CITATION: R. v. Vey, 2026 ONSC 691
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
WILLIAM VEY
Appellant
Katherine Spensieri, for the Crown
Myles Anevich, for the Appellant
HEARD: August 1, 2025 and September 15, 2025
Overview
1On January 30, 2019, Mr. William Vey was arrested for one count of sexual assault and three counts of domestic assault on his ex-common-law partner.
2Mr. Vey retained Mr. David Wilcox to represent him.
3On September 8, 2021, after negotiations between Mr. Wilcox and the Crown, Mr. Vey pleaded guilty to sexual assault. His retainer with Mr. Wilcox ended following the plea.
4On June 9, 2022, with the assistance of new counsel, and following a joint submission, Mr. Vey was sentenced to an 18-month non-custodial sentence, followed by two years’ probation and various ancillary orders. The remaining three counts of domestic assault were withdrawn.
5Mr. Vey appeals his conviction on the grounds that his plea was not a voluntary confession of guilt, but rather the product of trial counsel’s conduct.
6Mr. Vey has filed fresh evidence alleging that the ineffective assistance of counsel “eroded his ability to receive a fair trial, and shattered his confidence in the justice system.”
7More particularly, Mr. Vey alleges that the following steps dismantled any prospect of a fair trial:
a. As part of the s. 276 application to introduce prior sexual history evidence, trial counsel had Mr. Vey sign an affidavit that amounted to an “unambiguous” confession; and
b. Several months later, while discussing the upcoming trial, Mr. Wilcox informed Mr. Vey that the trial judge, Justice Waddilove, had demonstrated a reasonable apprehension of bias.
8In support of this application, the court was provided with the following evidence, entered by way of a consent fresh evidence application:
a. Affidavit of Mr. Vey dated February 23, 2024;
b. Transcript of cross-examination of Mr. Vey dated May 30, 2024;
c. Transcript of cross-examination of Mr. Wilcox dated October 9, 2024, with the following exhibits:
i. Section 276 Affidavit of Mr. Vey;
ii. Mr. Wilcox’s Memo to File on December 10, 2020;
iii. Responding Affidavit of Mr. Wilcox;
iv. Supplementary Affidavit of Mr. Wilcox;
v. Transcript of plea proceedings held September 8, 2021;
vi. Transcript of sentencing hearing held June 9, 2022;
vii. Text messages between Mr. Vey and the complainant; and
viii. July 23, 2020 email from Mr. Wilcox to Mr. Vey.
9As the Court of Appeal recently held in R. v. M.Z., 2026 ONCA 4, at para. 11:
Fresh evidence can be received on appeal where ineffective assistance of counsel is alleged, if the evidence is adduced to establish whether representation was ineffective and whether it resulted in a miscarriage of justice.
10I admitted the fresh evidence as it bore directly on whether trial counsel was ineffective in his duties.
Background to the Offence
11Mr. Vey and the complainant began a relationship in 2016. By all accounts, their time together was tumultuous, marked by breakups, police involvement, reconciliation, couples’ therapy, individual therapy, and so forth. During periods when they had broken up, they continued to live in the same residence they jointly owned.
12On August 17, 2017, during a period of estrangement, the complainant was sleeping in a bedroom separate from Mr. Vey. She awoke to him penetrating her vaginally from behind. She was unable to move. After he ejaculated, he left the room.
13During a joint therapy session on September 27, 2017, the complainant addressed the assault with their counsellor. The notes, in the possession of the Crown, demonstrate that Mr. Vey acknowledged the incident to the counsellor, but justified it by directing the following comment to the complainant: “you always said I could wake you up in the middle of the night for sex.” The complainant responded “yes, but we were separated, not a couple. I was asleep. That wasn’t appropriate, it was spousal rape on every level.” The notes of the counsellor go on to say that this comment aggravated Mr. Vey, who said “don’t call me a rapist.”
14In addition to the counselling records, the Crown had in its possession a text from Mr. Vey to the complainant dated September 19, 2017, stating "and for the record, are you denying that you never said that it was okay that we made love if one of us is sleeping." The complainant replied"I never said that, and you're such a liar."
15The Crown made very clear its intention to adduce these two pieces of evidence at trial.
16Mr. Vey did not dispute these facts when he entered his guilty plea on September 8, 2021.
Trial Preparation Background
17Mr. Vey maintained that he and the complainant had a standing agreement, whereby they were permitted to initiate “wake-up sex.” In other words, one of them would wake up the other by initiating sex while they were sleeping. This was Mr. Vey’s intended defence at trial.
18In July of 2020, Mr. Wilcox met with Mr. Vey. After reading Mr. Vey the police synopsis, as well as the memo he created following the judicial pre-trial, Mr. Wilcox brought to Mr. Vey’s attention the Supreme Court of Canada’s decision in R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440. The Supreme Court’s decision makes very clear that it is illegal to engage in sexual activity with someone if they are sleeping.
19Mr. Wilcox’s memo to file describes how most of that meeting was “consumed by Mr. Vey’s protests that the law and procedures applicable to his case are unfair to him. He thinks it is unfair that he cannot review all of the counselling records. He thinks it is unfair that he [sic] forced to accept redactions made by Justice Waddilove in circumstances where she cannot know everything which he might have to say which might change her decision regarding the appropriate balance to strike in ensuring the privacy interests of the alleged victim are protected.”
20Mr. Wilcox explained that Mr. Vey’s account of his sexual relationship with the complainant left a narrow route for acquittal. In light of the evidence the Crown intended to adduce, it was Mr. Wilcox’s opinion that Mr. Vey would have to testify, and explain that he thought the complainant was awake and consenting on August 17, 2017. However, there was a risk the trial judge would reject his evidence as being inconsistent with the text messages between Mr. Vey and the complainant, and the counselling records.
21Hence the s. 276 application for leave to introduce evidence of the other instances Mr. Vey and the complainant engaged in consensual “wake-up” sex. This would allow Mr. Wilcox to cross-examine the complainant and allow Mr. Vey’s intended evidence.
22In the affidavit he swore in support of the application, Mr. Vey explained that what occurred on August 17, 2017, was no different from the other times he had woken the complainant by initiating sex, “with not only her consent, but her express appreciation.”
23The s. 276 application, heard on September 9, 2020, was denied by Justice Waddilove. As noted above, Mr. Vey’s affidavit filed in support of his s. 276 application was tendered as fresh evidence on this appeal.
24Counsel and Mr. Vey met on December 10, 2020, during which Mr. Vey submits Mr. Wilcox made the following comments:
He told Mr. Vey he thought the trial judge had demonstrated a reasonable apprehension of bias;
The trial judge declined their request for an in-person trial;
He lacked confidence in the trial judge’s ability to give Mr. Vey a fair trial;
He said he had concerns about the pre-trial rulings; and
He suggested Mr. Vey retain a different lawyer and bring a recusal application.
25Mr. Wilcox did not strongly disagree with this characterization of the meeting. However, he denies categorically stating that Mr. Vey would not get a fair trial.
26The trial was scheduled to commence September 8, 2021.
27Mr. Wilcox believed that Mr. Vey faced a high risk that he would be found guilty based on his account of what occurred between him and the complainant. Mr. Wilcox also believed given the nature of the complaint – full penetration of someone who is sleeping and unable to consent – a guilty verdict post-trial would result in a penitentiary sentence. Consequently, Mr. Wilcox worked with the Crown to see whether there was room for a plea resolution.
28On Thursday, September 2, 2021, the Crown advised that a guilty plea on the sexual assault charge would lead to a withdrawal of the three domestic assault charges, and a joint submission for a conditional sentence.
29On September 3, 2021, Mr. Vey met with Mr. Wilcox in his office to prepare for trial. The meeting started by Mr. Vey watching the complainant’s video statement and reviewing disclosure. The two then went for a walk, during which they discussed the case. Mr. Wilcox explained the Crown’s conditional sentence offer. He laid out the resolution’s practical implications for Mr. Vey. At the end of the meeting, Mr. Vey told Mr. Wilcox he did not want to plead guilty, and he was willing to risk a penitentiary sentence.
30Mr. Vey’s recollection of the meeting diverges on this account. Instead, Mr. Vey submits he was pressured into pleading guilty.
31There is a memo to file detailing Mr. Wilcox’s recollection of the meeting, dictated on both September 3, 2021, and September 6, 2021.
32Through a series of messages from Mr. Vey on September 4, 2021, it appeared to Mr. Wilcox that Mr. Vey had changed his mind and wanted to accept the Crown’s resolution offer.
33Mr. Vey confirmed Mr. Wilcox’s understanding during a phone conversation on September 7, 2021. At that point, Mr. Wilcox conducted a plea comprehension inquiry. Mr. Vey confirmed he understood the significance of pleading guilty.
34On September 8, 2021, Mr. Vey attended at Mr. Wilcox’s office and signed written instructions that he wanted to accept the Crown’s resolution offer. It is my understanding Mr. Wilcox conducted a second plea inquiry at this time.
35At court on September 8, 2021, Justice Waddilove conducted her own plea inquiry and was satisfied that Mr. Vey’s guilty plea could be entered.
Analysis
36It is trite law that an accused is entitled to effective assistance from the lawyer they’ve retained.
37A claim of ineffective assistance has two components which must be proven: performance and prejudice. To succeed on such a claim, the appellant must establish that counsel’s acts or omissions were incompetent and that a miscarriage of justice occurred as a result.
38The competence of trial counsel is assessed on a standard of reasonableness and must be proven on a balance of probabilities. The same standard of proof applies to establishing a miscarriage of justice resulting from professional incompetence: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 26–28; M.Z., at para. 15.
39Counsel’s conduct will be strongly presumed to have fallen within the wide range of reasonable professional assistance. The bar for establishing professional incompetence is high, and deference will be accorded to counsel’s strategic decisions. The “wisdom of hindsight” will not apply. Unreasonable acts or omissions on the part of counsel might include failures to challenge the Crown’s case properly, adduce relevant defence evidence diligently, or comply with instructions, thus denying real assistance and tainting the adjudicative process: R. v. Aulakh, 2012 BCCA 340, 295 C.C.C. (3d) 315, at paras. 46–48; G.D.B., at paras. 27, 29; R. v. Ball, 2019 BCCA 32, 371 C.C.C. (3d) 381, at para. 108.
40The court hearing the appeal should first consider the prejudice component of an ineffective representation claim. Where it is clear that no prejudice has occurred, it will generally be desirable to end the analysis at that point. As the Supreme Court held in G.D.B., at para 29:
The object of an ineffectiveness claim is not to grade counsel’s performance or professional conduct. The latter is left to the profession’s self-governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow.
41Prejudice will be established where an appellant proves that the alleged professional incompetence is linked to a miscarriage of justice. As the Court explained in G.D.B., miscarriages of justice may take many forms. In some cases, counsel’s performance may have undermined trial fairness; in others, the reliability of a trial’s result may have been compromised. By and large, a miscarriage of justice can result where there is a reasonable probability that the outcome of a trial would have been different but for counsel’s alleged errors. A reasonable probability is a probability that is sufficient to undermine confidence in the reliability of the outcome: R. v. Joanisse (1995), 44 C.R. (4th) 364 (Ont. C.A.), at para. 82, leave to appeal refused, [1996] S.C.C.A. No. 347; G.D.B., at para. 28.
42In R. v. Nnane, 2024 ONCA 609, at para. 9, the Court of Appeal held that in order to establish that trial counsel’s performance undermined trial fairness, trial counsel’s conduct must have undermined “the appearance of the fairness of the trial.”
43As Doherty J. held in Joanisse, at para. 66:
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”. 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. [Citations omitted].
Section 276 Application
44The core of Mr. Vey’s argument rests on the s. 276 affidavit. Mr. Vey submits the affidavit’s “unambiguous” confession left him no choice but to plead guilty.
45In this case, Mr. Wilcox’ hands were tied. The evidence the Crown intended to submit was extremely damaging. In light of R. v. J. A., Mr. Vey had no meaningful defence to advance. Despite this cold hard fact, Mr. Vey railed against the justice system, and was prepared to go to jail rather than yield to it.
46Mr. Wilcox advised he was prepared for trial. Mr. Vey then recanted and said he’d accept the Crown’s plea offer.
47At its best, the s. 276 application demonstrates that a different lawyer may have taken a different approach. This alone, however, does not establish a reasonable basis up which to find that the verdict would have been different. Or that counsel’s decisions were not a reasonable exercise of his professional judgment.
48Mr. Wilcox is a seasoned trial lawyer, with over 30 years of criminal defence experience. Mr. Wilcox’s testimony reflects his strategic decision to meet the Crown’s intended evidence head on:
I told him that in this case and cases like it, a – a – an excellent cross examination of the complainant regarding the circumstances in which she had come forward with the allegations and other arguments regarding her essential credibility – the problem was the texts and the counselling records, the argument was right there.
49Section 276 application or not, Mr. Vey would still be confronted with the Crown’s evidence at trial.
50Further, I agree with the Crown that the application was not predicated on the notion that Mr. Vey was entitled to rely on the complainant’s advance consent that he could engage in sexual activity while she was asleep. Mr. Wilcox expressly advised Mr. Vey of the very clear ratio in R. v. J.A. What Mr. Wilcox intended by bringing the s. 276 application was to allow Mr. Vey to defend the Crown’s evidence.
51As Mr. Wilcox explained during Mr. Vey’s cross-examination of him (at which time Mr. Vey was representing himself on the summary conviction appeal):
I was at pains to try to explain to you that your mistake of law was not a defence. The only defence would be if you could explain that you – what you were saying in the texts and the counselling sessions was misunderstood. That what you mean was that you could wake her up and then, and then touch her sexually when you were satisfied that she was awake and consenting. That was going to be difficult.
52Mr. Wilcox did not prejudice Mr. Vey’s defence by filing the affidavit on the s. 276 application. If Mr. Vey chose not to testify at trial, the affidavit would not see the light of day. If he did testify, the uncontroverted reality was that the Crown intended to tender Mr. Vey’s texts, and the counselling records as evidence at trial. The affidavit as drafted was consistent with the content of these documents. Mr. Wilcox was duty bound not to misrepresent Mr. Vey’s version of events.
53Mr. Wilcox did everything competent counsel was required to do. He was fully engaged with Mr. Vey. He kept detailed notes of their discussions. He ensured he got written instructions.
54Ultimately, the s. 276 application had no bearing on the trajectory of Mr. Vey’s trial.
Trial Judge
55Mr. Wilcox’s comments regarding the trial judge were made in the context of her decision to hold a virtual trial.
56There is nothing inherently wrong with counsel speaking frankly to a client and expressing their professional views. If there is an apprehension of bias, it was incumbent on Mr. Wilcox to impart this information to Mr. Vey. In fact, Mr. Wilcox suggested that Mr. Vey retain separate counsel to bring a recusal motion.
57However, the issue was resolved when the trial judged reversed her decision and permitted the trial to be heard in person.
Conclusion
58Mr. Vey submits that he had no choice but to plead guilty in light of Mr. Wilcox’s missteps, which rendered a guilty verdict a virtual certainty.
59He is correct that a guilty verdict was a virtual certainty. But this was not due to counsel’s missteps. It was due solely to the evidence that would be put before the trial judge.
60Mr. Vey has failed to satisfy me that Mr. Wilcox’s conduct was incompetent, or that a miscarriage of justice occurred.
61Mr. Vey’s application is dismissed.
CASULLO J.
Released: February 4, 2026