mr. Cowan asked Mr. Armstrong about potential grounds of appeal. Apparently, Mr. Armstrong replied, “ineffective assistance”.

[22] In his reply letter, Mr. Armstrong acknowledged having made the comment and says that in hindsight, there “would have been no downside to Vincent having taken the witness stand.” He indicates that he took and respected his client’s instructions and feels that on cross-examination, the appellant would have been “incredibly vulnerable” and could have been convicted in any event.

[23] As of November 17, 2021, when this appeal was scheduled to be argued, trial counsel had not filed an affidavit despite requests made by the Crown to do so. At that time, Nicholson J. decided that the Appeal Record was incomplete and ordered Mr. Armstrong to participate in the appeal.

[24] Mr. Armstrong filed an affidavit, dated December 7, 2021, and was cross-examined on his affidavit on December 14, 2021.

[25] In his affidavit, Mr. Armstrong attests that he had a long-standing relationship with the appellant and knew him well. The appellant first retained him in 2014 in relation to child protection proceedings, which were headed for a trial in March 2019. He learned during the course of representing Mr. Bauer in those proceedings that the appellant was charged with these offences.

[26] Mr. Armstrong indicates that Mr. Bauer denied the allegations from the outset and that, in due course, he set a trial date. Mr. Armstrong maintains that initially, the appellant indicated that he and the complainant had a sexual relationship and then, when they met about two weeks before the trial, the appellant changed his position and indicated for the first time that he had never been in a sexual relationship with the complainant.

[27] Mr. Armstrong swears that he reviewed the disclosure with the appellant on more than one occasion, both in person and over the telephone. He indicates that in his opinion, the appellant would not have made a good witness at trial. He described him as an individual who would be susceptible to suggestions. He indicates that he shared his concern with the appellant.

[28] Mr. Armstrong indicates that in the lead up to the trial, the appellant indicated that he wished to testify in his own defence and that he prepared for trial on that basis. Mr. Armstrong indicates that he first became aware that the appellant had changed his mind on the morning of the trial when he met with Mr. Bauer. He indicates that at that time, Mr. Bauer informed Mr. Armstrong that he did not wish to testify.

[29] It appears, therefore, that when the trial commenced, according to Mr. Armstrong, the appellant had indicated that he did not wish to testify. Mr. Armstrong indicates that following the close of the Crown’s case, he requested an opportunity to consult with his client. He was again told by the appellant that he did not wish to testify. The appellant indicated that he was feeling “mad and angry” at that time. Mr. Armstrong did not make notes of this discussion, nor did he obtain instructions in writing, but he indicates in his affidavit that he has a “clear recollection” of this conversation. Mr. Armstrong states that he was satisfied that the appellant understood that the decision as to whether he would testify was his to make.

[30] As to his strategy during cross-examination of the only Crown witness, Mr. Armstrong indicated that because the witness did not provide much detail in her evidence, he did not wish to give her an opportunity to do so upon cross-examination. He did not feel it appropriate to conduct an aggressive cross-examination.

[31] Mr. Armstrong continued to act for the appellant in relation to his ongoing child protection matter, despite the allegations of ineffective assistance of counsel in the criminal matter, until he removed himself as counsel of record on June 22, 2021.

[32] Mr. Armstrong also responded to various statements contained in the appellant’s affidavit. He indicates that the appellant’s affidavit contains information that is inconsistent with the statements the appellant made to him earlier. For instance, the appellant’s affidavit indicates that he did not share a bed with the complainant. Mr. Armstrong indicates that the appellant told him they had in fact shared a bed.

[33] The appellant and Mr. Armstrong spoke by telephone two days before the trial. During that call, the appellant told him that he had been ill with pneumonia for several weeks. Mr. Armstrong indicated that he could seek an adjournment if Mr. Bauer was ill. Mr. Armstrong also indicates that he had resolution discussions with the Crown a week before trial; however, he does not indicate why. According to him, the appellant always maintained his innocence and did not instruct him to seek a resolution to the charges.

[34] Mr. Armstrong maintains that the decision not to testify was made by Mr. Bauer on the morning of the trial and that he thereafter acted upon his client’s instructions.

[35] During his cross-examination for discovery, Mr. Armstrong indicated that he was initially reluctant to participate in the appeal process because he was having trouble reconciling his ongoing role as counsel for Mr. Bauer in the child protection proceedings and the allegations being made in the appeal.

[36] Mr. Armstrong acknowledged that he had no notes about ever discussing with the appellant whether he and the complainant had a sexual relationship. He had notes about a potential application pursuant to s. 276 of the Criminal Code, R.S.C. 1985, c. C-46, to admit evidence of prior sexual history, but no notes about how that evidence might be used at the trial, or what that evidence would be.

[37] Trial counsel was cross-examined on raising an automatism defence in the absence of any evidence to support it. He acknowledged that his client did not instruct him to pursue this defence and that he had no notes of conversations about automatism with his client. It seems that this suggestion might have come from a letter from a counsellor.

The Position of the Parties

[38] The appellant takes the position that he received ineffective assistance of counsel because trial counsel failed to cross-examine on crucial points in the evidence, proffered defences which were not in accordance with his instructions, and did not give him adequate advice about whether to testify in his own defence.

[39] His position is that his defence was simple: the alleged sexual contact did not happen, not voluntarily and not in some sort of “sleep state”. He maintained that at no time did he and the complainant ever have sex.

[40] The respondent argues that the appellant has failed to establish on a balance of probabilities that he received ineffective assistance from counsel and the appeal must fail.

[41] The respondent takes the position that trial counsel took the necessary time to prepare the appellant for trial and that while he communicated his opinion that he felt the appellant should not testify at trial, that decision was made by the appellant.

The Legal Principles

[42] On the same day that this matter was argued before me, the Court of Appeal for Ontario released its decision in R. v. Ashkani, 2022 ONCA 34, relating to appeals on the basis of the ineffective assistance of counsel. Counsel were no doubt unaware of the case and, accordingly, it was not referred to by either of them.

[43] In Ashkani, at para. 4, the Court of Appeal cited R. v. Archer (2005), 203 O.A.C. 56 with approval:

In order to succeed on an appeal based on an allegation of ineffective assistance of counsel, an appellant must establish the facts upon which the allegation is based on a balance of probabilities. The appellant has not done this with respect to either the allegation that her trial counsel ignored her wish to be tried by a jury or that he refused to permit her to testify. [Citation omitted.]

[44] In Archer, at paras. 119-120, the Court of Appeal said the following:

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 reasonable 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.

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.

[45] In R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 26, the Supreme Court of Canada said that the approach to a claim of ineffective assistance of counsel contains a performance component and a prejudice component. In order for an appeal on this basis to succeed, it must be established that counsel’s acts or omissions constituted incompetence and that a miscarriage of justice resulted. In cases where it is apparent that no prejudice has occurred, it is generally undesirable for an appellate court to consider the performance component of the analysis.

[46] The appellant must establish on a balance of probabilities that trial counsel’s conduct fell below the standard of reasonable professional assistance and that the ineffective representation resulted in a miscarriage of justice: see R. v. Cubillan, 2018 ONCA 811, 143 O.R. (3d) 376, at para. 8.

[47] A miscarriage of justice can be established when the ineffective representation undermines the appearance of the fairness of the trial or the reliability of the verdict. Unreliability is made out where the appellant can establish that there is a reasonable probability that the verdict would have been different had he received effective representation: see Cubillan, at para. 9.

[48] In R. v. Stark, 2017 ONCA 148, at para. 15, the Ontario Court of Appeal explains the nature of a claim of ineffective assistance of counsel which results in a miscarriage of justice which undermines the reliability of the verdict as follows:

Most allegations of ineffective assistance of counsel take the first route, and involve claims that discrete instances of counsel’s incompetence worked to render the verdict unreliable. To succeed on this basis the appellant must demonstrate a reasonable possibility that, but for the incompetence, the verdict could have been different. That is the prejudice to be established. Examples from the cases include counsel’s failure to object to inadmissible evidence, the failure to call material witnesses, the lack of preparation for trial, failure to carefully review Crown disclosure, the failure to prepare the accused to testify, and the failure to cross-examine effectively, or at all.

Analysis

i) What is the basis for the claim of ineffective assistance of counsel?

[49] An allegation of ineffective assistance based on the failure to permit the appellant to testify at trial requires the court to make findings of fact based on the record before the court, including the affidavits of the appellant and trial counsel and their cross-examinations on those affidavits.

[50] The appellant agrees that he made the decision not to testify, although up until the date of the trial it was anticipated that he would. He indicates that on the date of trial, he was not prepared and due to his mental health, he could not testify. He claims that he did not receive any advice on whether to testify, but on the date of trial, his counsel told him that he should not testify.

[51] Mr. Armstrong states that he and Mr. Bauer reviewed the appellant’s evidence on more than one occasion. In his opinion, the appellant would not have been a good witness at trial, and he acknowledges that he advised him not to testify. However, he maintains that in the end, it was the appellant’s decision not to testify at the trial.

[52] Mr. Armstrong knew the appellant well as a client based on the length of their professional relationship. According to him, the appellant had been ill for several weeks prior to trial. When he was advised by the appellant that he would not testify on the day of trial, he proceeded with the trial, apparently without considering how this change might affect any potential trial strategy. He took a “moment” at the conclusion of the Crown’s case to confirm instructions from his client.

[53] It is not clear from the material before the court whether trial counsel advised the appellant of the consequences of his failure to testify in light of the uncontradicted evidence of the complainant. Certainly, this could not have taken place at the conclusion of the Crown’s case when Mr. Armstrong took “one minute” to confirm instructions from his client.

[54] The appellant gave contradictory answers when asked about the decision as to whether he would testify. Ultimately, he indicated that it was his decision based on the advice of counsel and based on his “mental health”.

[55] As to the automatism defence advanced by counsel, it is clear from Mr. Armstrong’s evidence that he had no instructions from the appellant to raise this defence. Nothing in his notes, based on the instructions from his client, suggested that there was an air of reality to such a defence. Also, to raise a defence of this nature, there ought to have been evidence, particularly expert evidence, to support it.

[56] Trial counsel acknowledges that the appellant maintained his innocence throughout. In fact, it is unclear why, in light of the position taken by the appellant, trial counsel would engage in resolution discussions with the Crown the week before the trial was scheduled. Furthermore, the appellant’s position was not put to the complainant during cross-examination. In fact, had the appellant elected to testify at trial based on his anticipated evidence, and the failure to put that version of events to the complainant, the defence would have run afoul of the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.).

ii) Has the appellant established on the balance of probabilities the facts upon which the allegations of ineffective assistance are based?

The decision whether or not to testify

[57] On the evidence before the court, it appears that the appellant was advised that he was entitled to testify in his own defence. While the appellant initially claimed that counsel did not prepare him for trial, it appears, after being cross-examined on the issue, that in fact counsel did prepare him to take the stand. It was also clear that the appellant was aware that he had a choice to make as to whether he would testify and that he decided on the day of trial that he would not testify. While he claims that this was a result of not being prepared, it seems that it was a decision based on the way the appellant was feeling, namely, unwell, under stress, and anxious. What is unclear from the evidence is whether the appellant was aware of the consequences of making this decision.

[58] The appellant did not argue that he was not advised of the consequences of the decision. The decision not to testify was made before the trial even started, according to the evidence of the appellant. As a result, the appellant has failed to establish on a balance of probabilities that he was not given adequate legal advice prior to making a decision about whether he should testify, and this ground of appeal will fail.

The failure to follow the client’s instructions

[59] As to the second ground of appeal, the client’s instructions were apparently clear in the sense that his position was that he denied committing the offences and indicated that he did not engage in any sexual activity with the complainant. Trial counsel had no notes as to the sexual relationship between the parties.

[60] A review of the transcript of the trial proceedings reveals that the position of the appellant was not put to the complainant during cross-examination. Rather, he pursued a strategy without evidence to support that the appellant’s actions were involuntary or a form of automatism.

[61] Trial counsel did not conduct an effective cross-examination of the complainant. His stated reason was that because the complainant provided very little detail in her evidence, he did not wish to give her an opportunity to add further details. Quite frankly, had he done so, and had she given evidence that was inconsistent with her earlier statements, this would have provided fertile ground for cross-examination.

[62] Furthermore, there was no evidence offered at trial to support the only potential defence raised: automatism. As a result, I am satisfied that the appellant has established on a balance of probabilities that counsel did not exercise reasonable professional judgment based on his client’s instructions and this ground of appeal is made out.

iii) Did trial counsel’s acts or omissions amount to incompetence?

[63] In R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.), at pp. 34, Doherty J.A. said the following:

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.

[64] The competence of counsel is to be assessed from a reasonableness standard. It is a fact-specific inquiry. The analysis proceeds from a presumption that trial counsel’s conduct fell within the range of reasonable professional conduct: see G.D.B., at paras. 27-28. This exercise is not to be undertaken with the wisdom of hindsight, and the onus is on the appellant to establish that the acts or omissions of trial counsel do not amount to the exercise of reasonable professional judgment.

[65] In this case, it appears that up until the morning of the trial, it was anticipated that the appellant would testify and deny that the allegations happened at all. It was not clear what the defence would be once the appellant decided not to testify.

[66] Apart from a single question posed in cross-examination, the defence theory was not put to the complainant. Trial counsel failed to put the appellant’s position (i.e., that they never had sex) to the complainant. Instead, he cross-examined on whether the appellant’s acts appeared intentional. The following exchange occurred during cross-examination of the complainant: [1]

Q. Were you curious at the time whether Vincent actually intended, or not, what had happened? A. I wasn’t sure what to believe at the time. I was looking for knowledge. Q. When you described how he appeared to you, you described him as being, Just half asleep? A. Yeah. Q. That’d be accurate for all three events? A. Yes.

[67] During his cross-examination on discovery, Mr. Armstrong acknowledged that in the 41 pages of notes he provided for the appeal, he made no notes on whether he ever had a discussion with the appellant about having sex with the complainant, consensual or otherwise.

[68] He also agreed that he had no legal route to an acquittal based on automatism, and that he had no instructions from his client to raise that as a defence. Although defence lawyers often make decisions during the course of a trial without express instructions from their clients, raising a potential defence, which is inconsistent with a client’s version of events and for which there is no evidence in support, in the circumstances of this case amounts to incompetence.

[69] In G.D.B., at para. 34, the Court said the following:

Where, in the course of a trial, counsel makes a decision in good faith and in the best interests of his client, a court should not look behind it save only to prevent a miscarriage of justice. While it is not the case that defence lawyers must always obtain express approval for each and every decision made by them in relation to the conduct of the defence, there are decisions such as whether or not to plead guilty, or whether or not to testify that defence counsel are ethically bound to discuss with the client and regarding which they must obtain instructions. The failure to do so may in some circumstances raise questions of procedural fairness and the reliability of the result leading to a miscarriage of justice.

iv) If the answer is yes, did trial counsel’s ineffective representation cause a miscarriage of justice?

[70] Having found that there was ineffective assistance of counsel, I must now determine whether it has resulted in a miscarriage of justice. A miscarriage of justice will be made out when the ineffective assistance undermines the appearance of the fairness of the trial or the reliability of the verdict. The unreliability of the verdict is made out when the appellant establishes that there is a reasonable probability that the verdict would have been different had he received effective representation: see Cubillan, at para. 8.

[71] In this case, trial counsel failed to put the appellant’s defence before the court, that is, his absolute denial that the offences ever occurred. Instead, he raised a defence which was doomed to failure because it was unsupported by any evidence. This is an instance of ineffective assistance of counsel which rendered the verdict unreliable.

[72] In the circumstances, based on his instructions up until the date of trial, it is unclear what the trial strategy was to be once the appellant elected not to testify. Given the change of instructions, it would have been a more prudent course of action for counsel to seek an adjournment of the trial rather than to go ahead unprepared. On the totality of the circumstances, there is a reasonable probability that the verdict would have been different had the appellant received effective representation.

Conclusion

[73] I am satisfied that the appellant has established that he was provided with ineffective assistance of counsel at his trial that resulted in a miscarriage of justice. Accordingly, I would allow the appeal, quash the conviction on each of the three counts, and order a new trial.

Original signed by Justice Maria V. Carroccia

Maria V. Carroccia Justice

Released: March 7, 2022

Goderich Court File No.: CR-20-0009-00AP Ontario Superior Court of Justice Her Majesty the Queen – and – Vincent Bauer Decision on Summary Conviction Appeal Carroccia J. Released: March 7, 2022

Footnote: [1] Transcript of the Proceedings at Trial, Volume I, November 29, 2019, at p. 34, lines 1-10.