R. v. N.R., 2022 ONSC 2706

COURT FILE NO.: CR-19-00000047-0000 DATE: 20220513

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – N.R. Applicant

COUNSEL: G. Skerkowski, for the Crown S. Khehra, for the Applicant

HEARD: March 28, April 4 and 6, 2022

RULING ON POST CONVICTION MISTRIAL APPLICATION / MOTION TO REOPEN TRIAL TO ADMIT FURTHER EVIDENCE

Muszynski J.

[1] On April 8, 2021, I convicted the applicant, N.R., of sexual assault and incest following a four-day judge-alone trial.

[2] The complainant, S.R., was 24 at the time of the offence. I accepted her evidence at trial that N.R., her biological father, came into her bedroom on the morning of November 15, 2017, laid in her bed, gave her a massage, kissed her breast, and ultimately had non-consensual sexual intercourse with her while she lay in her bed in shock.

[3] After the conviction, but before sentencing, N.R. fired his trial counsel and retained his current counsel, Sandip Khehra. He then brought this application requesting that the court set aside the guilty verdict and grant a mistrial, or alternatively, reopen the trial and admit fresh evidence.

[4] The Crown submits that the application should be dismissed, and a date set for sentencing.

[5] There are two main issues to address:

a. Should the guilty verdict be set aside on the basis that there has been a miscarriage of justice due to the ineffective assistance of trial counsel? If so, what is the appropriate remedy?

b. Should the defence be entitled to reopen its case to admit fresh evidence in the form of DNA reports obtained following conviction? If so, what is the appropriate remedy?

JURISDICTION / PROCEDURE

[6] Although a finding of guilt has been made, since sentencing is outstanding, I am not functus officio and this application is properly before this court: see R. v. Ukwuaba, 2015 ONSC 8044, at para. 47; R. v. Kowall (1996), 108 C.C.C. (3d) 481 (Ont. C.A.), at p. 494.

[7] N.R. filed affidavit evidence in support of his application and was cross-examined in court. In making the allegation of ineffective assistance of trial counsel, N.R. was required to waive solicitor-client privilege so that trial counsel could respond to the allegations before the court. Trial counsel filed affidavit evidence and was cross-examined in court.

[8] The parties also filed trial transcripts, preliminary inquiry transcripts, trial reasons for judgment, text and email communications between N.R. and trial counsel, two DNA reports, and photographs of the foyer of N.R.’s home.

INEFFECTIVE ASSISTANCE OF COUNSEL

[9] N.R. has various grievances with respect to trial counsel’s professionalism, responsiveness, and his perceived lack of preparedness for trial. At the hearing of the application, however, counsel for the applicant confirmed that N.R.’s claim of ineffective assistance of trial counsel is limited to the allegation that trial counsel would not allow N.R. to testify at trial despite his desire to do so. The defence points to alleged deficits in trial counsel’s cross-examination of crown witnesses as evidence to support the argument that N.R. was prevented from testifying against his will. The applicant submits that the only remedy that would not result in a miscarriage of justice would be a declaration of a mistrial.

[10] The Crown concedes that if trial counsel indeed prevented N.R. from testifying at trial against his wishes, it would be a valid reason to either reopen trial or grant a mistrial. Of these two options, the Crown prefers to reopen the trial. However, the Crown points out that there are conflicts in the evidence regarding the decision to testify and that I should prefer the evidence of trial counsel over N.R. and dismiss this application.

Decision not to testify

[11] It is N.R.’s evidence that he wanted to testify in his own defence at trial. He claims that he expressed his desire to testify to trial counsel and was told:

a. He was not allowed to testify; and

b. The decision as to whether or not to testify was not up to him.

[12] Trial counsel’s evidence regarding the decision of N.R. to not testify at trial is as follows:

a. He told N.R. the decision to testify was his decision to make.

b. He never told N.R. that he was not allowed to testify.

c. Before the trial, he worked with N.R. to prepare him for the possibility of testifying.

d. N.R. offered to lie about whether his vasectomy worked.

e. Trial counsel told N.R. that he could not lie and would have to tell the truth if he testified.

f. During a trial preparation meeting, he asked N.R. questions he anticipated the Crown would ask in cross-examination. N.R. was not responsive to the cross-like questions.

g. They discussed whether N.R. should testify and trial counsel’s advice was to wait until the end of the Crown’s case before making a decision.

h. Before trial, it was trial counsel’s advice to N.R. not to testify at trial because:

i. He did not believe N.R. would be a good witness; and

ii. Testifying would expose N.R. to cross-examination about a Facebook Messenger conversation he had with S.R. after the offence wherein N.R. apologized and asked for mercy when there was no good explanation for those comments. Further, his prior sexual assault conviction could come up in cross-examination.

i. After the Crown closed its case, trial counsel asked for a recess to speak with N.R. about the possibility of testifying. Trial counsel told N.R. that while it was his choice to testify, it was trial counsel’s advice not to do so. Trial counsel provided reasons for his advice, which were largely unchanged.

j. N.R. made the ultimate decision not to testify.

[13] Besides N.R.’s evidence that he was told that he could not testify by his trial counsel, the applicant submits that the following points support their position:

a. Trial counsel did not prepare N.R. at all for cross-examination.

b. Trial counsel failed to put various defence theories to Crown witnesses that would have been required to comply with the rule of Browne v. Dunn (1893), 6 R. 67 (H.L.), had N.R. been permitted to testify as to his theory of the case.

[14] Emails and text messages between N.R. and trial counsel were filed into evidence on this application. In a text message from trial counsel to N.R. dated Wednesday February 17, 2021, trial counsel responded to an inquiry from N.R. as to whether there was enough time to prepare for the upcoming trial. Trial counsel stated:

We have the time to prepare. The most important prep is the prep for questioning Shanna and prep for questioning you and for the Crown’s questioning of you. This case is very serious. However, it is not overly complex. We have enough time.

[15] During the trial, while S.R. was being examined by the Crown, counsel asked the court to rule on the admissibility of text messages exchanged between S.R. and N.R. after the assault. In making his submissions, trial counsel stated:

[I]t’s important to have this litigated now, because like it will assist the defence, and certainly N.R. in assessing whether or not there’s a need for him to testify as well.

At least – and again, at least N.R. knows what use will be made, and whether or not he needs to answer to these text messages.

[16] Immediately after the Crown closed its case, trial counsel requested a 15-minute break to speak with N.R. After the break, trial counsel advised the court:

Thank you for that break to speak to my client. The defence does not intend to call evidence.

[17] Trial counsel did not obtain written instructions from N.R. confirming the decision to not testify at trial. Candidly, at the hearing of the application, trial counsel noted that if he had done so he likely would not have been in this situation.

Law and Analysis

[18] The test to establish ineffective assistance of counsel at this stage in the trial, post conviction and pre-sentence, is the same as on an appeal. The burden is on the applicant to establish:

a. The facts on which the claim is grounded (the factual component);

b. The incompetence of the representation provided by trial counsel (the performance component); and

c. A miscarriage of justice as a result of the incompetent representation by trial counsel (the prejudice component).

See R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at para. 48; R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 91.

The factual component

[19] The factual component is examined first since “there is no point in assessing the competence of unproven acts or omissions”: Fiorilli, at para. 49.

[20] The Crown concedes that if I accept N.R.’s evidence that he was not permitted to testify, the performance component and the prejudice component will have been satisfied.

[21] The onus is on the applicant to establish the facts on which the claim is grounded on a balance of probabilities. In this case, given how this application has been framed, N.R. must demonstrate that it is more likely than not that trial counsel did not permit him to testify in his own defence.

[22] In R. v. Archer (2005), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 141, Doherty J.A. outlines some considerations when allegations of incompetence of trial counsel arise following a conviction:

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.

[23] There are obvious conflicts in the evidence. Trial counsel testified that although he gave N.R. advice not to testify at trial for various reasons, he also let N.R. know that the decision was ultimately his to make. N.R. gave evidence that trial counsel would not allow him to testify, and he had no choice in the matter. Counsel for the applicant submits that the lack of written instructions should be considered to the benefit of N.R.’s position.

[24] In resolving the conflicts in the evidence, I am mindful of the above comments from Archer, as well as “the strong presumption in favour of counsel” when allegations of incompetence arise following a conviction: Archer, at para. 140.

[25] In addition to the presumption in in favour of trial counsel, who is an experienced criminal lawyer of 20 years, there is other evidence on this application that supports trial counsel’s version of events and directly contradicts the evidence of N.R. on this application. Specifically:

a. The text message from trial counsel to N.R. on February 17, 2021 that specifically mentions preparing for N.R.’s cross-examination.

b. The comment by trial counsel during trial regarding whether N.R. would need to testify about the text message exchange between N.R. and S.R..

c. The break requested by trial counsel after the Crown closed its case to allow him an opportunity to speak with his client, following which trial counsel advised the court that the defence would not be calling evidence.

[26] The applicant submits that trial counsel failed to confront Crown witnesses with various defence theories that N.R. would have testified about had he had the opportunity. The applicant takes the position that the failure to put these theories to the Crown witnesses in cross-examination would have offended the rule of Browne v. Dunn if N.R. had testified. Accordingly, it is argued that an inference can be drawn that trial counsel never intended to allow N.R. to testify.

[27] These theories include:

a. S.R. allegedly accused another family member of sexual assaulting her in the past.

b. S.R. had a motive to fabricate as N.R. had recently stopped supporting her financially.

c. N.R.’s ex-spouse, L.H., had a motive to fabricate as she and N.R. were amid a custody dispute.

d. A used condom was found in the home around the day of the alleged assault, which suggests that S.R. had sexual intercourse with someone else.

e. Finally, that there was collusion between Crown witnesses.

[28] I do not accept the applicant’s argument that the failure to put various defence theories to Crown witnesses supports the position that trial counsel never intended to call N.R. to testify at trial. Trial counsel provided reasonable explanations as to why he did not believe these theories would be helpful to the defence case, including not wanting to rely on outdated myths and stereotypes. While there are some fundamental decisions that must be made by the accused, such as the mode of trial, whether to plead, and whether to testify, as noted by Trotter J.A., “modern criminal practice assigns the vast majority of decisions in a criminal trial to defence counsel”: R. v. Trought, 2021 ONCA 379, 156 O.R. (3d) 481, at para. 46. Trial counsel would not have been obliged to question N.R. in a manner that would advance these theories even if he had testified. Accordingly, I find that trial counsel’s failure to “Browne v. Dunn” the Crown witnesses does not support the applicant’s position that trial counsel never intended to allow N.R. to testify at trial.

[29] N.R. not only had a motive to fabricate evidence on this application, which was to avoid incarceration, but I find his evidence to be self-serving and to lack credibility in certain areas, including:

a. N.R.’s explanation for obtaining DNA reports following his conviction simply does not make sense.

b. Trial counsel’s evidence, which I accept, is that N.R. offered to lie at trial.

c. On this application, N.R. produced photographs that he testified he provided to trial counsel before the trial. It was ultimately agreed, however, that the photographs in evidence on this application were taken the day following N.R.’s conviction. They could not have been shown to trial counsel before trial as they did not yet exist. N.R.’s explanation when confronted with this fact is that he must have shown trial counsel other photographs that were on his phone. I do not find this explanation convincing.

[30] I reject N.R.’s evidence that trial counsel would not allow him to testify at trial. I accept trial counsel’s evidence that, after providing advice, the decision of whether to testify was ultimately N.R.’s to make. N.R. has failed to prove, on a balance of probabilities, that his trial counsel would not allow him to testify in his own defence at trial despite wanting to do so.

The performance and prejudice components

[31] The applicant did not attack the quality of the advice given by trial counsel on the decision to testify. Rather, he testified that he was not given any advice, as he had no choice in the decision at all. As noted above, I do not accept N.R.’s evidence in this regard.

[32] I do accept trial counsel’s evidence that he provided N.R. with advice against testifying at trial together with a reasonable explanation as to why, in his view, testifying was not a good decision. This sort of advice is appropriate and, indeed, part of a counsel’s duty to their client: see R. v. K.K.M., 2020 ONCA 736, at para. 62. I do not find that the advice provided by trial counsel to N.R. fell below the standard of reasonable professional assistance in these circumstances.

[33] Trial counsel did not obtain N.R.’s written instructions regarding the decision not to testify. While it may be ill-advised, failing to obtain written instructions does not, in and of itself, establish incompetence of trial counsel: see R. v. W.E.B., 2012 ONCA 776, 366 D.L.R. (4th) 690, at para. 10, aff’d 2014 SCC 2, [2014] 1 S.C.R. 34; Trought, at para. 76.

[34] Given my findings, it is not necessary for me to consider the prejudice component or the performance component in any greater detail.

[35] Further, it is not necessary for me to consider the issue of remedy.

FRESH EVIDENCE APPLICATION

[36] As alternative relief, the defendant seeks to reopen the trial to admit fresh evidence. Specifically, the defendant wants to admit into evidence two DNA reports that he obtained following his conviction that he claims have the potential to affect the verdict.

[37] At trial, the Crown called Tricia Miller, a forensic science biologist from the Centre of Forensic Science, to give opinion evidence. Ms. Miller testified that male DNA was found on S.R.’s breast that, when compared with the DNA of N.R., was “estimated to be 2.1 quadrillion times more likely as belonging to N.R. then an unknown male.” Based on Ms. Miller’s evidence I concluded that it was N.R.’s DNA found on S.R.’s right breast. I found this scientific evidence to be consistent with S.R.’s evidence that N.R. kissed her breast. N.R. is not attempting to adduce any fresh evidence with respect to the DNA found on his daughter’s breast that I found belonged to him.

[38] Ms. Miller also testified at trial that a body fluid test was performed on S.R.’s underwear which revealed the presence of semen but no male DNA. Ms. Miller further testified that the lack of male DNA could be indicative of a male semen donor that had had a vasectomy. I accepted Ms. Miller’s evidence in this regard. In my reasons I stated:

I find that the presence of semen on S.R.’s underwear with limited male DNA is consistent with S.R.’s evidence regarding the sexual assault, and consistent with L.H.’s evidence that N.R. had had a vasectomy.

[39] N.R. seeks to reopen trial to admit fresh evidence that he says demonstrates that his semen is capable of producing male DNA.

[40] Following conviction, N.R. claims that he had his semen analyzed by “DNA Testing Centres Canada”. N.R. filed two documents into evidence on this application:

a. “DNA Detection Report”, dated May 5, 2021; and

b. “Supplemental DNA Detection Report”, dated May 19, 2021.

[41] The first DNA Detection Report is one page. N.R.’s name appears nowhere on this report. It states that a piece of “blue fabric” was analyzed. The report concludes “The DNA profile obtained from the blue fabric (item 40) is consistent with originating from a male donor. A comparison can be made if a male reference standard is submitted.” The report is authored by Stacy B. Martin, a forensic DNA analyst.

[42] The Supplemental DNA Detection Report is also one page. It states that a “reference standard from N.R.” was analyzed. The report concludes “The DNA profile obtained from the blue fabric (item 40) is consistent with the DNA profile obtained from N.R. (item 50). Therefore, N.R. (item 50) is the source of the DNA on this item.” The Supplemental DNA Report is also authored by Ms. Martin.

[43] N.R. does not deny having a vasectomy. Rather, it is his theory is that the vasectomy was not successful and that that the two DNA reports in combination show that his semen is capable of producing male DNA and, therefore, the semen detected in S.R.’s underwear, containing no male DNA, could not have originated from him.

Law and Analysis

[44] In Kowall, at pp. 498-99, the Court of Appeal for Ontario addressed the issue of post conviction applications to reopen trial to admit fresh evidence:

The test for re-opening the defence case when the application is made prior to conviction has been laid down by this court in R. v. Hayward (1993), 86 C.C.C. (3d) 193. However, once the trial judge has convicted the accused a more rigorous test is required to protect the integrity of the process, including the enhanced interest in finality. It seems to have been common ground in this case that the most appropriate test for determining whether or not to permit the fresh evidence to be admitted is the test for the admissibility of fresh evidence on appeal laid down in Palmer and Palmer v. The Queen (1979), 50 C.C.C. (2d) 193 (S.C.C.), at page 205 (S.C.C.) (see R. v. Mysko (1980), 2 Sask. R. 342 (C.A.)). That test is as follows:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases…;

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) The evidence must be credible in the sense that it is reasonably capable of belief;

(4) It must be such that if believed it could reasonably, when taken with the other evidence at trial, be expected to have affected the result.

These criteria provide helpful guidance to a trial judge faced with an application to reopen after conviction. In addition to the Palmer criteria, a trial judge must consider whether the application to reopen is in reality an attempt to reverse a tactical decision made at trial. 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. Should the trial judge find that the test for reopening has been met, then the judge must consider whether to carry on with the trial or declare a mistrial.

i. Due diligence

[45] Neither party focused to any significant degree on whether the proposed fresh evidence could have been adduced at trial with due diligence. Given my findings on the other Palmer factors, it is not necessary for me to consider this issue.

ii. Relevance

[46] There is no dispute that the proposed evidence bears upon a decisive issue at trial. S.R.’s evidence at trial was N.R. ejaculated on her body during the assault. Whether N.R. could be identified as the donor of the semen on S.R.’s underwear was a relevant issue at trial.

iii. Is the proposed evidence credible in the sense that it is reasonably capable of belief?

[47] At the hearing of the application, N.R. testified that prior to trial, he obtained a DNA report from a lab that concluded that his vasectomy was successful and that his semen contained no male DNA. This is supported by a text message from N.R. to trial counsel on November 17, 2020, wherein N.R. states “Hi Brian, I got my semen analysis done but it shows no sperm. I guess the vasectomy had worked after all…”

[48] This earlier report was not before the court. N.R. testified at the application that he eventually learned that the earlier test was not accurate. He alleges that he found out that the semen sample was supposed to have been supplied only after five days of abstinence. He reported that he had sexual intercourse and had ejaculated in the days prior to providing his sample to the first lab and therefore believed that the results were invalid. There is no independent information to support the assertion the earlier lab results were inaccurate.

[49] Following the conviction, N.R. claims that he decided to get his semen tested a second time. He testified that was in his regular bathroom at home in Kingston when he ejaculated onto a pair of his underwear. He claims that he then cut a piece of his underwear out, put it into a Ziploc bag, and delivered it to a lab located in the GTA for analysis. The first DNA Detection Report references a “blue fabric”. N.R. testified that this blue fabric was the piece of his underwear that contained his semen.

[50] Notably, neither DNA Detection Report mentions anything about semen. At trial, Ms. Miller testified that DNA can be found in bodily substances other then semen, including saliva, and skin cells more generally. There was no bodily fluid analysis contained in the DNA Detection Reports supplied by N.R.. In the absence of a bodily fluid analysis, and given the method of collection reported by N.R., I am not at all convinced that the DNA Detection Reports provide credible information about whether there N.R.’s semen is capable of producing male DNA.

[51] Further, the same credibility concerns that I addressed previously apply equally here. On this point, I note that Trial counsel testified that in preparing for trial N.R. offered to lie in court and give evidence that his vasectomy was unsuccessful.

iv. If believed, could the proposed evidence reasonably, when taken with the other evidence at trial, be expected to have affected the result?

[52] Aside from the issues that have been identified regarding the credibility of the DNA reports, when taken with the other evidence at trial, I would not expect the result to have been any different if the DNA reports had been in evidence.

[53] The scientific evidence was only one factor, and a minor one, that I considered in concluding that N.R. was guilty beyond a reasonable doubt of sexual assault and incest.

[54] In my reasons for judgment, I noted as follows:

A conviction for sexual assault can and often is based solely on the uncorroborated evidence of a complainant: Criminal Code of Canada, R.S.C., 1985, c. C-46 s. 274. I find that S.R.’s evidence in and of itself satisfies me beyond a reasonable doubt that she was sexually assaulted by her father as she alleges.

Admissibility of proposed evidence

[55] In addition to the Palmer criteria, on an application to reopen trial and admit fresh evidence, the court must also consider whether the proposed evidence is otherwise admissible.

[56] The evidence that N.R. hopes to adduce through the DNA Detection Reports is opinion evidence that is subject to the requirements that pertain to expert witnesses pursuant to s. 657.3 of the Criminal Code of Canada, R.S.C., 1985, c. C-46. There is no information about the qualifications of the author of the DNA reports. There is no affidavit by the author of the reports and, therefore, the Crown is unable to cross-examine the author about the methods of collection, the instructions received from N.R., or the reports’ conclusions.

[57] Neither the initial DNA Detection Report, nor the Supplementary DNA Detection Report, would be admissible at trial.

Conclusion – Proposed DNA Fresh Evidence

[58] I find that the DNA reports lack credibility, are inadmissible due to their failure to comply with s. 657.3 of the Criminal Code of Canada, R.S.C., 1985, c. C-46, and would not have affected the outcome at trial regardless. It is not necessary to consider the issue of remedy given these findings.

RULING

[59] N.R.’s application to set aside the guilty verdict and declare a mistrial is dismissed.

[60] N.R.’s application to reopen trial to admit fresh evidence is dismissed.

[61] This matter shall be put over to assignment court to set a date for sentencing.

Muszynski J.

Released: May 13, 2022