



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), (2.1), (2.2), (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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right to make an application for the order; and

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

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of the
    victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22,48; 2015, c. 13, s. 18.

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. Watkins, 2020 ONCA 754

DATE: 20201127

DOCKET: C64562

Gillese, Lauwers and Benotto
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Anthony Watkins

Appellant

Mark
    Anthony Watkins, acting in person

Joe
    Wilkinson, appearing as duty counsel

Michael
    Fawcett, for the respondent

Heard:
    November 3, 2020 by video conference

On appeal from the conviction entered on
    August 21, 2017 and the sentence imposed on October 17, 2017 by Justice Ferhan
    Javed of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

Mark Watkins was tried on a seven-count information
    alleging the following criminal offences involving his ex-partner, the
    complainant:

1.

fail to comply with undertaking;

2.

assault on or about July 28, 2016;

3.

sexual assault on or about July 28, 2016;

4.

sexual assault on or about July 27, 2016;

5.

uttering threats on or between March 1-31, 2016;

6.

uttering threats on or between May 1-31, 2016;
    and

7.

uttering threats on July 27, 2016.

[2]

The appellant pleaded guilty to count one, admitting
    that he had given an undertaking not to consume alcohol and breached it by
    consuming alcohol on July 29, 2016 when he was arrested by the police. The
    appellant testified and denied making any of the threats or committing the
    assault with which he was charged. He admitted having sex with the complainant
    on the dates of the alleged assaults but said that the sex was consensual.

[3]

On
August 21, 2017 the
    trial judge rendered an oral judgment setting out his key findings of fact and
    explaining why he concluded that the Crown had proven Mr. Watkins guilt beyond
    a reasonable doubt on all counts except count two  an assault on July 28, 2016
     and count six  uttering a threat in May 2016. He delivered written reasons for
    conviction and sentence on October 17, 2017.

[4]

The trial judges key findings of fact were
    these:

1)

He rejected the appellants evidence that his
    relationship with the complainant was good. He found that this was a
    relationship with long-term verbal and emotional abuse.

2)

He rejected the appellants evidence relating to
    his alcohol consumption.

3)

He found that the appellant was aware that the
    relationship with the complainant was over but that the appellant refused to
    accept this fact.

4)

He accepted the complainants evidence that the appellants
    threat to her in March 2016 (count five) was clear and specific and was meant
    to intimidate her.

5)

He accepted the complainants evidence about the
    words the appellant used when he threatened her in May 2016 (count six) but did
    not find that the threat intimidated her on that occasion.

6)

He accepted the complainants evidence that she
    did not consent to sexual activity with the appellant on July 27 and 28 (counts
    three and four), and that the complainant had communicated her lack of consent
    to the appellant. He also found that the appellants sexual assault on July 27
    was preceded by a threat, which was meant to and did intimidate her (count seven).

[5]

The appellant makes two arguments in his notice
    of appeal. The first is that the trial judge misapprehended the evidence. The
    second, in a supplementary notice of appeal, is that he had ineffective
    assistance of counsel.

[6]

Duty counsel adds another ground. He submits that
    the trial Crown improperly cross-examined the appellant on the conduct on which
    his previous convictions were based. Although s. 12(1) of the
Canada
    Evidence Act
, R.S.C. 1985, c. C-5, authorizes a witness to be questioned
    on whether the witness has been convicted of any offence, courts have limited this
    type of questioning to the facts of the conviction, including the offence, the
    date and the place of the conviction, and the punishment imposed:
R. v. M.C.
,
    2019 ONCA 502, 376 C.C.C. (3d) 81,
per
Watt J.A., at paras. 53-55.

[7]

The respondent concedes that the trial Crown
    went too far in exploring the details of the conduct underlying the appellants
    prior convictions in cross-examination. However, the respondent submits that
    careful examination of the trial judges reasons establish that trial fairness
    was not impaired and that this was the sort of error for which use of the
    proviso would be warranted.

[8]

In this case the criminal record was put into
    evidence by defence counsel. The copy ultimately filed with the trial judge as
    an exhibit had the trial Crowns handwritten annotations on it describing what
    the individual offences were about. Duty counsel does not fault trial defence
    counsel for introducing this evidence because the record was bound to be put to
    the appellant in cross-examination, making it good trial strategy to minimize
    its effect by getting it out early. However, duty counsel argues that the
    cumulative effect of the Crowns improper cross-examination was to substantiate
    the appellants problems with alcohol, his history of domestic violence, his
    tendency to minimize his own behaviour and to lie to courts in order to
    minimize the personal consequences of his actions. Duty counsel argues that
    this tainted the trial judges assessment of the appellants credibility,
    encouraged prejudicial reasoning on the trial judges part, and therefore led
    to a miscarriage of justice.

[9]

We do not accept this argument. While we agree
    that the Crowns cross-examination on the appellants record was improper, we
    do not agree that it unduly influenced the trial judges approach to the case.

[10]

The trial judge instructed himself appropriately
    on the burden of proof, citing
R. v. Lifchus
, [1997] 3 S.C.R. 320, at
    para. 27. He did the same respecting the principles set out in
R. v. W.(D.)
,
    [1991] 1 S.C.R. 742, at pp. 757-8. He instructed himself that demeanor evidence
    was an unreliable factor in the assessment of credibility and not to give it
    undue weight.

[11]

The trial judge was alive to the tensions in the
    law. First, he cited the observation of Doherty J.A. that: The existence of
    previous criminal convictions may render a witness less credible:
R. v.
    Watson
(1996), 108 C.C.C. (3d) 310, at p. 334, [1996] O.J. No. 2695 (C.A.)
    at para. 76. Second, the trial judge was careful in instructing himself that:
    While I can rely on his record, I cannot use it to infer propensity to commit
    the offences before the court, citing
R. v. Corbett
, [1988] 1 S.C.R.
    670 at para. 21.

[12]

The trial judge enumerated briefly the 20
    convictions on the appellants record. In his analysis of the issues at trial,
    the trial judge returned to the criminal record, and made these observations:

First, he minimized his criminal record. Mr.
    Watkins has a lengthy criminal record with convictions for crimes of violence.
    Some are driving-related which involve alcohol. Arguably, this cannot be an
    easy thing to be questioned on, and one would expect some downplaying, but Mr. Watkins
    refused to acknowledge his role in his criminal antecedents. He testified that
    most of the times he pled guilty to get out of jail. In cross-examination, he
    was given an opportunity to explain what he meant. When it was suggested to him
    that this meant he might have lied to the court (if he was not guilty of the
    offences) just to get out of jail, he did not correct or explain this
    assertion. He remained adamant he just wanted to get out of jail, implying he
    was not really guilty of the offences. This is problematic.

[13]

The third tension in the law concerns propensity
    reasoning. The trial judge noted that in cases involving domestic
    relationships, extrinsic evidence can be led not for propensity reasoning but
    in order to provide context to the relationship, particularly where it can
    explain why a person remains in an abusive relationship:
R. v. F.(D.S.)
(1999), 132 C.C.C. (3d) 97 (Ont. C.A.), [1999] O.J. No. 688.

[14]

The trial judge then said:

The extrinsic evidence led by the Crown was
    limited to the other counts on the information and instances of verbal and
    emotional abuse. It is entirely relevant to explain why [the complainant]
    remained in the relationship, which of course is being challenged by the
    defence as a key issue which speaks against her credibility.

I accept the evidence of [the complainant] as
    to why she stayed in the relationship. In contrast, I reject Mr. Watkins
    characterization of their relationship as good [The complainant] testified
    that the relationship was emotionally and verbally abusive and this was a
    longstanding issue.

[15]

The case turned on the trial judges credibility
    findings. He did not believe the appellant, pointing out that there were
    several areas of his evidence that were internally inconsistent and also
    inconsistent with his prior statements, including his statements to the police.
    He noted that the appellant tried to minimize his lengthy criminal record and
    minimized his alcohol consumption.

[16]

By contrast, the trial judge found the
    complainant to be forthright and consistent in her evidence. He accepted her
    evidence that the appellants drinking was excessive and that when he abused alcohol,
    he became angry and disruptive. The complainants sister provided corroborative
    evidence that she had to take the step of banning him from her home.

[17]

In assessing the complainants credibility, the
    trial judge found that she had no motive to fabricate relating to the
    termination of their domestic relationship nor, more specifically, in order to
    gain an advantage in the division of their assets. He found that their
    confrontation on the division of assets occurred after the assaults.

[18]

The trial judges self instructions were
    thoughtful, correct, and complete, and his reasons were comprehensive and
    detailed. The appellant has demonstrated no palpable and overriding errors or
    misapprehensions of the evidence by the trial judge. Nor are there any errors
    of law.

[19]

The appellant made submissions in addition to
    duty counsel and elaborated on the argument set out in a supplementary notice
    of appeal that his trial counsel provided ineffective assistance. The appellant
    had in 2018 obtained a limited order under s. 684 of the
Criminal Code
for assistance and a review of this claim, but no counsel is before the court
    making this argument.

[20]

With respect to the fresh evidence relating to
    the ineffective assistance of counsel claim, the appellant makes four
    allegations:

1)

Trial counsel failed to do an effective cross-examination on the
    complainant and her sister;

2)

Trial counsel undermined the fairness and the
    appearance of representation of the trial and the reliability of the outcome of
    the verdict;

3)

Trial counsels conduct of incompetence and
    ineffectiveness is the cause for a miscarriage of justice which in turn
    affected the verdict; and

4)

Trial counsel failed to hear my side of these
    allegations and events which is required by law to do so. Trial counsel [failed
    to inform me of these allegations at any time and did not discuss any
    strategies].

[21]

These allegations were refined further in
    communications between the Crown and trial counsel. The Crown invited trial
    counsel to respond to the following allegations:

1)

The videotape statement  Mr. Watkins alleges that you did not view
    his videotaped statement to police before conceding its voluntariness.

2)

The allegations  Mr. Watkins states that you
    did not review the allegations with him, and he did not know the nature of the
    case against him.

3)

Trial preparation  Mr. Watkins alleges that you
    never discussed trial strategy with him; did not ask his side of the story; and
    never explained to him what would happen when he took the stand.

[22]

In response, trial counsel advised:

1)

I did review the video statement of Mr. Watkins but, I did not view
    the video with Mr. Watkins himself. I told him I had reviewed it and confirmed
    that it was similar to the written synopsis that the Crown had provided in the
    disclosure. I reviewed that with him and he recalled what he said to police. He
    was fine with what he had told police and did not express any issues with that
    aspect of his evidence.

2)

I reviewed all allegations with Mr. Watkins. I
    read out the disclosure to him over the videolink meetings we had in
    preparation for trial. He knew exactly what the allegations were against him
    and he is the one that gave me the background of the relationship in order to
    cross-examine the complainant.

3)

I always discussed trial strategy with Mr.
    Watkins. We discussed whether he wanted to take the stand. We discussed how we
    would cross-examine the complainant and the fact that her sister would also be
    testifying. I went over their statements with Mr. Watkins and he gave me
    the history to cross-examine the witnesses and his side of the story. I was
    fully aware of Mr. Watkins version of events. He told me several times what his
    position was and I tried to place that before his Honour as best I could. I
    also discussed with him what it meant to take the stand. He seemed to be fully
    prepared to answer questions from the Crown. When I discussed my expectation,
    he seemed to understand. At least, he led me to believe he understood and was
    still prepared to take the stand so the Judge had his side of the story.

[23]

In his oral submissions before this court, the
    appellant focussed on the complaint that defence counsel had put his criminal
    record into issue, and that he was not prepared for the questions that counsel
    asked. As duty counsel pointed out, defence counsel cannot be faulted for
    adducing the appellants record. We addressed the problems with the cross-examination
    on the record earlier but note that defence counsel did not object to it.

[24]

On this record, with the substantial evidence
    against the appellant, we are unable to find that defence counsel provided him
    with ineffective assistance.

[25]

The notice of appeal included a sentence appeal
    but did not set out the grounds. Neither the appellant nor duty counsel
    addressed the sentence appeal, nor did they abandon it. Since leave to appeal
    sentence was not pursued, leave to appeal sentence is denied.

[26]

The appeal is dismissed.

E.E.
    Gillese J.A.

P.
    Lauwers J.A.

M.L.
    Benotto J.A.


