Court File and Parties

COURTFILE NO.: CR-22-0592-AP DATE: 2024 06 07

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

BETWEEN:

HIS MAJESTY THE KING Respondent – and – ANNISHA SERGEANT Appellant

Counsel: R. Raeesi, for the Respondent R. Mann, for the Appellant

HEARD: June 26 and November 21, 2023 and April 19, 2024

[On appeal from the judgment of Nadel J. dated November 30, 2022]

MILLER J.

Endorsement

[1] Annisha Sergeant was, on November 30, 2022, found guilty of assaulting her daughter between August 1, 2021 and August 31, 2021. The same date she was granted a conditional discharge and placed on probation for a period of one year. Annisha Sergeant appeals the finding of guilt.

[2] The primary ground of appeal is that Ms Sergeant received ineffective assistance from her trial counsel, which resulted in the miscarriage of justice, and that the finding of guilt was the direct result of the ineffective assistance received from the trial counsel at the trial proceeding. In particular Ms. Sergeant submits that trial counsel ignored her instructions that she wished to testify on the trial, and, in the alternative, if the Court accepts that she gave instructions not to testify, she did so on the incompetent advice of trial counsel. In either instance, she submits, the ineffective representation resulted in a miscarriage of justice, either by rendering the trial unfair or the verdict unreliable.

[3] In the alternative, and raised for the first time in final submissions, Ms. Sergeant submits that the trial court made an error in law and facts or an error in principle in making no finding in respect of the single charge before the court in respect of Assault with a Weapon, contrary to s.267 (a) of the Criminal Code. Instead the trial court entered a verdict of guilty in respect of Assault with a Weapon, contrary to s.267(a) of the Criminal Code, whereas the finding and judgment was reached in respect of Assault simpliciter contrary to Section 266 of the Criminal Code.

[4] The Crown’s position is that the Court should find, on a balance of probabilities, that Ms. Sergeant did give instructions that she did not wish to testify on the trial, and further that the advice given by trial counsel to that effect was competent advice. The Crown’s position is that the decision not to testify, in either instance, did not result in a miscarriage of justice, either by rendering the trial unfair or the verdict unreliable.

[5] In respect of the newly raised ground of appeal, the Crown agrees that the Reasons for Judgment support a finding of guilt on the lesser and included offence of Assault simpliciter rather than the charge of Assault with a Weapon. The Crown submits that this finding was erroneously entered as a finding of guilt for Assault with a Weapon on the Information and on the conditional discharge and probation documents, and should be corrected on appeal.

Law

[6] The parties agree on the applicable law with respect to ineffective assistance of counsel. In accordance with the Ontario Court of Appeal decision in R. v. K.K.M., 2020 ONCA 736 at paragraph 55:

An appellant who advances an ineffective assistance of counsel claim must show three things. First, the appellant must establish the facts material to the claim of ineffective assistance on the balance of probabilities. Second, the appellant must demonstrate trial counsel’s representation was ineffective. Trial counsel’s representation of an accused is ineffective only if it falls below what is reasonably expected of trial counsel in all the circumstances. Third, the appellant must show the ineffective representation resulted in a miscarriage of justice, either by rendering the trial unfair or the verdict unreliable: see R. v. Archer, at paras. 119, 202 C.C.C. (3d) 60 (Ont. C.A.); R. v. Qiu, 2010 ONCA 736, at paras. 6-8; R. v. D.G.M., 2018 MBCA 88, at para. 7; R. v. Stark, 2017 ONCA 148, at paras. 12-14; R. v. White (1997), 114 C.C.C. (3d) 225, at 247 (Ont. C.A.), leave to appeal to SCC refused, [1997] S.C.C.A. No. 248.

[7] Further, at paragraphs 62-63:

… Part of counsel’s duty is to advise an accused whether to testify. Counsel must ensure the accused understands it is the accused who must make that decision: R. v. Stark, at para. 17. Counsel must, however, arm the accused with the information needed to make an informed decision. That information includes counsel’s advice about testifying and the reasons behind that advice.

[63] Counsel’s conduct is measured against the standard of reasonable professional judgment: R. v. D.G.M., at para. 7, and by reference to the circumstances as they existed when the decision was made. Hindsight has no role to play. Advice and representation that were reasonable when provided cannot be made unreasonable by virtue of an adverse verdict: R. v. Archer, at para. 119; R. v. Fraser, 2011 NSCA 70, at paras. 53, 80. As stated by Major J., in R. v. G.G.B., 2000 SCC 22, at para. 27: The analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.

Fresh Evidence on the Appeal

[8] In this case I heard testimony from Annisha Sergeant and from trial counsel on the appeal. I also had the benefit of the transcript of the trial and text and email messaging between Ms. Sergeant and trial counsel both in preparation for and during the trial.

[9] While there were things trial counsel perhaps could have done better, for example, in reviewing disclosure more fully with his client, and getting instructions in writing from her with respect to her decision not to testify, I am satisfied on all of the evidence, that Annisha Sergeant did instruct counsel that she did not wish to testify on the trial, and simply began to second guess that decision during final submissions.

[10] I am not persuaded that trial counsel’s advice to Ms Sergeant not to testify amounts to ineffective assistance of counsel. I find it was reasonable advice based on the inroads on the credibility and reliability of the complainant that trial counsel had made in cross-examination. These problems in the credibility and reliability of the complainant were the subject of a significant part of the Reasons for Judgment, although the trial judge ultimately found he was not left in a reasonable doubt.

[11] In any event, I find that Annisha Sergeant is entitled to a new trial because of the merits of the newly raised ground of appeal.

The Error in Respect of the Verdict

[12] I am satisfied on a review of the trial transcript and the Reasons for Judgment, that the trial court made an error in making no finding in respect of the single charge before the court of Assault with a Weapon, contrary to s.267 (a) of the Criminal Code. The trial judge made a finding only that the complainant had been assaulted and made no finding whatsoever with respect to the alleged weapon, a belt, or any other weapon. Despite this the trial court entered a verdict of guilty in respect of Assault with a Weapon, contrary to s.267(a) of the Criminal Code.

[13] I am not persuaded that I can simply replace the verdict with a verdict of Assault simpliciter. The Reasons for Judgment are not so clear that was the intent of the trial judge and that the verdict entered was simply a clerical error. There is enough uncertainty that I am satisfied that the only proper disposition of this ground of appeal is to set aside the verdict and to grant Annisha Sergeant a new trial.

[14] Annisha Sergeant is ordered to attend Courtroom 104 at the Brampton Courthouse at 9 a.m. on Friday June 14, 2024 in order to set a date for a new trial.

MILLER J. Released: June 7, 2024