Restriction on Publication

Pursuant to an order of this court, issued under s. 486.4(1) of the Criminal Code , no information that could serve to identify the complainant in this prosecution shall be published in any document or broadcast or transmitted in any way.

REASONS FOR JUDGMENT

MIRZA J.

INTRODUCTION

[ 1 ] This case raises an issue fundamental to the fair administration of criminal justice. An accused person that hires Defence counsel has a right to competent representation at their criminal trial. Competent counsel is essential for a fair trial,

an effective adversarial process, and a just verdict that serves to maintain the public’s confidence in criminal justice.

[ 2 ] On rare occasions, when a Defence lawyer fails to be competent, the result can be an unfairness warranting a mistrial.

[ 3 ] Defence counsel are typically extraordinarily hard-working, competent lawyers who are essential for a fair and effective trials. Accused people hire defence lawyers when they are facing serious charges on the reasonable expectation that their counsel has the ability to deal effectively with all legal matters to be undertaken at their trial. However, when a defence lawyer represents an accused at a criminal trial and their conduct exhibits a serious lack of sufficient legal knowledge, trial skills, and judgment resulting in ineffective representation, fairness and a reliable verdict are compromised. In that circumstance, the Court must carefully consider whether there is a real risk of a miscarriage of justice warranting a mistrial before deciding a verdict.

[ 4 ] A trial judge has a legal and ethical duty to act when the incompetence of the lawyer negatively affects the interests of justice. 1 As a matter of principle, since incompetent representation may result in miscarriages of justice that can impose severe consequences on accused persons, all justice system participants have a 1 Canadian Judicial Council, Ethical Principles for Judges, 2C6, at p. 23.

responsibility to guard against these risks, especially trial judges that must ensure the trial is fair.

[ 5 ] A trial judge is best situated to assess the risks to trial fairness caused by ineffective counsel since they deal directly with the parties and observe the impact of lawyer’s conduct in real time. A trial judge must not delegate their independent gate-keeping duty and find a person guilty at an unfair trial, because an accused can appeal. Trial judges are better placed than appellate judges to feel and weigh the consequences of incompetent representation.

[ 6 ] Ineffective representation that results in unfair criminal trials may be rare, but it is a serious concern for the justice system. Judges and lawyers recognize the severity of the problem in continuing education. Inquests identify the problem in reviews of wrongful convictions. However, it is seldom discussed in trial decisions even in circumstances when incompetence may be most apparent.

[ 7 ] In this case I find that the accused’s right to a fair trial was violated by ineffective representation by Defence counsel. I find that a just verdict is not possible in these circumstances. After considering other reasonable alternatives to a mistrial and the total circumstances, I conclude that an order for a mistrial is required.

OVERVIEW

[ 8 ] RE is charged on an Indictment with three counts of sexual assault of his daughter AE contrary to s. 271 of the Criminal Code . The counts pertain to three alleged groups of incidents that occurred between January 1, 2010, and December 31, 2013; January 1, 2011, and December 31, 2015; and January 1, 2017, and April 30, 2017, at the City of Brampton. 2

[ 9 ] The Crown witnesses are AE, and her brother and mother. The Defence called the accused’s two other older daughters, his brother, and a former roommate.

[ 10 ] The parties filed an agreed statement of facts (ASF) that provided a timeline of some parts of the personal history of the central witnesses.

[ 11 ] On December 6, 2024, after hearing closing submissions, the Crown consented to re-open to permit Defence counsel to ask the complainant and her mother additional questions due to a failure to do so earlier. This is because during closing submissions it became apparent that the Defence advanced submissions that were not adequately grounded in the evidence but were relied on to argue the accused’s position on reasonable doubt.

2 On December 4, 2024, the Crown requested on consent to amend the indictment to extend the time periods for counts 1 and 3 to conform with the facts pursuant to section 601 of the Criminal Code . The Defence consented and raised no concerns about prejudice to the accused or an injustice to the proceedings. I was satisfied that the statutory criteria were met and that the amendment was supported by the evidence.

SUMMARY OF EVIDENCE

Timeline

[ 12 ] The following general timeline and events help to situate the allegations.

I am summarizing the facts to assist with understanding the context that informs my analysis.

[ 13 ] The accused, RE, lived at the Ardglen Drive residence in Brampton Ontario, with his common law partner, MS, and his four children, AE, EE, AB, and ME, until sometime in 2012 or 2013.

[ 14 ] MS, AE, and EE moved out of the Ardglen residence to Windsor Ontario in March of 2015. The accused eventually moved into an apartment with two roommates.

[ 15 ] Following the funeral and the burial of RE’s father, a reception was held at a restaurant, in Brampton Ontario on 1 April 2017. RE, AE, EE, AB, and ME were all present at the restaurant, as was MS.

[ 16 ] RE’s father’s funeral was held on 1 April 2017 in Brampton, Ontario.

Witness Testimony

[ 17 ] In this summary of the witnesses’ evidence, the use of the term cross- examination of Crown witnesses is not in the normal sense of typically close-ended questions. Defence counsel asked almost entirely open-ended questions that

duplicated examination in chief and did not challenge the witnesses in an adversarial manner, with some exceptions noted. I have stated this at the outset to ensure that there is no misunderstanding of my summary of the evidence.

AE

[ 18 ] AE is the complainant. She is 19 years old. The accused, RE, is her father.

AE’s brother is EE.

[ 19 ] AE discussed her relationship with her father as strained and said that they were not close. AE’s parents separated around 2013.

[ 20 ] AE’s statement to the police of June 11, 2018, was admitted pursuant to section 715.1 of the Criminal Code . AE adopted the statement as true. She was 13 years old when she was interviewed. I will refer to this statement as the video- statement at times below to differentiate from her trial testimony, mindful that it is all admissible evidence.

[ 21 ] At trial, AE described the alleged incidents in reverse chronology. I will summarize them in chronological order because it better contextualizes the family circumstances and allegations.

First Alleged Incident at Ardglen Family Home

[ 22 ] Until around 2013, AE lived with her parents and three siblings in a home in Ardglen Brampton. AE has two older sisters ME and AME. She also has an older brother EE.

[ 23 ] AE normally slept next to her mother in the same bed in their own room.

She was more comfortable with her mother with her because of a fear of nightmares. Her mother MS and her siblings all described the room AE and her mother shared as a storage room that was converted to a bedroom.

[ 24 ] RE and EE normally slept in the same bed in a different room. The older sisters had their own room.

[ 25 ] AE alleges that on one occasion she and her brother EE, were both ill and they slept in their father’s room, all together on the same bed.

[ 26 ] On this evening, her mother and sisters were out of the home. AE believes her mother was visiting with her sisters that lived in the townhome complex. AE’s older sisters were at their friend’s home.

[ 27 ] In the bed that they all slept in, AE stated her father slept in the middle and she was on one side and her brother on the other side, next to the wall. There was no headboard. She believes that she was around five or six years old. Later she said she thinks she was about six or seven years old when the abuse started.

[ 28 ] AE stated that her eyes were closed the entire time, but she felt her father “hump” her from behind when she was sleeping. She realized this was wrong later in grade 5 after learning about sexual assault.

[ 29 ] She said that she had fallen asleep and was awoken by her father’s touching. She pretended to be asleep as it happened. She said that the humping lasted about 3 to 5 minutes. She described that she felt her father’s erect penis contact her body. She said that the touching was over the clothes. She said that her father did not touch her body such as her breasts, bum, or vagina. She heard moaning and sigh of relief sounds. She also said in her testimony after re-opening, that she could smell him.

[ 30 ] During Defence questioning, she said she was trying to fall asleep. RE came into bed trying to cuddle. The bed was double or queen size. She faced away from him and never turned around. He started humping her with an erection. She said her eyes were always closed. The lights were off. She also stated that she believed that he had his hand on her hip to hold her steady. She knew it was him even though her eyes were closed, and the lights were off, because it felt like a bigger figure of an adult body touching her. She said her father was overweight and she could feel his weight over her and an adult erection. She said she heard moaning sounds, the bed creaking, and blankets moving. He did not say anything. She was wearing night shorts, pajama pants, a Dora shirt with a picture on it and frills. They were under a large blanket.

[ 31 ] In cross-examination she was taken to p. 54 line 12 of her video transcript where she said, “I didn’t hear or see anything”. This was contrasted with her testimony that she did hear moaning and the shuffling of sheets. AE explained that in her transcript she is responding to the officer’s question asking whether she heard her father say anything to her, which she did not.

[ 32 ] After the touching, RE got out of the bed, and she sat up, confused, nauseous, and vomited on her brother who was still asleep.

[ 33 ] RE then came back to the bed and called her mother. AE said that the entire incident was about 3 to 5 minutes.

[ 34 ] RE contacted AE’s mother to come home to clean up the mess. The mother was out that evening and returned to clean up the children and bed. AE testified that her brother was already sick and had a fever. Her mother had to change his shirt due to the vomit and mess.

[ 35 ] Returning to the incident, AE said that she did not hear or see anything and did not realize what was happening at the time in the bed with her father and brother. Her brother was asleep. He was a heavy sleeper. Later EE would agree in his testimony that he was asleep.

[ 36 ] She did not tell anyone because she saw her father be violent with her sister and mom.

[ 37 ] In her evidence during re-opening, she said that she didn’t tell her father to stop because she didn’t know it was wrong at the time. She was asked if she thought he was trying to hurt her and said yes, sexually.

Second Group of Alleged Incidents: Apartment

[ 38 ] AE said that after her parents separated, her father moved out. She was in grade 2 or 3. AE said in cross-examination she was happy her father left the home.

[ 39 ] RE first moved into a home with his friend and her boyfriend. This was called the home at Winterfold.

[ 40 ] Later, RE moved into an apartment in Brampton, later identified by RE’s friend, MA, as an apartment called Knightsbridge. RE had a room in the apartment, which he shared with MA and her boyfriend.

[ 41 ] AE said that at both residences, RE had one room.

[ 42 ] When AE and her brother would visit their father at the Knightsbridge apartment and stay overnight, they all slept in the same bed in his room. Her father would usually be in the middle. She said that she would face away from him.

[ 43 ] She described that while in bed, her father would “hump” her. She said she wasn’t sleeping and neither was he. They both wore clothes. She would feel his erection, which she called a “boner”, and he would rub her thighs, breasts, and

touch at or near the upper part of her vaginal area but not inside of her pants. She said he would squeeze her breasts and sometimes it was hard and hurt. She would move around, and he would stop and try to wake her up.

[ 44 ] She also said that when she turned to face him, he did the same thing.

She would feel his erection at her vagina, over the clothes.

[ 45 ] In her video-statement, she said that when it was from behind it lasted three or five minutes. Later she said three minutes. She heard some sort of moaning, that sounded like humming. Then he fell asleep.

[ 46 ] When they faced each other, it was the same amount of time. His hands were on her butt.

[ 47 ] She testified that she said her eyes were closed and she assumed EE was always asleep. She said that RE would smoke, watch news, and when he thought she was asleep he would get into bed. She had some memories of him tapping her to see if she was awake. She said he smelled of cigarette smoke and cologne, sometimes beer as well.

[ 48 ] In cross-examination, she said her eyes were closed the entire time. She believed her father’s eyes were also closed. When asked if she ever felt his knee brush up against her, she said yes.

[ 49 ] In her video-statement AE said that the incidents happened over the span of two years, when she was between 6 to 8 years old. She testified that she

stopped visiting her father at the Knightsbridge apartment in the middle of grade 4 around the time she moved with her mother and siblings to Windsor.

[ 50 ] She said that she visited RE once every two months, for two years, on weekends, from Friday to Sunday afternoon. When asked by the officer about the number of visits, she said maybe around 24 times. She said that he did not touch her every time. Also, sometimes her brother would sleep next to RE but usually he did not like to sleep in the middle.

[ 51 ] In cross-examination, she was not sure how often she visited her father.

She said that she thinks she visited once every month or every two months. She estimated it was 24 times because it was twice a month.

[ 52 ] In re-examination, she was asked again. She went back over the visits and numbers and said there were 48 days, with 24 visits, and it happened half of those visits, which is 12 times.

[ 53 ] AE also stated that during some of these incidents, RE grabbed her hips and touched her chest. She described it as she was the little spoon, and her father was the big spoon. She said that he did not touch her inside of her clothes.

[ 54 ] She said that they would spend their time together having food, going swimming and then go to bed between 9:00 p.m. to 11:00 p.m. She said her father had an abnormal sleeping pattern.

[ 55 ] Before leaving this area, I will deal with AE’s additional answers to Defence questions after re-opening was granted. AE was asked by the Defence why she thought she was able to tell the difference between a knee and erection touching her while in the bed during the alleged incidents. She said she was able to tell the difference, not at the time but after when she became older and more aware. She explained an erection and a knee felt different. Even though she was facing away from the accused and did not see his erection, she stated that the accused, an adult, is bigger than her and his knee is bigger than an erection. She believed that she could tell it was his erection and not his knee touching her. She also stated that there were no objects in the bed that could have touched her.

[ 56 ] In re-examination she explained that RE’s legs were down, not curled. His knees would have been lower in relation to her smaller body. His erection contacted her butt.

[ 57 ] Also, AE responded to questioning about the possibility of some other person possibly touching her, by stating that there were no other persons than her father and brother in the bedroom on any of the occasions. She stated that at Knightsbridge, at no time did the accused’s roommates come into their room while they slept. Further, the accused is much bigger than her brother. She said that she knew her father was laying beside her based on his smell and size.

[ 58 ] AE was asked about her observations concerning her father’s schizophrenia. She said that at Ardglen, on one occasion she saw him speaking

to a tree. She also said that he would look at his hands and he would mumble to himself. She learned he had schizophrenia from her mother around grade 4 or 5. It did not occur to her that he was having an episode due to schizophrenia at the time of the incidents.

Restaurant Allegation

[ 59 ] AE further alleges that at a large reception with relatives held at a restaurant in Brampton immediately after her grandfather’s funeral around April 1, 2017, she sat next to her father at a long table.

[ 60 ] In her video-statement, she said that her father sat to her left on the end, and she could not recall who sat to her right. She believed no one sat there, but a person placed their purse there. Also present were her two sisters, uncle, aunt, and their two daughters. She testified that about 30 people attended. Her mother MS estimated about 50 people.

[ 61 ] In cross-examination, she said there were about 10 to 12 people sitting across from her.

[ 62 ] She explained that she froze with fear when her father touched her thigh.

[ 63 ] She said that while she was seated and eating, her father touched and rubbed her thigh, quad area. She said he was smiling at her. In her video-statement she said, “I was like what are you doing.”

[ 64 ] In cross-examination, she said that this thought was going through her mind, but she did not verbalize those words. She said that RE said to her that he missed her, and she should visit more often. He also mentioned that she needed to eat more.

[ 65 ] She also testified that his hand got close to her crease in her inner thigh, near the area of her vagina. She said he got within a couple of centimeters and she would move away. The pressure was hard. In cross-examination, she agreed that she did not tell the police about his hand going towards her vagina. She said she was not recalling as clearly when she spoke to the police and felt uncomfortable saying vagina. She said the touching on the thigh was for five to seven minutes.

[ 66 ] She also said after some time, she got up and her father rubbed her waist and then moved down to her bottom. He did not say anything.

[ 67 ] She said that she did not tell anyone at the time because she was afraid.

She said he had some mental problems such as schizophrenia and depression.

[ 68 ] In her trial testimony she said that he grabbed her bum when she stood.

She said he grabbed it for 30 seconds. In cross-examination, she said he was rubbing her back and then moved his hand to her butt. She said his hand was on her butt for a minute and he firmly squeezed. No one noticed. However, her mother was mouthing to her from her seat at another table, what’s wrong. She did not say

anything to her mother. She said she was afraid if she told her mother they would have to go to court.

[ 69 ] It was pointed out that in her statement AE said RE had mental health issues. She responded that she saw her father threaten to hurt her sister in the past during an argument when AE was about five years old. AE agreed her father never threatened her. She agreed that after she moved to Windsor, her mother told her that her father had gone to jail for hurting her. She said that her mother did not call her father names or discuss her relationship with her father.

[ 70 ] AE also said that she didn’t report the allegations earlier because she thought it was her fault. She said that she looked to her mom and her boyfriend.

[ 71 ] Her mother MS would later testify that she was at the restaurant sitting at a different table in the back and she saw AE looking over to her direction, appearing to be uncomfortable. But AE did not tell her she was touched.

[ 72 ] AE said that day she was wearing black leggings and a short sleeve top with lace, with her hair down and some sort of flower crown in all black. In cross- examination, she was shown a photo which showed her wearing a grey sweater, and she described her hair was up.

[ 73 ] The allegations were brought to the attention of the police when she spoke to her psychiatrist around May 22, 2018. The topic came up because she was having nightmares and trouble sleeping. She said that her mother was present for

the sessions. In re-opening, during cross-examination, she said the psychiatrist was not a therapist but prescribed her medication. She was not subject to any therapeutic techniques such as hypnosis. Her mother was present on the same couch when asked about her relationship with her father.

[ 74 ] The mother testified that she told the psychiatrist that she wanted AE to speak about her relationship with her father, without knowing at the time there had been sexual abuse allegations.

[ 75 ] AE denied that she fabricated the allegations because she was angry at RE for not being a good father. She said that she does not communicate with her mother much anymore.

[ 76 ] AE was shown photographs of her with her family on a different occasion at the Mandarin restaurant, and another photo of AE and her brother at what appeared to be a fast-food restaurant. For the photo at the Mandarin, she did not recall the year or month but said it may have been for a special occasion such as the anniversary of her grandfather’s death. The fast-food place was a place RE may have taken them. RE would take them out for food, the store, and the pool at his apartment.

[ 77 ] ANE, the accused’s brother, testified that he took AE to the Mandarin for a birthday celebration in August 2016.

EE

[ 78 ] EE is AE’s older brother. He is 20 years old and a year older than AE.

[ 79 ] He said that he moved out of the Ardglen house in 2015 when he was 9 years old.

[ 80 ] His father moved out around 2013 to 2014.

[ 81 ] He confirmed the sleeping arrangements and room sharing at Ardglen described by AE.

[ 82 ] He recalled one time that AE shared his and RE’s bed. He was between ages 6 to 8 years old, between grades 1 and 3. He was told in the morning his sister threw up on him, but he did not recall being awake. He believes he was a deep sleeper. He remembered his mother was not home earlier. He woke up with new clothes on. He did not recall waking up.

[ 83 ] In cross-examination, he said his mother had gone out with friends. He did not remember the time he went to sleep.

[ 84 ] He described that he slept against the wall, his sister was in the middle and his father on the other side, which he said was the edge. There was no headboard.

[ 85 ] He recalled that after his father moved out, his father moved into a home in a suburb and then into an apartment. At the apartment, he lived with Neil and Michelle.

[ 86 ] He remembered visiting his father at the home. AE and their mother would accompany him and then leave. He would stay overnight.

[ 87 ] At the apartment, AE would join him. He said it was mainly during the summer.

[ 88 ] Unlike AE, he said that they visited about three to four times. He said the pattern was every few months. They would stay over for one or two nights.

[ 89 ] They stopped visiting when his mother got engaged around March 2015 and they moved to Windsor.

[ 90 ] During the visits with their father, they slept in their father’s bedroom on a double sized mattress. He slept against the wall, and either his dad or AE were in the middle.

[ 91 ] He did not observe any physical interactions. He did not hear any noises.

[ 92 ] EE recalled that his grandfather passed away around 2018 to 2019. He thought it was between November and February. It is not disputed by counsel that the grandfather passed April 1, 2017.

[ 93 ] He recalled a lot of people at the restaurant after the burial. They sat at a long table. He sat on his father’s right side. AE sat on the left side. His cousin and two older sisters were also at the table. He did not recall how long they were there.

MS

[ 94 ] MS is AE’s mother. She was the accused’s partner for 22 years. Their relationship ended in 2012.

[ 95 ] She stated that she lived with her children at Ardglen until 2015 when they moved to Windsor.

[ 96 ] MS confirmed that she normally slept in a room and shared a bed with AE and that EE and RE had their own room with one bed.

[ 97 ] MS similarly described the occasion at Ardglen where AE and EE slept in the same room with RE. She said that EE and AE were about 6 or 7. (She initially said 7 or 8 years old.) She said she was at her sister’s house who lived next door. She got a text from RE that AE had thrown up. She came home and saw them in the bed. AE had already thrown up on EE. She took AE and EE to the bathroom to clean them and then cleaned the bed up. In cross-examination she said that RE helped. After this incident she took AE to their room. AE did not say anything happened.

[ 98 ] MS said that RE moved out to Winterfold and then to the Knightsbridge apartment in Bramalea, where he lived with Michelle and her boyfriend. At that

apartment EE and AE would visit. MS did not recall AE visiting RE when he was at Winterfold.

[ 99 ] MS said that at Winterfold, EE stayed over two or three times.

[ 100 ] AE would visit her father based on an informal arrangement. The first year after RE moved out she said AE would not go to see her father as much. EE would go on some weekends. After RE moved into the apartment in 2015 they would visit him once a month or every other weekend. It depended. It was mostly on Saturday or Sunday, and for one or two nights. On some occasions they spent the Sunday with RE and came home.

[ 101 ] MS said the kids went to visit their father about 10 times in one summer.

In cross-examination she said she was guessing it was 10 to 12 times, but she did not know for sure.

[ 102 ] She saw the sleeping arrangement as RE had his own room and the queen size bed that was taken from Ardglen.

[ 103 ] MS said that at times AE did not want to go. She was shy and close to her mother. MS would tell her she had to go.

[ 104 ] MS described that when AE came home, she was angry or standoffish.

MS thought that RE favoured EE over his daughters. MS did not explain if she spoke with AE about being angry and why.

[ 105 ] AE disclosed to her the allegations during an appointment at a psychiatrist. MS wanted to get to the bottom of what was wrong with their relationship. She saw that AE would avoid speaking to her father when he called. In re-examination (during the re-opening) MS said AE would hide in the closet.

[ 106 ] MS was in the room for the full session with the psychiatrist.

[ 107 ] In re-opening questioning, MS was asked about the purpose of the visit.

MS said it was to see the psychiatrist and the doctor asked what you would like to discuss, and MS said she would like to speak about her father. AE clammed up and made “hmm” noises.

[ 108 ] In cross-examination, MS agreed that the children would see her and RE have arguments. She agreed she told AE that she was not happy with RE.

[ 109 ] In re-examination, during re-opening MS said she did not suggest to AE that she was abused by her father.

[ 110 ] MS said that when she asked AE why she doesn’t like RE, AE would clam up and make noises or sounds akin to humming. The sound she used to describe the sound was the same that AE made when asked by the psychiatrist about her father.

[ 111 ] MS attended the funeral reception. She believed it was on March 26, 2017. The kids sat with the siblings and family. AE sat next to RE. MS did not see who was on the other side but assumed it was a sibling; she thought it was her

sister. MS and her boyfriend sat at another table at the back, a couple of feet away. She said in retrospect that AE seemed uncomfortable. She said that AE kept looking at her, and she thought that AE was making sure she was there. AE did not say anything. They were at the restaurant for an hour or two.

[ 112 ] MS did not see anything inappropriate at any time transpire with RE.

[ 113 ] During re-opening questioning by the Defence, MS was asked about RE’s schizophrenia. She said he had hallucinations of hearing people tell him stuff and would have conversations with people that were not there. He took medication but that did not stop those symptoms. In re-examination (during the re-opening) she said he would blurt things out, and she saw him talking to a tree once. He banged cupboards to the point that they came off of the hinges. He also drew on the wall.

DEFENCE WITNESSES

AGE

[ 114 ] AGE is the accused’s brother. They live in different communities, so they do not see each other often. They were close when they were young. He spoke with RE before the trial to wish him well. He is aware of the charges and found them hard to believe.

[ 115 ] When RE lived at Ardglen AGE would drive by with his father, the children’s grandfather, to say hello. He described having a typical uncle relationship with the accused’s kids.

[ 116 ] He said that he last spoke with AE at his dad’s funeral.

[ 117 ] When RE was living at Knightsbridge, it was around 2014 to 2016. AGE would take his father (the children’s grandfather) to see the kids there when he knew they were visiting their father. RE did not have a car and could not bring them to see their grandfather.

[ 118 ] AGE said it was the summer. He saw them three times that summer. He said that RE would usually tell him when the kids were visiting. He also told him when the kids were not coming over. He believed that he knew about each time the kids visited RE. He went over the apartment and would pick them up. AGE agreed in cross-examination that there may have been times when the kids came over and he was not able to go or was not aware. He agreed that he did not visit RE every weekend. He also did not communicate with him every weekend.

[ 119 ] He described the days he visited with his brother and niece and nephew.

He said he saw that the kids would use the pool. RE would tell him about the kids enjoying the pool. He said he had three specific memories. On July 5, 2015, he took the kids to Tim Hortons for some treats after a visit to the cemetery to visit their grandmother. On August 23, 2015, they went to the Mandarin for birthdays. They took some photos of that occasion. In June 2016, they went out for Father’s Day. The kids were living in Windsor during the period of these visits.

[ 120 ] AGE was present at the funeral reception and described his observations at the restaurant. He thought that 50 to 70 people attended. It was full.

[ 121 ] He said that the immediate family sat together in the same area and at the same table. He would get up to greet people coming through. He would see RE and AE when he returned to the table. In cross-examination, he agreed that he did not have his eyes on AE or RE the entire time.

[ 122 ] Since 2018, he saw AE and EE twice. They went to Mandarin restaurant together to celebrate a birthday and went out for Father’s Day.

[ 123 ] He said that his understanding was that the parenting schedule was informal between RE and MS. He was not aware of the intended frequency.

MICHELLE

[ 124 ] Michelle is RE’s close friend and former roommate. She has known RE since 1998. They used to be neighbours and met through a mutual friend. She speaks to him regularly.

[ 125 ] Michelle testified on consent remotely. She testified after AE’s older sisters. I am reviewing her evidence first because it was relatively more pertinent than some of the other defence witnesses.

[ 126 ] RE lived with Michelle and her boyfriend at the apartment at Knightsbridge after he moved out from Ardglen. RE also lived with Michelle at Winterfold earlier around 2013.

[ 127 ] Michelle did not work. She said she was home most of the time due to her health condition.

[ 128 ] Michelle said that RE’s children visited him two to three times at the most during summer. They would come over and stay overnight with RE in his room.

[ 129 ] During their visit RE would take them out for food, go to the mall, and go to the outdoor swimming pool. She said the children were happy.

[ 130 ] She said that she did not go with them to the mall or go into his bedroom.

However, from what she saw, nothing inappropriate happened.

[ 131 ] Michelle was cross-examined on her memory and maintained that the children came over only two to three times. She said she knew because it was her home, and she was present.

[ 132 ] She disagreed that they came over once a month or every other week.

She disagreed they came over more than three times. She said she remembered that they went swimming each time. She described the routine: go to pool; take them to mall for a while, buy them Chinese food (delivery or take out), and go in the room to play games together. She could not recall the exact time or months.

[ 133 ] She said that she was shocked by the allegations and thought that they were insane. RE told her he was charged and the number of times he was accused of touching AE. She did not discuss details of RE’s version of what happened.

[ 134 ] She denied that she was biased or not telling the truth. In particular, she refuted that she said the children came over not more than three times because she spoke with RE about the allegations. She explained that RE told her that he was accused of touching multiple times, and she knew the kids had only been to the house a couple of times.

ME

[ 135 ] ME is the older sister of AE. She is 9 years older. She was called as the first defence witness.

[ 136 ] ME and AE speak occasionally and no longer live in the same home.

They communicate over social media or texts.

[ 137 ] ME does not have much of a relationship with her father. She did not visit him. She saw him at family events.

[ 138 ] While living at Ardglen, ME said that she shared a room with AB. AE had the storage room as her bedroom, her mother and father had their own room, and EE had his own room. ME and AB shared a room. She remembered her mother often sleeping with AE.

[ 139 ] She did not recall AE sleeping in the same bed as her father.

[ 140 ] ME said she was rebellious and “not the best kid.” She said she went out often and came home late. Her parents would get upset. She spoke about arguments with her mother and father. There was a physical incident with her father with some pushing and shoving. Both parents threatened to kick her out of the house. She and AB moved out of Ardglen in October 2014.

[ 141 ] She did not remember when her father moved out. She did not visit him.

She did not know when or how often AE and EE visited their father; she thought it was on the weekends.

[ 142 ] ME was at the funeral reception. She thinks it was on April fools’ day. She sat next to her dad or close to him.

[ 143 ] There were over 50 people present. She sat at the long table. She said RE sat close to her with AB. She saw AE. She did not see anything inappropriate. AE did not mention anything at the time.

[ 144 ] ME got up a few times to get food. She didn’t remember when she left.

She did not remember the timeframe.

[ 145 ] AE told her about the charges two years ago or before her grade 8 graduation.

[ 146 ] She said that AE seemed intimidated by her father. She never wanted to do anything wrong.

[ 147 ] She was not cross- examined.

AB

[ 148 ] AB is AE’s other older sister. She did not get along with her father. She described it as tense.

[ 149 ] She said that her mother seemed intimidated by RE.

[ 150 ] She lived at Ardglen until she was 18 years old. She stated that she shared a bedroom with ME, her brother EE had his own room, and AE had a room.

[ 151 ] She did not recall AE sleeping in the same bed as her father.

[ 152 ] AE would be present for arguments AB had with ME.

[ 153 ] AB and ME got kicked out of Ardglen after an argument with their mother over the guy her mother was seeing.

[ 154 ] They did not see their father except for at family events.

[ 155 ] At the funeral reception, she sat at a long table.

[ 156 ] She did not see anything inappropriate between AE and her father.

[ 157 ] She said she didn’t remember the whole event. She did not remember where she sat.

[ 158 ] She did not remember if EE slept in the same room as his father. She said it is possible she didn’t know where AE and EE slept, but AE slept in the same room as her mom.

PROCEDURAL HISTORY

[ 159 ] On December 10, 2024, the Court raised with Defence counsel that it had concerns about ineffective representation for the accused and gave Defence counsel time to consider their position and get instructions. The Court recommended that Defence counsel speak with an experienced colleague for advice. The Crown acknowledged the court’s concerns and requested time to consult with their management.

[ 160 ] On December 11, 2024, Defence counsel said she needed time to get her clients instructions. It was clear to me that Defence counsel still did not understand the court’s concerns about her conduct.

[ 161 ] As a result, the Court was obligated to inform counsel and the accused of some of the specific concerns relating to incompetence and dangers to trial fairness. I reviewed the indicators of ineffective representation. This was done, as a last resort, to ensure that counsel understood, would seek instructions and consult with experienced counsel.

[ 162 ] After a break, Defence counsel submitted to the Court that as the judge, I should have raised my concerns with her earlier in the trial and taken her and the Crown into chambers. This demonstrated that counsel clearly did not understand that it is improper procedure for a criminal trial judge to speak to counsel outside of the presence of an accused.

[ 163 ] The Crown recognized that there were legitimate concerns with the Defence lawyer’s competence but submitted that a mistrial should not be granted. However, the Crown agreed not to advance their position further until the Defence position was clearly ascertained.

[ 164 ] RE spoke to the Court at his lawyer’s invitation and said he needed more time to decide how he wished to proceed. He was informed by the Court that no final decision had been made and that before a decision was rendered, his input was required. Since counsel had their client address the Court directly, the Court asked him to consider carefully how he wished to proceed, including but not limited to proceeding with his counsel, or requesting another option including but not limited to a mistrial.

[ 165 ] The Crown presented options in their written submission of the accused hiring other counsel, or amicus, or section 486 appointed counsel to question the witnesses further. The Crown agreed with the Court’s view that an adjournment was required to obtain the accused’s position before a decision could be made about how to deal with the concerns about ineffective representation.

[ 166 ] At the January 14, 2025, appearance, RE said that he wanted to proceed with his current counsel stating that he thought she did a good job. Defence counsel said that they would continue to represent RE. The Court asked counsel if they had considered their own duty to the client and counsel said that they did and felt obliged to continue to represent RE since he declined to speak to other counsel.

[ 167 ] On April 3, 2025, there was an interim appearance to set a date for reasons. Based on deliberations prior to this appearance, I decided to give a bottom line ruling that a mistrial was ordered with reasons to follow. This was done to permit a new trial to be set soon and to avoid further delay. Defence counsel then said that she was already intending to bring a motion to get off the record and had discussed this with RE. It is not clear why counsel did not file materials or make this clear at the outset.

THE LAW

Criminal Code , R.S.C., 1985 c. C- 46:

Sexual assault

271 Everyone who commits a sexual assault is guilty of

(a) An indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

Consent no defence

150.1 (1) Subject to subsections (2) to (2.2), when an accused is charged

with an offence under section 151 or 152 or subsection 153(1), 160(3) or

173(2) or is charged with an offence under section 271, 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.

[ 168 ] The Crown must prove each of the following essential elements beyond a reasonable doubt:

(a) That RE touched AE directly or indirectly;

(b) That the touching by RE was intentional;

(c) That the touching by RE took place in circumstances of a sexual nature so that AE’s sexual integrity was violated; and

(d) Based on AE’s age, consent is not a defence.

FUNDAMENTAL PRINCIPLES

Fair Trial

[ 169 ] In R. v. D.A.I. , 2012 SCC 5 , 1 S.C.R. 149 , the Supreme Court stated at paras. 68 to 69 that the Charter guarantees an accused’s right to a fair trial:

The Canadian Charter of Rights and Freedoms guarantees a fair trial to everyone charged with a crime. This right cannot be abridged; an unfair trial can never be condoned.

It is neither necessary nor wise to enter on the vast subject of what constitutes a fair trial. One searches in vain for exhaustive definitions in the jurisprudence. Rather, the approach taken in the jurisprudence is to ask whether particular rules or occurrences render a trial unfair. It is from that perspective that we must approach this issue in this case.

Ineffective Counsel

[ 170 ] When an accused person is represented by Defence counsel in their criminal trial, they have a constitutionally protected right to effective assistance.

[ 171 ] In R. v. G.D.B. , 2000 SCC 22 , [2000] 1 S.C.R. 520 , at para. 24 , the

Supreme Court held that the right to effective assistance of counsel is a principle of fundamental justice pursuant to sections 7 and 11(d) of the Charter :

Today the right to effective assistance of counsel extends to all accused persons. In Canada that right is seen as a principle of fundamental justice. It is derived from the evolution of the common law, s. 650(3) of the Criminal Code of Canada and ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms .

[ 172 ] The right to the effective assistance of counsel is an aspect of an accused’s right to make full answer and defence and right to a fair trial. R. v. B. (L.C.) (1996), 27 O.R. (3d) 686, (Ont. C.A.) , at p. 699 .

[ 173 ] In R. v. W.(W.) (1995), 25 O.R. (3d) 161, (Ont. C.A.) , at p. 171, Justice

Doherty discussed the critical nexus between effective assistance of counsel and a fair trial:

V. The Right to the Effective Assistance of Counsel

An accused who is represented by counsel at trial is entitled to receive the effective assistance of counsel. That entitlement has common law, statutory, and constitutional roots. If an accused does not receive the effective assistance of counsel at trial, the adversary system cannot function properly, the appearance of fairness suffers, and the reliability of the verdict is called into question. Ineffective legal assistance at trial may result in a miscarriage of justice necessitating the quashing of the conviction.

Counsel must be competent in order to render effective assistance. [citations omitted].

[ 174 ] There are numerous examples of where Courts have found the existence of ineffective representation that led to a miscarriage of justice: R. v. D.A. , 2020 ONCA 738 , 396 C.C.C. (3d) 151 ; R. v. Lam , 2012 ONSC 1243 ; R. v. Bauer , 2022 ONSC 1467 ; R. v

A.W.H , 2019 NSCA 40 , 376 C.C.C. (3d) 522 ; R. v. Schirmer , 2024 BCCA 412 .

[ 175 ] Further, in R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.) , at p. 57, Justice Doherty explained that where Defence counsel is ineffective in their representation of the accused, trial fairness in terms of reliability of the verdict and just analysis of the case, is compromised:

The importance of effective assistance of counsel at trial is obvious. We place our trust in the adversarial process to determine the truth of criminal allegations. The adversarial process operates on the premise that the truth of a criminal allegation is best determined by “partisan advocacy on both sides of the case”: U.S. v. Cronic , 104 S. Ct. 2039 (1984), per Stevens J. at

p. 2045. Effective representation by counsel makes the product of the adversarial process more reliable by providing an accused with the assistance of a professional trained in the skills needed during the combat of trial. The skilled advocate can test the case advanced by the prosecution, as well as marshal and advance the case on behalf of the defence. We further rely on a variety of procedural safeguards to maintain the requisite level of adjudicative fairness in that adversarial process. Effective assistance by counsel also enhances the adjudicative fairness of the process in that it provides to an accused a champion who has the same skills as the prosecutor and who can use those skills to ensure that the accused receives the full benefit of the panoply of procedural protections available to an accused.

Where counsel fails to provide effective representation, the fairness of the trial, measured both by reference to the reliability of the verdict and the adjudicative fairness of the process used to arrive at the verdict, suffers. In some cases, the result will be a miscarriage of justice.

[Cited with approval in G.D.B. , at para. 25] . .

[ 176 ] The trial court has inherent supervisory jurisdiction over trials. In R. v.

Downey, [2002] O.J. No. 1524 (S.C.), at para. 83 , Justice Hill dealt with procedure for counsel to be removed but commented on the Court’s supervisory jurisdiction as a part of inherent jurisdiction to control its own process to deal with counsel:

The court entertains supervisory jurisdiction, apart from rules of court, as an aspect of its inherent jurisdiction to control its own process and to deal with officers of the court in matters affecting the administration of justice. Counsel appearing before the court owes duties to the court quite apart from any duty owed to a client or the profession or the public: Regina v. C. (D.D.) (1996), 1996 ABCA 303, 110 C.C.C. (3d) 323 (Alta. C.A.) at 326 per curiam (leave to appeal refused, [1996] S.C.C.A. No. 453 , [1997] 1 S.C.R. vii).

[ 177 ] Correlated to the judicial obligation to control its own process is the paramount duty to protect against wrongful convictions. The Supreme Court of Canada has emphasized that robust procedural protections against wrongful convictions are essential to a fair justice system. The history of wrongful convictions such as those of Steven Truscott, David Milgaard and Donald Marshall Jr. are evidence of the unconscionable consequences of their absence and how a trial court should not be silent in the face of injustice. The very existence of wrongful convictions shows that the risk of miscarriages of justice is far from theoretical. R.

v. C.P. , 2021 SCC 19 , [2021] 1 S.C.R. 679, at para. 61 .

[ 178 ] Indeed, the Supreme Court has recognized that “the administration of justice must equip itself with all legitimate means to prevent wrongful convictions and to address any real possibility of such an occurrence after the fact”: Toronto

(City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79 , 2003 SCC 63 , [2003] 3 S.C.R. 77 , at para. 54 . This is because “[w]rongful convictions are a blight on our justice system and we must take reasonable steps to prevent them before they occur”: R. v. Hart , 2014 SCC 52 , [2014] 2 S.C.R. 544 , at para. 8 .

[ 179 ] See also the summary of findings of the Royal Commission of the Donald Marshall, Jr., Prosecution (Nova Scotia: 1989): at p. 19. Sections 1.4 . Trial Process and 1.6 Appeal Process share warnings of the consequences when the justice system ignores counsel failures to fulfill their core duties: at pp. 21 – 22.

Test for Mistrial

[ 180 ] In R. v. G.C., 2018 ONCA 392 , at paras. 3-4 , the Court of Appeal held that the test whether to grant a mistrial is a matter that lies within the discretion of the trial judge, “who must assess whether there is a real danger that trial fairness has been compromised”: citing R. v. Khan, 2001 SCC 86 , [2001] 3 S.C.R. 823 , at

para. 79 .

[ 181 ] In Khan , at para. 79 , the Supreme Court states that the trial judge must assess ways to remedy the problem that is contributing to trial unfairness:

When the trial judge realizes that an irregularity has occurred, he or she may consider whether to declare a mistrial, but when possible, he or she may also attempt to remedy the error. The decision of whether or not to declare a mistrial falls within the discretion of the judge, who must assess whether there is a real danger that trial fairness has been compromised (see Emkeit , supra , at pp. 139-40; R. v. Martineau (1986), 33

C.C.C. (3d) 573 (Que. C.A.), at p. 576; R. v. Lessard (1992), 74 C.C.C. (3d) 552, [1992] R.J.Q.1205 (C.A.), at pp. 559- 63

C.C.C.; R . v . Taillefer (1995), 100 C.C.C. (3d) 1 , 40 C.R. (4th) 287 (Que. C.A.), at p. 54 C.C.C.). Although that discretion is not absolute, its exercise must not be routinely second-guessed by the court of appeal.

[ 182 ] Similarly, in R. v. Donnelly , 2023 ONCA 243 , the Court of Appeal held that the Court must consider whether other less drastic steps could remediate the issues that threaten trial fairness.

[ 183 ] Appellate intervention is warranted only where there is material misdirection or the decision is so clearly wrong that an injustice has occurred: see Khan , at paras. 79-80 ; R. v. Toutissani , 2007 ONCA 773 , at para. 9 ; R. v.

Chiasson , 2009 ONCA 789 , 258 O.A.C. 50 , at para. 14 ; R. v. Bjelland , 2009 SCC

38, 2009 SCC 38, [2009] 2 S.C.R. 651, at para. 15 .

[ 184 ] Bearing in mind the unique dynamics of each trial, judges need to be left with a broad discretion to manage the trial process. A mistrial is a remedy of last resort, and it falls squarely within the discretion of the trial judge who is in the best position to assess whether such a remedy is needed in order to avoid a miscarriage of justice.

[ 185 ] In G.C. the Court of Appeal, at para. 4, held that an issue of incompetence of counsel brought during the course of a trial should be approached within the principled framework for mistrial applications. See also R. v. White , 2022 SCC 7 , [2022] 1 S.C.R. 64 , at para. 6 , for the test for ineffective assistance of counsel that can inform the mistrial analysis:

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 ).

ANALYSIS

Mistrial

[ 186 ] I find that a mistrial is necessary in this case because the accused’s trial was unfair. The reliability of the verdict has been compromised due to Defence counsel’s ineffective representation. It would be unjust in the total circumstances of this case to proceed to give a verdict.

[ 187 ] I will address the parties’ positions in the analysis. In summary and at the outset, the accused wanted to proceed to a verdict despite it being clear that his lawyer was incompetent and the court was concerned his trial was unfair. The Crown also sought a verdict despite awareness of these unusual circumstances and submitted that if counsel got off the record, another counsel, appointed or retained, could step in at this late stage and question witnesses further. For reasons that I will explain, I do not find that these options are appropriate.

[ 188 ] Defence counsel was not competent in questioning adverse witnesses, knowledge of the law or submissions. In other words, counsel has failed in every pillar of competence for a criminal trial lawyer. If I were to proceed to decide the case and to convict the accused, it would be without RE having had a fair trial.

Counsel’s conduct undermined the proper functioning of the adversarial process and the trial cannot be said to have produced a just result. This breakdown would necessarily render the conviction unreliable or unsafe.

[ 189 ] In assessing the prejudice to the accused and dangers to a just verdict from Defence counsel’s lack of competence, I have factored amongst non- exhaustive factors: the gravity of the charges, central contested factual and legal issues, complexity of the trial, prejudice to a fair trial arising from counsel’s cumulative failures of: lack adherence to fundamental criminal procedure, insufficient knowledge of law, ungrounded submissions to the court, lack of preparation, severely deficient and prejudicial examination and cross-examination of witnesses, inability to advance a coherent defence theory; non-responsiveness to court questions and directions; and failure to address and remedy those failures when given notice and opportunity to do so through re-opening.

[ 190 ] I have also considered that the overall deficiencies identified in this decision are not reasonably related to defence strategy or client instructions. The failures that I have identified are based on the lawyer’s lack of competence and not plausibly the result of strategic decisions or instructions.

[ 191 ] I recognize that in criminal cases there are privileged discussions and instructions that may impact how Defence counsel approach their case and decisions made about what position is advanced or not. I pause here to note

lawyers are largely responsible for making sound legal, strategic, and ethical decisions that advance their client’s position responsibly.

[ 192 ] As stated by the Court of Appeal in W.(W.) , the accused that is represented by counsel at trial is entitled to receive the effective assistance of counsel based on common law, statutory, and constitutional imperatives for a fair trial.

[ 193 ] It is worth emphasizing the judicially recognized essential role that Defence counsel serves in the administration of justice that was not met in this case. As Chief Justice McLachlin stated, “Defence counsel protect the client's right to a fair trial and to make full answer and defence and uphold their Charter rights, but they also provide an important public good. They help ensure an effective and timely prosecution of offenses in a world of complex trials. By ensuring a fair trial, they safeguard public confidence in the justice system and avoidance of wrongful convictions.” The Honourable Justice Beverly McLachlin, “Advocacy Lecture in Memory of the Honourable Justice John Sopinka” (January 28, 2015) 35 For the

Defence F2.

[ 194 ] In this case the accused did not receive the effective assistance of counsel at trial, and the adversary system did not function properly. The performance of Defence counsel was so inadequate that there was not competent or as the case law often refers to, effective representation. As a result, the trial fairness was harmed, and the reliability of a verdict was called into question.

[ 195 ] The right to counsel is the right to effective assistance of counsel. The core purpose is to assure competent representation at trial where the accused is confronted with the adversarial weight of a prosecution against them and has hired counsel to challenge the strength of the Crown’s case. At minimum, Defence counsel must have the ability to contest the strength of the Crown’s case or argue that the Crown prosecution’s argument that the evidence proves guilt lacks the necessary logical validity to support a conviction.

[ 196 ] An accused does not have a right to choose ineffective legal assistance at trial because this will likely result in a miscarriage of justice and is otherwise contrary to the proper administration of justice. It is incompatible with the public interest in which a fair justice system is a fundamental pillar of Canadian society.

[ 197 ] While I recognize an accused person’s choice of counsel should not be interfered with normally, in an unusual situation when a vulnerable Defendant does not appreciate that their lawyer is ineffective and chooses to remain with incompetent counsel even after notice from the court about the gravity of counsel’s failures that rendered the trial unfair, the court cannot ignore the unfairness and accede to that position. This would be dangerous and be contrary to fundamental principles of justice and the values of a fair justice system. In this case, it was apparent that the accused was not able to discern that his counsel is incompetent. He did not obtain independent advice.

[ 198 ] After considering the reasonable alternatives and adjourning the proceedings for further submissions, I am satisfied that no other remedy that a mistrial will suffice. G.D.B. , at para. 5 .

[ 199 ] I have exercised restraint during the trial before coming to this conclusion.

I contemplated whether a mistrial could have been avoided. Steps were taken to avoid a mistrial. Both the Court and Crown were patient with Defence counsel and provided counsel further opportunities to address their failures that resulted in ineffective representation. Despite these steps, the ineffective representation and trial unfairness continued.

[ 200 ] Both alternatives and remedies, including the Court and Crown alerting Defence counsel to deficiencies, permitting ample opportunity to improve, and allowing the extraordinary step of re-opening to permit Defence counsel to ask pertinent questions of the complainant and her mother, have been exhausted and have not remedied the trial unfairness.

[ 201 ] The prejudice to the accused is substantial. The touchstone is to ensure a fair trial. Not a perfect trial. Our system relies on fair trials to produce just results. I find on a balance of probabilities that the accused’s right to a fair trial was denied. In fact, I have no doubt that a fair trial did not occur.

[ 202 ] I disagree with the Crown’s position that I should decide the verdict, because the accused can appeal and bring an ineffective assistance of counsel argument

if he wishes, where he can waive privilege. First, and determinative, the trial was clearly unfair. As noted earlier, I find that it in this case, there is no air of reality that the unfairness was due to anything but counsel’s conduct. Second, there is no way of knowing whether the accused would appeal and if so on what basis. Third, as I noted, he is vulnerable with serious mental health issues. Convicting the accused in the total circumstances would be unjust.

[ 203 ] Trial courts cannot be complacent with tolerating unfairness, ineffective assistance, and facilitating more delay with the case potentially proceeding to an appeal merely because an appeal is constitutionally available. This trial court’s duty is to prevent an injustice where apparent and order a mistrial where necessary. A trial judge must safeguard criminal proceedings against a miscarriage of justice.

[ 204 ] As a trial judge one of my core duties is to ensure a fair trial to facilitate a just verdict. In the criminal justice system, I must be on guard against the potential for wrongful convictions because of ineffective representation.

[ 205 ] Criminal trial judges have an independent and inherent duty to ensure the accused’s trial is fair and when an accused retains a lawyer, this includes representation by competent counsel.

[ 206 ] As Justice Pomerance described in R. v. Wuschenny , 2018 ONSC 6765 , at para. 71 , the trial judge must be aware of the dangers of miscarriage of justice:

The trial judge occupies a special role in the trial process. She is the gatekeeper, responsible for safeguarding the fairness of trial and the integrity of the fact-finding process. In some cases, as here, the trial judge is also the ultimate fact finder. Both roles require a conscious advertence to the risk of wrongful conviction. This is not a hypothetical risk. It is one that, sadly, has manifested in far too many cases in Canada and other countries. Trial judges must be ever vigilant to prevent the occurrence of a miscarriage of justice.

[ 207 ] In my view, when ineffective representation clearly renders the trial unfair, it would be an error in principle for a trial judge not to act and to proceed to render a verdict. Ineffective assistance of counsel meets the test for appellate intervention. It comes about after a complicated, time consuming and costly process. It would be unjust for the trial judge to sit idle and not intervene when confronted with the same circumstances as they materialize before them.

[ 208 ] The reality is that not every person can or will appeal for a variety of reasons including but not limited to financial limitations, sentence imposed, lack of insight or loss of faith in the fairness of the justice system. Addressing ineffective representation even when obvious to a trial judge, should not only be left to be determined on an appeal after an accused is found guilty.

[ 209 ] Even if the accused appealed, in my view, in this case it is inevitable that all appellate counsel’s review of this record would expose the ineffective assistance and unsafe verdict problems. Justice on this issue should not be delayed.

[ 210 ] I recognize in theory that in some criminal cases there may not be much of a defence because the case is overwhelming, and the accused is simply putting

the Crown to meet their onus and prove the elements to the requisite standard. Also, there may be cases where a lawyer has instructions from their client not to pursue certain arguments or defences, subject to the lawyer’s duties to make most decisions about strategy and how to advance a defence responsibly. However, this is clearly not one of those cases. Even in those circumstances, counsel must demonstrate their competence through their adherence to procedure, appropriate questioning, knowledge of the law and submissions. This did not happen in this case.

[ 211 ] Defence counsel’s role is to serve as a competent legal advocate for an accused when they choose to be represented. They are the only professional legal voice for a Defendant in a courtroom, especially when the accused asserts their constitutional right to remain silent to the charges, as was the situation in this trial. Defence counsel’s purpose includes protecting the accused’s right to a fair trial. They do this, in part, through competent knowledge of the law, cross-examination of witnesses, and submissions with the goal to identify any weaknesses in the Crown’s case. Although this may not succeed, Defence counsel must possess sufficient trial skills to fulfill their duties.

[ 212 ] Knowledge, diligence and skilfulness of counsel will reasonably vary and be on a range, but representation must be competent. It must not be so deficient that fair trial rights of the accused are defeated. Unfortunately, that is what happened in this case.

[ 213 ] Although this is not an ineffective assistance of counsel claim brought by the accused, throughout the entire trial, I have made independent observations as the trial judge that establish his counsel is not competent.

[ 214 ] The representation in this case falls far below a reasonable standard required and there has been an unfair trial that will result in unsafe verdicts resulting from ineffective representation of the accused.

[ 215 ] Counsel demonstrated over several days of the entire trial that she is unable to follow procedure, and advance or explain the defence position based in fact and law, despite considerable efforts by the Court and the Crown to permit counsel to address and try to remedy these fundamental failures.

[ 216 ] This trial involves a child’s allegations of sexual assault against her father.

All of the counts are based on the credibility and reliability of the testimony of the complainant. There are other witnesses of the family members or friends that did not observe the alleged touching. The witnesses were present to varying extents in the applicable residence at the relevant times. I recognize corroboration is not required. I mention this aspect as part of the overall context that the court must assess, which reinforces the importance of the trial lawyer being able to fulfil fundamental obligations.

[ 217 ] Since credibility is a central issue in many criminal cases, the entire trial process is structured to provide the trier of fact with opportunities to assess the

veracity of witnesses. R. v. Osolin, [1993] 4 S.C.R. 595, at pp. 623. In that context, Defence counsel requires a core set of competent trial skills to represent an accused faced with these serious charges.

[ 218 ] Throughout the entirety of the trial, there were numerous indicia that Defence counsel lacked fundamental skills necessary for competence to represent the accused in these serious indictable Superior Court proceedings.

[ 219 ] I will explain them further below, but to be frank, there is no substitute for having been in the courtroom, observing the ineffective and at times inexplicable and unusual conduct of Defence counsel over several days.

[ 220 ] The Crown fairly recognized there were serious problems with Defence counsel’s conduct more than once that raised grave trial fairness concerns. It was acknowledged by the Crown consenting to re-opening to permit additional questions and after further submissions by both sides, when the court expressed that the real danger of trial unfairness persisted.

[ 221 ] In the above noted summary of the evidence, I have referenced “cross- examination” by Defence counsel. Again, contrary to fundamental principles of cross-examination, almost every question asked by Defence counsel of every Crown witness was open-ended and a repeat of the examination-in-chief. As a result, the Crown’s witnesses were not challenged as part of an adversarial trial.

[ 222 ] I appreciate that there may be times when open-ended questions in cross- examination are appropriate, effective and strategically helpful. Also, few or even no questions of a witness are sometimes appropriate, depending on the witness. However, that is the exception to the norm of fundamental cross-examination and not applicable in this case where the credibility and reliability of the central Crown witnesses are the key issue. To be clear, this Court is not engaging in second- guessing tactics or discretionary decisions. My focus remains on the conduct before me that made it clear that the accused did not receive competent representation resulting in an unfair trial.

[ 223 ] Notwithstanding the style of question or tactics, there is a duty to cross- examine drawing attention to the adversarial witness (and Court) to any point on which their evidence is challenged. The witness must be given the opportunity to give an explanation open to them by drawing their attention to a position which may be different or contradictory to their evidence. However, when almost every defence question is asked in an open-ended manner that duplicates the Crown’s examination-in-chief and counsel puts no suggestions grounded on a reasonable foundation to the complainant about the defence position, this method is not competent. This is because it is of no assistance to an accused. Also, no coherent position is submitted to the court.

[ 224 ] As Earl J. Levy writes in his book Examination of Witnesses in Criminal Cases , 7th ed (Toronto: Thomson Reuters Canada Limited,. 2016), at ch. 7 “The

Objectives of Cross-Examination”, it is fundamental that the cross-examiner have a defence theory so that when they rise to cross examine each witness, they have a clear objective or even more than one objective that fits within that plan. That “blueprint” will have in mind the nature of the defence, the evidence which supports it, how to overcome any obstacles to that defence, and any evidence that relates to issues of law that will be relevant throughout the trial. Similarly, paraphrasing Eddie Greenspan, society has always been aware that an encounter between an accused person and the justice system is a collision of disproportion. The justice system counteracts this disparity by the presumption of innocence together with access to competent Defence counsel. The Defence lawyer’s duty is not just to their client but to society. Edward Greenspan & George Jonas, The Case for the Defence (Toronto: Harper Perennial, 1992), at p. 262.

[ 225 ] Importantly, counsel for the accused asked the central Crown witnesses, the complainant and her mother, the same core questions in an open-ended manner that they were asked in examination in chief. As a result, the defence position was not advanced through any witness. Regardless of the style of questioning, the defence did not advance a challenge to the credibility or reliability of the witnesses, and did not advance a theory or position. On a lesser but notable point, for all witnesses, defence counsel would start questions for each witness by asking them to repeat their name, which they had just stated and spelled after swearing or affirming. I found that this was odd.

[ 226 ] A Court’s ability to decide whether the Crown has proven the case beyond a reasonable doubt and have confidence that the verdict is just, is correlated to whether the Defence counsel has conducted themselves competently.

[ 227 ] During one of the few times Defence counsel asked a leading question, it was improperly done. When questioning AE, Defence counsel improperly stated that she (counsel) read the preliminary inquiry transcript and then told AE that she did not speak about RE inching towards her vagina. The witness was not shown the statement. Counsel’s assertion to the witness may have been on a relevant point but was not the procedurally appropriate way to question the young witness about an inconsistency from prior testimony. The witness and court were not taken to the excerpt from the preliminary inquiry. It is not clear if counsel had a transcript.

[ 228 ] Over the trial, the indicia of incompetence built due to a culmination of factors that established that the accused was not receiving a fair trial.

[ 229 ] The Court monitored the problems with a view to keeping open the possibility that the dangers of an unfair trial would reduce as the case progressed, and counsel would improve their performance. I am mindful that it can take time in some cases for a defence lawyer and their position to get traction. They may need time to lay the foundation to build their theory. I am also mindful that less experienced or younger counsel are especially deserving of the court’s patience and some latitude. Unfortunately, there was no progression.

[ 230 ] In addition, counsel was alarmingly non-responsive to inquiries by the Court about their position on various issues and the law. Prompting for explanation by the Court was required to ensure counsel understood their procedural and substantive obligations. However, counsel did not correct as the case progressed and continued to be seriously deficient.

[ 231 ] For example, Defence counsel tried to raise s. 276 and 278 issues on the first day of trial. This was done after numerous case management and judicial pre- trials where that specific issue was repeatedly canvassed, and the defence said it was not bringing a motion. Then when it was raised, there were indicators of a lack of preparation. There was no notice and counsel had no materials. When asked questions by the Court about the foundation, the response was unclear and inadequate. There was no request by counsel for an adjournment or time to bring the motion on short notice. It appeared that counsel did not understand the rules and could not inform the court adequately except to refer briefly to a synopsis of some occurrence that was not submitted to the Court. Counsel made no submissions about the grounds for this litigation. In other words, when asked by this court for the foundation for the application and the relief sought, counsel could not explain the basis in fact or law.

[ 232 ] I recognize that instructions can change, or developments can arise that are not foreseen. In those cases, the defence lawyer must still bring relevant issues forward to ensure full answer and defence. However, if counsel wants to bring an

argument late, they must be able to at least reasonably explain the merits and ask for relief.

[ 233 ] Also, Defence Counsel did not file materials in support of re-opening of the trial despite this being their onus and the result of their own failures. Defence counsel was directed by the Court to prepare a written application to explain the basis for the request to re-open because it was their onus to demonstrate that this should be permitted. However, despite this being made clear by the court, counsel for the accused did not do so. When asked to provide an oral explanation, counsel did not adequately explain why these fundamental areas were not canvassed earlier.

[ 234 ] During the trial, the prosecutor also tried to assist Defence counsel to understand that they were not complying with fundamentals such as the rule in Browne v. Dunn , 6 R. 67 (H.L.) ., which I will explain

further below. Also, in a highly unusual step, the prosecutor provided a list of questions or areas to defence counsel that they could ask Crown witnesses in re- opening. While this may have been intended to assist with a fair trial and show the numerous areas that the Crown was agreeable with, in my view this unusual step was demonstrative of the Crown’s awareness of defence counsel’s incompetence at this trial. The list of areas for further questioning was substantial because it reflected that counsel did not challenge the witnesses the first time. To be frank,

the defence lawyer, as directly told by the court, has the duty to provide notice of the areas they seek to re-open to advance their clients’ interests and explain why.

[ 235 ] In addition, Defence counsel called witnesses that did not advance the accused’s position. Even more alarming, Defence counsel adduced bad character evidence about the accused from their own witnesses. Overall, counsel was also ineffective during questioning of their own witnesses.

[ 236 ] For example, counsel asked the victim and her two sisters about the accused being violent and abusive. It was not clear how this prejudicial evidence to the accused could advance the defence position. The Crown was not relying on prior discreditable conduct. It was not suggested to these witnesses by Defence counsel that because of their negative perceptions they were somehow biased or had an ulterior motive to give negative evidence against the accused.

[ 237 ] At the close of the evidence before re-opening was proposed by the Crown, I required written submissions from counsel because the Court needed to understand the Defence position. Up to that point, nothing material or comprehensible to advance the defence theory was advanced.

[ 238 ] The Defence written submissions contained very problematic arguments further establishing counsel’s incompetence.

[ 239 ] During oral submissions, where counsel was asked to explain their arguments, further concerns arose. Counsel made additional arguments that had

no foundation and had not been subject to questioning. Most of the submissions lacked coherence and a principled foundation. When the Court requested for clarification, the same point was repeated without an adequate response.

[ 240 ] For example, during oral submissions (before re-opening) Defence counsel argued that another man, other than RE could have been in the bed with AE and her brother at the apartment he shared with roommates, despite no questions asked or other evidence to support this theory. In fact, the only evidence was to the contrary. The context of that part of the allegations are that they occurred in an apartment the accused shared with other people, but the only evidence before the Court was that no one went into the accused’s room other than him and his children. No evidence in support of an alternative male being responsible was properly grounded through questioning of adults present. The children also said they only slept in the room with their father.

[ 241 ] While I recognize the Court must consider reasonable possibilities, this argument was without foundation.

[ 242 ] During oral submissions, Defence Counsel submitted that RE’s schizophrenia may have contributed to touching the complainant such that it was not of a sexual purpose. However, no basis for this potentially important point was advanced in any questioning of any of the witnesses or through other pathways to admission. For instance, no witness prior to re-opening was asked if the accused

had any mental health issues, and if so, what his symptoms were while awake or asleep.

[ 243 ] After re-opening, Defence counsel did not ask pertinent questions to lay a foundation but went on to argue that AE’s lack of knowledge of RE’s mental condition suggests the touching could have happened due to RE’s schizophrenia. This was despite there being no evidence challenging or suggesting to a witness that the accused’s mental illness or symptoms involved any conduct consistent to what was alleged was ever adduced.

[ 244 ] Raising RE’s schizophrenia, which was not an area of questioning prior to re-opening, was granted on consent of the Crown given Defence counsel’s earlier failed argument due to a lack of foundation. However, the additional questions asked by counsel after re-opening and answers from the complainant and her mother negated any nexus between the accused’s condition and the allegations. Still, counsel continued to argue in closing arguments that RE’s mental illness condition could explain unintentional touching of the complainant. When asked the grounds for this argument counsel’s explanation, again, made no sense.

[ 245 ] Also troubling, Defence counsel argued that the mother’s evidence that she mentioned to the psychiatrist that she was not surprised by AE’s disclosure, suggested the mother led AE to make false allegations. However, this was not put to the mother or complainant. When counsel was asked where this evidence was in the trial record, counsel said that it was in the mother’s statement. However, the

statement was not in evidence. Further probing revealed that it was apparently in the disclosure that was not before the Court. That statement was not used to cross- examine the mother. This serious lack of understanding by counsel further demonstrated a fundamental lack of knowledge of the admissibility and use of statements to question a witness in a criminal trial.

[ 246 ] Further concerning, Defence Counsel argued in writing that AE’s disclosure of the allegations to the psychiatrist was past memory recovered. There was absolutely no evidence to support this argument. Notably, cases were cited by Defence counsel that proved this argument had no plausibility. To the contrary the purported basis was specifically contradicted by the total evidence during the trial, including re-opening.

[ 247 ] Again, I am aware that sometimes counsel will advance a particular argument that may not be properly grounded but is permissible zealous advocacy because it is only part of their otherwise reasonably supported position. However, this case was different because of the cumulative nature and magnitude of the ungrounded positions in the face of no reasonable defence being advanced.

[ 248 ] During oral submissions, Defence counsel argued that while sleeping in the same bed next to each other, RE’s knee may have been mistaken by AE for an erection. However, AE was not cross-examined on this possibility during the trial, (no questions that correlated to the alleged touching were asked), and it was not put to AE during the trial.

[ 249 ] After re-opening was granted, AE was asked by counsel why she thought his knee was different than an erection. It was not suggested to her that she was mistaken. She explained the differences in her view. Still, Defence counsel argued the Court should find it was the accused’s knee.

[ 250 ] As a result of these and other concerns, during the first closing arguments (before reopening) I asked counsel if she was raising arguments based on areas she intended to question about but clearly failed to ask. The Crown recognized the concerns of the Court and at that point, offered to recall the complainant and her mother. After re-opening was granted, Defence counsel continued to ask only open-ended questions and did not put any defence theory or suggestions to the witnesses. This is despite as noted above, the prosecutor writing out for Defence counsel areas that specifically identified the deficiencies that counsel could put to the witnesses but had failed to do by that point.

[ 251 ] Prior to the end of the cross-examination of AE, the Crown raised concerns about the defence non-compliance with the rule in Browne v. Dunn . This rule , in general, requires that if the cross-examining lawyer wishes to contradict or impeach the credibility of a witness by means of extrinsic evidence, documentary or viva voce, they must give the witness notice of their intention by confronting them in cross-examination with the intended evidence and give them a chance to explain their position. The rule is not absolute and a trial judge has discretion as to

how to deal with the failure of counsel to confront a witness in cross-examination if the lawyer intends to rely on contradictory or impeachment evidence.

[ 252 ] Defence counsel’s repeated failure to put their position to any witness persisted until the end of the trial. Although in some cases, the total absence of proof may support the defence not advancing a position, this is clearly not one of those cases.

[ 253 ] Exemplary of the lack of adherence to procedure, albeit of relatively lesser significance given the problems noted above, Defence counsel advised that they had a witness that they wanted to testify remotely from another jurisdiction but did not serve an application as required until directed by the Court. This further evinced a lack of preparation and knowledge of procedure.

[ 254 ] In response to questions by the Court for clarification, Defence counsel often provided limited responses that required further prompting, demonstrating a lack of knowledge. I found the limited responses to be highly unusual and indicative counsel did not know law, procedure, or the basis for their arguments. The submissions were then either incoherent, wrong in law, minimal, or not substantiated by the facts.

[ 255 ] Overall, there was a total breakdown of the adversarial process that is necessary for a fair criminal trial. Child sex assault cases are challenging to litigate for everyone and require competent skills by counsel to ensure fair trials. If a

defence lawyer does not possess the requisite skills for that category of trial at this time, they should carefully consider if it is appropriate for them to represent the accused. This was flagged by the Court, but counsel did not appear to appreciate the extent of the problem.

[ 256 ] To be clear, there was never any intention by the Court to cause embarrassment to Defence counsel. There was simply no other reasonable option than to raise these concerns after counsel was unable to improve or demonstrate the necessary competence or insight about the concerns being flagged as the trial progressed.

[ 257 ] The alternatives proposed by the Crown of a further re-opening to have new counsel appointed at this stage either as amicus, or s. 486 counsel to cross- examine the witnesses is not an acceptable alternative in the circumstances for several reasons.

[ 258 ] I have found the trial be unfair trial. The accused has counsel that he has not discharged despite being ineffective. Also, even if available as an option, s. 486 counsel would not have been present for any of the Crown witness testimony, would have to obtain transcripts, acquaint themselves with the client to get input, and then cross-examine the key Crown witness again. They also do not have authority to make submissions. Further, the accused would have to be informed by the court about further questioning of defence witnesses. Amicus would also need time to receive and review the disclosure and determine how best to assist the

court. The accused would also have to prepare themselves. It is too late and this would effectively amount to scheduling a new trial. Counsel’s schedule for continuation dates would also be an issue.

[ 259 ] In my view, no other remedy is appropriate other than a new trial to safeguard fairness. Also, it will be more efficient. Going forward, the accused should first consider hiring competent counsel and if he does not then the Court can consider a request for the appointment of s. 486 counsel or amicus.

[ 260 ] In assessing the total concerns, I have also considered the impact of a mistrial on the complainant, accused, and other witnesses. I recognize that the fairness of the trial process must be made “from the point of view of fairness in the eyes of the community and the complainant” and not just the accused. R. v. Mills , [1999] 3 SCR 668 at para. 72 . I recognize the importance of not discouraging the reporting of offences, not subjecting complainants to additional proceedings, and the unintended adverse impact a mistrial may have on everyone involved.

[ 261 ] However, as observed by Chief Justice McLachlin, ensuring a fair trial with competent counsel is in all trial participants interest as well as the public. A fair trial enhances the prospect of finality and thereby fosters confidence in the result for victims, accused persons, and the community. It reduces the prospect the decision will be overturned on appeal due to a miscarriage of justice.

[ 262 ] I must not be blind to the fact that RE is on trial and prosecuted for serious indictable offences that will have life-altering consequences if he is found guilty. He has serious mental health issues and is clearly vulnerable. In my view, he is reliant on his counsel to put forward his full answer and defence and protect his right to a fair trial, but this clearly has not been done to a reasonable standard of competence.

[ 263 ] With respect, I am not satisfied that based on RE’s brief comments to the Court that he is willing to proceed with this same counsel, that he appreciates that he has not had a fair trial due to his counsel’s ineffective assistance. In February 2025, after being told of the concerns and having heard acknowledgments by the Crown about many of the deficiencies, he went as far as saying he thought his counsel did a “good job.” With respect, the accused’s perception and conclusion are clearly unreasonable.

[ 264 ] On April 3, 2025, the situation then changed again. Counsel stated that she would request to get off record and had discussed this intention with RE earlier. No notice was given to the court. This should have been subject to a written application, but counsel filed no materials. This was reflective of the pattern at trial. The Court was not advised of this development before issuing the bottom-line ruling.

[ 265 ] In the end, there were fundamental failures by Defence counsel which deprived the accused of a fair trial, and a mistrial must be ordered. I find that deciding the verdict on this record is a miscarriage of justice.

[ 266 ] I adopt the language of the PEI Court of Appeal in R. v. Chappell , 2012 PECA 10 , at paras. 112-113 .

It almost goes without saying that all accused persons have the right to effective assistance of counsel. It is a right protected by ss. 7 and 11(d) of the Charter .

If counsel is ineffective, there is an impact on the fairness of the trial, the reliability of the verdict, and the fairness of the process employed to arrive at the verdict. Counsel's effectiveness or competency is measured by the standard of reasonableness.

See also D.A.I. , at paras. 68 to 69 .

CONCLUSION

[ 267 ] A mistrial is ordered.

[ 268 ] The case has been remanded to the next assignment court.

Mirza, J.

Released: May 12, 2025

COURT FILE NO.: CR- 21- 776

DATE.: 2025-05- 12

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

Crown

• and -

RE

Defence

REASONS FOR JUDGMENT

Mirza J.

Released: May 12, 2025