



WARNING

The President of the panel hearing this appeal directs that
    the following should be attached to the file:

An order restricting publication in this proceeding under ss.
    486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the

Criminal
    Code
provide:

486.4       (1)
Subject to
    subsection (2), the presiding judge or justice may make an order directing that
    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)       any of the following offences;

(i)   an offence under section 151, 152, 153, 153.1, 155, 159,
    160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273,
    279.01, 279.02, 279.03, 346 or 347,

(ii)  an offence under section 144 (rape), 145 (attempt to
    commit rape), 149 (indecent assault on female), 156 (indecent assault on male)
    or 245 (common assault) or subsection 246(1) (assault with intent) of the
Criminal Code
,
    chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately
    before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse
    with a female under 14) or (2) (sexual intercourse with a female between 14 and
    16) or section 151 (seduction of a female between 16 and 18), 153 (sexual
    intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross
    indecency), 166 (parent or guardian procuring defilement) or 167 (householder
    permitting defilement) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it
    read immediately before January 1, 1988; or

(b)       two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    any of subparagraphs (a)(i) to (iii).

(2)
In proceedings in respect
    of the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)  at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, make the order.

(3)
In proceedings in respect
    of an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)
An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b).

486.6       (1)
Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)
For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. W.E.B., 2012
    ONCA 776

DATE: 20121114

DOCKET: C53146

OConnor A.C.J.O., MacPherson and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

W.E.B.

Appellant

Michael A. Crystal and Ashish Duvadie, for the appellant

Holly Loubert, for the respondent

Heard: November 7, 2012

On appeal from the conviction entered on August 25, 2010 and
    the sentence imposed on April 29, 2011 by Justice Robert F. Scott of the
    Superior Court of Justice, sitting without a jury.

By the Court:

(1)

Introduction

[1]

The appellant was convicted of three counts of sexual assault,
    two counts of sexual touching and one count of invitation to sexual touching
    and was sentenced to three years imprisonment
,
    together with a weapons prohibition and D.N.A. orders.  He appeals against his
    convictions on the sole ground of ineffective assistance of trial counsel.
[1]
He contends that his trial counsel was incompetent in the
    conduct of his defence in several respects, rendering her assistance
    ineffective and thereby causing a miscarriage of justice.

[2]

We conclude that the appellants ineffective
    assistance claim fails.  As a result, his conviction appeal must be dismissed.

[3]

To succeed on his ineffective assistance
    claim, the appellant must discharge his onus to establish: (1) the facts that
    underpin his claim; (2) the representation provided by his trial counsel was
    incompetent; and (3) his counsels incompetent representation resulted in a miscarriage
    of justice:
R. v. Joanisse
(1995),
    102 C.C.C. (3d) 35 (C.A.); leave to appeal to S.C.C. refused, [1996] S.C.C.A.
    No. 347;
R. v. T. (L.C.)
2012 ONCA
    116.  Incompetence is determined by a reasonableness standard and must be
    assessed without the wisdom of hindsight.  A strong presumption that counsels
    conduct fell within the range of reasonable professional assistance applies:
Joanisse
;
T. (L.C.)
.

[4]

It is unnecessary to address the entire litany of the appellants
    complaints against his trial counsel.  We are not satisfied that he has made
    out the requisite factual basis for his main complaints against her or that he
    was prejudiced by her conduct.  The following examples will suffice to make
    this point.

(2)

The Appellants
    Decision Not to Testify

[5]

The appellants most serious allegation of incompetence against his
    trial counsel is that, despite his repeated  indeed his allegedly insistent 
    instructions to her, she refused to allow him to testify on his own behalf at
    trial.

[6]

The decision whether an accused should testify at his or her criminal
    trial is, of course, that of the accused.  While counsel can and should advise
    his or her client on this issue, in the final analysis the decision is that of
    the client.

[7]

As is customary on appeals based on ineffective assistance of counsel
    claims, fresh evidence was filed on appeal, on consent, by both the appellant
    and the Crown consisting in part of affidavit evidence from both the appellant
    and his trial counsel, on which they were cross-examined.

[8]

In her affidavit and related cross-examination, trial counsel swore that
    she discussed the issue whether the appellant should testify at trial with him on
    many occasions, that she told him a final decision on the issue should not be
    made until after the Crown had closed its case, and that, when the Crown did
    close its case, she advised the appellant against testifying.  She said that
    she thought throughout that the appellant would be a very poor witness and that
    his testimony would be damaging to his defence.  Our review of the transcript
    of the appellants cross-examination on his affidavit suggests that the latter
    assessment was well-founded.

[9]

Further, and more importantly, despite his allegations to the contrary
    in his affidavit and on many occasions during his cross-examination, the
    appellant in fact admitted on cross-examination that his trial counsel had told
    him that a final decision whether he would testify should not be made until the
    completion of the Crowns case and that when she ultimately advised him not to
    testify, he said fine.  The appellant claims that although he agreed not to
    testify, he did not mean to do so and that his acceptance of counsels advice
    was involuntary.  In effect, the appellant says that he said one thing but
    meant another.  This falls far short of a demonstration that trial counsel was
    incompetent in her approach to or handling of this issue.  Thus, the appellant has
    failed to establish the requisite factual basis for this incompetence
    allegation.

[10]

We
    note that trial counsels failure to obtain the appellants written
    instructions regarding his decision not to testify was ill-advised and contrary
    to counsels best interests, as the issues raised on this appeal illustrate. 
    That, however, is a question of professional prudence, not incompetence.

(3)

The Alleged Failure
    to Prepare the Appellant to Testify

[11]

The
    appellant further submits that his trial counsel failed to prepare him to
    testify.  In contrast, trial counsel testified that she discussed his evidence
    in the case with him extensively and gave him tips on what to do and not to do
    when testifying on the stand.

[12]

Importantly,
    during his cross-examination, the appellant did not claim that he would have
    testified but for his lack of preparation by trial counsel.  On the appellants
    evidence, he was ready to testify at trial if counsel had permitted him to do
    so.  Moreover, again on his own evidence, the appellant did not regard the
    advice of his counsel as necessary concerning his proposed trial testimony.  On
    his cross-examination on his affidavit, the appellant said that he did not ask
    his trial counsel about what he would say on the stand since he knew what [he]
    was going to say on the stand.

[13]

During
    oral argument before this court, the appellant relied on the claim that his
    counsel did not adequately prepare him to testify to support the assertion that
    she never actually intended to call him as a witness at trial and that, in
    those circumstances, the quality of her eventual advice that he should not
    testify was suspect.  We reject this submission.

[14]

The
    appellants counsel advised him not to testify.  On his own evidence, the
    appellant accepted this advice.  If, at that point, the appellant had wished to
    testify, or to discuss the issue further with his counsel, the record suggests
    that an adjournment could readily have been obtained to accommodate this.  The
    record indicates that after the appellant told his counsel that he was fine
    with her recommendation that he not testify, his counsel then sought and
    obtained an adjournment of the trial for the balance of the afternoon, until
    the next day, to prepare her final submissions and discuss them with the
    appellant.  There is no reason to suppose that counsel could not have secured a
    similar adjournment if there had been any suggestion that the appellant wished
    to testify.

[15]

It
    must be emphasized that the appellants defence was a simple denial of the
    allegations against him, coupled with the assertion that at least one of the
    complainants had a motive to lie to avoid debt collection action by the
    appellant.  Extensive preparation was not required to advance this defence.

[16]

We
    note, as well, that there is good reason to doubt that the appellant would have
    listened to any advice from his counsel concerning his trial testimony.  During
    his evidence in support of his appeal, the appellant made it abundantly clear
    that he had lost faith in his counsel after his preliminary inquiry and that he
    believed he could have gotten [himself] off if [he] had been [his] own
    lawyer.

[17]

In
    all these circumstances, we do not accept the appellants complaint that his
    trial counsel was incompetent because she allegedly failed to prepare him to
    testify at trial.

(4)

The Alleged Prior
    False Complaint

[18]

The
    appellant also argues that his trial counsel was incompetent because she failed
    to call the biological father of one of the complainants as a witness at trial
    to establish that the involved complainant had made a prior false complaint of
    sexual assault against the witness.  Once again, the appellant has failed to
    make out the necessary factual basis to ground this claim.

[19]

The
    record indicates that trial counsel made various attempts to locate the witness
    in question, including by contacting Crown counsel, to no avail.  The appellant
    admitted on cross-examination that he did not know where the witness was living
    in the months preceding or during the trial.  On the record before us, there is
    no evidence that the relevant complainant ever made a false allegation of
    sexual assault against her biological father; rather this allegation rests on
    the appellants unsubstantiated assertion that she made a prior complaint of
    sexual assault and that the complaint was false.

[20]

In
    particular, there is no evidence before this court, including as part of the
    appellants fresh evidence, indicating how the further pursuit of this issue by
    trial counsel would probably have assisted the defence.  For example, there is
    no evidence before us from the complainants biological father or her mother or
    from the police establishing the fact and nature of the alleged prior assault
    complaint.

[21]

Consequently,
    on this issue as well, the appellant has failed to meet the evidentiary
    threshold for a showing that the trial verdict was a miscarriage of justice by
    reason of trial counsels conduct.

(5)

Other Allegations of
    Incompetence

[22]

The
    appellants remaining complaints of incompetence suffer from similar flaws.  In
    some instances, they lack the necessary factual foundation.  In other
    instances, no evidence of prejudice arising from the allegedly incompetent
    conduct of counsel has been identified.

[23]

We
    note, in particular, that during the course of oral argument, counsel for the
    appellant emphasized trial counsels alleged overall lack of preparation for
    the conduct of the appellants defence.  He submitted that this want of
    preparation led to an inadequate cross-examination of one of the complainants
    and a failure to effectively impeach her credibility.

[24]

We
    reject this submission.  In our view, trial counsels cross-examination of the
    relevant complainant, while perhaps not stellar, cannot be said to fall outside
    the realm of reasonable professional assistance.

(6)

Disposition

[25]

For
    the reasons given, the conviction appeal is dismissed.

RELEASED:

NOV 14 2012                                   Dennis
    OConnor A.C.J.O.

DOC                                                J.C.
    MacPherson J.A.

E.A.
    Cronk J.A.





[1]
The appellant abandoned his sentence appeal.


