REASONS FOR JUDGMENT

On appeal from the convictions entered on April 29, 2016 by the Honourable Justice A. Di Zio of the Ontario Court of Justice.

SCHRECK J.:

[1] Kimberley McLenachan retained an experienced lawyer to represent her on charges of assault, threatening, mischief and forcible entry. She was found guilty following a trial and now submits that her lawyer was incompetent. Among other things, she alleges that he was unprepared, failed to provide her with proper legal advice, unnecessarily delayed the proceedings, brought a meritless stay application, called a witness who gave harmful evidence against her, and sexually harassed her. She has applied to admit fresh evidence supporting her allegations and submits that her counsel’s incompetence has compromised the reliability of the verdict and the fairness of her trial, requiring that her convictions be set aside.

[2] The respondent’s position is that Ms. McLenachan was competently represented and relies on fresh evidence from trial counsel. The respondent submits that many of her allegations lack credibility and that counsel’s conduct did not fall below the standard of competence.

[3] After reviewing the evidence and the submissions, I have concluded that not all of the appellant’s allegations of incompetence are made out. However, many are, and when all of the evidence is considered, it is clear that trial counsel’s conduct fell significantly below the standard of competence. Despite this, the appellant has not demonstrated that there is any reasonable probability that the verdict would have been different but for counsel’s incompetence. This case turned entirely on the credibility of the witnesses and the appellant has not demonstrated that any of the instances of incompetence would have affected the trial judge’s conclusions.

[4] I am, however, satisfied that counsel’s conduct compromised the fairness of the appellant’s trial. The evidence establishes that trial counsel sexually harassed the appellant. In my view, in a situation where defence counsel who is charged with the responsibility of defending the legal rights of an accused and protecting her interests abuses the power created by that relationship to sexually harass a client, public confidence in the administration of justice is undermined. Quite apart from this, trial counsel’s incompetence was so pervasive that there was a constructive denial of the assistance of counsel. Consequently, there must be a new trial.

[5] The following reasons explain my conclusions.

I. FACTS

A. History of the Proceedings

[6] The appellant was arrested on July 25, 2012 and charged with threatening death, breaking and entering a dwelling, assault and mischief to property under $5,000. On November 14, 2012, the original Information was withdrawn and replaced with a new Information in which a charge of forcible entry replaced the break and enter charge.

[7] The appellant’s trial was scheduled for one day on December 20, 2013. It ended up taking nine days interspersed with lengthy adjournments over the course of more than two and a half years. The appellant was found guilty of all charges on April 29, 2016.

B. Evidence at Trial

(i) Relationship Between the Parties

[8] The appellant had been in a relationship with Tom Snyder and had for a time lived with him at his house. The appellant is a hairdresser and was employed at a salon owned by Mr. Snyder. By the time of the events leading to the charges, the appellant’s relationship with Mr. Snyder had ended and she had moved out of his house, although she still worked at the salon.

[9] After his relationship with the appellant ended, Mr. Snyder began a relationship with the complainant. At the time of the events giving rise to the charges, the complainant was staying at Mr. Snyder’s house. Mr. Snyder’s 24-year-old daughter, Ashley Piccolt, also lived in the house.

(ii) Text Messages and Telephone Calls on July 24, 2012

[10] On the evening of July 24, 2012, the appellant and the complainant exchanged several acrimonious text messages and telephone calls. Mr. Snyder and Ms. Piccolt were present during some of the calls. Ms. Piccolt testified that she was standing next to the complainant during one of the telephone calls and heard the appellant say, “I am going to fucking kill you.”

[11] Several of the text messages between the appellant and the complainant were made exhibits at trial. The appellant acknowledged sending them but claimed that they were incomplete. The complainant agreed that some of the texts may have been lost when she damaged her phone.

(iii) The Events of July 25, 2012

[12] On the morning of July 25, 2012, the appellant went to Mr. Snyder’s home. According to the complainant, upon arriving the appellant began to kick the front door and scream that she was going to kill her. According to the appellant, she had gone to the house to retrieve some belongings.

[13] At some point, the appellant went to a side door which had a broken lock. The complainant testified that she told the appellant that she was trespassing and would have to leave, but the appellant attempted to enter the house and an altercation ensued. According to the complainant, her arm was scratched and the door was damaged during the altercation. The appellant testified that the complainant pushed her to the ground and began hitting her, causing injuries to her face and foot. However, when asked at the police station following her arrest whether she had any injuries, she stated that she did not.

[14] The complainant went into the house and called 911. She testified that she saw the appellant smash the window of her own vehicle and scratch the complainant’s vehicle with a key. The appellant testified that she broke her own window because she had accidentally locked the keys in the car. She denied scratching the complainant’s vehicle.

[15] The appellant was arrested as she left the property by police officers responding to the 911 call.

[16] Photographs of the complainant’s vehicle taken after the events show that the word “slut” had been scratched onto its surface. The complainant, Ms. Piccolt and Mr. Snyder all testified that this damage was not there before the appellant’s arrival.

C. The Trial Judge’s Reasons for Judgment

[17] The trial judge found that the appellant’s assertion that she had suffered injuries as a result of being hit by the complainant was false and that this coloured all of her testimony. He also concluded that she was inconsistent about what items she was at the house to retrieve, and found her evidence to be “occasionally evasive.”

[18] The trial judge found all of the Crown witnesses to be credible. He was particularly impressed by Ms. Piccolt, whom he concluded was impartial based on her evidence that she found the behaviour of both the appellant and the complainant to be “disgusting.” Ms. Piccolt confirmed the complainant’s evidence about the threat on the telephone on July 24 and her evidence that her vehicle had not been scratched prior to the appellant’s arrival.

[19] Ultimately, the trial judge concluded that he did not believe the appellant’s account, nor did it raise a reasonable doubt. He accepted the evidence of the Crown witnesses. As a result, the appellant was found guilty on all counts.

D. Fresh Evidence

[20] Both the appellant and trial counsel swore affidavits and were cross-examined on them. Their evidence as well as various additional documents were the subject of a fresh evidence application. The admissibility of the fresh evidence is not in dispute.

[21] The appellant obtained trial counsel’s name from a list provided to her by the Bail Program Office and retained him soon after her release from custody. She has no prior record and had never hired a criminal lawyer before. At the time, trial counsel had been practicing as a lawyer for 48 years.

[22] Both the appellant and trial counsel gave detailed evidence about numerous aspects of their relationship, legal advice that was or was not provided, and instructions that were or were not given. Their evidence is diametrically opposed on several issues. I will describe their evidence in more detail later in these reasons.

II. ANALYSIS

A. Ineffective Assistance of Counsel – General Principles

(i) Overview

[23] Every person charged with a criminal offence is entitled to receive effective assistance from his or her counsel. To succeed on an appeal on the basis that he or she did not receive the effective assistance of counsel, an appellant must show that counsel’s assistance was so ineffective that the conviction is the result of a miscarriage of justice: R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 57; R. v. R.S., 2022 ONCA 58, 160 O.R. (3d) 321, at para. 41; R. v. McDonald, 2022 ONCA 574, at para. 45.

[24] To succeed on an appeal based on a claim of ineffective assistance of counsel, an appellant must establish the following:

the facts on which the claim is grounded on a balance of probabilities;
that the representation provided by trial counsel was incompetent (the “performance” component); and
that there was a miscarriage of justice as a result of the incompetent representation (the “prejudice” component).

The burden on an appellant is “not easily satisfied”: R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 91; R. v. Cherrington, 2018 ONCA 653, para. 25; McDonald, at para. 45.

(ii) Establishing Facts

[25] The first requirement to establish a claim of ineffective assistance of counsel was explained by Paciocco J.A. in in R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at para. 51:

The factual component requires the appellant to “establish the facts material to the claim of ineffective assistance on the balance of probabilities”: R. v. K.K.M., 2020 ONCA 736, at para. 55. In determining whether an appellant has done so, allegations of incompetent representation must be assessed in light of the “strong presumption of competence in favour of counsel”: R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 140. Courts should also be mindful of the incentive there may be for a convicted appellant to make false allegations, particularly in light of the ease with which false allegations can be made, and the potential unreliability that can arise when events are recalled “through the bars of a jail cell”: Archer, at para. 142. As Doherty J.A. noted in Archer, at para. 141, “Common sense dictates a cautious approach to allegations against trial lawyers made by convicted persons who are seeking to avoid lengthy jail terms.”

(iii) The Performance Component

[26] In assessing the second requirement, the standard to be applied is that of reasonableness, that is, whether the acts or omissions of counsel said to be incompetent could not have been “the result of reasonable professional judgment”: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27; R. v. Prebtani, 2008 ONCA 735, 240 C.C.C. (3d) 237, at para. 3; McDonald, at para. 47. The competence assessment is guided by two overarching principles. First, there is a presumption that counsel’s conduct was reasonable: R. v. G.(D.M.), 2011 ONCA 343, 105 O.R. (3d) 481, at para. 107; R.S. (2022), at para. 43. Second, the reviewing court must apply a deferential standard in which hindsight plays no role: R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 119; Fiorilli, at para. 53; Joanisse, at para. 61.

(iv) The Prejudice Component

(a) The Two Types of Prejudice

[27] A miscarriage of justice can be established by demonstrating that counsel’s incompetence compromised the reliability of the verdict, the fairness of the proceedings, or a combination of both: McDonald, at para. 52; Girn, at para. 92. Determining whether trial counsel’s assistance resulted in prejudice is an intensely factual enquiry: McDonald, at para. 52, R.S. (2022), at para. 46.

(b) Reliability of the Verdict

[28] An inquiry into the reliability of the verdict is concerned with the confidence that can be placed in the validity of the result reached by the trier of fact: Fiorilli, at para. 57. The appellant must establish that there is a reasonable probability that the verdict would have been different with effective legal representation: R.S. (2022), at para. 44; McDonald, at para. 54; Fiorilli, at para. 59. In this context, a “reasonable probability” lies somewhere between a mere possibility and a likelihood: R.S. (2022), at para. 44.

[29] The inquiry must relate to one or more of the central issues at trial. Incompetence that relates to collateral facts does not necessarily undermine confidence in the result: R. v. Ally, 2022 ONCA 558, at para. 193. This was explained in R.S. (2022), at para. 48:

… [T]he impact of ineffective assistance on the reliability of the verdict depends on its severity and its proximity to the issue or issues at the root of a conviction. The appellant will not establish a miscarriage of justice unless they can inject doubt into the facts supporting the verdict. They must do so through probative evidence of sufficient persuasive weight to dislodge a verdict’s foundation. Put simply, the ineffective assistance of trial counsel will not disclose a reasonable probability that the result at trial would have been different unless the ineffective assistance threatens a pillar supporting that result.

(c) Trial Fairness

[30] The trial fairness aspect of the prejudice component was described in Fiorilli, at paras. 55-56:

The trial fairness branch of the prejudice component is concerned with the “adjudicative fairness of the process used to arrive at the verdict”: Joanisse, at p. 57. Occasionally, appellate courts refer to “procedural” fairness instead of trial fairness to describe this branch: see e.g., R. v. G.D.B., at para. 34; Prebtani, at para. 4. In Joanisse, when illustrating the kinds of infirmities in legal representation that might cause a trial to become unfair, at pp. 62-63, Doherty J.A. spoke of lawyers who are intoxicated throughout a trial, or who are acting in a conflict of interest. In such cases, the incompetence is so pervasive that it destroys the fairness of the adjudicative process at trial, thereby amounting to a constructive denial of the assistance of counsel: Joanisse, at pp. 62-63.

Some of the decisions that must be made during the course of a trial, such as the mode of trial, whether to testify or plead guilty, or whether to advance the defence of not criminally responsible, are so fundamental to procedural fairness that counsel’s failure to permit the appellant to make the decision, or to provide effective advice on the matter, can raise questions of procedural fairness: R. v. G.D.B., at para. 34; R. v. Trought, 2021 ONCA 379, at paras. 46-50.

[31] As noted in McDonald, at para. 56, the comments in Fiorilli about counsel’s failure to allow a client to make certain fundamental decisions must be read in light of the recent decision in R. v. White, 2022 SCC 7, 411 C.C.C. (3d) 419:

Although the failure to permit an accused to make those decisions or to receive effective advice on the matter may still raise questions of trial fairness, according to White (2022), in most cases, loss of choice is insufficient. Subjective prejudice must also be established. In White (2022), Karakatsanis J. also explained the ground of appearance of unfairness stating that the standard for establishing a miscarriage of justice on that basis is high [at para. 9]: “The defect must be ‘so serious that it shakes public confidence in the administration of justice’”.

[32] This aspect of the prejudice component is concerned with both the actual fairness of the trial as well as the appearance of fairness: R. v. Wolkins, 2005 NSCA 2, 229 N.S.R. (2d) 222, at para. 89. The latter is measured by the perception of a reasonable and objective observer and whether such a person would lose confidence in the administration of justice: R. v. Simpson, 2018 NSCA 25, 419 C.R.R. (3d) 174, at paras. 39-42.

B. The Approach to Be Taken in This Case

[33] The appellant submits that trial counsel was incompetent in several respects as outlined later in these reasons. Many of the alleged instances of incompetence are the subject of conflicting evidence from the appellant and trial counsel. With respect to the conduct of the trial, the appellant claims that she received very little advice from trial counsel and had virtually no say in how the trial was conducted. Trial counsel maintains that he discussed everything with the appellant and that everything was done on her instructions, or at least with her knowledge and consent. The appellant and trial counsel also disagree with respect to how much she paid in fees, whether she was provided with receipts, and whether trial counsel verbally and sexually harassed her.

[34] Given the conflicting evidence, I propose to first evaluate the evidence of the appellant and trial counsel with a view to making general findings of credibility. I will then consider each of the alleged instances of incompetence and determine whether the facts in relation to them have been established on a balance of probabilities.

[35] If the factual basis has been established, I will next consider the performance prong of the test. I recognize that appellate courts are encouraged to consider the prejudice component before assessing counsel’s competence because “[t]ypically, if no prejudice has been established, it is undesirable to consider the performance of counsel”: R. v. Lavergne, 2017 ONCA 642, at para. 17; G.D.B., at para. 29. However, in this case I will consider the performance prong in advance of the prejudice prong for two reasons. First, as will be seen, in my view many aspects of trial counsel’s performance were manifestly incompetent and this is not a case where an assessment of competence can be avoided. Second, the appellant submits that the cumulative effect of counsel’s conduct compromised the fairness of the proceedings, something which cannot be evaluated until all aspects of counsel’s performance have been considered.

[36] With respect to the prejudice prong, I will consider the potential effect, if any, that each alleged instance of ineffective assistance had on the reliability of the verdict. I will later consider the cumulative effect of trial counsel’s conduct in relation to the fairness of the proceedings.

C. Factual Findings

(i) The Appellant’s Evidence

(a) Credibility Concerns

[37] As noted, several aspects of the appellant’s and trial counsel’s evidence are diametrically opposed and some assessment of credibility is necessary.

[38] With respect to the appellant, I am mindful of the incentive a convicted appellant has to make allegations of incompetence. I must also consider the fact that the trial judge found the appellant’s trial testimony to be lacking in credibility. As well, I am troubled by some aspects of the appellant’s evidence on this appeal, particularly her claim that she cannot recall any of the events giving rise to the charges against her. As a result, I have concluded that the appellant’s evidence must be approached with significant caution.

(b) The Evidence of the Appellant’s Bail Program Supervisor

[39] The fresh evidence includes an affidavit from Michelle Moore, who was the appellant’s Bail Program Supervisor over a period of approximately four years. Ms. Moore has been a Bail Program supervisor for 22 years and has no relationship with the appellant other than as her supervisor. She kept notes of her contacts with the appellant and those notes are appended to her affidavit. Ms. Moore was not cross-examined on her affidavit.

[40] According to Ms. Moore, the appellant expressed concerns to her about trial counsel’s failure to keep her updated. Ms. Moore has notes with respect to this from as early as April 2013.

[41] Ms. Moore also deposed that the appellant had reported to her that trial counsel had made inappropriate sexual comments to her, given her unwanted hugs and had slapped her buttocks (allegations that will be discussed in more detail later in these reasons). Ms. Moore has a note from April 13, 2016 of discussions with the appellant regarding potential avenues of complaint against trial counsel to the Law Society or the police.

[42] I recognize that the appellant’s statements to Ms. Moore are prior consistent hearsay statements and, as such, inadmissible for their truth. They are, however, admissible to rebut the suggestion that the appellant fabricated her allegations about trial counsel’s conduct in an effort to have her convictions overturned because her statements to Ms. Moore pre-dated the convictions: R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at paras. 32-33; R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5. In my view, Ms. Moore’s evidence establishes that the appellant’s complaints about her trial counsel were not made up after the trial as part of an effort to set aside her conviction.

(c) E-Mail Messages

[43] Similarly, there was evidence that the appellant sent e-mail messages to trial counsel in December 2014 complaining about a lack of attention to her file. She also sent an e-mail in June 2016 requesting copies of receipts for payments she had made and detailed bills. Trial counsel denied having any recollection of receiving these e-mails, but did not dispute that they were sent.

(ii) Trial Counsel’s Evidence

(a) The Applicability of a “Deferential Standard”

[44] Counsel for the respondent submits that I should accept trial counsel’s evidence where it conflicts with that of the appellant on all issues, including those related to whether she gave certain instructions and received certain advice and whether he sexually harassed her, because the authorities require me to apply a “deferential standard” when reviewing counsel’s conduct. She submits that the application of such a standard is relevant to my assessment of trial counsel’s credibility. With respect, counsel for the respondent has misunderstood the authorities.

[45] The “deference” referred to in the ineffective assistance caselaw is related to the presumption of competence: R. v. M.M., 2018 ONCA 1019, at para. 2; R. v. R.W. (2006), 2006 CanLII 6195 (ON CA), 207 C.C.C. (3d) 137 (Ont. C.A.), at para. 71; R. v. Nelson, 2021 BCCA 343, at para. 44; G.D.B., at para. 27. It refers to decisions made by counsel in the discharge of his or her duties in representing the client, such as whether to call a certain witness and what questions to ask in cross-examination. An appellate court evaluating such decisions must do so with deference because “[t]he wisdom of hindsight has no place in this assessment”: G.D.B., at para. 27.

[46] However, the credibility of trial counsel who gives evidence in an effective assistance appeal is evaluated in the same way as the credibility of any other witness. Lawyers are not special witnesses presumed to be more credible than other witnesses. Deference has no role in a determination of whether a lawyer did or did not engage in certain conduct, but may have a role in assessing whether that conduct amounted to incompetence. Deference is irrelevant to determinations about conduct that could not be part of counsel’s discharge of his or her duties such as, for example, sexually harassing a client.

(b) Failure to Document

[47] I have several concerns about trial counsel’s credibility. First, he has no notes of any of his interactions with the appellant. The importance of such note-taking was discussed in R. v. M.H., 2017 BCCA 290, 350 C.C.C. (3d) 71, at para. 76:

Remarkably, [defence counsel] has no notes of this discussion. One would expect basic training for new members of the legal profession to include emphasis on record keeping, and on obtaining critical instructions in writing. Whether or not such training was provided to [defence counsel], there is no excuse for such critical confirmatory evidence to be missing, as has happened in this case.

See also R. v. D.A., 2020 ONCA 738, 396 C.C.C. (3d) 151, at paras.15-17; R. v. Lam, 2020 BCCA 276, 395 C.C.C. (3d) 150, at para. 59; Simpson, at para. 38.

[48] Trial counsel also failed to obtain written instructions from the appellant with respect to any decisions she made. The importance of such instructions was discussed in R. v. Trought, 2021 ONCA 379, 156 O.R. (3d) 481, at para. 77:

The lawyer who fails to obtain written instructions risks exposure to unfounded allegations of unprofessionalism: see Christine Mainville, “Professionally Serving and Managing Clients: Defence Counsel’s Role in the Solicitor-Client Relationship”, For the Defence, 39:3 (February 13, 2019), at p. 9. And although not indicative of ineffectiveness itself, the failure to obtain instructions may undercut trial counsel’s attempts to defend against claims of ineffectiveness.

(c) Failure to Produce the Appellant’s File

[49] Second, trial counsel obstructed attempts by the appellant’s appellate counsel to obtain his file. Appellate counsel first wrote to trial counsel on May 23, 2020 advising him of the appellant’s allegations of incompetence and requesting a copy of his entire file. A direction signed by the appellant and a waiver of solicitor-client privilege accompanied the letter. On June 20, 2020, over a month later, trial counsel sent an e-mail to appellate counsel acknowledging receipt of the letter and stating that he was “asking for an enlargement of time in order that I provide you will [sic] a fulsome response.” Appellate counsel responded with an e-mail on July 5, 2020 asking trial counsel how much time he needed. There was no response.

[50] On September 15, 2020, appellate counsel sent an e-mail to trial counsel repeating the request for the appellant’s file and requesting a response by the end of the month. On October 5, 2020, trial counsel sent a letter to appellate counsel advising him that the entire file had been transferred to Calvin Barry, a lawyer the appellant had retained following her conviction and before her sentencing. When appellate counsel inquired whether trial counsel had retained anything from the file, trial counsel sent him some miscellaneous documents, none of which related to communications with the appellant or billing.

[51] The appellant’s file had in fact been transferred to Mr. Barry on June 23, 2016. An affidavit from a student at Mr. Barry’s office stated that the file provided by trial counsel did not contain any work product or billing documents. That evidence has not been challenged.

[52] On April 23, 2021, appellate counsel sent an e-mail to trial counsel inquiring whether any work product in addition to what had been provided or any billing documents ever existed and, if so, whether he was in possession of them. On May 10, 2021, Gillian Hnatiw, a lawyer acting for trial counsel, sent appellate counsel a letter stating that trial counsel’s file had been transferred to Mr. Barry and that the file included “correspondence, disclosure, transcripts, notes, memos, client documents and other records.” I infer that Ms. Hnatiw received this information from trial counsel. However, as indicated in Mr. Barry’s student’s affidavit, the file did not contain any work product.

[53] Ms. Hnatiw also advised appellate counsel that trial counsel “believes that he also retained a small green folder containing the long-form, handwritten docket sheets he used to track his work” on the appellant’s file, but that it was destroyed in a fire at trial counsel’s home on December 21, 2020.

[54] Based on the foregoing chronology, it is clear that trial counsel was never in possession of any significant work product or billing documents and instead of acknowledging this, falsely suggested that it had been transferred to Mr. Barry. I also infer that the “small green folder” containing dockets never existed. If it had, there was no reason why it should not have been provided to Mr. Barry’s office together with the rest of the file in 2016 or to appellate counsel when he made repeated requests for it beginning in May 2020, long before the fire in December.

(d) The Purported Belief That the Trial Was to Be a Preliminary Inquiry

[55] After the appellant was arraigned on the first day of trial, December 20, 2013, trial counsel advised the court that it was his understanding that the matter was to proceed as a preliminary inquiry, not a trial. He told the trial judge that he had never seen the Information on which the appellant was arraigned. As noted earlier, the Information was sworn over a year earlier on November 12, 2012 to replace an earlier Information sworn on July 15, 2012 and had substituted a count of forcible entry, a hybrid offence, for the count of break and enter, which was strictly indictable. Trial counsel’s paralegal was present when the new Information was filed as well as when the appellant was arraigned.

[56] Crown counsel advised the trial judge that the original Information had been replaced and that following a judicial pre-trial on April 3, 2013, trial counsel had personally signed a “Case Management Form” confirming that the matter was to proceed as a trial.

[57] The trial judge took a recess to listen to the recordings of the proceedings on November 14, 2012 and April 3, 2013. With respect to the former, the trial judge confirmed that the old Information was withdrawn on November 14, 2012 and that the Crown elected to proceed summarily at that time. With respect to April 3, 2013, the trial judge advised counsel that he had heard trial counsel’s voice on the recording and trial counsel “specifically said that he was fixing a trial date for one day for December 20.” Based on this, the trial proceeded.

[58] It is clear from the foregoing that trial counsel was well aware that the matter was to proceed as a trial and that his assertion to the trial judge that he was unaware of the new Information and believed that the matter was to be a preliminary inquiry was simply untrue.

(e) Failure to Maintain Dockets or Billing Documents

[59] The fresh evidence makes it clear that trial counsel never kept dockets or provided the appellant with any statements of account or receipts for payments she made. He received most of the payments in cash except for a few cheques which the appellant wrote. The appellant testified that she was asked to leave the payee on those cheques blank and that someone later wrote in the name of trial counsel’s paralegal (who is apparently also his girlfriend). The cheques were made exhibits and it is clear that the paralegal’s name is written in different handwriting than the rest of the cheque.

[60] In his affidavit, trial counsel stated that he and the appellant had agreed on a “flat billing fee structure” of $200 per court attendance, $2500 for the first day of trial and $1000 for each additional day of trial. They had also agreed on a “pay as you go” arrangement and “Consequently, she never paid any funds into trust.”

[61] In his affidavit, trial counsel claimed that he had provided receipts for every payment he received from the appellant. During his cross-examination, he gave the following evidence:

Q. Did you receive cash payments from her?

A. Yes, sir.

Q. Did you give receipts?

A. Yes.

Q. Did you maintain receipts in accordance with your obligations under the Rules of Professional Conduct?

A. No.

Q. Why not?

A. This was my error.

Q. Did you ever provide accounts to Ms. McLenachan for services rendered?

A. Not that I recall.

Trial counsel was unable to say how much money he received from the appellant, although he disagreed that it was as much as she claimed.

[62] The appellant relies on the billing irregularities as evidence of incompetence. I do not view them as such as they have nothing to do with his effectiveness. However, I do view the billing irregularities as relevant to his credibility. Trial counsel was called to the Bar in 1973 and had been practicing for almost 40 years at the time he was retained by the appellant. He would have been well aware of the Law Society’s requirements respecting the billing of clients and the need to maintain financial records.[^1] He deliberately chose to ignore those requirements. I can think of no honest reason for doing so.

(iii) Weighing Competing Accounts

[63] Based on the foregoing, despite my concerns about the appellant’s credibility, I am generally satisfied that her evidence about trial counsel’s conduct and the communications between them is trustworthy. Trial counsel is not, in my view, a credible witness. Where his evidence conflicts with that of the appellant, I reject it. I will make more specific findings of fact as necessary when I consider each of the individual claims of incompetence.

D. The Appellant’s Claims

(i) Overview

[64] The appellant submits that trial counsel was incompetent in a number of respects, including

failing to explore the availability of mental health diversion;
failing to advise the appellant of resolution offers made by the Crown;
proceeding with a pre-enquête at which the appellant testified before receiving disclosure;
seeking an adjournment on the first day of trial on the basis that trial counsel thought it was to be a preliminary inquiry, notwithstanding that the Crown had elected to proceed summarily on an earlier date;
bringing a pointless and meritless stay application;
failing to explore the complainant’s criminal record in cross-examination;
conducting a pointless and repetitive cross-examination of the complainant;
being unprepared for a voir dire into the admissibility of the appellant’s statement to the police;
calling a witness without interviewing him first, knowing that the witness had an animus against the appellant and was likely to give harmful evidence;
failing to advise the appellant that she had the right not to testify;
inadequately preparing the appellant to testify;
failing to make meaningful closing submissions;
unduly delaying the proceedings;
charging the appellant excessive fees and failing to provide her with statements of account or receipts;
verbally and sexually harassing the appellant during the course of the retainer.

I will consider each of these claims, whether the conduct in question was incompetent and, if so, whether there is a reasonable possibility that the conduct affected the verdict.

(ii) Failure to Pursue Mental Health Diversion

[65] In her fresh evidence testimony, the appellant described suffering from anxiety, depression, bipolar disorder and addiction issues. In his testimony, trial counsel initially denied being aware that the appellant had any type of mental illness, although he later admitted that she had told him that she suffered from anxiety and depression and had been a patient at the Centre for Addiction and Mental Health (“CAMH”). He maintained, however, that he did not believe that she would qualify for mental health diversion.

[66] I accept that trial counsel did not explore the availability of mental health diversion. However, there is no evidence as to what the criteria for mental health diversion are. The appellant has not established that it is likely that she would have had her matter diverted or even that she would have been eligible to be considered. As a result, there is no basis on which to conclude that trial counsel was incompetent by failing to explore mental health diversion or that his failure to do so prejudiced the appellant.

(iii) Failure to Advise of Resolution Offers

[67] According to an e-mail from the Crown Attorney’s Office to appellate counsel, the truth of which is not in issue, the appellant was initially offered a conditional discharge in August 2012 if she pleaded guilty to assault and mischief. In February 2013, the Crown indicated that it would accept an absolute discharge if the appellant pleaded guilty to mischief and made restitution.

[68] The appellant testified that trial counsel never advised her of the Crown’s offer. Trial counsel testified that he did, but that she rejected all of the offers because she was unwilling to make restitution. However, Ms. Moore’s notes indicate that on April 5, 2013, trial counsel’s paralegal advised her that “the crown is not willing to make a deal.” On balance, I accept the appellant’s evidence that trial counsel did not advise her of the Crown’s offers over his denials and I find that his failure to do so fell below the standard of competence.

[69] I am not, however, persuaded that trial counsel’s failure to communicate plea offers to the appellant occasioned any prejudice as she has failed to establish that she would have accepted any such offer: White, at para. 6. When asked whether she would have been willing to admit to assaulting the complainant, the appellant responded, “Maybe, yeah.” In cross-examination, she clarified that she would have admitted to an assault, but only on the basis that she had touched the complainant’s wrist with her finger. The appellant testified that she would have been willing to admit to threatening the complainant, although in cross-examination she stated that she did not recall making a threat. When asked whether she would have admitted to damaging the complainant’s car, the appellant replied that she did not know. In cross-examination, she stated that she could not recall whether she had damaged the car. According to the appellant, she would have been willing to admit to forcible entry on the basis that she had put her arm into the house.

[70] In my view, it is unlikely that the Crown would have accepted the facts the appellant was willing to admit, some of which arguably do not even make out the offences. More importantly, the Crown’s offers were based on pleas to the offence of mischief and the appellant appears to remain unwilling to admit to having committed that offence.

[71] Even if the appellant could establish that she would have accepted a resolution offer and pleaded guilty, this would not have had any effect on the verdict as she would still have been found guilty. At best, the existence of the resolution offers might have been relevant to a claim of ineffective assistance of counsel in relation to a sentence appeal, which the appellant has not brought.

(iv) The Pre-Enquête

[72] Prior to the trial, the appellant swore a private information charging the complainant with assault. On August 8, 2012, she and trial counsel’s paralegal attended a pre-enquête held pursuant to s. 507.1(3)(a) of the Criminal Code where she gave evidence under oath in support of the charge against the complainant. A summons was issued to the complainant, but the charge was later withdrawn by the Crown on December 19, 2012.

[73] Trial counsel testified that it was his hope that based on the appellant’s pre-enquête testimony, the Crown would prosecute the complainant and withdraw the charge against the appellant. He was disappointed when this did not happen. According to him, the appellant was adamant about charging the complainant.

[74] At trial, the appellant testified that on July 27, 2012, after she was released from custody following her arrest, she called the police to report that the complainant had assaulted her. The police officers who responded to her call told her that she could lay charges against the complainant by seeing a Justice of the Peace and that she made plans to do so at that time.

[75] I am not persuaded that trial counsel demonstrated incompetence by assisting the appellant to proceed with the pre-enquête. While many lawyers would undoubtedly think twice before allowing a client facing criminal charges to provide their version of events under oath in a public forum prior to receiving disclosure, it cannot be said this tactic falls outside the range of reasonable options. Indeed, at one time it was common for lawyers to advise clients charged with assault to counter-charge the complainant. While trial counsel’s hope that the Crown would prosecute the complainant and withdraw the charge against the appellant was misplaced, I cannot say that it amounted to incompetence.

[76] More importantly, it appears from the appellant’s trial testimony that her decision to lay charges against the complainant was made prior to retaining trial counsel after this option had been explained to her by a police officer. In any event, trial counsel’s conduct did not prejudice the appellant. Although there was evidence at trial that the appellant had laid a charge against the complainant, she was not cross-examined on her pre-enquête testimony.

(v) Failure to Be Prepared on the First Day of Trial

[77] As outlined earlier, after the appellant was arraigned on the first day of trial, December 20, 2013, trial counsel claimed that he did not know that a new Information had been sworn and believed that the matter was to proceed as a preliminary inquiry. He was clearly not prepared for trial.

[78] Trial counsel’s failure to be prepared for trial and his false claim that he believed that it would be a preliminary inquiry clearly fall below the standard of competence. However, as it turned out, the complainant’s evidence was not completed on the first day of trial, it appears partly because other matters were dealt with earlier in the day and partly because trial counsel had to end early in order to attend a funeral. In all the circumstances, the appellant has not established that trial counsel’s lack of preparation on that date prejudiced her.

(vi) Failure to Explore the Complainant’s Criminal Record

[79] The complainant was 49 years old at the time of trial. On January 17, 1984, when she was 17 years old, she was convicted of concealing the body of a child.[^2] Trial counsel asked the complainant to confirm the record, which she did. He did not ask any other questions about it. The appellant submits that trial counsel was incompetent for failing to pursue “this meaningful avenue of cross-examination” and asking questions about the underlying facts.

[80] I reject this argument. In my view, it is doubtful that any reasonable trier of fact would have assigned any significance to the fact that a witness had, 29 years earlier and while a teenager, tried to conceal the fact that she had given birth to a baby who died. If anything, subjecting the complainant to such a line of questioning would have garnered her sympathy. Trial counsel’s competence is more likely questionable because he raised the issue at all rather than because he failed to pursue it.

(vii) The Cross-Examination of the Complainant

[81] Trial counsel cross-examined the complainant over the course of several days and the cross-examination occupies approximately 119 pages of transcript. The appellant submits that the cross-examination was “meandering, unfocused and often irrelevant” as well as “wholly ineffective.”

[82] The appellant’s description of the cross-examination is not inaccurate. Much of the questioning related to irrelevant and tangential issues, such as the complainant’s ability to correctly identify what breed of dog the appellant owned despite being a dog trainer. Indeed, Crown counsel made over 11 objections during the course of the cross-examination, mostly on the grounds of relevance. The trial judge gave trial counsel considerable leeway, although most of the Crown’s objections were, in my view, well-founded.

[83] At the same time, trial counsel’s cross-examination did manage to establish that the complainant had considerable animus towards the appellant and did expose some inconsistencies in her evidence, particularly with respect to her evidence about the appellant scratching her car.

[84] As noted earlier, the appellant bears the onus of establishing that counsel’s incompetence resulted in prejudice. In cases involving ineffective cross-examinations, this is usually done by pointing out inconsistencies about which the witness could have been questioned but was not: R. v. R.S., 2016 ONCA 655, 341 C.C.C. (3d) 530, at paras. 26-30; R. v. Cubillan, 2018 ONCA 811, 143 O.R. (3d) 376, at paras. 24-25; R. v. P.C.H., 2019 NSCA 63, 378 C.C.C. (3d) 129, at paras. 125-131. There is nothing of this nature in the record before this court. Based on this record, I am unable to conclude that counsel’s cross-examination was incompetent.

(viii) The Stay Application

[85] On the second day of trial, August 7, 2014, trial counsel questioned the complainant about a man sitting in the body of the court. The complainant explained that she first met the man that morning and it was her understanding that he was there “to support Tom [Snyder].” Trial counsel then asked that the complainant and the man in the body of the court be excused and both left the courtroom.

[86] Trial counsel advised the trial judge that the man in the courtroom, whose name was Aaron Orlik, dated the appellant about six years earlier and had been convicted of criminally harassing her by putting dead animals in her house.[^3] According to trial counsel, Mr. Orlik, who lived in Ottawa, was a member of the Hell’s Angels Motorcycle Club and an associate of Mr. Snyder who was likely there at Mr. Snyder’s behest. The appellant was extremely fearful of Mr. Orlik and it was her belief that the only reason he would have travelled to Toronto to observe the proceedings was to intimidate her. The trial judge observed that the appellant was crying while trial counsel made these submissions.

[87] Trial counsel submitted that Mr. Orlik’s presence in the courtroom necessitated a mistrial. Crown counsel objected to there being a mistrial, but submitted that it may be open to the trial judge to exclude Mr. Orlik from the courtroom pursuant to s. 486(1) of the Criminal Code if a proper foundation for doing so was established. He also pointed out that trial counsel could cross-examine the complainant and Mr. Snyder about Mr. Orlik’s presence and their involvement in his presence could be relevant to their credibility.

[88] In response to Crown counsel’s submissions, trial counsel indicated that he had reconsidered his position and was now seeking a stay of proceedings rather than a mistrial. He suggested that in addition to a stay, the appellant could be ordered to enter into a peace bond. After some further discussions, trial counsel indicated that he intended to bring a stay application supported by an affidavit from the appellant and evidence from CAMH about her mental condition.

[89] Crown counsel suggested that Mr. Orlik be excluded from the courtroom so that the complainant’s testimony could continue and that trial counsel could argue the stay application at a later date. Trial counsel did not agree and advised the trial judge that the appellant was too upset to continue. The matter was accordingly adjourned to November 20, 2014 for argument of the stay application.

[90] The stay application was not heard until March 20, 2015 because of trial counsel’s illness. It appears from the transcript that an affidavit from the appellant was tendered, but no mention was made of any medical evidence. Trial counsel made brief submissions during which he acknowledged that he had found no caselaw to support his position. The trial judge summarily dismissed the application. Trial counsel never applied to have Mr. Orlik excluded pursuant to s. 486(1).

[91] In his fresh evidence testimony, trial counsel maintained that he brought the stay application at the appellant’s insistence and had advised her that it was unlikely to succeed. The appellant testified that she did not discuss the stay application with trial counsel as she did not understand what it was and she denied instructing him to bring it.

[92] The appellant submits that the stay application was obviously devoid of merit and would not have been brought by competent counsel. The respondent submits that “[t]he decision to bring this motion was undertaken with the client’s instructions, cannot be judged using hindsight and falls within the range of reasonable professional assistance.”

[93] No competent lawyer would have brought this stay application. I accept that the application was brought without the appellant’s instructions. Even if she had instructed counsel to bring it, he should not have done so. Counsel is not obliged to take instructions on every decision made in the course of the trial and has an obligation not to do so where the instructions are contrary to the client’s best interests: R. v. G.K.N., 2016 NSCA 29, 372 N.S.R. (2d) 363, at para. 57; Joanisse, at paras. 110-111. The application had no legal basis, there was no prospect that it would succeed and it caused unnecessary delay. However, the meritless application had no effect on the verdict.

(ix) Calling Mr. Orlik as a Witness

[94] After the Crown closed its case, the first defence witness trial counsel called was Mr. Orlik, the individual who was the subject of the stay application. Trial counsel had not previously interviewed Mr. Orlik. He commenced his examination-in-chief by asking Mr. Orlik why he had been attending court, to which Mr. Orlik replied, “To see justice done.” Trial counsel then asked Mr. Orlik about his criminal record, which he stated was one conviction for theft under $5000. He later clarified that he had been convicted of criminal harassment in relation to the appellant, but the conviction had been reversed on appeal.

[95] Trial counsel confirmed that Mr. Orlik had been in a relationship with the appellant and then asked the following:

Q. And back then did – I’ll call her by her first name, because I have difficulty pronouncing her last name. Kim, did she have any emotional challenges, to put that word?

A. She was a violent alcoholic.

Q. I said emotional challenges? Do you know what that means?

A. I don’t know, can you elaborate?

Q. Anxiety disorders, hyper, needs medication, needs counselling?

A. Oh, she needed medication.

Defence counsel also asked Mr. Orlik whether he had attended court to intimidate the appellant, which Mr. Orlik denied.

[96] In response to an objection by Crown counsel at trial, trial counsel advised the judge that he had called Mr. Orlik to lay a foundation for a submission that he was there at the behest of Mr. Snyder to intimidate the appellant. During his fresh evidence examination, trial counsel gave a different explanation for calling Mr. Orlik as a witness:

My client kept telling me she didn’t want Mr. Orlik in the courtroom. And I told her that the motion had been dismissed, and another way of excluding a witness is calling them and asking that the witness then excluded [sic] for the rest of the case, and that was a tactic that might satisfy her concern that Mr. Orlik not be in the courtroom, so that is the reason I called Mr. Orlik.

Trial counsel later acknowledged that because he called Mr. Orlik as a witness first, the witness exclusion order would not have required him to remain outside the courtroom while the appellant testified.

[97] The appellant submits that trial counsel’s conduct prejudiced her because Mr. Orlik predictably gave bad character evidence against her, which trial counsel ought to have known would happen given the acrimonious relationship he had with the appellant. The respondent submits that calling Mr. Orlik was “within the range of reasonable professional assistance.”

[98] It is difficult to fathom what motivated trial counsel to call Mr. Orlik. Calling a witness who has not been interviewed is generally a risky strategy, all the more so when the witness has an animus against the defendant. Trial counsel’s explanation that he called Mr. Orlik in order to ensure that he was excluded from the courtroom makes no sense. Exclusion orders only apply before a witness gives evidence, so Mr. Orlik would have been entitled to remain in the courtroom. Trial counsel’s earlier explanation to the trial judge, that he was trying to lay a foundation for a submission that Mr. Orlik was there to intimidate the appellant, is perhaps more understandable, although trial counsel had no reason to think that Mr. Orlik would agree that he was attempting to intimidate the appellant.

[99] I do not agree with the respondent that calling Mr. Orlik as a witness was a reasonable option. In my view, no competent lawyer would have called him. However, the Crown did not rely on Mr. Orlik’s evidence and the trial judge made no reference to it in his reasons for finding the appellant guilty. As a result, the appellant has failed to establish that there is a reasonable possibility that the verdict was affected: R. v. Dyck, 2019 MBCA 81, at paras. 67-68.

(x) Failure to Advise the Appellant of Her Right Not to Testify

[100] The appellant testified that she did not have any discussions with trial counsel about whether she should testify and she was not told that she did not have to do so. The only conversation they had about testifying was when trial counsel told her that it was “just my turn to talk.” It was only after trial that she came to understand that she had a choice whether to testify.

[101] In his affidavit, trial counsel stated that he discussed testifying with the appellant and had raised concerns about inconsistencies in her version of events, but that it was her “steadfast position that the Court needed to hear her version of events at trial, as she was the one telling the truth.” There is no indication that he had any notes in his file about such discussions with the appellant, let alone a signed direction.

[102] For the reasons outlined earlier, I accept the appellant’s evidence that trial counsel did not give her advice about whether to testify. There is no doubt that counsel representing an individual at a criminal trial is duty-bound to provide his or her client with meaningful advice about whether to testify, including a review of the advantages and disadvantages of doing so: D.A., at paras. 30-33; G.D.B., at para. 34; Archer, at para. 139. Counsel’s failure to do so in this case amounted to incompetence.

[103] While a defendant is entitled to meaningful advice on fundamental decisions such as whether to testify, the failure of counsel to give such advice does not necessarily result in prejudice. This was recently made clear in R. v. White, a case where counsel had failed to give meaningful advice in relation to electing the mode of trial (at paras. 6-8):

… [W]e agree with Hoegg J.A., in dissent [2021 NLCA 39, 467 D.L.R. (4th) 29, at paras. 45-60] that ineffective assistance of counsel was not made out. Ineffective assistance has a “performance component” and a “prejudice component”: for such a claim to succeed, the appellant must establish that (1) counsel’s acts or omissions constituted incompetence; and (2) that a miscarriage of justice resulted (R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 26). Here, Mr. White failed to state that he would have chosen differently had counsel informed him of his right to elect his mode of trial. Even accepting Mr. White’s evidence that there was no discussion or consultation regarding his right of election, it did not rise to a miscarriage of justice in this case.

In G.D.B., the Court explained that counsel’s failure to discuss and obtain instructions on fundamental decisions relating to an accused’s defence “may in some circumstances raise questions of procedural fairness and the reliability of the result leading to a miscarriage of justice” (para. 34). Stark [2017 ONCA 148, 347 C.C.C. (3d) 73] itself recognizes this at para. 32. However, the Court has never provided that the loss of those decisions alone warrants a new trial on ineffective assistance grounds. To the extent that Stark suggests otherwise, it is incorrect. The accused must, in most cases, demonstrate more than the loss of choice.

Although it did not address ineffective assistance of counsel, the Court in R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, explained that to withdraw a guilty plea on the basis that the accused was unaware of legally relevant consequences, an accused must show subjective prejudice. Subjective prejudice demanded that an accused demonstrate there was a “reasonable possibility” they would have acted differently (para. 6). The Court was unanimous that a mere failure to exercise an informed choice was insufficient. In our view, these principles also apply to an accused’s election of the mode of trial.

[104] While White was about decisions pertaining to electing the mode of trial, I read White as applying to all “fundamental decisions relating to an accused’s defence,” including the decision whether to testify. The dissent by Hoegg J.A. in the Newfoundland Court of Appeal’s decision in White, with which the Supreme Court of Canada agreed, makes this clear: R. v. White, 2021 NLCA 39, 467 D.L.R. (4th) 29, at paras. 58-59, per Hoegg J.A., dissenting.

[105] There is nothing in the record before this court to indicate that the appellant would have made a different choice if she had been given proper advice about whether to testify. In fact, the appellant’s affidavit suggests that it is her intention to testify at a new trial should one be ordered. Based on this, the appellant has failed to establish prejudice.

[106] The prejudice at issue in White was the fairness of the proceedings rather than the validity of the verdict, but in my view the same considerations apply. In any event, given that the trial judge found the Crown witnesses to be credible, the absence of the appellant’s version of events could not have conceivably led to a different result.

(xi) Failure to Prepare the Appellant to Testify

[107] The appellant testified that trial counsel failed to prepare her to testify. Trial counsel maintains that he did, although he claims that the appellant cancelled several meetings. Once again, I prefer the appellant’s evidence.

[108] However, the appellant has not established that there is a reasonable possibility that the result would have been different if she had testified. Counsel has not pointed to any aspect of the appellant’s testimony that shows, for example, that she was confused or caught off guard, nor has the appellant testified about additional evidence she would have given if she had been properly prepared.

(xii) Failure to Prepare for a Voir Dire

[109] During the testimony of P.C. Besco, the police officer who arrested the appellant, the Crown proposed to play an audio recording of him advising the appellant of her right to counsel and cautioning her. When the trial judge inquired what the purpose of the evidence was, trial counsel responded that he was “trying to truncate and hopefully avoid a voir dire that might take about an hour and a half.” Trial counsel proposed that the audio recording of the caution and the right to counsel be played and “then there’d be a short break, and I’ll talk to my client because explaining voir dires to lay people, it takes a lot of explaining.”

[110] After the audio recording was played, trial counsel said:

I just need a five-minute break, Your Honour. I’d like to finish these off if we can today, to talk to my client. I have spoken to her at length, but it’s for her to digest those voir dire concepts, it may be a little bit – but I don’t need much time.

Following a 10-minute recess, trial counsel advised the court that he was conceding the voluntariness of a statement the appellant made on video to the booking officer at the police station in which she had said that she did not have any injuries.

[111] In his testimony, trial counsel stated that prior to trial, he had explained the concept of voluntariness and the need for a voir dire to the appellant. He was unable to recall whether he had ever shown the appellant the video of her statement to the booking officer. The appellant testified that trial counsel had never discussed the statement with her.

[112] The appellant’s statement to the booking officer that she had no injuries was of considerable significance at trial. It contradicted her testimony that the complainant had injured her and the inconsistency was part of the reason the trial judge rejected her evidence. I do not accept trial counsel’s evidence that he discussed the voluntariness of the statement with the appellant prior to trial. Had he done so, there would have been no reason for him to have audio recording of the appellant’s arrest played at trial or to request a recess so that he could explain “those voir dire concepts” to her. However, trial counsel did not require the appellant’s instructions to concede the voluntariness of the statement as this was not one of the fundamental decisions that only a client can make: G.D.B., at para. 34.

[113] Given the importance of the evidence, any reasonable possibility that the evidence could have been excluded would have amounted to a reasonable possibility that the verdict would have been different. However, the appellant has not shown any basis for concluding that the statement may have been inadmissible. There is nothing in the trial record or the fresh evidence of any threats, inducements or other factors which could have led to the statement’s exclusion. As a result, counsel’s decision to concede voluntariness did not amount to incompetence.

[114] That said, counsel had a responsibility to explain the Crown’s case and outline significant portions of the evidence. In my view, the failure to explain the statement and its potential significance did amount to incompetence, although it did not affect the verdict.

(xiii) Undue Delay

[115] The appellant’s trial was scheduled to take place on December 20, 2013 and last for one day. It ultimately took over seven days and did not conclude until April 29, 2016, about two and a half years later. The appellant submits that the delay was caused by trial counsel’s incompetence.

[116] An examination of the entire record reveals that delay can be attributed to three causes: (1) a gross underestimate of the time required to complete the trial; (2) trial counsel’s illness; and (3) the stay application.

[117] With respect to the first cause, trial estimates are the responsibility of both parties. While I have no doubt that trial counsel bore some responsibility for the inaccurate time estimate, the Crown must share some of the blame.

[118] With respect to trial counsel’s illness, while it was suggested to him in cross-examination that he was exaggerating in this regard, I am not prepared to make such a finding. It is clear that trial counsel did suffer a heart attack. While there is evidence that he appeared on behalf of other clients following the heart attack, this does not necessarily mean that he had fully recovered and would not suffer setbacks.

[119] Trial counsel’s decision to bring the stay application caused several months of delay. As noted earlier, the application was completely devoid of merit and should not have been brought. The consequent delay was therefore a result of trial counsel’s incompetence.

[120] While some of the delay can be attributed to trial counsel, the appellant has not established that this had any effect on the result. There was no s. 11(b) Charter application at trial or in this court.

(xiv) Closing Submissions

[121] Trial counsel’s closing submissions occupy about 39 pages of transcripts with an additional five pages in reply. Large portions of his submissions consisted of reading portions of an annotated Criminal Code and parts of the transcripts. At one point, he submitted that because Crown counsel had failed to specifically suggest to the appellant in cross-examination that the complainant had not assaulted her, there was a violation of the “rule in Browne v. Dunn”[^4] and as a result the Crown “can’t rely upon the evidence of [the complainant] what happened at the back door there.”

[122] Trial counsel’s closing submissions were not particularly persuasive and his understanding of the rule in Browne v. Dunn was erroneous: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at paras. 80-82. However, he did point out certain aspects of the complainant’s evidence that he submitted showed that she was lacking in credibility and did make submissions about why the appellant’s evidence should be accepted. On balance, I cannot say that the closing submissions amounted to incompetence.

(xv) Sexual Harassment

(a) The Appellant’s and Trial Counsel’s Evidence

[123] As outlined earlier, in her affidavit and fresh evidence testimony, the appellant stated that trial counsel had made inappropriate comments about the size of her breasts and about her body, lips and buttocks. There were occasions when he hugged her for inappropriately long periods of time. On one occasion, he smacked her on the buttocks while they were in the courthouse hallway. She reported this to Ms. Moore and they discussed the possibility of making a report to the Law Society or the police. Trial counsel denied engaging in any of this conduct.

(b) The Text Messages

[124] During trial counsel’s cross-examination, he was confronted with a series of text messages sent from a telephone number he had earlier identified as his. It was suggested to him that he had sent the messages to another female client. The messages appeared to be between a lawyer and client. Several of them mention trial dates, “recogs,” jail, Old City Hall (a Toronto courthouse) and Vanier (the name of the detention centre for women in the Greater Toronto Area) and one mentions that a person called Linda (the name of trial counsel’s paralegal) is “faxing in trial dates.”

[125] In one of the text messages, the sender suggests to the recipient that they “run away to Colombia” in the “same room and same bed.” The sender also says, “You need me to cuddle you and you would sleep like a baby” and then later, “If you are good you need a cuddle and if you are bad then you need a spanking.”

[126] In another message, the sender says, “I was most disappointed in your lack of appreciation after I got you out of jail.” In response to a question about whether someone called Khan had got out of jail, the sender states, “I got Khan out and she is here now in bed with me.” The sender later indicated that he was joking and Khan was still in jail.

[127] It was suggested to trial counsel that he had sent the text messages to a vulnerable female client. He responded, “These texts were not sent to Ms. McLenachan.” He gave the same response to every question about the text messages, but did not deny that he sent them or that the recipient was his client.

[128] Counsel for the respondent submits that the text messages are inadmissible because they are evidence of bad character. While there is a general exclusionary rule respecting evidence of bad character on the part of an accused, the rule does not apply to third parties: R. v. Watson (1996), 1996 CanLII 4008 (ON CA), 108 C.C.C. (3d) 310 (Ont. C.A.), at pp. 327-328; R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at paras. 32-33; R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at pp. 138-139. Such evidence is admissible unless it is irrelevant or its prejudicial effect substantially outweighs it probative value: Grant, at paras. 34-37; Watson, at pp. 327-328. There is no basis to exclude the evidence in this case.

[129] Given that the text messages emanated from trial counsel’s phone and his refusal to confirm or deny that he sent them, I have no difficulty concluding that he sent the messages and that the recipient was a female client.

(c) The Appellant’s Failure to End the Retainer

[130] In her cross-examination of the appellant and during her submissions at the hearing of the appeal, counsel for the respondent suggested that if the appellant had been sexually harassed in the manner she described, she would not have continued on as trial counsel’s client. The appellant’s response was that by the time this occurred, she had already paid so much towards trial counsel’s retainer that changing counsel was not feasible.

[131] There are two reasons why I do not accept the respondent’s submission that the appellant’s failure to leave the solicitor-client relationship is evidence that the sexual harassment did not occur. First, I accept the appellant’s explanation. Second, the submission is based on a stereotype that victims of sexual misconduct would be expected to avoid those responsible: R. v. A.R.J.D., 2017 ABCA 237, 55 Alta. L.R. (6th) 213, at paras. 42-44, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218; R. v. A.B.A., 2019 ONCA 124, 145 O.R. (3d) 634, at paras. 10-12.

(d) Factual Findings

[132] In my view, the text messages establish that trial counsel has a propensity, or at least a willingness, to engage in sexually inappropriate behaviour with his female clients. This conclusion in turn supports the appellant’s account. As noted earlier, the fact that the appellant discussed the sexual improprieties with Ms. Moore rebuts any suggestion that she fabricated them after being convicted in an effort to create grounds of appeal. Having considered all of the evidence, I am satisfied on a balance of probabilities that trial counsel made sexually inappropriate comments to the appellant, gave her unwanted hugs, and slapped her on the buttocks.

[133] The appellant does not suggest that counsel’s sexually inappropriate behaviour had any bearing on the verdict. I will therefore only consider it in relation to the fairness of the proceedings.

(xvi) Billing Irregularities

[134] My findings with respect to trial counsel’s failure to provide the appellant with any statements of account or receipts are outlined earlier in these reasons. While I view this as relevant to his credibility, I do not see it as relating to his competence.

E. The Fairness of the Proceedings

(i) Sexual Harassment

[135] For the reasons explained earlier, I am satisfied on a balance of probabilities that trial counsel sexually harassed the appellant during the course of their solicitor-client relationship. In my view, this alone compromised the fairness of the trial.

[136] As noted in R. v. Delchev, 2015 ONCA 381, 126 O.R. (3d) 267, at para. 58, “[t]he relationship between accused persons and their counsel is essential to the proper and fair administration of justice.” The Court also quoted with approval the following from an address given by Edward Greenspan, Q.C. (Edward Greenspan, Q.C., “The Role of the Defence Counsel in Canadian Society” (The Empire Club of Canada Addresses delivered at the Empire Club, Toronto, November 19, 1987):

No person is required to stand alone against the awesome power of the government. Rather, every criminal defendant is guaranteed an advocate -- a “champion” against a “hostile world,” the “single voice on which he must rely with confidence that his interests will be protected to the fullest extent consistent with the rules of procedure and the standards of professional conduct.”

And the role of the defence counsel, the obligation the community places on him, is a societal role -- to defend the constitutional guarantees of the presumption of innocence and the requirement that in our democracy no one can lose freedom unless and until the state can prove guilt beyond a reasonable doubt. Our community can retain justice and freedom only as long as it gives standing to one person to take, within the limits of the law, the defendant’s side in court and to remind society when the scales of justice are tilting in the wrong direction.

[137] Sexual harassment of the type engaged in by trial counsel is an “abuse of power” and “a demeaning practice, one that constitutes a profound affront to the dignity of the [person] forced to endure it”: Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252, at p. 1284; Hucsko v. A.O. Smith Enterprises Ltd., 2021 ONCA 728, 74 C.C.E.L. (4th) 196, at para. 42. It is also a betrayal of the obligation the community places on defence counsel and the relationship between the accused and her counsel. As held in Delchev, that relationship is essential to the proper and fair administration of criminal justice. Where the relationship is abused in the manner that occurred in this case, public confidence in the administration of justice is undermined.

[138] Not surprisingly, counsel have not provided me with any authorities where a claim of ineffective assistance was grounded on counsel’s sexual harassment of a client and I have been unable to find any. However, in McDonald, counsel was found to have been incompetent for failing to take steps to ensure that the defendant was not tried together with an individual who had a history of abusing her (at paras. 72-73):

In the circumstances of this case, where a victim of ongoing domestic abuse has been effectively tethered to the perpetrator of that abuse by virtue of a joint indictment, a failure of counsel to the abuse victim to explore severance is a fundamental deficiency that undermines the fairness of the abuse victim’s trial. It is also so serious that it shakes public confidence in the administration of justice.

Although I have serious doubts that the appellant is able to meet the requirements of the unreliable verdict branch of the prejudice component due to her reluctance to disclose the abuse to the trial judge, I am persuaded that in the unusual facts of this case, trial unfairness has been established.

In my view, if unfairness results from requiring an accused to stand trial with someone who has abused her, it also results from requiring an accused to stand trial while being victimized by the one person who had the responsibility of protecting her interests.

(ii) The Pervasive Nature of the Incompetence

[139] Quite apart from the sexual harassment, I am also of the view that trial counsel’s incompetence was so pervasive that it compromised the fairness of the trial. I have found that trial counsel’s performance was incompetent in several respects. He failed to advise the appellant of the Crown’s resolution offers, he was wholly unprepared on the first day of trial and falsely told the court that he believed there was to be a preliminary inquiry, he brought a meritless stay application, he called Mr. Orlik as a witness having never interviewed him and knowing that he had an animus towards the appellant, he failed to properly advise the appellant on several issues, including her options about testifying and the potential voluntariness voir dire, and he failed to prepare the appellant to testify.

[140] As outlined earlier, it is well established that the fairness of the proceedings is compromised where counsel’s incompetence is “so pervasive” that it amounts to a “constructive denial of the assistance of counsel”: Joanisse, at pp. 62-63. In some cases, the cumulative effect of numerous instances of incompetence impair the fairness of the trial even if they do not, alone or in combination, affect the validity of the verdict: M.H., at paras. 88-90.

[141] For example, in Simpson, which bears some similarity to this case, counsel caused inordinate delay, brought a meritless application (pursuant to s. 276.1 of the Criminal Code) and failed to prepare the client to testify. In allowing the appeal, the Nova Scotia Court of Appeal stated (at paras. 43-45):

Mr. Simpson’s trial cannot be seen as one that would reassure the public to have confidence in the administration of criminal justice. Its appearance was not of effective, dedicated representation. It was plagued by delays occasioned by Ms. McCarthy and the distractions of a proposed section 276.1 application that had no merit and never materialized. It was not characterized by a diligent preparation of Mr. Simpson for testifying.

There was nothing complicated about this trial. A reasonable member of the public would not view the representation provided to Mr. Simpson as emblematic of a fair trial. The Crown’s conceding of this appeal reflects that.

An accused’s entitlement to a fair trial includes the right to be properly prepared to testify in his own defence. A failure by trial counsel to discharge this fundamental obligation to a client can be enough to undermine the integrity of the trial process and the appearance of trial fairness, constituting a miscarriage of justice. We agree with the Crown’s conclusion that Ms. McCarthy’s representation of Mr. Simpson denied him the fair trial to which he was entitled.

III. DISPOSITION

[146] The appeal is allowed, the verdicts are set aside and a new trial is ordered.

[147] The appellant is to appear in the Ontario Court of Justice at a date and time agreed to by counsel to set a date for a new trial.

Justice P.A. Schreck

Released: November 1, 2022

[^1]: See Part V: “Record Keeping Requirements” of Law Society of Ontario By-Law 9 (2007).

[^2]: The Crown initially objected to the complainant being cross-examined on this because she was under 18 years old at the time. However, after counsel and the trial judge researched the issue, they all agreed that because the conviction occurred before the Young Offenders Act came into force on April 1, 1984, the applicable provisions were those of the Juvenile Delinquents Act, R.S.C. 1970, c. J-3 (“JDA”). The JDA only applied to an accused who was a “child,” which s. 2(1) of the JDA defined as “any boy or girl apparently or actually under the age of sixteen years, or such other age as may be directed in any province pursuant to subsection (2).” It would appear that the operative age in Nova Scotia, where the complainant was convicted, was 16: R. v. A.J.D., [1983] N.S.J. No. 115 (Fam. Ct.). Based on this, since the complainant was an adult according to the law in effect at the time, cross-examination on the record was permissible.

[^3]: It appears that the conviction was later set aside on appeal and Mr. Orlik was acquitted on the re-trial because the appellant did not attend to testify.

[^4]: The rule is named for the decision in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.).

REASONS FOR JUDGMENT

I. FACTS

A. History of the Proceedings

B. Evidence at Trial

(i) Relationship Between the Parties

(ii) Text Messages and Telephone Calls on July 24, 2012

(iii) The Events of July 25, 2012

C. The Trial Judge’s Reasons for Judgment

D. Fresh Evidence

II. ANALYSIS

A. Ineffective Assistance of Counsel – General Principles

(i) Overview

(ii) Establishing Facts

(iii) The Performance Component

(iv) The Prejudice Component

(a) The Two Types of Prejudice

(b) Reliability of the Verdict

(c) Trial Fairness

B. The Approach to Be Taken in This Case

C. Factual Findings

(i) The Appellant’s Evidence

(a) Credibility Concerns

(b) The Evidence of the Appellant’s Bail Program Supervisor

(c) E-Mail Messages

(ii) Trial Counsel’s Evidence

(a) The Applicability of a “Deferential Standard”

(b) Failure to Document

(c) Failure to Produce the Appellant’s File

(d) The Purported Belief That the Trial Was to Be a Preliminary Inquiry

(e) Failure to Maintain Dockets or Billing Documents

(iii) Weighing Competing Accounts

D. The Appellant’s Claims

(i) Overview

(ii) Failure to Pursue Mental Health Diversion

(iii) Failure to Advise of Resolution Offers

(iv) The Pre-Enquête

(v) Failure to Be Prepared on the First Day of Trial

(vi) Failure to Explore the Complainant’s Criminal Record

(vii) The Cross-Examination of the Complainant

(viii) The Stay Application

(ix) Calling Mr. Orlik as a Witness

(x) Failure to Advise the Appellant of Her Right Not to Testify

(xi) Failure to Prepare the Appellant to Testify

(xii) Failure to Prepare for a Voir Dire

(xiii) Undue Delay

(xiv) Closing Submissions

(xv) Sexual Harassment

(a) The Appellant’s and Trial Counsel’s Evidence

(b) The Text Messages

(c) The Appellant’s Failure to End the Retainer

(d) Factual Findings

(xvi) Billing Irregularities

E. The Fairness of the Proceedings

(i) Sexual Harassment

(ii) The Pervasive Nature of the Incompetence

III. DISPOSITION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 1

Legislation 3