



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    shall not be published in any document or broadcast or transmitted in any way.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. D.S., 2017 ONCA 131

DATE: 20170215

DOCKET: C55428

Simmons, Pardu and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.S.

Appellant

Misha Feldmann, for the appellant

Michael Perlin, for the respondent

Heard: October 14, 2016

On appeal from the conviction entered on June 21, 2011 by
    Justice Laurence A. Pattillo of the Superior Court of Justice, sitting with a
    jury.

Miller J.A.:

[1]

After a 21 day trial before a judge and jury, the appellant was
    convicted of 32 charges, including sexual assault, assault with a weapon, and
    assault causing bodily harm. The appellants former spouse testified that these
    acts were a discrete part of a larger, on-going pattern of domestic abuse of
    both her and her children which persisted for over 10 years: on multiple
    occasions the appellant facilitated the sexual assault of his former spouse by
    strangers in their family home; many of his assaults were carried out with
    weapons including swords, knives, an axe, a meat cleaver and a spear.

[2]

Chief among the appellants grounds of appeal is a claim of ineffective
    assistance of counsel. He also appeals on the basis of multiple errors in the
    charge to the jury.

[3]

None of these grounds of appeal have merit and I would dismiss the
    appeal.

A.

Ineffective assistance of counsel

[4]

The ineffective assistance of counsel claim was brought in relation to
    the six counts of sexual assault against the appellants former spouse, R.B.
    The claim revolves around trial counsels decision not to seek a more lengthy
    adjournment when, in the midst of cross-examining R.B., the appellants trial
    counsel realized she had not received a videotaped statement that R.B. had
    provided to the police on May 15, 2009. The videotaped statement had been
    provided to the appellants previous counsel as part of the Crown disclosure,
    but had not been passed on to counsel at trial.

[5]

Trial counsel sought a brief recess to review the transcript of the
    videotaped statement, and was granted a 20 minute recess to do so. After the
    recess trial counsel indicated that she was content to proceed and she resumed
    cross-examination, making use of the transcript. She later watched the
    videotaped statement, and confirmed for herself the accuracy of the transcript
    that she had been using. The next day, June 2, she continued her
    cross-examination, using the transcript.

[6]

What happened in the June 1 cross-examination is this: trial counsel
    began to cross-examine R.B. on a sexual encounter for which the appellant had
    not been indicted, and about which R.B. had not been examined in chief. Much
    confusion followed.

[7]

R.B., in the May 15 videotaped statement, had given an account of four
    sexual incidents. The appellant had only been indicted for three of these.
    Trial counsel nevertheless questioned R.B. on her statements about the
    non-indicted incident, on the theory that there were only ever three incidents,
    that R.B. could not keep the details of each one separate, and that this
    inability impaired her credibility.

[8]

Eventually, when the trial Crown understood what defence counsel was
    doing, she objected. The trial judge, upon review of the May 15 transcript,
    concluded that R.B.s videotaped statement chronicled four separate incidents.
    Defence counsel asked for an order under s. 276 of the
Criminal Code
to cross-examine R.B. on the fourth incident. Ultimately, the trial judge did
    not permit cross-examination on this incident. He questioned how there could be
    any inconsistency on which to cross-examine, given that R.B. had not testified
    about the fourth incident, and held that the fourth incident was not relevant
    for the purposes of the trial.

[9]

The trial judge then gave a mid-trial instruction to the jury to ignore
    the evidence that R.B. had given up to that point about the fourth incident. Defence
    counsel was permitted to continue questioning R.B. with respect to
    inconsistencies among her accounts of the three assaults, and she did so.

[10]

The appellant now argues that the cross-examination was deficient in its
    exploration of discrepancies between the videotaped statement and the evidence given
    on examination-in-chief, and that reasonably competent counsel would have
    sought an adjournment so as to have been better prepared to exploit these
    inconsistencies on cross-examination.

[11]

I do not agree that the appellant has met the high bar of establishing
    ineffective assistance of counsel. On an appeal on the basis of ineffective
    assistance of counsel, the burden is on the appellant to establish not only
    that trial counsels performance was incompetent, but crucially, that the
    appellant was sufficiently prejudiced by counsels inadequate performance that
    it amounts to a miscarriage of justice:
R. v. Archer
(2005), 202
    C.C.C. (3d) 60, at paras. 118-121;
R. v. S.(R.)
, 2016 ONCA 655, 341
    C.C.C. (3d) 530, at para. 44.

[12]

The appellant cannot identify any actual prejudice that he suffered on
    account of trial counsel not having obtained an adjournment before commencing
    the cross-examination on the transcript, or in relation to a s. 276
    application. The trial judge ruled that cross-examination on the fourth
    incident was not relevant to the trial. The appellant has not taken issue with
    that ruling. The inconsistencies now identified by the appellant are
    comparatively minor details, and to suggest that examining on these details
    could have led to a different outcome is speculative and doubtful. Whether the
    cross-examination would have been more fruitful had it been undertaken with
    greater preparation is a matter of conjecture. Notably, trial counsel obtained
    an acknowledgment from R.B. that she could have become mixed up about the
    details of the three sexual assaults.

[13]

As I would hold that the appellants claim failed to establish that the
    alleged incompetence resulted in a miscarriage of justice, there is no need to
    assess the adequacy of counsels performance:
Archer
, at para. 121.

[14]

I would hold that the claim of ineffective assistance fails.

B.

Errors related to the charge to the jury

[15]

The appellant raises five grounds of appeal related to the jury charge,
    which can be dealt with summarily. He alleges deficiencies in the charge
    related to (i) collusion, (ii) similar fact evidence, (iii) evidence on
    withdrawn counts, (iv) the length, confusing, and unbalanced nature of the
    charge, and (v) the instruction regarding the rule in
Browne v. Dunn
. In
    my view, none of these grounds have any merit.

(1)

Collusion

[16]

The appellant argues that there ought to have been a specific charge to
    the jury with respect to collusion among the witnesses: particularly, R.B. and
    her four children.

[17]

The jury, however, could have been under no mistake about the defence
    claim of collusion. It was front and centre throughout the trial: R.B. was said
    to be a jealous, spurned woman, who turned the children against their father
    and orchestrated their claims against him. This theory was highlighted during
    the cross-examinations
,
the defence closing address and the
    trial judges review of the defence theory in the charge to the jury.

[18]

No specific charge was sought, and in this context no specific charge
    was needed, either for intentional collusion or an unintentional tainting.

(2)

Similar fact evidence

[19]

The appellant accepts that similar fact evidence was properly admitted
    at trial. He now objects that although the jury was sufficiently instructed
    that they could not use similar fact evidence to conclude that the appellant is
    a bad person and therefore likely to have committed the offences, the jury was
    not sufficiently instructed on the positive use to which they could put that
    evidence. In my view, there is no merit to this submission.

[20]

The instruction to the jury was adequate and no objection to it was
    raised at trial. No injustice resulted from the absence of a more detailed
    instruction as to how the evidence of how assaults against one member of his
    family supported the complaints by other members of the family.

(3)

Evidence on withdrawn charges

[21]

Encouraged by the trial judge, the Crown withdrew eight counts in an
    attempt to streamline the trial. The appellant argues, for the first time, that
    the jury ought to have been instructed to disregard any evidence related to
    these withdrawn charges.

[22]

There was no error, in my view. The evidence related to the withdrawn
    charges was properly admissible as similar fact evidence in relation to other
    counts still before the jury.

(4)

Unbalanced charge

[23]

The appellants argument is that the charge was unduly complex, and that
    the trial judge unduly emphasized the Crowns case.

[24]

Again, I see no merit in the submission that the jury charge was unduly
    complex.

[25]

With respect to the argument that the charge emphasized the Crowns case,
    in a trial such as this, where there is a large number of charges comprising a
    continuous course of conduct against the same set of complainants over a 10
    year period, the jury charge will necessarily contain some repetition. When
    that is coupled with a defence that is a more or less blanket denial of each
    charge, there will be a superficial imbalance. But it is not an imbalance in
    the requisite sense as set out in
R. v. Nelson
, 2014 ONCA 853, 318
    C.C.C. (3d) 476, at para. 47.

(5)

Rule in
Browne v. Dunn

[26]

In cross-examining defence witnesses, the Crown noted that some of the
    events to which defence witnesses had testified were not put to Crown witnesses
    on cross-examination, so that they might have the opportunity to provide their
    account of these events: for example, the appellants testimony that what appeared
    to be a scar on the chest of one of the children was not caused by the
    appellants use of a sword, but by a cat. This failure to cross-examine engaged
    the rule in
Browne v. Dunn
.

[27]

The trial judge declined the Crowns request that he give an instruction
    on the failure to cross-examine because, in his view, it related to peripheral
    matters to a certain extent. The appellant argues that in the absence of an
    instruction, the jury would be left with the impression that the appellant
    should be held responsible for defence counsels errors. In my view, there is
    no merit in this submission.

[28]

With the trial judges permission, both counsel addressed the issue in
    their closing addresses. In the Crowns submissions, the jury was told that
    where a Crown witness is not cross-examined on an alternative version of
    events, the jury is entitled to place less weight on contradictory defence
    evidence and to use the absence of cross-examination in assessing the
    credibility of the defence witness.  In defence counsels closing address, she
    told the jury that it was open to the Crown to recall witnesses to explore
    these issues, which the Crown had also acknowledged. Both of these submissions
    were accurate and, contrary to the appellants submissions, in the circumstances
    of this case, there was nothing improper in the trial judge allowing counsel to
    address the issue, nor was there need for further comment from the trial judge
    in order to balance these submissions.

Disposition

[29]

I would dismiss the appeal.

Released: BWM FEB 15 2017

B.W. Miller J.A.

I agree. Janet Simmons
    J.A.

I agree. G. Pardu
    J.A.


