



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Young, 2022 ONCA 153

DATE: 20220217

DOCKET: C67437

Fairburn A.C.J.O., Doherty and
    Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alexander Young

Appellant

Enje Daniels and Isaac Heo, for the
    appellant

Erica Whitford, for the respondent

Heard: February 10, 2022 by
    video conference

On appeal from the convictions entered
    by Justice Lucy C. Glenn of the Ontario Court of Justice on January 8, 2019.

REASONS FOR DECISION

[1]

This is an appeal from three convictions for sexual assault with a
    weapon.
[1]
The weapons were a belt, a cane, a
    folded piece of plastic siding, and a broken coat hanger. The complainant was
    the appellants wife.
[2]


[2]

The appeal rests solely on an ineffective assistance of counsel claim.
    We dismissed the appeal with written reasons to follow. These are our reasons.

[3]

The appellant focused upon two issues during oral argument. Although the
    factum referred to other issues, all ultimately turned on the credibility of
    the affidavit filed by the appellant as fresh evidence. As will be explained
    below, that affidavit is not credible. We see no need in these reasons to
    address the arguments raised in the factum but not addressed in oral argument.

[4]

First, the appellant claims that the trial was unfair because counsel
    failed to inform him about the available modes of trial and, more specifically,
    about his right to a preliminary inquiry. Second, he claims that the verdict
    was unreliable because counsel failed to lead evidence that the complainant had
    a potential motive to fabricate.

[5]

To succeed on a claim of ineffective assistance of counsel, an appellant
    holds the onus of establishing three things:

(1)

the facts upon which the claim rests (the factual
    component);

(2)

that the facts reveal ineffective representation (the
    performance component); and

(3)

that a miscarriage of justice has resulted from the
    ineffective representation (the prejudice component).

See
R. v. Girn
, 2019 ONCA
    202, 145 O.R. (3d) 420, at para. 91.

[6]

Turning to the first issue, whether the trial was
    rendered unfair because trial counsel failed to adequately inform the appellant
    about the different modes of trial, we are unpersuaded.

[7]

As is typical in appeals involving ineffective
    assistance claims, the fresh evidence includes an affidavit from the appellant
    and a transcript of his cross-examination. That transcript reveals that the
    appellants complaint morphed between examination-in-chief and
    cross-examination. He initially suggested that his counsel did not inform him
    about the various modes of trial. That position changed during
    cross-examination, where he acknowledged that he in fact knew that he could
    have a trial in the Ontario Court of Justice or the Superior Court of Justice,
    and that one of his options in the Superior Court of Justice was to be tried by
    a judge and jury.

[8]

Having acknowledged that fact, the appellants
    complaint seemed to become that he did not actually make a choice, but rather
    wanted whatever [his] lawyer suggested would be  better. At the same time,
    he acknowledged that his primary concern was to obtain an expeditious trial.
    Trial counsels evidence demonstrates that he clearly understood the
    appellants concern about a speedy trial and, therefore, recommended the matter
    be tried in the Ontario Court of Justice.

[9]

We are satisfied that the appellant clearly understood
    the various modes of trial and that he was prepared to accede to counsels
    suggestion as to how to obtain the most expeditious trial.

[10]

As for the appellants suggestion that he was not
    informed about his entitlement to a preliminary inquiry, he has failed to meet
    his onus.

[11]

Trial counsel candidly admits that he has no specific
    recollection of informing the appellant about the potential for a preliminary
    inquiry. While it is trial counsels normal practice to explain this to his
    clients, he acknowledges that he has no specific note or recollection of having
    done so in this case. Therefore, he cannot definitively say that he followed
    his usual practice.

[12]

What counsel does very clearly recall is that he told
    his client about the various modes of trial and was given unequivocal
    instructions about getting the matter to trial as quickly as possible. In his
    view, that meant a trial in the Ontario Court of Justice.

[13]

Counsels lack of memory on this point does not tip the
    scales toward proof that the claim has been made out. This is particularly true
    in the face of a strong presumption of counsels competence: see
R. v.
    G.D.B.
, 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27. Even assuming that
    information about a potential preliminary inquiry properly falls under the
    rubric of modes of trial, the onus remains squarely on the appellant to prove
    that he was not given this information. In our view, the appellants evidence
    falls well short of establishing this fact.

[14]

For a number of reasons, we do not accept his evidence
    on this point because he lacks credibility. In our view, the appellants
    commitment to the truth is undetectable. For instance, the appellant admitted
    during cross-examination on his affidavit, which was filed in this court as
    fresh evidence, that he lied under oath at trial. Those lies included having testified
    at trial that he would never strike anyone with anything, explaining that he
    had an aversion to doing so because he was hit with a belt as a child. Yet, in
    the fresh evidence filed in this court, the appellant has admitted that he
    struck his wife with objects, including a belt, because she asked him to do so,
    and that he was afraid that he would get a good beating if he did not do as
    she asked. There is no indication in the record that the appellant in any way
    appreciates the fact that his sworn evidence on appeal belies his sworn
    evidence at trial.

[15]

In addition, read as a whole, the appellants evidence
    is entirely self-serving, internally inconsistent, and reflective of either
    intentional lies or memory issues. In our view, his evidence simply cannot be
    trusted.

[16]

In these circumstances, we decide this ground of appeal
    on the basis that the appellant has failed to demonstrate his claim that he was
    not told about the possibility of a preliminary inquiry. This conclusion should
    not be taken as suggesting that a failure to tell a client about the
    possibility for a preliminary inquiry would necessarily result in a miscarriage
    of justice. We leave for another day whether imperfections in the manner that a
    client is told about possible modes of trial are all necessarily equal and have
    the same impact on the fairness of the subsequent trial.

[17]

In this case, though, we need not get into the legal
    consequences arising from such a failure because we are not satisfied that the
    appellant was not told about the preliminary inquiry.

[18]

As to the second issue, the appellant argues that the
    verdict is unreliable because trial counsel failed to lead evidence that the
    complainant had a potential motive to fabricate. That motive to fabricate is
    said to arise from the fact that immediately prior to the police complaint
    being made, the appellant advised the complainant that he would be seeking
    custody of their children. The purported motive to fabricate, then, is said to
    arise from the complainants desire to obtain an advantage in the custody
    dispute.

[19]

We are unable to accept this submission. While there
    was in fact an active custody dispute at the time that the complainant reported
    this matter to the police, the fact is that she had previously made those
    allegations to others long before the matter was reported to the police or the
    custody dispute commenced. Among those she reported to was the appellants
    mother, who confirmed that fact in her evidence at trial.

[20]

In these circumstances, raising motive would have had
    no impact on the result of this case and, therefore, at a minimum, the
    appellant falls short on proving the prejudice component of the test.

[21]

These are the reasons we dismissed the conviction
    appeal.

[22]

The sentence appeal was abandoned.

Fairburn A.C.J.O.

Doherty J.A.

David M. Paciocco J.A.





[1]
While the
      appellant originally sought leave to appeal his sentence, he has since served
      his full sentence and therefore abandoned his sentence appeal.



[2]
While this matter was initially subject to a publication ban under
      s. 486.4 of the
Criminal Code
, R.S.C., 1985, c. C-46, that ban was
      removed at the request of the complainant on April 25, 2019. We have asked for
      and received confirmation of this fact.



